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Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1

Book the First, Chapter 1 - Of the Absolute Rights of Individuals

Used with the permission of the Online Library of Liberty


The objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

*[*122Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero,(a) and after him our Bracton,(b) have expressed it, sanctio justa, jubens honesta et prohibens contraria, it follows that the primary and principal object of the law are rights and wrongs. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring or losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors, with the means of prevention and punishment.1

We are now first to consider the rights of persons, with the means of acquiring and losing them.

**123]Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound **124]to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like,) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction.2 But, with respect to rights, the case is different Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And, therefore, the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in *[*125themselves are few and simple: and then such rights as are relative, which, arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to—though in reality they are not—than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.3

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obligos himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.(c) Hence we may collect that the law, which restrains a man from doing **126]mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of more indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state of society, which alone can secure our independence. Thus the statute of king Edward IV.,(d) which forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II.,(e)4 which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woollen,) is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather introductive, of liberty; for, as Mr. Locke has well observed,(f) where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.5

The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls **127]little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman;(g) though the master’s right to his service may possibly still continue.6

The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all.7 But the vigour of our free constitution has always delivered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.8

First, by the great charter of liberties, which was obtained, sword in hand, from king John, and afterwards, with some alterations, confirmed in parliament by king Henry the Third, his son. Which charter contained very few new grants; but, as Sir Edward Coke(h) observes, was for the most part declaratory of the principal grounds of the fundamental **128]laws of England. Afterwards by the statute called confirmatio cartarum,(i) whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that, by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes, (Sir Edward Coke, I think, reckons thirty-two,)(k) from the first Edward to Henry the Fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by king Charles the First in the beginning of his reign: which was closely followed by the still more ample concessions made by that unhappy prince to his parliament before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the Second. To these succeeded the bill of rights, or declaration delivered by the lords and commons to the Prince and Princess of Orange, 13th of February, 1688; and afterwards enacted in parliament, when they became king and queen; which declaration concludes in these remarkable words:—“and they do claim, demand, and insist upon, all and singular the premises, as their undoubted rights and liberties.” And the act of parliament itself(l) recognises “all and singular the rights and liberties asserted and claimed in the said declaration to be the true, ancient, and indubitable rights of the people of this kingdom.” Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement,(m) whereby the crown was limited to his present majesty’s illustrious house: and some new provisions were added, at the same fortunate era, for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of England,” according to the ancient doctrine of the common law.(n)

**129]Thus much for the declaration of our rights and liberties. The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These, therefore, were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property: because, as there is no other known method of compulsion, or abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.

I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder,9 was by the ancient law homicide or manslaughter.(o) But the modern law doth not look **130]upon this offence in quite so atrocious a light,10 but merely as a heinous misdemesnor.(p)

An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.11 It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it;(q) and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born.(r) And in this point the civil law agrees with ours.(s)

2. A man’s limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.

Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore, if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance.(t) And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two *[*131sorts: duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; “non,” as Bracton expresses it, “suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitæ periculum, aut corporis cruciatum.(u) A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one’s house burned, or one’s goods taken away and destroyed, because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages:(x) but no suitable atonement can be made for the loss of life or limb. And the indulgence shown to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter redemptum voluit.12

The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the Emperor Constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprised in the Theodosian code,(y) were rejected in Justinian’s collection.

**132]These rights of life and member, can only be determined by the death of the person; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was banished or abjured the realm(z) by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed: in which cases he was absolutely dead in law, and his next heir should have his estate. For such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations.(a) A monk was therefore counted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due from him, as if he were naturally deceased.(b) Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors, and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due.(c) In short, a monk or religious was so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion; for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one’s natural life.(d) But, *[*133even in the times of popery, the law of England took no cognizance of profession in any foreign country, because the fact could not be tried in our courts;(e) and therefore, since the Reformation, this disability is held to be abolished:(f) as is also the disability of banishment, consequent upon abjuration, by statute 21 Jac. I. c. 28.13

This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical; and that, whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may, by prudent caution, provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity;14 and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. “Nullus liber homo,” says the great charter,(g)aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terræ.” Which words, “aliquo modo destruatur,” according to Sir Edward Coke,(h) include a prohibition, not only of killing and maiming, but also of torturing, (to which our laws are strangers,) and of every oppression by colour of an illegal authority. And it is enacted by the statute of 5 Edw. III. c. 9, that no man shall be forejudged of life or limb contrary to the great charter and the *[*134law of the land; and again, by statute 28 Edw. III. c. 3, that no man shall be put to death, without being brought to answer by due process of law.

3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.

4. The preservation of a man’s health from such practices as may prejudice or annoy it; and

5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come,) it will suffice to have barely mentioned among the rights of persons: referring the more minute discussion of their several branches to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.

II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great **135]charter(i) is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land.15 And many subsequent old statutes(j) expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. 1. c. 10, if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king’s majesty in person, or by warrant of the council board, or of any of the privy council, he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king’s bench or common pleas, who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II. c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer.16 And, lest this act should be evaded by demanding unreasonable bail or sureties for the prisoner’s appearance, it is declared by 1 W. and M. st. 2, c. 2, that excessive bail ought not to be required.

Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any the highest magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the crown,)(k) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, *[*136are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, “dent operam consules ne quid respublica detrimenti capiat,” was called the senatus consultum ultimæ necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it forever.

The confinement of the person, in any wise, is an imprisonment; so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.(l) And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like, he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, **137]and, either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.(m) To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus.17 If there be no cause expressed, the jailer is not bound to detain the prisoner;(n) for the law judges, in this respect, saith Sir Edward Coke, like Festus the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged.

A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ ne exeat regno, and prohibit any of his subjects from going into foreign parts without license.(o) This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile and transportation are punishments at present unknown to the common law; and, wherever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of parliament.18 To this purpose the great charter(p) declares, that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2, (that second magna carta, and stable bulwark of our liberties,) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas, (where **138]they cannot have the full benefit and protection of the common law;) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a præmunire, and be incapable of receiving the king’s pardon; and the party suffering shall also have his private action against the person committing, and all his aiders, advisers, and abettors; and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds.

The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador.(q) For this might, in reality, be no more than an honourable exile.

III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter(r) has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free *[*139customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes(s) it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none.

So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.19

**140]Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. By the statute 25 Edw. I. c. 5 and 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4, c. 1, which(t) enacts that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III. st. 2, c. 1, the prelates, earls, barons, and commons, citizens, burgesses, and merchants, shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 Car. I., that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge without common consent by act of parliament. And, lastly, by the statute 1 W. and M. st. 2, c. 2, it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, or for longer time, or in other manner, than the same is or shall be granted, is illegal.

In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman.20 But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the *[*141constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,

1. The constitution, powers, and privileges of parliament; of which I shall treat at large in the ensuing chapter.

2. The limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people. Of this, also, I shall treat in its proper place. The former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.

3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of magna carta,(u) spoken in the person of the king, who in judgment of law (says Sir Edward Coke)(w) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every subject,” continues the same learned author, “for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts of parliament, *[*142wherein justice is directed to be done according to the law of the land; and what that law is every subject knows, or may know, if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall, however, just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta,(x) that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8, and 11 Ric. II. c. 10, it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is also made a part of their oath by statute 18 Edw. III. st. 4. And by 1 W. and M. st. 2, c. 2, it is declared that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for, if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old-established forms of the common law. For which reason it is declared, in the statute 16 Car. I. c. 10, upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority, by English bill, petition, articles, libel, (which were the course of proceeding in the starchamber, borrowed from the civil law,) or by any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.

4. **143]If there should happen any uncommon injury, or infringement of the rights before mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances.21 In Russia we are told(y) that the czar Peter established a law, that no subject might petition the throne till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong: the consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and, while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult, as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 Car. II. st. 1, c. 5, that no petition to the king, or either house of parliament, for any alteration in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury22 in the country; and in London by the lord mayor, aldermen, and common council: nor shall any petition be presented by more than ten persons at a time. But, under these regulations, it is declared by the statute 1 W. and M. st. 2, c. 2, that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal.

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are *[*144allowed by law.23 Which is also declared by the same statute, 1 W. and M. st. 2, c. 2, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank and property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in its full vigour; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints: restraints in themselves so gentle and moderate, as will appear, upon further inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing but what would be pernicious either to ourselves or our fellow-citizens. So that this review **145]of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom,(z) and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world where political or civil liberty is the direct end of its constitution. Recommending, therefore, to the student in our laws a further and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, “Esto Perpetua.

ESSAY VII.

OF REASONING.



 

CHAPTER I.

OF REASONING IN GENERAL, AND OF DEMONSTRATION

I. Of Reasoning in General, as distinguished from Judgment.] The power of reasoning is very nearly allied to that of judging; and it is of little consequence in the common affairs of life to distinguish them nicely. On this account, the same name is often given to both. We include both under the name of reason.* The assent we give to a proposition is called judgment, whether the proposition be self-evident, or derive its evidence by reasoning from other propositions. Yet there is a distinction between reasoning and judging. Reasoning is the process by which we pass from one judgment to another which is the consequence of it. Accord-

 

" "Reason (logos, ratio, raison, Vernunft) is a very vague, vacillating, and equivocal word. Throwing aside various accidental significations which it has obtained in particular languages, as in Greek denoting not only the ratio, but the oratio, of the Latins; throwing aside its employment, in most languages, for cause, motive, argument, principle of probation, or middle term of a syllogism, and considering it only as a philosophical word denoting a faculty, or complement of faculties; — in this relation it is found employed in the following meanings, not only by different individuals, but frequently, to a greater or less extent, by the same philosopher.

"It has, both in ancient and modern times, been very commonly em-ployed, like understanding and intellect, to denote our intelligent nature in general (logikon meros); and this usually as distinguished from the lower cognitive faculties, as sense, imagination, memory, — but always, and emphatically, as in contrast to the feelings and desires. In this signification, to follow the Aristotelic division, it comprehends,— 1°, conception, or simple apprehension (ennoia, noesis ton adiaireton, conceptus, conceptio, apprehensio simplex, das Bcgreifen); —2°, the compositive and divisive process, affirmation and negation, judgment {sunthesis kai diairesos, apophansis, judicium);—3°, reasoning or the discursive faculty {diavonia, logos, logismos, to sullogidzesthai, discursus, ratiociualio); — 4°, intellect or intelligence proper, either as the intuition, or as the place, of principles or self-evident truths (novs, intellectus, intelligentia, mens).

It has not unfrequently been employed to comprehend the third and fourth of the special functions above enumerated, — to wit, the dianoetic and noetic. In this meaning it is taken by Reid in his later works. Thus, in the Intellectual Powers, he states that reason, in its first office or degree (the noetic), is identical with common sense, — in its second (the dianoetic), with reasoning.

" It has very generally, both in ancient and modern philosophy, been employed for the third of the above special functions; — logos and logismos, ratio and ratiocinatio, reason and reasoning, being thus compounded.

" In the ancient systems it was very rarely used exclusively for the fourth special function, the noetic, in contrast to the dianoetic. Aristotle, indeed (Eth- Nic, Lib. VI. c. 12; Eth. End., Lib- V. c. 8), expressly says that reason is not the faculty of principles, that faculty being intelligence proper. Boethius {De Cons. Phil-, Lib. V. Fr. 5) states that reason or discursive intellect belongs to man, while intelligence or intuitive intellect is the exclusive attribute of Divinity ; while Porphyry somewhere says that1 we have intelligence in common with the gods, and reason in common with the brutes.' Sometimes, however, it was apparently so employed. Thus St. Augustine seems to view reason as the faculty of intuitive truths, and as opposed to reasoning (De Quant. An., $ 53; De Immort. An., 1, 10). This, however, is almost a singular exception.

" In modern times, though we frequently meet with reason, as a general faculty, distinguished from reasoning, as a particular, yet, until Kant, I am not aware that reason ( Vernunfl) was ever exclusively, or even emphatically, used in a signification corresponding to the noetic faculty, in its strict and special meaning, and opposed to understanding (Verstand) viewed as comprehending the other functions of thought, — unless Crusius.( \Veg, &c., $ 62 et seg.) may be regarded as Kant's forerunner in this innovation. Indeed, the Vernunjl of Kant, in its special signification (for he also uses it for reason in the first or more general meaning, as indeed nothing can be more vague and various than his employment of the word), cannot without considerable qualification be considered analogous to novs, far less to common sense; though his usurpation of the term for the faculty of principles probably determined Jacobi (who had originally, like philosophers in general, confounded Vernunfl with Verstand, reason with reasoning) to appropriate the term reason to what he had at first opposed to it, under the name of belief (Glaube).

" Kant's abusive employment of the term reason, for the faculty of the Unconditioned, determined also its adoption, under the same signification, in the philosophy of Fichte, Schelling. and Hegel; though novs, intellectus, intelligentia. which had been applied by the l'latonists in a similar sense, were (through Verstand, by which they had been always rendered into German) the only words suitable to express that cognition of the Absolute, in which subject and object, knowledge and existence, God and man, are supposed to be identified "

Abridged from Sir W. Hamilton's Note A, $ 5. — Ed

ingly, our judgments are distinguished into intuitive, which are not grounded upon any preceding judgment, and discursive, which are deduced from some preceding judgment by reasoning.

 

In all reasoning, therefore, there must be a proposition inferred, and one or more from which it is inferred. And this power of inferring, or drawing a conclusion, is only another name for reasoning; the proposition inferred being called the conclusion, and the proposition or propositions from which it is inferred, the premises.

Reasoning may consist of many steps; the first conclusion being a premise to a second, that to a third, and so on, till we come to the last conclusion. A process consisting of many steps of this kind is so easily distinguished from judgment, that it is never called by that name. But when there is only a single step to the conclusion, the distinction is less obvious, and the process is sometimes called judgment, sometimes reasoning.

It is not strange, that, in common discourse, judgment and reasoning should not be very nicely distinguished, since they are in some cases confounded even by logicians. We are taught in logic, that judgment is expressed by one proposition, but that reasoning requires two or three. But so various are the modes of speech, that what in one mode is expressed by two or three propositions may in another mode be expressed by one. Thus I may say, God is good; therefore good men shall be happy. This is reasoning, of that kind which logicians call an enthymeme, consisting of an antecedent proposition, and a conclusion drawn from it. But this reasoning may be expressed by one proposition, thus: Because God is good, good men shall be happy. This is what they call a causal proposition, and therefore expresses judgment; yet the enthymeme, which is reasoning, expresses no more 


Reasoning, as well as judgment, must be true or false; both are grounded upon evidence which may be probable or demonstrative, and both are accompanied with assent or belief.

The power of reasoning is justly accounted one of the prerogatives of human nature; because by it many important truths have been and may be discovered, which without it would be beyond our reach; yet it seems to be only a kind of crutch to a limited under-standing. We can conceive an understanding, superior to human, to which that truth appears intuitively which we can only discover by reasoning. For this cause, though we must ascribe judgment to the Almighty, we do not ascribe reasoning to him, because it implies some defect or limitation of understanding. Even among men, to use reasoning in things that are self-evident is trifling; like a man going upon crutches when he can walk upon his legs.

What reasoning is can be understood only by a man who has reasoned, and who is capable of reflecting upon this operation of his own mind. We can define it only by synonymous words or phrases, such as infer-ring, drawing a conclusion, and the like. The very notion of reasoning, therefore, can enter into the mind by no other channel than that of reflecting upon the operation of reasoning in our own minds; and the notions of premises and conclusion, of a syllogism and all its constituent parts, of an enthymeme, sorites, demonstration, paralogism, and many others, have the same origin.

The exercise of reasoning on various subjects, not only strengthens the faculty, but furnishes the mind with a store of materials. Every train of reasoning which is familiar becomes a beaten track in the way to many others. It removes many obstacles which lay in our way, and smooths many roads which we may have occasion to travel in future disquisitions. When men of equal natural parts apply their reasoning power to any subject, the man who has reasoned much on the same or on similar subjects has a like advantage over him who has not, as the mechanic who has store of tools for his work has over him who has his tools to make, or even to invent.

In a train of reasoning, the evidence of every step, 36* where nothing is left to be supplied by the reader or hearer, must be immediately discernible to every man of ripe understanding who has a distinct comprehension of the premises and conclusion, and who compares them together. To be able to comprehend, in one view, a combination of steps of this kind, is more difficult, and seems to require a superior natural ability. In all, it may be much improved by habit.

But the highest talent in reasoning is the invention of proofs; by which, truths remote from the premises are brought to light. In all works of understanding, invention has the highest praise; it requires an extensive view of what relates to the subject, and a quickness in discerning those affinities and relations which may be subservient to the purpose.

In all invention there must be some end in view: and sagacity in finding out the road that leads to this end is, I think, what we call invention. In this chiefly, as I apprehend, and in clear and distinct conceptions, consists that superiority of understanding which we call genius.

In every chain of reasoning, the evidence of the last conclusion can be no greater than that of the weakest link of the chain, whatever may be the strength of the rest.

II. Of Demonstrative Reasoning.] The most remarkable distinction of reasonings is, that some are probable, others demonstrative.

In every step of demonstrative reasoning, the inference is necessary, and we perceive it to be impossible that the conclusion should not follow from the premises. In probable reasoning, the connection between the premises and the conclusion is not necessary, nor do we perceive it to be impossible that the first should be true while the last is false.

Hence demonstrative reasoning has no degrees, nor can one demonstration be stronger than another, though, in relation to our faculties, one may be more easily comprehended than another. Every demonstration gives equal strength to the conclusion, and leaves no possibility of its being false.

It was, I think, the opinion of all the ancients, that demonstrative reasoning can be applied only to truths that are necessary, and not to those that are contingent. In this, I believe, they judged right. Of all created things, the existence, the attributes, and consequently the relations resulting from those attributes, are contingent. They depend upon the will and power of him who made them. These are matters of fact, and admit not of demonstration.

The field of demonstrative reasoning, therefore, is the various relations of things abstract, that is, of things which we conceive, without regard to their existence. Of these, as they are conceived by the mind, and are nothing but what they are conceived to be, we may have a clear and adequate comprehension. Their relations and attributes are necessary and immutable. They are the things to which the Pythagoreans and Platonists gave the name of ideas. I would beg leave to borrow this meaning of the word idea from those ancient philosophers, and then I must agree with them, that ideas are the only objects about which we can reason demonstratively.

There are many even of our ideas about which we can carry on no considerable train of reasoning. Though they be ever so well defined and perfectly comprehended, yet their agreements and disagreements are few, and these are discerned at once. We may go a step or two in forming a conclusion with regard to such objects, but can go no farther. There are others, about which we may, by a long train of demonstrative reasoning, arrive at conclusions very remote and unexpected.

The reasonings I have met with that can be called strictly demonstrative may, I think, be reduced to two classes. They are either metaphysical, or they are mathematical.

In metaphysical reasoning, the process is always short. The conclusion is but a step or two, seldom more, from the first principle or axiom on which it is grounded, and the different conclusions depend not one upon another.

It is otherwise in mathematical reasoning. Here the field has no limits. One proposition leads on to another, that to a third, and so on without end.

If it should be asked, why demonstrative reasoning has so wide a field in mathematics, while, in other abstract subjects, it is confined within very narrow limits, I conceive this is chiefly owing to the nature of quantity, the object of mathematics.

Every quantity, as it has magnitude, and is divisible into parts without end, so, in respect of its magnitude, it has a certain ratio to every quantity of the kind. The ratios of quantities are innumerable, such as, a half, a third, a tenth, double, triple. All the powers of number are insufficient to express the variety of ratios. For there are innumerable ratios which cannot be perfectly expressed by numbers, such as the ratio of the side to the diagonal of a square, of the circumference of a circle to the diameter. Of this infinite variety of ratios, every one may be clearly conceived, and distinctly expressed, so as to be in no danger of being mistaken for any other. Extended quantities, such as lines, surfaces, solids, besides the variety of relations they have in respect of magnitude, have no less variety in respect of figure; and every mathematical figure may be accurately defined, so as to distinguish it from all others.

There is nothing of this kind in other objects of abstract reasoning. Some of them have various degrees; but these are not capable of measure, nor can they be said to have an assignable ratio to others of the kind. They are either simple, or compounded of a few indivisible parts; and therefore, if we may be allowed the expression, can touch only in few points. But mathematical quantities, being made up of parts without number, can touch in innumerable points, and be compared in innumerable different ways.

There have been attempts made to measure the merit of actions by the ratios of the affections and principles of action from which they proceed. This may, per-haps, in the way of analogy, serve to illustrate what was before known; but I do not think any truth can be discovered in this way. There are, no doubt, degrees of benevolence, self-love, and other affections; but when we apply ratios to them, I apprehend we have no distinct meaning.*

Some demonstrations are called direct, others indirect. The first kind leads directly to the conclusion to be proved. Of the indirect, some are called demonstrations ad absurdum. In these the proposition contradictory to that which is to be proved is demonstrated to be false, or to lead to an absurdity; whence it follows, that its contradictory, that is, the proposition to be proved, is true. This inference is grounded upon an axiom in logic, that, of two contradictory propositions, if one be false, the other must be true.

* Mr. J. S. Mill, in his ingenious chapter, Of Demonstration and Necessary Truths, says : — " The opinion of Dugald Stewart respecting the foundations of geometry is, I conceive, substantially correct; — that it is built upon hypotheses; that it owes to this alone the peculiar certainty supposed to distinguish it; and that in any science whatever, by reasoning from a set of hypotheses, we may obtain a body of conclusions as certain as those of geometry, that is, as strictly in accordance with the hypotheses, and as irresistibly compelling assent on condition that those hypotheses are true" He allows, however, that the opponents of Stewart have greatly the advantage of him on another important point in the theory of geometrical reasoning, — the necessity of admitting as first principles axioms as well as definitions. " The axioms," he says, " as well those which are in-demonstrable as those which admit of being demonstrated, differ from that other class of fundamental principles which are involved in the definitions, in this, that they are true without any mixture of hypothesis." " It remains to inquire, what is the ground of our belief in axioms? —what is the evidence on which they rest? I answer, they are experimental truths; generalizations from observation. The proposition, Two straight lines can-not enclose a space, — or, in other words. Two straight lines which have once met do not meet again, but continue to diverge, — is an induction from the evidence of our senses." According to Mill, therefore, all truths, including mathematical truth, are either empirical or hypothetical.

For a brilliant polemic on this whole subject, see Stewart, Elements, Part II. Chap. IV.; Whewell's Mechanical Euclid, to which are added, Re-marks on Mathematical Reasoning, and his Philosophy of the Inductive Sciences, Part I. Book II.; Edinburgh Review, Vol. LXVII. p. 81 el seg ; Quarterly Review, Vol. LXVIII. p. 177 el seq.; Mill's Logic, Book II. Chap. "V, VI. — Ed.

This is called the principle of the excluded middle, — viz. between two contradictories. — H.

The lex exclusi medii reads thus:—"Either a given judgment must be true of any subject, or its contradictory; there is no middle course."—Ed.

Another kind of indirect demonstration proceeds by enumerating all the suppositions that can possibly be made concerning the proposition to be proved, and then demonstrating that all of them, excepting that which is to be proved, are false; whence it follows, that the excepted supposition is true. Thus one line is proved to be equal to another, by proving first that it cannot be greater, and then that it cannot be less: for it must be either greater, or less, or equal; and two of these sup-positions being demonstrated to be false, the third must be true.

All these kinds of demonstration are used in mathematics, and perhaps some others. They have all equal strength. The direct demonstration is preferred where it can be had, for this reason only, as I apprehend, that it is the shortest road to the conclusion. The nature of the evidence and its strength are the same in all: only we are conducted to it by different roads.

III. How far Morality is capable of Demonstration What has been said of demonstrative reasoning may help us to judge of an opinion of Mr. Locke, advanced in several places of his Essay; — to wit, "that morality is capable of demonstration as well as mathematics."

In Book III. Chap. XL, having observed that, mixed modes, especially those belonging to morality, being such combinations of ideas as the mind puts together of its own choice, the signification of their names may be perfectly and exactly defined, he adds, §16:— "Upon this ground it is that I am bold to think, that morality is capable of demonstration as well as mathematics: since the precise real essence of the things moral words stand for may be perfectly known, and so the congruity or incongruity of the things themselves be certainly discovered, in which consists perfect knowledge. Nor let any one object, that the names of sub-stances are often to be made use of in morality, as well as those of modes, from which will arise obscurity; for, as to substances, when concerned in moral discourses, their divers natures are not so much inquired into as supposed: v. g., when we say that man is subject, to law, we mean nothing by man but a corporeal rational creature; what the real essence or other qualities of that creature are, in this case, is no way considered."

Again, in Book IV. Chap. III. §18:—"The idea of a Supreme Being, whose workmanship we are, and the idea of ourselves, being such as are clear in us, would, I suppose, if duly considered and pursued, afford such foundation of our duty and rules of action, as might place morality among the sciences capable of demonstration. The relation of other modes may certainly be perceived, as well as those of number and extension; and I cannot see why they should not be capable of demonstration, if due methods were thought on to examine or pursue their agreement or disagreement."

He afterwards gives as instances two propositions, as moral propositions of which we may be as certain as of any in mathematics; and considers at large what may have given the advantage to the ideas of quantity, and made, them be thought more capable of certainty and demonstration.

Some of his learned correspondents, particularly his friend Mr. Molyneux, urged and importuned him to compose a system of morals according to the idea he had advanced in his Essay; and, in his answer to these solicitations, he only pleads other occupations, without suggesting any change of his opinion, or any great difficulty in the execution of what was desired.

Those philosophers who think that our determinations in morals are not real judgments, that right and wrong in human conduct are only certain feelings or sensations in the person who contemplates the action, must reject Mr. Locke's opinion without examination. For if the principles of morals be not a matter of judgment, but of feeling only, there can be no demonstration of them; nor can any other reason be given for them, but that men are so constituted by the Author of their being, as to contemplate with pleasure the actions we call virtuous, and with disgust those we call vicious. But if our determinations in morality be real judgments, and, like all other judgments, be either true or false, it is not unimportant to understand upon what kind of evidence those judgments rest. 


The argument offered by Mr. Locke, to show that morality is capable of demonstration, is, that "the, precise real essence of the things moral words stand for may be perfectly known, and so the congruity or incongruity of the things themselves be certainly discovered, in which consists perfect knowledge." The field of demonstration is the various relations of things con-ceived abstractly, of which we may have perfect and adequate conceptions; and Mr. Locke, taking all the things which moral words stand for to be of this kind, concluded that morality is as capable of demonstration as mathematics.

Now I acknowledge that the names of the virtues and vices, of right and obligation, of liberty and property, stand for things abstract, which may be accurately defined, or, at least, conceived as distinctly and adequately as mathematical quantities. And thence, in-deed, it follows, that their mutual relations may be perceived as clearly and certainly as mathematical truths. Of this Mr. Locke gives two pertinent examples: the first, " Where there is no property, there is no injustice, is," says he, " a proposition as certain as any demonstration in Euclid." When injustice is defined to be a violation of property, it is as necessary a truth, that there can be no injustice where there is no property, as that you cannot take from a man that which he has not. The second example is, that "no government allows absolute liberty." This is a truth no less certain and necessary. But such abstract truths I would call metaphysical rather than moral. We give the name of mathematical to truths that express the relations of quantities considered abstractly; all other abstract truths may be called metaphysical. But if those mentioned by Mr. Locke are to be called moral truths, I agree with him that there are many such that are necessarily true, and that have all the evidence that mathematical truths can have.  


It ought, however, to be remembered, that, as was before observed, the relations of things abstract, perceivable by us, excepting those of mathematical quantities, are few, and for the most part immediately dis-cerned, so as not to require that train of reasoning which we call demonstration. Their evidence resembles more that of mathematical axioms than mathematical propositions. This appears in the two propositions given as examples by Mr. Locke. The first follows immediately from the definition of injustice; the second, from the definition of government. Their evidence may more properly be called intuitive than demonstrative. And this I apprehend to be the case, or nearly the case, with all abstract truths that are not mathematical, for the reason given above.

The propositions which I think are properly called moral, are those that affirm some moral obligation to be, or not to be, incumbent on one or more individual persons. To such propositions Mr. Locke's reasoning does not apply, because the subjects of the proposition are not things whose real essence may be perfectly known. They are the creatures of God; their obligation results from the constitution which God has given them, and the circumstances in which he has placed them. That an individual has such a constitution, and is placed in such circumstances, is not an abstract and necessary, but a contingent truth. It is a matter of fact, and therefore not capable of demonstrative evidence, which belongs only to necessary truths.

If a man had not the faculty given him by God of perceiving certain things in conduct to be right, and others to be wrong, and of perceiving his obligation to do what is right, and not to do what is wrong, he would not be a moral and accountable being. If a man be endowed with such a faculty, there must be some things which, by this faculty, are immediately discerned to be right, and others to be wrong; and therefore there must be in morals, as in other sciences, first principles, which do not derive their evidence from any antecedent principles, but may be said to be intuitively discerned.  


Moral truths, therefore, may be divided into two classes, — to wit, such as are self-evident to every man whose understanding and moral faculty are ripe and such as are deduced by reasoning from those that are self-evident. If the first be not discerned without reasoning, the last never can be by any reasoning. If any man could say with sincerity, that he is conscious of no obligation to consult his own present and future happiness; to be faithful to his engagements; to obey his Maker; to injure no man; I know not what rea-soning, either probable or demonstrative, I could use to convince him of any moral duty. As you cannot reason in mathematics with a man who denies the axioms, as little can you reason with a man in morals who denies the first principles of morals. The man who does not, by the light of his own mind, perceive some things in conduct to be right, and others to be wrong, is as incapable of reasoning about morals as a blind man is about colors.

Every man knows certainly, that what he approves in other men he ought to do in like circumstances, and that he ought not to do what he condemns in oilier men. Every man knows that he ought, with candor, to use the best means of knowing his duty. To every man who has a conscience, these things are self-evi­dent. They arc immediate dictates of our moral (ac­uity, which is a part of the human constitution; and every man condemns himself, whether he will or not, when he knowingly acts contrary to them.

Thus I think it appears, that every man of common understanding knows certainly, and without reasoning, the ultimate ends he ought to pursue, and that reasoning is necessary only to discover the most proper means of attaining them; and in this, indeed, a good man may often be in doubt. Thus, a magistrate knows that it is his duty to promote the good of the community which has entrusted him with authority; and to offer to prove this to him by reasoning would be to affront him. But whether such a scheme of conduct in his office, or another, may best serve that end, he may in many cases be doubtful. I believe, in such cases, he can very rarely have demonstrative evidence. His conscience determines the end he ought to pursue, and he has intuitive evidence that his end is good; but prudence must determine the means of attaining that end; and prudence can very rarely use demonstrative reasoning, but must rest in what appears most probable.

Upon the whole, I agree with Mr. Locke, that propositions expressing the congruities and incongruities of things abstract, which moral words stand for, may have all the evidence of mathematical truths. But this is not peculiar to things which moral words stand for. It is common to abstract propositions of every kind. For instance: — You cannot lake from a man what he has not; A man cannot be bound and perfectly free at the same time. I think no man will call these moral truths, but they are necessary truths, and as evident as any in mathematics. Indeed, they are very nearly allied to the two which Mr. Locke gives as instances of moral propositions capable of demonstration. Of such abstract propositions, however, I think it may more properly be said that they have the evidence of mathematical axioms, than that they are capable of demonstration.

There are propositions of another kind, which alone deserve the name of moral propositions. They are such as affirm something to be the duty of persons that really exist. These are not abstract propositions; and therefore Mr. Locke's reasoning does not apply to them. The truth of all such propositions depends upon the constitution and circumstances of the persons to whom they are applied.

Of such propositions, there are some that arc self-evident to every man that has a conscience; and these are the principles from which all moral reasoning must be drawn. They may be called the axioms of morals. But our reasoning from these axioms to any duty that is not self-evident, can very rarely be demonstrative. Nor is this any detriment to the cause of virtue, be-cause to act against what appears most probable in a matter of duty is as real a trespass against the first principles of morality, as to act against demonstration; and because he who has but one talent in reasoning, and makes the proper use of it, shall be accepted, as well as he to whom God has given ten.

  

 

CHAPTER II.

OF PROBABLE REASONING.

I. Distinction between Probable and Demonstrative Reasoning-.] The field of demonstration, as has been observed, is necessary truth; the field of probable reasoning is contingent truth, — not what necessarily must be at all times, but what is, or was, or shall be.

No contingent truth is capable of strict demonstration; but necessary truths may sometimes have probable evidence. Dr. Wallis discovered many important mathematical truths, by that kind of induction which draws a general conclusion from particular premises. This is not strict demonstration, but, in some cases, gives as full conviction as demonstration itself; and a man may be certain that a truth is demonstrable before it ever has been demonstrated. In other cases, a mathematical proposition may have such probable evidence from induction or analogy, as encourages the mathe-matician to investigate its demonstration. But still the reasoning proper to mathematical and other necessary truths is demonstration; and that which is proper to contingent truths is probable reasoning.

These two kinds of reasoning differ in other respects. In demonstrative reasoning, one argument is as good as a thousand. One demonstration may be more elegant than another; it may be more easily comprehended, or it may be more subservient to some purpose beyond the present. On any of these accounts, it may deserve a preference: but then it is sufficient by itself; it needs no aid from another; it can receive none. To add more demonstrations of the same conclusion would be a kind of tautology in reasoning; because one demonstration, clearly comprehended, gives all the evidence we are capable of receiving.

The strength of probable reasoning, for the most part, depends, not upon any one argument, but upon many, which unite their force, and lead to the same conclusion. Any one of them by itself would be insufficient to convince; but the whole taken together may have a force that is irresistible, so that to desire more evidence would be absurd. "Would any man seek new argu-ments to prove that there were such persons as King Charles the First, or Oliver Cromwell? Such evidence may be compared to a rope made up of many slender filaments twisted together. The rope has strength more than sufficient to bear the stress laid upon it, though no one of the filaments of which it is composed would be sufficient for that purpose. 


 

It is a common observation, that it is unreasonable to require demonstration for things which do not admit of it. It is no less unreasonable to require reasoning of any kind for things which are known without reasoning. All reasoning must be grounded upon truths which are known without reasoning. In every branch of real knowledge there must be first principles whose truth is known intuitively, without reasoning, either probable or demonstrative. They are not grounded on reasoning, but all reasoning is grounded on them. It has been shown, that there are first principles of necessary truths, and first principles of contingent truths. Demonstrative reasoning is grounded upon the former, and probable reasoning upon the latter.

That we may not be embarrassed by the ambiguity of words, it is proper to observe, that there is a popular meaning of probable evidence, which ought not to be confounded with the philosophical meaning above ex-plained. In common language, probable evidence is considered as an inferior degree of evidence, and is op-posed to certainty; so that what is certain is more than probable, and what is only probable is not certain. 37*

Philosophers consider probable evidence, not as a degree, but as a species of evidence which is opposed, not to certainly, but to another species of evidence called demonstration. Demonstrative evidence has no degrees; but probable evidence, taken in the philosophical sense, has all degrees, from the very least to the greatest, which we call certainty. That there is such a city as Rome, I am as certain as of any proposition in Euclid; but the evidence is not demonstrative, but of that kind which philosophers call probable. Yet, in common language, it would sound oddly to say, It is probable there is such a city as Rome, because it would imply some degree of doubt or uncertainty.

Taking probable evidence, therefore, in the philosophical sense, as it is opposed to demonstrative, it may have any degree of evidence, from the least to the greatest.

I think, in most cases, we measure the degrees of evidence by the effect they have upon a sound under-standing, when comprehended clearly, and without prejudice. Every degree of evidence perceived by the mind produces a proportioned degree of assent or belief. The judgment may be in perfect suspense between two contradictory opinions, when there is no evidence for either, or equal evidence for both. The least preponderancy on one side inclines the judgment in proportion. Belief is mixed with doubt, more or less, until we come to the highest degree of evidence, when all doubt vanishes, and the belief is firm and immovable. This degree of evidence, the highest the human faculties can attain, we call certainty.

II. Different Kinds of Probable Evidence.] Probable evidence not only differs in kind from demonstrative, but is itself of different kinds. The chief of these I shall mention, without pretending to make a complete enumeration.

1. The first kind is that of human testimony, upon which the greatest part of human knowledge is built.

The faith of history depends upon it, as well as the judgment of solemn tribunals with regard to men's acquired rights, and with regard to their guilt or innocence when they are charged with crimes. A great part of the business of the judge, of counsel at the bar, of the historian, the critic, and the antiquarian, is to canvass and weigh this kind of evidence; and no man can act with common prudence, in the ordinary occurrences of life, who has not some competent judgment of it.

The belief we give to testimony, in many cases, is not solely grounded upon the veracity of the testifier. In a single testimony, we consider the motives a man might have to falsify. If there be no appearance of any such motive, much more if there be motives on the other side, his testimony has weight independent of his moral character. If the testimony be circumstantial, we consider how far the circumstances agree together, and with things that are known. It is so very difficult to fabricate a story, which cannot be detected by a judicious examination of the circumstances, that it ac-quires evidence by being able to bear such a trial. There is an art in detecting false evidence in judicial proceedings, well known to able judges and barristers; so that I believe few false witnesses leave the bar with-out suspicion of their guilt.

When there is an agreement of many witnesses, in a great variety of circumstances, without the possibility of a previous concert, the evidence may be equal to that of demonstration.[1][1][1]

2. A second kind of probable evidence is the authority of those who are good judges of the point in question. The supreme court of judicature of the British nation is often determined by the opinion of lawyers in a point of law, of physicians in a point of medicine, and of other artists in what relates to their several professions. And, in the common affairs of life, we frequently rely upon the judgment of others, in points of which we are not proper judges ourselves.

3.    A third kind of probable evidence is that by which we recognize the identity of things, and persons of our acquaintance. That two swords, two horses, or two persons may be so perfectly alike, as not to be distin-guishable by those to whom they are best known, can-not be shown to be impossible. But we learn either from nature, or from experience, that it never happens; or so very rarely, that a person or thing well known to us is immediately recognized without any doubt, when we perceive the marks or signs by which we have been accustomed to distinguish it from all other individuals of the kind.

This evidence we rely upon in the most important affairs of life, and by this evidence the identity both of things and of persons is determined in courts of judicature.

4.    A fourth kind of probable evidence is that which we have of men's future actions and conduct, from the general principles of action in man, or from our knowledge of the individuals.

Notwithstanding the folly and vice that are to be found among men, there is a certain degree of prudence and probity which we rely upon in every man that is not insane. If it were not so, no man would be safe in the company of another, and there could be no society among mankind. If men were as much disposed to hurt as to do good, to lie as to speak truth, they could not live together: they would keep at as great a distance from one another as possible, and the race would soon perish. We expect that men will take some care of themselves, of their family, friends, and reputation; that they will not injure others without some temptation; that they will have some gratitude for good offices, and some resentment of injuries.

Such maxims with regard to human conduct are the foundation of all political reasoning, and of common prudence in the conduct of life. Hardly can a man form any project in public or in private life, which does not depend upon the conduct of other men, as well as his own, and which does not go upon the supposition, that men will act such a part in such circumstances. This evidence may be probable in a very high degree, but can never be demonstrative. The best concerted project may fail, and wise counsels may be frustrated, because some individual acted a part which it would have been against all reason to expect.

5.    Another kind of probable evidence, the counter-part of the last, is that by which we collect men's characters and designs from their actions, speech, and other external signs.

We see not men's hearts, nor the principles by which they are actuated; but there are external signs of their principles and dispositions, which, though not certain, may sometimes be more trusted than their professions; and it is from external signs that we must draw all the knowledge we can attain of men's characters.

6.     The next kind of probable evidence I mention is that which mathematicians call the probability of chances.

We attribute some events to chance, because we know only the remote cause which must produce some one event of a number; but know not the more immediate cause which determines a particular event of that number, in preference to the others. I think all the chances about which we reason in mathematics are of this kind. Thus, in throwing a just die upon a table, we say it is an equal chance which of the six sides shall be turned up; because neither the person who throws, nor the by-standers, know the precise measure of force and direction necessary to turn up any one side rather than another. There are here, therefore, six events, one of which must happen; and as all are supposed to have equal probability, the probability of any one side being turned up — the ace, for instance — is as one to the remaining number, five. The probability of turning up two aces with two dice is as one to thirty-five; because here there are thirty-six events, each of which has equal probability.

Upon such principles as these, the doctrine of chances has furnished a field of demonstrative reasoning of great extent, although the events about which this reasoning is employed be not necessary, but contingent, and be not certain, but probable. This may seem to contradict a principle before advanced, that contingent truths are not capable of demonstration; but it does not: for in the mathematical reasonings about chance, the conclusion demonstrated is not that such an event shall happen, but that the probability of its happening- bears such a ratio to the probability of its failing; and this conclusion is necessary upon the suppositions on which it is grounded.

7. The last kind of probable evidence I shall mention is that by which the known laws of nature have been discovered, and the effects which have been produced by them in former ages, or which may be expected in time to come.

The laws of nature are the rules by which the Supreme Being governs the world. We deduce them only from facts that fall within our own observation, or are properly attested by those who have observed them.

The knowledge of some of the laws of nature is necessary to all men in the conduct of life. These are soon discovered, even by savages. They know that fire burns, that water drowns, that bodies gravitate to-wards the earth. They know that day and night, summer and winter, regularly succeed each other. As far back as their experience and information reach, they know that these have happened regularly; and, upon this ground, they are led, by the constitution of human nature, to expect that they will happen in time to come, in like circumstances.

The knowledge which the philosopher attains of the laws of nature differs from that of the vulgar, not in the first principles on which it is grounded, but in its extent and accuracy. He collects with care the phenomena that lead to the same conclusion, and compares them with those that seem to contradict or to limit it. He observes the circumstances on which every phenomenon depends, and distinguishes them carefully from those that are accidentally conjoined with it. He puts natural bodies in various situations, and applies them to one another in various ways, on purpose to observe the effect; and thus acquires from his senses a more extensive knowledge of the course of nature in a short time, than could be collected by casual observation in many ages.

But what is the result of his laborious researches? It is, that, as far as he has been able to observe, such things have always happened in such circumstances, and such bodies have always been found to have such properties. These are matters of fact, attested by sense, memory, and testimony, just as the few facts which the vulgar know are attested to them.

And what conclusions does the philosopher draw from the facts he has collected? They are, that like events have happened in former times in like circumstances, and will happen in time to come; and these conclusions are built on the very same ground on which the simple rustic concludes that the sun will rise tomorrow.

Facts reduced to general rules, and the consequences of those general rules, are all that we really know of the material world. And the evidence that such general rules have no exceptions, as well as the evidence that they will be the same in time to come as they have been in time past, can never be demonstrative. It is only that species of evidence which philosophers call probable. General rules may have exceptions or limitations which no man ever had occasion to observe. The laws of nature may be changed by Him who established them. But we are led by our constitution to rely upon their continuance with as little doubt as if it was demonstrable.[2][2][2]

 

CHAPTER III.

OF MR. HUME'S SKEPTICISM WITH REGARD TO REASON.

I. He reduces all Knowledge to Probability.] In the Treatise of Human Nature, Book I. Part IV. Sect I., the author undertakes to prove two points:—First, that all that is called human knowledge (meaning demonstrative knowledge) is only probability; and secondly, that this probability, when duly examined, evanishes by degrees, and leaves at last no evidence at all: so that, in the issue, there is no ground to believe any one proposition rather than its contrary, and "all those are certainly fools who reason, or believe any thing."

To pretend to prove by reasoning that there is no force in reason, does indeed look like a philosophical delirium. It is like a man's pretending to see clearly that he himself and all other men are blind.

Still, it may not be improper to inquire, whether, as the author thinks, this state of mind was produced by a just application of the rules of logic, or, as others may be apt to think, by the misapplication and abuse of them.

First, Because we are fallible, the author infers that all knowledge degenerates into probability.

That man, and probably every created being, is falli­ble, and that a fallible being cannot have that perfect comprehension and assurance of truth which an infallible being has, I think ought to be granted. It becomes a fallible being to be modest, open to new light, and sensible that, by some false bias, or by rash judging, he may be misled. If this be called a degree of skepticism, I cannot help approving of it, being persuaded that the man who makes the best use he can of the faculties which God has given him, without thinking them more perfect than they really are, may have all the belief that is necessary in the conduct of life, and all that is necessary to his acceptance with his Maker.

It is granted, then, that human judgments ought al-ways to be formed with a humble sense of our fallibility in judging. This is all that can be inferred by the rules of logic from our being fallible. And if this be all that is meant by our knowledge degenerating into probability, I know no person of a different opinion. But it may be observed, that the author here uses the word probability in a sense for which I know no authority but his own. Philosophers understand probability as opposed to demonstration; the vulgar as opposed to certainty but this author understands it as opposed to infallibility, which no man claims.

One who believes himself to be fallible may still hold it to be certain that two and two make four, and that two contradictory propositions cannot both be true. He may believe some things to be probable only, and other things to be demonstrable, without making any pretence to infallibility.

If we use words in their proper meaning, it is impossible that demonstration should degenerate into probability from the imperfection of our faculties. Our judgment cannot change the nature of the things about which we judge. What is really demonstration will still be so, whatever judgment we form concerning it. It may likewise be observed, that, when we mistake that for demonstration which really is not, the consequence of this mistake is, not that demonstration de-generates into probability, but that what we took to be demonstration is no proof at all; for one false step in a demonstration destroys the whole, but cannot turn it into another kind of proof.

Upon the whole, then, this first conclusion of our author, that the fallibility of human judgment turns all knowledge into probability, if understood literally, is absurd; but if it be only a figure of speech, and means no more than that, in all our judgments, we ought to be sensible of our fallibility, and ought to hold our opinions with that modesty that becomes fallible creatures, which I take to be what the author meant, this, I think, nobody denies, nor was it necessary to enter into a laborious proof of it.

II. And all Probability to Nothing-.] The second point which he attempts to prove is, that this probability, when duly examined, suffers a continual diminution, and at last a total extinction.

The obvious consequence of this is, that no fallible being can have good reason to believe any thing at all. But let us hear the proof.

"In every judgment, we ought to correct the first judgment derived from the nature of the object, by another judgment derived from the nature of the understanding. Beside the original uncertainty inherent in the subject, there arises another, derived from the weakness of the faculty which judges. Having adjusted these two uncertainties together, we are obliged, by our reason, to add a new uncertainty, derived from the possibility of error in the estimation we make of the truth and fidelity of our faculties. This is a doubt of which, if we would closely pursue our reasoning, we cannot avoid giving a decision. But this decision, though it should be favorable to our preceding judgment, being founded only on probability, must weaken still further our first evidence. The third uncertainty must in like manner be criticized by a fourth, and so on without end.

"Now, as every one of these uncertainties takes away a part of the original evidence, it must at last be re­duced to nothing. Let our first belief be ever so strong, it must infallibly perish by passing through so many examinations, each of which carries off somewhat of its force and vigor. No finite object can subsist under a decrease repeated in infinitum."

This is the author's Achillean argument against the evidence of reason, from which he concludes, that a man who would govern his belief by reason must believe nothing at all, and that belief is an act, not of the cogitative, but of the sensitive part of our nature. If there be any such thing as motion, said an ancient skeptic, the swift-footed Achilles could never overtake an old man in a journey. For, suppose the old man to set out a thousand paces before Achilles, and that, while Achilles has travelled the thousand paces, the old man has got five hundred; when Achilles has gone the five hundred, the old man has gone two hundred and fifty; and when Achilles has gone the two hundred and fifty, the old man is still one hundred and twenty-five before him. Repeat these estimations in infinitum, and you will still find the old man foremost; therefore Achilles can never overtake him; therefore there can be no such thing as motion.

The reasoning of the modern skeptic against reason is equally ingenious, and equally convincing. Indeed, they have a great similarity. If we trace the journey of Achilles two thousand paces, we shall find the very point where the old man is overtaken: but this short journey, by dividing it into an infinite number of stages, with corresponding estimations, is made to appear infinite. In like manner, our author, subjecting every judgment to an infinite number of successive probable estimations, reduces the evidence to nothing.

To return, then, to the argument of the modern skeptic. I examine the proof of a theorem of Euclid. It appears to me to be strict demonstration. But I may have overlooked some fallacy; therefore I examine it again and again, but can find no flaw in it. I find all that have examined it agree with me. I have now that evidence of the truth of the proposition which I and all men call demonstration, and that belief of it which we call certainty.

Here my skeptical friend interposes, and assures me, that, the rules of logic reduce this demonstration to no evidence at all. I am willing to hear what step in it he thinks fallacious, and why. He makes no objection to any part of the demonstration, but pleads my fallibility in judging. I have made the proper allowance for this already, by being open to conviction. "But," says he, "there are two uncertainties, the first inherent in the subject, which I have already shown to have only probable evidence; the second arising from the weakness of the faculty that judges." I answer, it is the weakness of the faculty only that reduces this demonstration to what you call probability. You must not, therefore, make it a second uncertainty; for it is the same with the first. To take credit twice in an ac-count for the same article is not agreeable to the rules of logic. Hitherto, therefore, there is but one uncertainty,— to wit, my fallibility in judging.

" But," says my friend, " you are obliged by reason to add a new uncertainty, derived from the possibility of error in the estimation you make of the truth and fidelity of your faculties." I answer,— This estimation is ambiguously expressed; it may either mean an estimation of my liableness to err by the misapplication and abuse of my faculties, or it may mean an estimation of my liableness to err by conceiving my faculties to be true and faithful, while they may be false and fallacious in themselves, even when applied in the best manner. I shall consider this estimation in each of these senses.

If the first be the estimation meant, it is true that reason directs us, as fallible creatures, to carry along with us, in all our judgments, a sense of our fallibility. It is true, also, that we are in greater danger of erring in some cases, and less in others; and that this danger of erring may, according to the circumstances of the case, admit of an estimation, which we ought likewise to carry along with us in every judgment we form.

After repeated examination of a proposition of Eu-38* clid, I judge it to be strictly demonstrated; this is my first judgment. But as I am liable to err from various causes, I consider how far I may have been misled by any of these causes in this judgment. My decision upon this second point is favorable to my first judgment, and therefore, as I apprehend, must strengthen it. To say, that this decision, because it is only probable, must weaken the first, evidence, seems to me contrary to all rules of logic, and to common sense. The first judgment may be compared to the testimony of a credible witness; the second, after a scrutiny into the character of the witness, wipes off every objection that can be made to it, and therefore surely must confirm, and not weaken, his testimony.

But let us suppose, that, in another case, I examine my first judgment upon some point, and find, that it was attended with unfavorable circumstances. What, in reason, and according to the rules of logic, ought to be the effect of this discovery ?

The effect surely will be, and ought to be, to make me less confident in my first judgment, until I examine the point anew in more favorable circumstances. If it be a matter of importance, I return to weigh the evi-dence of my first judgment. If it was precipitate be-fore, it must now be deliberate in every point. If at first I was in passion, I must now be cool. If I had an interest in the decision, I must place the interest on the other side.

It is evident, that this review of the subject may con-firm my first judgment, notwithstanding the suspicious circumstances that attended it. Though the judge was biased or corrupted, it does not follow that the sentence was unjust. The rectitude of the decision does not depend upon the character of the judge, but upon the nature of the case. From that only it must be determined whether the decision be just. The circumstances that rendered it suspicious are mere presumptions, which have no force against direct evidence.

Thus, I have considered the effect of this estimation of our liableness to err in our first judgment, and have allowed to it all the effect that reason and the rules of logic permit. In the case I first supposed, and in every case where we can discover no cause of error, it affords a presumption in favor of the first judgment. In other cases, it may afford a presumption against it. But the rules of logic require that we should not judge by presumptions where we have direct evidence. The effect of an unfavorable presumption should only be, to make us examine the evidence with the greater care.

The skeptic urges, in the last place, that this estimation must be subjected to another estimation, that to another, and so on in infinitum; and as every new estimation takes away from the evidence of the first judgment, it must at last be totally annihilated.

I answer, first, it has been shown above, that the first estimation, supposing it unfavorable, can only afford a presumption against the first judgment; the second, upon the same supposition, will be only the presump-tion of a presumption; and the third, the presumption that there is a presumption of a presumption. This in-finite series of presumptions resembles an infinite series of quantities decreasing in geometrical proportion, which amounts only to a finite sum. The infinite series of stages of Achilles's journey after the old man amounts only to two thousand paces; nor can this infinite series of presumptions outweigh one solid argument in favor of the first judgment, supposing them all to be unfavorable to it.

Secondly, I have shown, that the estimation of our first judgment may strengthen it; and the same thing may be said of all the subsequent estimations. It would, therefore, be as reasonable to conclude, that the first judgment will be brought to infallible certainty when this series of estimations is wholly in its favor, as that its evidence will be brought, to nothing by such a series supposed to be wholly unfavorable to it. But, in reality, one serious and cool reexamination of the evidence by which our first judgment is supported has, and, in reason, ought to have, more force to strengthen or weaken it, than an infinite series of such estimations as our author requires.

Thirdly, I know no reason nor rule in logic that requires that such a series of estimations should follow every particular judgment. The author's reasoning supposes, that a man, when he forms his first judgment, conceives himself to be infallible; that by a second and subsequent judgment, he discovers that he is not infallible; and that by a third judgment, subsequent to the second, he estimates his liableness to err in such a case as the present.

If the man proceed in this order, I grant that his second judgment will, with good reason, bring down the first from supposed infallibility to fallibility; and that his third judgment will, in some degree, either strength-en or weaken the first, as it is corrected by the second. But every man of understanding proceeds in a contrary order. When about to judge in any particular point, he knows already that he is not infallible. He knows what are the cases in which he is most or least liable to err. The conviction of these things is always present to his mind, and influences the degree of his assent in his first judgment, as far as to him appears reason-able. If he should afterwards find reason to suspect his first judgment, and desires to have all the satisfaction his faculties can give, reason will direct him not to form such a series of estimations upon estimations as this author requires, but to examine the evidence of his first judgment carefully and coolly; and this review may very reasonably, according to its result, either strengthen or weaken, or totally overturn, his first judgment.

This infinite series of estimations, therefore, is not the method that reason directs in order to form our judgment in any case. It is introduced without necessity, without any use but to puzzle the understanding, and to make us think, that to judge, even in the simplest and plainest cases, is a matter of insurmountable difficulty and endless labor; Just as the ancient skeptic, to make a journey of two thousand paces appear endless, divided it into an infinite number of stages.

But we observed, that the estimation which our au­thor requires may admit of another meaning, which, indeed, is more agreeable to the expression, but inconsistent with what he advanced before.

By the possibility of error in the estimation of the truth and fidelity of our faculties, may be meant, that we may err by esteeming our faculties true and faithful, while, in fact, they may be false and fallacious, even when used according to the rules of reason and logic.

If this be meant, I answer, first, that the truth and fidelity of our faculty of judging are, and must be, taken for granted in every judgment and in every estimation.

If the skeptic can seriously doubt of the truth and fidelity of his faculty of judging when properly used, and suspend his judgment upon that point till he finds proof, his skepticism admits of no cure by reasoning, and he must even continue in it until he have new faculties given him, which shall have authority to sit in judgment upon the old. Nor is there any need of an endless succession of doubts upon this subject, for the first puts an end to all judgment and reasoning, and to the possibility of conviction by that means. The skeptic has here got possession of a stronghold which is impregnable to reasoning, and we must leave him in possession of it, till nature, by other means, makes him give it up.

Secondly, I observe, that this ground of skepticism, from the supposed infidelity of our faculties, contradicts what the author before advanced in this very argument, to wit, that "the rules of the demonstrative sciences are certain and infallible, and that truth is the natural effect of reason, and that error arises from the eruption of other causes."

But perhaps he made these concessions unwarily. He is therefore at liberty to retract them, and to rest his skepticism upon this sole foundation, that no reasoning can prove the truth and fidelity of our faculties. Here he stands upon firm ground: for it is evident, that every argument offered to prove the truth and fidelity of our faculties takes for granted the thing in question, and is therefore that kind of sophism which logicians call petitio principii.

All we would ask of this kind of skeptic is, that he would be uniform and consistent, and that his practice in life do not belie his profession of skepticism with regard to the fidelity of his faculties: for the want of faith, as well as faith itself, is best shown by works. If a skeptic avoid the fire as much as those who believe it dangerous to go into it, we can hardly avoid thinking his skepticism to be feigned, and not real.

Our author, indeed, was aware, that neither his skepticism, nor that of any other person, was able to endure this trial, and therefore enters a caveat against it. "Neither I," says he, " nor any other person, was ever sincerely and constantly of that opinion. Nature, by an absolute and uncontrollable necessity, has deter-mined us to judge, as well as to breathe arid feel."

Upon the whole, I see only two conclusions that can be fairly drawn from this profound and intricate reasoning against reason. The first is, that we are fallible in all our judgments and in all our reasonings. The second, that the truth and fidelity of our faculties can never be proved by reasoning; and therefore our trust in them cannot be founded on reasoning. If the last be what the author calls his hypothesis, I subscribe to it, and think it not an hypothesis, but a manifest truth; though I conceive it to be very improperly expressed by saying that belief is more properly an act of the sensitive than of the cogitative part of our nature.*


 

* On the general subject of skepticism, see Fichte's Destination of Man; Jouffroy's Introduction to Ethics, Lectures VIII.-X.; Ancillon, Essai sur la Science et sur la Foi Philosophique; Javavy, De la Certitude. — Ed

 

[1][1][1]See Babbage's Ninth Bridgewater Treatise, Note E, On Hume's Argu-ment against Miracles; in which it is demonstrated mathematically that " it is always possible to assign a number of independent witnesses, the improbability of the falsehood of whose concurring testimony shall be greater than the improbability of the alleged miracle." — Ed.

[1][1][2]As Reid gives an entire Essay to Reasoning, it is remarkable that he does not treat of induction by name, to which his last-mentioned form of probable reasoning belongs, nor mark the distinction between inductive and deductive reasoning. To supply this defect I copy a passage from Joullroy (Introduction to Ethics, Lect. TX-), one of the most faithful of Reid's followers : —

" This is the process of reasoning by induction : — when several particular cases, which are analogous, have been ascertained by observation, and stored up in the memory, reason applies to this series of analogous observations the a priori principle, that the laws of nature are constant; and, at once, what was true through observation in only twenty, thirty, or forty observed cases, becomes, by the application of this principle, a general law, as true of other cases not observed as of those which observation has ascertained. From the results of observation, and solely by the application to those results of a conception of reason, the mind arrives at a conse quencc that transcends them. Such is the method of reasoning by induction. Its characteristic is, that it proceeds from certain results, communicated by observation, to a general principle, within which they are included.

" The process of reasoning by deduction is as follows: — A truth of any kind, particular, general, or universal, being made known, reason deduces from it whatever other truths it includes. Sometimes the deduction is complete, in which case reason only presents the whole truth under two different aspects; at other times the deduction is imperfect, and then reason passes from the whole to a part. But in either case, if we compare together the results of our reasoning and the premises from which we drew them, we shall always find that these results, and a part or the whole of the premises, arc perfectly equivalent. This is the special characteristic of deductive reasoning."

The following admirable passage on the verification of inductions is from the Quarterly Review, Vol. LXVTII. p 233: —

" It is of great moment to distinguish the characters of a sound induction. One of them is its ready identification with our conceptions of fact-, so as to make itself a part of them, to engraft itself into language, and by no subsequent effort of the mind to be got rid of. The leading term of a true theory once pronounced, we cannot fall back, even in thought, to that helpless state of doubt and bewilderment in which we gazed on the facts before. The general proposition is more than a sum of the particulars. Our dots are filled in and connected by an ideal outline, which we pursue even be-yond their limits, assign it a name, and speak of it as a thing. In all our propositions, this new thing is referred to, the elements of which it is formed are forgotten; and thus we arrive at an inductive formula, — a general, perhaps a universal, proposition.

" Another character of sound inductions is that they enable us to predict. We feel secure that our rule is based upon the realities of nature, when it stands us in the stead of more experience ; when it embodies facts, as an experience wider than our own would do, and in a way that our ordinary experience would never reach ; when it will bear, not stress, but torture, and gives true results in cases studiously different from those which led to the discovery. The theories of Newton and Fresncl arc full of such cases. In the latter, indeed [the theory of polarization], this test is carried to such an extreme, that theory has actually remanded back experiment to read her lesson anew, and convicted her of blindness and error. It has informed her of facts so strange as to appear to her impossible, and showed her all the singularities she would observe in critical cases she never dreamed of trying.

" Another character, which is exemplified only in the greatest theories, is the consilience of inductions, where many and widely different lines of experience spring together into one theory which explains them all, and that in a more simple manner than seemed to be required for either separately. Thus, in the infinitely varied phenomena of physical astronomy, when all are discussed and all explained, we hear from all quarters the consentaneous echoes of but one word, —gravitation."

For recent authorities on the subject of induction, sec Baden Powell's Connection of Natural and Divine Truth, Sect. I.; Whewell's Philosophy of the Inductive Sciences, Books I., XI.. and XIII.; Mill's Logic, Book III.; Whewell, On Induction with Special Inference to Mr. Mill's system of Logic. — Ed.  


 

Lectures on Law, Chapters 1–4, 7, 9

1790

By James Wilson

[James Wilson. "Lectures on Law." Collected Works of James Wilson. Volume 1. Edited by Mark David Hall and Kermit L. Hall. Indianapolis, Ind.: The Liberty Fund. 2007. Chapters 1–4, 7, 9. Online Library of Liberty. Used with permission of the Liberty Fund.]


CONTENTS:

Chapter I: Introduction
Chapter II: Of the General Principles of Law and Obligation
Chapter III: Of the Law of Nature
Chapter IV: Of the Law of Nations
Chapter V: Of Municipal Law [OMITTED]
Chapter VI: Of Man, As an Individual [OMITTED]
Chapter VII: Of Man, As a Member of Society
Chapter VIII: Of Man, As a Member of a Confederation [OMITTED]
Chapter IX: Of Man, As a Member of the Great Commonwealth of Nations (Excerpt)
Chapter X: Of Government [OMITTED]
Chapter XI: Comparison of the Constitution of the United States with That of Great Britain [OMITTED]

 

IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY, AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE

PART I

CHAPTER I

Introductory Lecture. Of the Study of the Law in the United States.

. . .

Were I called upon for my reasons why I deem so highly of the American character, I would assign them in a very few words—That character has been eminently distinguished by the love of liberty, and the love of law.

. . .

. . . But law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge. The same course of study, properly directed, will lead us to the knowledge of both. Indeed, neither of them can be known, because neither of them can exist, without the other. Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness. In denominating, therefore, that science, by which the knowledge of both is acquired, it is unnecessary to preserve, in terms, the distinction between them. That science may be named, as it has been named, the science of law.

The science of law should, in some measure, and in some degree, be the study of every free citizen, and of every free man. Every free citizen and every free man has duties to perform and rights to claim. Unless, in some measure, and in some degree, he knows those duties and those rights, he can never act a just and an independent part.

. . .

PLAN

. . .

I begin with the general principles of law and obligation. These I shall investigate fully and minutely; because they are the basis of every legal system; and because they have been much misrepresented, or much misunderstood.

Next, I shall proceed to give you a concise and very general view of the law of nature, of the law of nations, and of municipal law.

I shall then consider man, who is the subject of all, and is the author as well as the subject of the last, and part of the second of these species of law. This great title of my plan, dignified and interesting as it is, must be treated in a very cursory manner in this course. I will, however, select some of the great truths which seem best adapted to a system of law. I will view man as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.

. . .

CHAPTER II

Of the General Principles of Law and Obligation

Order, proportion, and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made. On the inanimate part of the creation, are impressed the continued energies of motion and of attraction, and other energies, varied and yet uniform, all designated and ascertained. Animated nature is under a government suited to every genus, to every species, and to every individual, of which it consists. Man, the nexus utriusque mundi [“the joining point of the two worlds,” that is, of the material and the immaterial worlds], composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected. The celestial as well as the terrestrial world knows its exalted but prescribed course. This angels and the spirits of the just, made perfect, do “clearly behold, and without any swerving observe.” Let humble reverence attend us as we proceed. The great and incomprehensible Author, and Preserver, and Ruler of all things—he himself works not without an eternal decree.

Such—and so universal is law. “Her seat,” to use the sublime language of the excellent Hooker, “is the bosom of God; her voice, the harmony of the world; all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power. Angels and men, creatures of every condition, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.” Before we descend to the consideration of the several kinds and parts of this science, so dignified and so diversified, it will be proper, and it will be useful, to contemplate it in one general and comprehensive view; and to select some of its leading and luminous properties, which will serve to guide and enlighten us in that long and arduous journey, which we now undertake.

. . .

. . . I hesitate, at present, to give a definition of law. My hesitation is increased by the fate of the far greatest number of those, who have hitherto attempted it. Many, as it is natural to suppose, and labored have been the efforts to infold law within this scientific circle; but little satisfaction—little instruction has been the result. Almost every writer, sensible of the defects, the inaccuracies, or the improprieties of the definitions that have gone before him, has endeavored to supply their place with something, in his own opinion, more proper, more accurate, and more complete. He has been treated by his successors, as his predecessors have been treated by him: and his definition has had only the effect of adding one more to the lengthy languid list. . . .

Some of them, indeed, have a claim to attention: one, in particular, will demand it, for reasons striking and powerful—I mean that given by the Commentator [Sir William Blackstone] on the laws of England.

. . .

“Law,” says he, “in its most general and comprehensive sense, signifies a rule of action.”[1] In its proper signification, a rule is an instrument; by which a [straight] line—the shortest and truest of all—may be drawn from one point to another. In its moral or figurative sense, it denotes a principle or power, that directs a man surely and concisely to attain the end, which he proposes.

Law is called a rule, in order to distinguish it from a sudden, a transient, or a particular order: uniformity, permanency, stability, characterize a law. Again; law is called a rule, to denote that it carries along with it a power and principle of obligation. Concerning the nature and the cause of obligation, much ingenious disputation has been held by philosophers and writers on jurisprudence. . . .

This interesting subject will claim and obtain our attention, next after what we have to say concerning law in general.

When we speak of a rule with regard to human conduct, we imply two things. 1. That we are susceptible of direction. 2. That, in our conduct, we propose an end. The brute creation act not from design. They eat, they drink, they retreat from the inclemencies of the weather, without considering what their actions will ultimately produce. But we have faculties, which enable us to trace the connection between actions and their effects; and our actions are nothing else but the steps which we take, or the means which we employ, to carry into execution the effects which we intend.

Hooker, I think, conveys a fuller and stronger conception of law, when he tells us, that “it assigns unto each thing the kind, that it moderates the force and power, that it appoints the form and measure of working.”[2] Not the direction merely, but the kind also, the energy; and the proportion of actions is suggested in this description.

Some are of opinion, that law should be defined “a rule of acting or not acting;”[3] because actions may be forbidden as well as commanded. But the same excellent writer, whom I have just now cited, gives a very proper answer to this opinion, and shows the addition to be unnecessary, by finely pursuing the metaphor, which we have already mentioned. “We must not suppose that there needeth one rule to know the good, and another to know the evil by. For he that knoweth what is straight, doth even thereby discern what is crooked. Goodness in actions is like unto straightness; wherefore that which is well done, we term right.”[4]

. . .

. . . Law is a rule “prescribed.” A simple resolution, confined within the bosom of the legislator, without being notified, in some fit manner, to those for whose conduct it is to form a rule, can never, with propriety, be termed a law.

There are many ways by which laws may be made sufficiently known. They may be printed and published. Written copies of them may be deposited in publick libraries, or other places, where every one interested may have an opportunity of perusing them. They may be proclaimed in general meetings of the people. The knowledge of them may be disseminated by long and universal practice. “Confirmed custom,” says a writer on Roman jurisprudence, “is deservedly considered as a law. For since written laws bind us for no other reason than because they are received by the judgment of the people; those laws, which the people have approved, without writing, are also justly obligatory on all. For where is the difference, whether the people declare their will by their suffrage, or by their conduct? This kind of law is said to be established by manners.”

Of all yet suggested, the mode for the promulgation of human laws by custom seems the most significant, and the most effectual. It involves in it internal evidence, of the strongest kind, that the law has been introduced by common consent; and that this consent rests upon the most solid basis—experience as well as opinion. This mode of promulgation points to the strongest characteristic of liberty, as well as of law. For a consent thus practically given, must have been given in the freest and most unbiased manner.

. . .

Laws may be promulgated by reason and conscience, the divine monitors within us. They are thus known as effectually, as by words or by writing: indeed they are thus known in a manner more noble and exalted. For, in this manner, they may be said to be engraven by God on the hearts of men: in this manner, he is the promulgator as well as the author of natural law. If a simple resolution cannot have the force of a law before it be promulgated; we may certainly hazard the position—that it cannot have the force of a law, before it be made: in other words, that ex post facto instruments, claiming the title and character of laws, are impostors.

. . .

The definition of law in the Commentaries proceeds in this manner. “Law is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.”[5] A superior! Let us make a solemn pause—Can there be no law without a superior? Is it essential to law, that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?

There is a law, indeed, which flows from the Supreme of being—a law, more distinguished by the goodness, than by the power of its allgracious Author. But there are laws also that are human; and does it follow, that, in these, a character of superiority is inseparably attached to him, who makes them; and that a character of inferiority is, in the same manner, inseparably attached to him, for whom they are made? What is this superiority? Who is this superior? By whom is he constituted? Whence is his superiority derived? Does it flow from a source that is human? Or does it flow from a source that is divine? From a human source it cannot flow; for no stream issuing from thence can rise higher than the fountain.

If the prince, who makes laws for a people, is superior, in the terms of the definition, to the people, who are to obey; how comes he to be vested with the superiority over them?

If I mistake not, this notion of superiority, which is introduced as an essential part in the definition of a law—for we are told that a law always[6] supposes some superior, who is to make it—this notion of superiority contains the germ of the divine right—a prerogative impiously attempted to be established—of princes, arbitrarily to rule; and of the corresponding obligation—a servitude tyrannically attempted to be imposed—on the people, implicitly to obey. Despotism, by an artful use of “superiority” in politics; and skepticism, by an artful use of “ideas” in metaphysics, have endeavored—and their endeavors have frequently been attended with too much success—to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains. But those destroyers of others have met, or must meet, with their own destruction.

. . .

. . . [L]et us receive instruction from a well informed and a well experienced master— . . . from the late [King] Frederick of Prussia:

. . .

“Here is the error of the greatest part of princes. They believe that God has expressly, and from a particular attention to their grandeur, their happiness, and their pride, formed their subjects for no other purpose, than to be the ministers and instruments of their unbridled passions. As the principle, from which they set out, is false; the consequences cannot be otherwise than infinitely pernicious. Hence the unregulated passion for false glory—hence the inflamed desire of conquest—hence the oppressions laid upon the people—hence the indolence and dissipation of princes—hence their ambition, their injustice, their inhumanity, their tyranny—hence, in short, all those vices, which degrade the nature of man.

“If they would disrobe themselves of these erroneous opinions; if they would ascend to the true origin of their appointment; they would see, that their elevation and rank, of which they are so jealous, are, indeed, nothing else than the work of the people; they would see, that the myriads of men, placed under their care, have not made themselves the slaves of one single man, with a view to render him more powerful and more formidable; have not submitted themselves to a fellow citizen, in order to become the sport of his fancies, and the martyrs of his caprice; but have chosen, from among themselves, the man, whom they believed to be the most just, that he might govern them; the best, that he might supply the place of a father; the most humane, that he might compassionate and relieve their misfortunes; the most valiant, that he might defend them against their enemies; the most wise, that he might not engage them inconsiderately in ruinous and destructive wars; in one word, the man the most proper to represent the body of the state, and in whom the sovereign power might become a bulwark to justice and to the laws, and not an engine, by the force of which tyranny might be exercised, and crimes might be committed with impunity.

This principle being once established, princes would avoid the two rocks, which, in all ages, have produced the ruin of empires, and distraction in the political world—“ungoverned ambition, and a listless inattention to affairs.”[7] “They would often reflect that they are men, as well as the least of their subjects—that if they are the first judges, the first generals, the first financiers, the first ministers of society; they are so, for the purpose of fulfilling the duties, which those names import. They will reflect, that they are only the first servants of the state, bound to act with the same integrity, the same caution, and the same entire disinterestedness, as if, at every moment, they were to render an account of their administration to the citizens.”[8]

. . .

Now that the will of a superiour is discarded, as an improper principle of obligation in human laws, it is natural to ask—What principle shall be introduced in its place? In its place I introduce—the consent of those whose obedience the law requires. This I conceive to be the true origin of the obligation of human laws. . . .

Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.

The laws of God may be divided into the following species.

I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the “law eternal.”

II. That law, which is made for angels and the spirits of the just made perfect. This may be called the “law celestial.” This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: “In heaven his will is done.”

III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.

IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects.

As promulgated by reason and the moral sense, it has been called natural; as promulgated by the holy scriptures, it has been called revealed law.

As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations.b

But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God.

Nature, or, to speak more properly, the Author of nature, has done much for us; but it is his gracious appointment and will, that we should also do much for ourselves. What we do, indeed, must be founded on what he has done; and the deficiencies of our laws must be supplied by the perfections of his. Human law must rest its authority, ultimately, upon the authority of that law, which is divine.

Of that law, the following are maxims—that no injury should be done—that a lawful engagement, voluntarily made, should be faithfully fulfilled. We now see the deep and the solid foundations of human law.

It is of two species. 1. That which a political society makes for itself. This is municipal law. 2. That which two or more political societies make for themselves. This is the voluntary law of nations.

In all these species of law—the law eternal—the law celestial—the law natural—the divine law, as it respects men and nations—the human law, as it also respects men and nations—man is deeply and intimately concerned. Of all these species of law, therefore, the knowledge must be most important to man.

Those parts of natural philosophy, which more immediately relate to the human body, are appropriated to the profession of [medicine].

The law eternal, the law celestial, and the law divine, as they are disclosed by that revelation, which has brought life and immortality to light, are the more peculiar objects of the profession of divinity.

The law of nature, the law of nations, and the municipal law form the objects of the profession of law.

From this short, but plain and, I hope, just statement of things, we perceive a principle of connection between all the learned professions; but especially between the two last mentioned. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an essential part of both.

From this statement of things, we also perceive how important and dignified the profession of the law is, when traced to its sources, and viewed in its just extent. The immediate objects of our attention are, the law of nature, the law of nations, and the municipal law of the United States, and of the several states which compose the Union. It will not be forgotten, that the constitutions of the United States, and of the individual states, form a capital part of their municipal law. On the two first of these three great heads, I shall be very general. On the last, especially on those parts of it, which comprehend the constitutions and publick law, I shall be more particular and minute.

CHAPTER III

Of the Law of Nature

In every period of our existence, in every situation, in which we can be placed, much is to be known, much is to be done, much is to be enjoyed. But all that is to be known, all that is to be done, all that is to be enjoyed, depends upon the proper exertion and direction of our numerous powers. In this immense ocean of intelligence and action, are we left without a compass and without a chart? Is there no pole star, by which we may regulate our course? Has the all-gracious and all-wise Author of our existence formed us for such great and such good ends; and has he left us without a conductor to lead us in the way, by which those ends may be attained? Has he made us capable of observing a rule, and has he furnished us with no rule, which we ought to observe? Let us examine these questions—for they are important ones—with patience and with attention. Our labors will, in all probability, be amply repaid. We shall probably find that, to direct the more important parts of our conduct, the bountiful Governor of the universe has been graciously pleased to provide us with a law; and that, to direct the less important parts of it, he has made us capable of providing a law for ourselves.

That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles.

In the course of our remarks on that part of Sir William Blackstone’s definition of law, which includes the idea of a superior as essential to it, we remarked, with particular care, that it was only with regard to human laws that we controverted the justness or propriety of that idea. It was incumbent on us to mark this distinction particularly; for with regard to laws which are divine, they truly come from a superior—from Him who is supreme.

Between beings, who, in their nature, powers, and situation, are so perfectly equal, that nothing can be ascribed to one, which is not applicable to the other, there can be neither superiority nor dependence. With regard to such beings, no reason can be assigned, why anyone should assume authority over others, which may not, with equal propriety, be assigned, why each of those others should assume authority over that one. To constitute superiority and dependence, there must be an essential difference of qualities, on which those relations may be founded.[9]

Some allege, that the sole superiority of strength, or, as they express it, an irresistible power, is the true foundation of the right of prescribing laws. “This superiority of power gives,” say they, “a right of reigning, by the impossibility, in which it places others, of resisting him, who has so great an advantage over them.”[10]

Others derive the right of prescribing laws and imposing obligations from superiour excellence of nature. “This,” say they, “not only renders a being independent of those, who are of a nature inferiour to it; but leads us to believe, that the latter were made for the sake of the former.” For a proof of this, they appeal to the constitution of man. “Here,” they tell us, “the soul governs, as being the noblest part.” “On the same foundation,” they add, “the empire of man over the brute creation is built.”[11]

Others, again, say, that “properly speaking, there is only one general source of superiority and obligation. God is our creator: in him we live, and move, and have our being: from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority.”[12]

With regard to the first hypothesis, it is totally insufficient; nay, it is absolutely false. Because I cannot resist, am I obliged to obey? Because another is possessed of superiour force, am I bound to acknowledge his will as the rule of my conduct? Every obligation supposes motives that influence the conscience and determine the will, so that we should think it wrong not to obey, even if resistance was in our power. But a person, who alleges only the law of the strongest, proposes no motive to influence the conscience, or to determine the will. Superiour force may reside with predominant malevolence. Has force, exerted for the purposes of malevolence, a right to command? Can it impose an obligation to obey? No. Resistance to such force is a right; and, if resistance can prove effectual, it is a duty also. On some occasions, all our efforts may, indeed, be useless; and an attempt to resist would frustrate its own aim: but, on such occasions, the exercise of resistance only is suspended; the right of resistance is not extinguished: we may continue, for a time, under a constraint; but we come not under an obligation: we may suffer all the external effects of superiour force; but we feel not the internal influence of superiour authority?[13]

The second hypothesis has in it something plausible; but, on examination, it will not be found to be accurate. Wherever a being of superiour excellence is found, his excellence, as well as every other truth, ought, on proper occasions, to be acknowledged; we will go farther; it ought, as every thing excellent ought, to be esteemed. But must we go farther still? Is obedience the necessary consequence of honest acknowledgment and just esteem? Here we must make a pause: we must make some inquiries before we go forward. In what manner is this being of superiour excellence connected with us? What are his dispositions with regard to us? By what effects, if by any, will his superiour excellence be displayed? Will it be exerted for our happiness; or, as to us, will it not be exerted at all? We acknowledge—we esteem excellence; but till these questions are answered, we feel not ourselves under an obligation to obey it.[14] If the opinion of Epicurus concerning his divinities—that they were absolutely indifferent to the happiness and interests of men—was admitted for a moment;g the inference would unquestionably be—that they were not entitled to human obedience.

The third hypothesis contains a solemn truth, which ought to be examined with reverence and awe. It resolves the supreme right of prescribing laws for our conduct, and our indispensable duty of obeying those laws, into the omnipotence of the Divinity. This omnipotence let us humbly adore. Were we to suppose—but the supposition cannot be made—that infinite goodness could be disjoined from almighty power—but we cannot—must not proceed to the inference. No, it never can be drawn; for from almighty power infinite goodness can never be disjoined. Let us join, in our weak conceptions, what are inseparable in their incomprehensible Archetype—infinite power—infinite wisdom—infinite goodness; and then we shall see, in its resplendent glory, the supreme right to rule: we shall feel the conscious sense of the perfect obligation to obey.

His infinite power enforces his laws, and carries them into full and effectual execution. His infinite wisdom knows and chooses the fittest means for accomplishing the ends which he proposes. His infinite goodness proposes such ends only as promote our felicity. By his power, he is able to remove whatever may possibly injure us, and to provide whatever is conducive to our happiness. By his wisdom, he knows our nature, our faculties, and our interests: he cannot be mistaken in the designs, which he proposes, nor in the means, which he employs to accomplish them. By his goodness, he proposes our happiness: and to that end directs the operations of his power and wisdom. Indeed, to his goodness alone we may trace the principle of his laws. Being infinitely and eternally happy in himself, his goodness alone could move him to create us, and give us the means of happiness. The same principle, that moved his creating, moves his governing power. The rule of his government we shall find to be reduced to this one paternal command—Let man pursue his own perfection and happiness.

What an enrapturing view of the moral government of the universe! Over all, goodness infinite reigns, guided by unerring wisdom, and supported by almighty power. What an instructive lesson to those who think, and are encouraged by their flatterers to think, that a portion of divine right is communicated to their rule. If this really was the case; their power ought to be subservient to their goodness, and their goodness should be employed in promoting the happiness of those, who are intrusted to their care. But princes, and the flatterers of princes, are guilty, in two respects, of the grossest errour and presumption. They claim to govern by divine institution and right. The principles of their government are repugnant to the principles of that government, which is divine. The principle of the divine government is goodness: they plume themselves with the gaudy insignia of power.

. . .

Where a supreme right to give laws exists, on one side, and a perfect obligation to obey them exists, on the other side; this relation, of itself, suggests the probability that laws will be made.

When we view the inanimate and irrational creation around and above us, and contemplate the beautiful order observed in all its motions and appearances; is not the supposition unnatural and improbable—that the rational and moral world should be abandoned to the frolicks of chance, or to the ravage of disorder? What would be the fate of man and of society, was every one at full liberty to do as he listed, without any fixed rule or principle of conduct, without a helm to steer him—a sport of the fierce gusts of passion, and the fluctuating billows of caprice?

To be without law is not agreeable to our nature; because, if we were without law, we should find many of our talents and powers hanging upon us like useless incumbrances. Why should we be illuminated by reason, were we only made to obey the impulse of irrational instinct? Why should we have the power of deliberating, and of balancing our determinations, if we were made to yield implicitly and unavoidably to the influence of the first impressions? Of what service to us would reflection be, if, after reflection, we were to be carried away irresistibly by the force of blind and impetuous appetites?

Without laws, what would be the state of society? The more ingenious and artful the twolegged animal, man, is, the more dangerous he would become to his equals: his ingenuity would degenerate into cunning; and his art would be employed for the purposes of malice. He would be deprived of all the benefits and pleasures of peaceful and social life: he would become a prey to all the distractions of licentiousness and war.

Is it probable—we repeat the question—is it probable that the Creator, infinitely wise and good, would leave his moral world in this chaos and disorder?

If we enter into ourselves, and view with attention what passes in our own breasts, we shall find, that what, at first, appeared probable, is proved, on closer examination, to be certain; we shall find, that God has not left himself without a witness, nor us without a guide.

We have already observed, that, concerning the nature and cause of obligation, many different opinions have been entertained, and much ingenious disputation has been held, by philosophers and writers on jurisprudence. It will not be improper to take a summary view of those opinions.

Some philosophers maintain, that all obligation arises from the relations of things;[15] from a certain proportion or disproportion, a certain fitness or unfitness, between objects and actions, which give a beauty to some, and a deformity to others. They say, that the rules of morality are founded on the nature of things; and are agreeable to the order necessary for the beauty of the universe.[16]

Others allege, that every rule whatever of human actions carries with it a moral necessity of conforming to it; and consequently produces a sort of obligation. Every rule, say they, implies a design, and the will of attaining a certain end. He, therefore, who proposes a particular end, and knows the rule by which alone he can accomplish it, finds himself under a moral necessity of observing that rule. If he did not observe it, he would act a contradictory part; he would propose the end, and neglect the only means, by which he could obtain it. There is a reasonable necessity, therefore, to prefer one manner of acting before another; and every reasonable man finds himself engaged to this, and prevented from acting in a contrary manner. In other words, he is obliged: for obligation is nothing more than a restriction of liberty produced by reason. Reason, then, independent of law, is sufficient to impose some obligation on man, and to establish a system of morality and duty.[17]

But, according to others, the idea of obligation necessarily implies a being, who obliges, and must be distinct from him, who is obliged. If the person, on whom the obligation is imposed, is the same as he who imposes it; he can disengage himself from it whenever he pleases: or, rather, there is no obligation. Obligation and duty depend on the intervention of a superiour, whose will is manifested by law. If we abstract from all law, and consequently from a legislator; we shall have no such thing as right, obligation, duty, or morality.[18]

Others, again, think it necessary to join the last two principles together, in order to render the obligation perfect.[19] Reason, say they, is the first rule of man, the first principle of morality, and the immediate cause of all primitive obligation. But man being necessarily dependent on his Creator, who has formed him with wisdom and design, and who, in creating him, has proposed some particular ends; the will of God is another rule of human actions, another principle of morality, obligation, and duty. On this distinction, the kinds of obligation, external and internal, are founded. These two principles must be united, in order to form a complete system of morality, really founded on the nature and state of man. As a rational being, he is subject to reason: as a creature of God, to his supreme will. Thus, reason and the divine will are perfectly reconciled, are naturally connected, and are strengthened by their junction.[20]

The cause of obligation is laid, by some philosophers, in utility.[21] Actions, they tell us, are to be estimated by their tendency to promote happiness. Whatever is expedient, is right. It is the utility, alone, of any moral rule, which constitutes its obligation.

Congenial with this principle, is another, which has received the sanction of some writers—that sociability, or the care of maintaining society properly, is the fountain of obligation and right: for to every right, there must be a corresponding obligation. From this principle the inference is drawn, that every one is born, not for himself alone, but for the whole human kind.[22]

Further&emdash;many philosophers derive our obligation to observe the law of nature from instinctive affections, or an innate moral sense.[23] This is the sense, they tell us, by which we perceive the qualities of right and wrong, and the other moral qualities in actions.

With regard, then, both to the meaning and the cause of obligation, much diversity of sentiment, much ambiguity, and much obscurity have, it appears, prevailed. It is a subject of inquiry, however, that well deserves to be investigated, explained, illustrated, and placed in its native splendour and dignity. In order to do this, it will be proper to ascertain the precise state of the question before us. It is this—what is the efficient cause of moral obligation—of the eminent distinction between right and wrong? This has been often and injudiciously blended with another question, connected indeed with it, but from which it ought to be preserved separate and distinct. That other question is—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the eminent distinction, which we have just now mentioned? The first question points to the principle of obligation: the second points to the means by which our obligation to perform a specified action, or a series of specified actions, may be deduced. The first has been called by philosophers—principium essendi—the principle of existence; the principle which constitutes obligation. The second has been called by them—principium cognoscendi—the principle of knowing it; the principle by which it may be proved or perceived. In a commonwealth, the distinction between these two questions is familiar and easy. If the question is put—what is the efficient cause of the obligation upon the citizens to obey the laws of the state?—the answer is ready—the will of those, by whose authority the laws are made. If the other question is put—how shall we, in a particular instance, or in a series of particular instances, ascertain the laws, which the citizens ought to obey?—reference is immediately made to the code of laws.

Having thus stated the question—what is the efficient cause of moral obligation?—I give it this answer—the will of God. This is the supreme law.[24] His just and full right of imposing laws, and our duty in obeying them, are the sources of our moral obligations. If I am asked—why do you obey the will of God? I answer—because it is my duty so to do. If I am asked again—how do you know this to be your duty? I answer again—because I am told so by my moral sense or conscience. If I am asked a third time—how do you know that you ought to do that, of which your conscience enjoins the performance? I can only say, I feel that such is my duty. Here investigation must stop; reasoning can go no farther. The science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning. Reason is confined to the investigation of unknown truths by the means of such as are known. We cannot, therefore, begin to reason, till we are furnished, otherwise than by reason, with some truths, on which we can found our arguments. Even in mathematicks, we must be provided with axioms perceived intuitively to be true, before our demonstrations can commence. Morality, like mathematicks, has its intuitive truths, without which we cannot make a single step in our reasonings upon the subject.[25] Such an intuitive truth is that, with which we just now closed our investigation. If a person was not possessed of the feeling before mentioned; it would not be in the power of arguments, to give him any conception of the distinction between right and wrong. These terms would be to him equally unintelligible, as the term colour to one who was born and has continued blind. But that there is, in human nature, such a moral principle, has been felt and acknowledged in all ages and nations.

Now that we have stated and answered the first question; let us proceed to the consideration of the second—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the proper distinction between right and wrong; in other words, how shall we, in particular cases, discover the will of God? We discover it by our conscience, by our reason, and by the Holy Scriptures. The law of nature and the law of revelation are both divine: they flow, though in different channels, from the same adorable source. It is, indeed, preposterous to separate them from each other. The object of both is—to discover the will of God—and both are necessary for the accomplishment of that end.

I. The power of moral perception is, indeed, a most important part of our constitution. It is an original power—a power of its own kind; and totally distinct from the ideas of utility and agreeableness. By that power, we have conceptions of merit and demerit, of duty and moral obligation. By that power, we perceive some things in human conduct to be right, and others to be wrong. We have the same reason to rely on the dictates of this faculty, as upon the determinations of our senses, or of our other natural powers. When an action is represented to us, flowing from love, humanity, gratitude, an ultimate desire of the good of others; though it happened in a country far distant, or in an age long past, we admire the lovely exhibition, and praise its author. The contrary conduct, when represented to us, raises our abhorrence and aversion. But whence this secret chain betwixt each person and mankind? If there is no moral sense, which makes benevolence appear beautiful; if all approbation be from the interest of the approver;

     “What’s Hecuba to us, or we to Hecuba?” (Hamlet, paraphrase)

The mind, which reflects on itself, and is a spectator of other minds, sees and feels the soft and the harsh, the agreeable and the disagreeable, the foul and the fair, the harmonious and the dissonant, as really and truly in the affections and actions, as in any musical numbers, or the outward forms or representations of sensible things. It cannot withhold its approbation or aversion in what relates to the former, any more than in what relates to the latter, of those subjects. To deny the sense of a sublime and beautiful and of their contraries in actions and things, will appear an affectation merely to one who duly considers and traces the subject. Even he who indulges this affectation cannot avoid the discovery of those very sentiments, which he pretends not to feel. A Lucretius[26] or a Hobbes cannot discard the sentiments of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others. Has a man gratitude, or resentment, or pride, or shame? If he has and avows it; he must have and acknowledge a sense of something benevolent, of something unjust, of something worthy, and of something mean. Thus, so long as we find men pleased or angry, proud or ashamed; we may appeal to the reality of the moral sense. A right and a wrong, an honourable and a dishonourable is plainly conceived. About these there may be mistakes; but this destroys not the inference, that the things are, and are universally acknowledged—that they are of nature’s impression, and by no art can be obliterated.

This sense or apprehension of right and wrong appears early, and exists in different degrees. The qualities of love, gratitude, sympathy unfold themselves, in the first stages of life, and the approbation of those qualities accompanies the first dawn of reflection. Young people, who think the least about the distant influences of actions, are, more than others, moved with moral forms. Hence that strong inclination in children to hear such stories as paint the characters and fortunes of men. Hence that joy in the prosperity of the kind and faithful, and that sorrow upon the success of the treacherous and cruel, with which we often see infant minds strongly agitated.

There is a natural beauty in figures; and is there not a beauty as natural in actions? When the eye opens upon forms, and the ear to sounds; the beautiful is seen, and harmony is heard and acknowledged. When actions are viewed and affections are discerned, the inward eye distinguishes the beautiful, the amiable, the admirable, from the despicable, the odious, and the deformed. How is it possible not to own, that as these distinctions have their foundation in nature, so this power of discerning them is natural also?

The universality of an opinion or sentiment may be evinced by the structure of languages. Languages were not invented by philosophers, to countenance or support any artificial system. They were contrived by men in general, to express common sentiments and perceptions. The inference is satisfactory, that where all languages make a distinction, there must be a similar distinction in universal opinion or sentiment. For language is the picture of human thoughts; and, from this faithful picture, we may draw certain conclusions concerning the original. Now, a universal effect must have a universal cause. No universal cause can, with propriety, be assigned for this universal opinion, except that intuitive perception of things, which is distinguished by the name of common sense.

All languages speak of a beautiful and a deformed, a right and a wrong, an agreeable and disagreeable, a good and ill, in actions, affections, and characters. All languages, therefore, suppose a moral sense, by which those qualities are perceived and distinguished.

The whole circle of the arts of imitation proves the reality of the moral sense. They suppose, in human conduct, a sublimity, a beauty, a greatness, an excellence, independent of advantage or disadvantage, profit or loss. On him, whose heart is indelicate or hard; on him, who has no admiration of what is truly noble; on him, who has no sympathetick sense of what is melting and tender, the highest beauty of the mimick arts must make indeed, but a very faint and transient impression. If we were void of a relish for moral excellence, how frigid and uninteresting would the finest descriptions of life and manners appear! How indifferent are the finest strains of harmony, to him who has not a musical ear!

The force of the moral sense is diffused through every part of life. The luxury of the table derives its principal charms from some mixture of moral enjoyments, from communicating pleasures, and from sentiments honourable and just as well as elegant— “The feast of reason, and the flow of soul.”

The chief pleasures of history, and poetry, and eloquence, and musick, and sculpture, and painting are derived from the same source. Beside the pleasures they afford by imitation, they receive a stronger charm from something moral insinuated into the performances. The principal beauties of behaviour, and even of countenance, arise from the indication of affections or qualities morally estimable.

Never was there any of the human species above the condition of an idiot, to whom all actions appeared indifferent. All feel that a certain temper, certain affections, and certain actions produce a sentiment of approbation; and that a sentiment of disapprobation is produced by the contrary temper, affections, and actions. This power is capable of culture and improvement by habit, and by frequent and extensive exercise. A high sense of moral excellence is approved above all other intellectual talents. This high sense of excellence is accompanied with a strong desire after it, and a keen relish for it. This desire and this relish are approved as the most amiable affections, and the highest virtues.

This moral sense, from its very nature, is intended to regulate and control all our other powers. It governs our passions as well as our actions. Other principles may solicit and allure; but the conscience assumes authority, it must be obeyed. Of this dignity and commanding nature we are immediately conscious, as we are of the power itself. It estimates what it enjoins, not merely as superiour in degree, but as superiour likewise in kind, to what is recommended by our other perceptive powers. Without this controlling faculty, endowed as we are with such a variety of senses and interfering desires, we should appear a fabrick destitute of order: but possessed of it, all our powers may be harmonious and consistent; they may all combine in one uniform and regular direction.

In short; if we had not the faculty of perceiving certain things in conduct to be right, and others to be wrong; and of perceiving our obligation to do what is right, and not to do what is wrong; we should not be moral and accountable beings. If we be, as, I hope, I have shown we are, endowed with this faculty; there must be some things, which are immediately discerned by it to be right, and others to be wrong. There must, consequently, be in morals, as in other sciences, first principles, which derive not their evidence from any antecedent principles, but which may be said to be intuitively discerned.

Moral truths may be divided into two classes; such as are selfevident, and such as, from the selfevident ones, are deduced by reasoning. If the first be not discerned without reasoning, reasoning can never discern the last. The cases that require reasoning are few, compared with those that require none; and a man may be very honest and virtuous, who cannot reason, and who knows not what demonstration means. If the rules of virtue were left to be discovered by reasoning, even by demonstrative reasoning, unhappy would be the condition of the far greater part of men, who have not the means of cultivating the power of reasoning to any high degree. As virtue is the business of all men, the first principles of it are written on their hearts, in characters so legible, that no man can pretend ignorance of them, or of his obligation to practise them. Reason, even with experience, is too often overpowered by passion; to restrain whose impetuosity, nothing less is requisite than the vigorous and commanding principle of duty.

II. The first principles of morals, into which all moral argumentation may be resolved, are discovered in a manner more analogous to the perceptions of sense than to the conclusions of reasoning. In morality, however, as well as in other sciences, reason is usefully introduced, and performs many important services. In many instances she regulates our belief; and in many instances she regulates our conduct. She determines the proper means to any end; and she decides the preference of one end over another. She may exhibit an object to the mind, though the perception which the mind has, when once the object is exhibited, may properly belong to a sense. She may be necessary to ascertain the circumstances and determine the motives to an action; though it be the moral sense that perceives the action to be either virtuous or vicious, after its motive and its circumstances have been discovered. She discerns the tendencies of the several senses, affections, and actions, and the comparative value of objects and gratifications. She judges concerning subordinate ends; but concerning ultimate ends she is not employed. These we prosecute by some immediate determination of the mind, which, in the order of action, is prior to all reasoning; for no opinion or judgment can move to action, where there is not a previous desire of some end.—This power of comparing the several enjoyments, of which our nature is susceptible, in order to discover which are most important to our happiness, is of the highest consequence and necessity to corroborate our moral faculty, and to preserve our affections in just rank and regular order.

A magistrate knows that it is his duty to promote the good of the commonwealth, which has intrusted him with authority. But whether one particular plan or another particular plan of conduct in office, may best promote the good of the commonwealth, may, in many cases, be doubtful. His conscience or moral sense determines the end, which he ought to pursue; and he has intuitive evidence that his end is good: but the means of attaining this end must be determined by reason. To select and ascertain those means, is often a matter of very considerable difficulty. Doubts may arise; opposite interests may occur; and a preference must be given to one side from a small over-balance, and from very nice views. This is particularly the case in questions with regard to justice. If every single instance of justice, like every single instance of benevolence, were pleasing and useful to society, the case would be more simple, and would be seldom liable to great controversy. But as single instances of justice are often pernicious in their first and immediate tendency; and as the advantage to society results only from the observance of the general rule, and from the concurrence and combination of several persons in the same equitable conduct; the case here becomes more intricate and involved. The various circumstances of society, the various consequences of any practice, the various interests which may be proposed, are all, on many occasions, doubtful, and subject to much discussion and inquiry. The design of municipal law (for let us still, from every direction, open a view to our principal object) the design of municipal law is to fix all the questions which regard justice. A very accurate reason or judgment is often requisite, to give the true determination amidst intricate doubts, arising from obscure or opposite utilities. Thus, though good and ill, right and wrong are ultimately perceived by the moral sense, yet reason assists its operations, and, in many instances, strengthens and extends its influence. We may argue concerning propriety of conduct: just reasonings on the subject will establish principles for judging of what deserves praise: but, at the same time, these reasonings must always, in the last resort, appeal to the moral sense.

Farther; reason serves to illustrate, to prove, to extend, to apply what our moral sense has already suggested to us, concerning just and unjust, proper and improper, right and wrong. A father feels that paternal tenderness is refined and confirmed, by reflecting how consonant that feeling is to the relation between a parent and his child; how conducive it is to the happiness, not only of a single family, but, in its extension, to that of all mankind. We feel the beauty and excellence of virtue; but this sense is strengthened and improved by the lessons, which reason gives us concerning the foundations, the motives, the relations, the particular and the universal advantages flowing from this virtue, which, at first sight, appeared so beautiful.

Taste is a faculty, common, in some degree, to all men. But study, attention, comparison operate most powerfully towards its refinement. In the same manner, reason contributes to ascertain the exactness, and to discover and correct the mistakes, of the moral sense. A prejudice of education may be misapprehended for a determination of morality. ’Tis reason’s province to compare and discriminate.

Reason performs an excellent service to the moral sense in another respect. It considers the relations of actions, and traces them to the remotest consequences. We often see men, with the most honest hearts and most pure intentions, embarrassed and puzzled, when a case, delicate and complicated, comes before them. They feel what is right; they are unshaken in their general principles; but they are unaccustomed to pursue them through their different ramifications, to make the necessary distinctions and exceptions, or to modify them according to the circumstances of time and place. ’Tis the business of reason to discharge this duty; and it will discharge it the better in proportion to the care which has been employed in exercising and improving it.

The existence of the moral sense has been denied by some philosophers of high fame: its authority has been attacked by others: the certainty and uniformity of its decisions have been arraigned by a third class.[27] We are told, that, without education, we should have been in a state of perfect indifference as to virtue and vice; that an education, opposite to that which we have received, would have taught us to regard as virtue that which we now dislike as vice, and to despise as vice that which we now esteem as virtue. In support of these observations, it is farther said, that moral sentiment is different in different countries, in different ages, and under different forms of government and religion; in a word, that it is as much the effect of custom, fashion, and artifice, as our taste in dress, furniture, and the modes of conversation. Facts and narratives have been assembled and accumulated, to evince the great diversity and even contrariety that subsists concerning moral opinions. And it has been gravely asked, whether the wild boy, who was caught in the woods of Hanover, would feel a sentiment of disapprobation upon being told of the conduct of a parricide. An investigation of those facts and narratives cannot find a place in these lectures; though the time bestowed on it might be well employed. It may, however, be proper to observe, that it is but candid to consider human nature in her improved, and not in her most rude or depraved forms. “The good experienced man,” says Aristotle, “is the last measure of all things.”[28] To ascertain moral principles, we appeal not to the common sense of savages, but of men in their most perfect state.

Epicurus, as well as some modern advocates of the same philosophy, seem to have taken their estimates of human nature from its meanest and most degrading exhibitions; but the noblest and most respectable philosophers of antiquity have chosen, for a much wiser and better purpose, to view it on the brightest and most advantageous side. “It is impossible,” says the incomparable Addison,[29] “to read a passage in Plato or Tully, and a thousand other ancient moralists, without being a greater and a better man for it. On the contrary, I could never read some modish modern authors, without being, for some time, out of humour with myself, and at every thing about me. Their business is to depreciate human nature, and consider it under its worst appearances. They give mean interpretation and base motives to the worthiest actions—in short, they endeavour to make no distinction between man and man, or between the species of men and that of brutes.” True it is, that some men and some nations are savage and brutish; but is that a reason why their manners and their practices should be generally and reproachfully charged to the account of human nature? It may, perhaps, be somewhat to our purpose to observe, that in many of these representations, the picture, if compared with the original, will be found to be overcharged. For, in truth, between mankind, considered even in their rudest state, and the mutum et turpe pecus (dumb and base herd), a very wide difference will be easily discovered. In the most uninformed savages, we find the communes notitiae, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. These same savages have in them the seeds of the logician, the man of taste, the orator, the statesman, the man of virtue, and the saint. These seeds are planted in their minds by nature, though, for want of culture and exercise, they lie unnoticed, and are hardly perceived by themselves or by others. Besides, some nations that have been supposed stupid and barbarous by nature, have, upon fuller acquaintance with their history, been found to have been rendered barbarous and depraved by institution. When, by the power of some leading members, erroneous laws are once established, and it has become the interest of subordinate tyrants to support a corrupt system; errour and iniquity become sacred. Under such a system, the multitude are fettered by the prejudices of education, and awed by the dread of power, from the free exercise of their reason. These principles will account for the many absurd and execrable tenets and practices with regard to government, morals, and religion, which have been invented and established in opposition to the unbiassed sentiments, and in derogation of the natural rights of mankind. But, after making all the exceptions and abatements, of which these facts and narratives, if admitted in their fullest extent, would justify the claim, still it cannot be denied, but is even acknowledged, that some sorts of actions command and receive the esteem of mankind more than others; and that the approbation of them is general, though not universal. It will certainly be sufficient for our purpose to observe, that the dictates of reason are neither more general, nor more uniform, nor more certain, nor more commanding, than the dictates of the moral sense. Nay, farther; perhaps, upon inquiry, we shall find, that those obliquities, extravagancies, and inconsistencies of conduct, that are produced as proofs of the nonexistence or inutility of the moral sense, are, in fact, chargeable to that faculty, which is meant to be substituted in its place. We shall find that men always approve upon an opinion—true or false, but still an opinion—that the actions approved have the qualities and tendencies, which are the proper objects of approbation. They suppose that such actions will promote their own interest; or will be conducive to the publick good; or are required by the Deity; when, in truth, they have all the contrary properties—may be forbidden by the Deity, and may be detrimental both to publick and to private good. But when all this happens, to what cause is it to be traced? Does it prove the nonexistence of a moral sense, or does it prove, in such instances, the weakness or perversion of reason? The just solution is, that, in such instances, it is our reason, which presents false appearances to our moral sense.

It is with much reluctance, that the power of our instinctive or intuitive faculties is acknowledged by some philosophers. That the brutes are governed by instinct, but that man is governed by reason, is their favourite position. But fortunately for man, this position is not founded on truth. Our instincts, as well as our rational powers, are far superiour, both in number and in dignity, to those, which the brutes enjoy; and it were well for us, on many occasions, if we laid our reasoning systems aside, and were more attentive in observing the genuine impulses of nature. In this enlarged and elevated meaning, the sentiment of Pope receives a double portion of force and sublimity.

      “And reason raise o’er instinct as you can,
     In this, ’tis God directs, in that, ’tis man.”[30]

This sentiment is not dictated merely in the fervid glow of enraptured poetry; it is affirmed by the deliberate judgment of calm, sedate philosophy. Our instincts are no other than the oracles of eternal wisdom; our conscience, in particular, is the voice of God within us: it teaches, it commands, it punishes, it rewards. The testimony of a good conscience is the purest and the noblest of human enjoyments.

It will be proper to examine a little more minutely the opinions of those, who allege reason to be the sole directress of human conduct. Reason may, indeed, instruct us in the pernicious or useful tendency of qualities and actions: but reason alone is not sufficient to produce any moral approbation or blame. Utility is only a tendency to a certain end; and if the end be totally indifferent to us, we shall feel the same indifference towards the means. It is requisite that sentiment should intervene, in order to give a preference to the useful above the pernicious tendencies.

Reason judges either of relations or of matters of fact. Let us consider some particular virtue or vice under both views. Let us take the instance of ingratitude. This has place, when good will is expressed and good offices are performed on one side, and ill will or indifference is shown on the other. The first question is—what is that matter of fact, which is here called a vice? Indifference or ill will. But ill will is not always, nor in all circumstances a crime: and indifference may, on some occasions, be the result of the most philosophick fortitude. The vice of ingratitude, then, consists not in matter of fact.

Let us next inquire into the relations, which reason can discover, among the materials, of which ingratitude is composed. She discovers good will and good offices on one side, and ill will or indifference on the other. This is the relation of contrariety. Does ingratitude consist in this? To which side of the contrary relation is it to be placed? For this relation of contrariety is formed as much by good will and good offices, as by ill will or indifference. And yet the former deserves praise as much as the latter deserves blame.

If it shall be said, that the morality of an action does not consist in the relation of its different parts to one another, but in the relation of the whole actions to the rule; and that actions are denominated good or ill, as they agree or disagree with that rule; another question occurs—What is this rule of right? by what is it discovered or determined? By reason, it is said. How does reason discover or determine this rule? It must be by examining facts or the relations of things. But by the analysis which has been given of the particular instance under our consideration, it has appeared that the vice of ingratitude consists neither in the matter of fact, nor in the relation of the parts, of which the fact is composed. Objects in the animal world, nay inanimate objects, may have to each other all the same relations, which we observe in moral agents; but such objects are never supposed to be susceptible of merit or demerit, of virtue or vice.

The ultimate ends of human actions, can never, in any case, be accounted for by reason. They recommend themselves entirely to the sentiments and affections of men, without dependence on the intellectual faculties. Why do you take exercise? Because you desire health. Why do you desire health? Because sickness is painful. Why do you hate pain? No answer is heard. Can one be given? No. This is an ultimate end, and is not referred to any farther object.

To the second question, you may, perhaps, answer, that you desire health, because it is necessary for your improvement in your profession. Why are you anxious to make this improvement? You may, perhaps, answer again, because you wish to get money by it. Why do you wish to get money? Because, among other reasons, it is the instrument of pleasure. But why do you love pleasure? Can a reason be given for loving pleasure, any more than for hating pain? They are both ultimate objects. ’Tis impossible there can be a progress in infinitum; and that one thing can always be a reason, why another is hated or desired. Something must be hateful or desirable on its own account, and because of its immediate agreement or disagreement with human sentiment and affection. Virtue and vice are ends; and are hateful or desirable on their own account. It is requisite, therefore, that, there should be some sentiment, which they touch—some internal taste or sense, which distinguishes moral good and evil, and which embraces one, and rejects the other. Thus are the offices of reason and of the moral sense at last ascertained. The former conveys the knowledge of truth and falsehood: the latter, the sentiment of beauty and deformity, of vice and virtue. The standard of one, founded on the nature of things, is eternal and inflexible. The standard of the other is ultimately derived from that supreme will, which bestowed on us our peculiar nature, and arranged the several classes and orders of existence. In this manner, we return to the great principle, from which we set out. It is necessary that reason should be fortified by the moral sense: without the moral sense, a man may be prudent, but he cannot be virtuous.

Philosophers have degraded our senses below their real importance. They represent them as powers, by which we have sensations and ideas only. But this is not the whole of their office; they judge as well as inform. Not confined to the mere office of conveying impressions, they are exalted to the function of judging of the nature and evidence of the impressions they convey. If this be admitted, our moral faculty may, without impropriety, be called the moral sense. Its testimony, like that of the external senses, is the immediate testimony of nature, and on it we have the same reason to rely. In its dignity, it is, without doubt, far superiour to every other power of the mind.

The moral sense, like all our other powers, comes to maturity by insensible degrees. It is peculiar to human nature. It is both intellectual and active. It is evidently intended, by nature, to be the immediate guide and director of our conduct, after we arrive at the years of understanding.

III. Reason and conscience can do much; but still they stand in need of support and assistance. They are useful and excellent monitors; but, at some times, their admonitions are not sufficiently clear; at other times, they are not sufficiently powerful; at all times, their influence is not sufficiently extensive. Great and sublime truths, indeed, would appear to a few; but the world, at large, would be dark and ignorant. The mass of mankind would resemble a chaos, in which a few sparks, that would diffuse a glimmering light, would serve only to show, in a more striking manner, the thick darkness with which they are surrounded. Their weakness is strengthened, their darkness is illuminated, their influence is enlarged by that heaven-descended science, which has brought life and immortality to light. In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws, by a revelation given to us immediately and directly from himself. This revelation is contained in the holy scriptures. The moral precepts delivered in the sacred oracles form a part of the law of nature, are of the same origin, and of the same obligation, operating universally and perpetually.

On some important subjects, those in particular, which relate to the Deity, to Providence, and to a future state, our natural knowledge is greatly improved, refined, and exalted by that which is revealed. On these subjects, one who has had the advantage of a common education in a christian country, knows more, and with more certainty, than was known by the wisest of the ancient philosophers.

One superiour advantage the precepts delivered in the sacred oracles clearly possess. They are, of all, the most explicit and the most certain. A publick minister, judging from what he knows of the interests, views, and designs of the state, which he represents, may take his resolutions and measures, in many cases, with confidence and safety; and may presume, with great probability, how the state itself would act. But if, besides this general knowledge, and these presumptions highly probable, he was furnished also with particular instructions for the regulation of his conduct; would he not naturally observe and govern himself by both rules? In cases, where his instructions are clear and positive, there would be an end of all farther deliberation. In other cases, where his instructions are silent, he would supply them by his general knowledge, and by the information, which he could collect from other quarters, concerning the counsels and systems of the commonwealth. Thus it is with regard to reason, conscience, and the holy scriptures. Where the latter give instructions, those instructions are supereminently authentick. But whoever expects to find, in them, particular directions for every moral doubt which arises, expects more than he will find. They generally presuppose a knowledge of the principles of morality; and are employed not so much in teaching new rules on this subject, as in enforcing the practice of those already known, by a greater certainty, and by new sanctions. They present the warmest recommendations and the strongest inducements in favour of virtue: they exhibit the most powerful dissuasives from vice. But the origin, the nature, and the extent of the several rights and duties they do not explain; nor do they specify in what instances one right or duty is entitled to preference over another. They are addressed to rational and moral agents, capable of previously knowing the rights of men, and the tendencies of actions; of approving what is good, and of disapproving what is evil.

These considerations show, that the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense. The information with regard to our duties and obligations, drawn from these different sources, ought not to run in unconnected and diminished channels: it should flow in one united stream, which, by its combined force and just direction, will impel us uniformly and effectually towards our greatest good.

We have traced, with some minuteness, the efficient principle of obligation, and the several means, by which our duty may be known. It will be proper to turn our attention back to the opinions that have been held, in philosophy and jurisprudence, concerning this subject. On a review of them, we shall now find that, in general, they are defective rather than erroneous; that they have fallen short of the mark, rather than deviated from the proper course.

The fitness of things denotes their fitness to produce our happiness: their nature means that actual constitution of the world, by which some things produce happiness, and others misery. Reason is one of the means, by which we discern between those things, which produce the former, and those things, which produce the latter. The moral sense feels and operates to promote the same essential discriminations. Whatever promotes the greatest happiness of the whole, is congenial to the principles of utility and sociability: and whatever unites in it all the foregoing properties, must be agreeable to the will of God: for, as has been said once, and as ought to be said again, his will is graciously comprised in this one paternal precept—Let man pursue his happiness and perfection.

The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature’s laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.

The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.

This law, or right reason, as Cicero calls it, is thus beautifully described by that eloquent philosopher. “It is, indeed,” says he, “a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind.”[31]

“Man never is,” says the poet, in a seeming tone of complaint, “but always to be blest.” The sentiment would certainly be more consolatory, and, I think, it would be likewise more just, if we were to say—man ever is; for always to be blest. That we should have more and better things before us, than all that we have yet acquired or enjoyed, is unquestionably a most desirable state. The reflection on this circumstance, far from diminishing our sense or the importance of our present attainments and advantages, produces the contrary effects. The present is gilded by the prospect of the future.

When Alexander had conquered a world, and had nothing left to conquer; what did he do? He sat down and wept. A well directed ambition that has conquered worlds, is exempted from the fate of that of Alexander the Great: it still sees before it more and better worlds as the objects of conquest.

It is the glorious destiny of man to be always progressive. Forgetting those things that are behind, it is his duty, and it is his happiness, to press on towards those that are before. In the order of Providence, as has been observed on another occasion, the progress of societies towards perfection resembles that of an individual. This progress has hitherto been but slow: by many unpropitious events, it has often been interrupted: but may we not indulge the pleasing expectation, that, in future, it will be accelerated; and will meet with fewer and less considerable interruptions.

Many circumstances seem—at least to a mind anxious to see it, and apt to believe what it is anxious to see—many circumstances seem to indicate the opening of such a glorious prospect. The principles and the practice of liberty are gaining ground, in more than one section of the world. Where liberty prevails, the arts and sciences lift up their heads and flourish. Where the arts and sciences flourish, political and moral improvements will likewise be made. All will receive from each, and each will receive from all, mutual support and assistance: mutually supported and assisted, all may be carried to a degree of perfection hitherto unknown; perhaps, hitherto not believed. “Men,” says the sagacious Hooker, “if we view them in their spring, are, at the first, without understanding or knowledge at all. Nevertheless, from this utter vacuity, they grow by degrees, till they become at length to be even as the angels themselves are. That which agreeth to the one now, the other shall attain to in the end: they are not so far disjoined and severed, but that they come at length to meet.”[32]

Our progress in virtue should certainly bear a just proportion to our progress in knowledge. Morals are undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as they are. Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. Indeed, the same immutable principles will direct this progression. In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the cotemporary degree, but will be calculated to produce, in future, a still higher degree of perfection.

A delineation of the laws of nature, has been often attempted. Books, under the appellations of institutes and systems of that law, have been often published. From what has been said concerning it, the most finished performances executed by human hands cannot be perfect. But most of them have been rude and imperfect to a very unnecessary, some, to a shameful degree.

A more perfect work than has yet appeared upon this great subject, would be a most valuable present to mankind. Even the most general outlines of it cannot, at least in these lectures, be expected from me.

CHAPTER IV

Of the Law of Nations

The law of nature, when applied to states or political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation. A weighty part of the publick business is transacted by the citizens at large. They appoint the legislature, and, either mediately or immediately, the executive servants of the publick. As the conduct of a state, both with regard to itself and others, must greatly depend upon the character, the talents, and the principles of those, to whom the direction of that conduct is intrusted; it is highly necessary that those who are to protect the rights, and to perform the duties of the commonwealth, should be men of proper principles, talents, and characters: if so, it is highly necessary that those who appoint them should be able, in some degree at least, to distinguish and select those men, whose principles, talents, and characters are proper. In order to do this, it is greatly useful that they have, at least, some just and general knowledge of those rights that are to be protected, and of those duties that are to be performed. Without this, they will be unable to form a rational conjecture, concerning the future conduct of those whom they are to elect. Nay, what is more; without some such general and just knowledge, they will be unable to form a rational judgment, concerning the past and present conduct of those whom they have already elected; and, consequently, will be unable to form a rational determination whether, at the next election, they should reappoint them, or substitute others in their place. As the practice of the law of nations, therefore, must, in a free government, depend very considerably on the acts of the citizens, it is of high import that, among those citizens, its knowledge be generally diffused.

But, if the knowledge of the law of nations is greatly useful to those who appoint, it must surely be highly necessary to those who are appointed, the publick servants and stewards of the commonwealth. Can its interests be properly managed, can its character be properly supported, can its happiness be properly consulted, by those who know not what it owes to others, what it owes to itself, what it has a right to claim from others, and what it has a right to provide for itself? In a free commonwealth, the path to publick service and to publick honour is open to all. Should not all, therefore, sedulously endeavour to become masters of such qualifications, as will enable them to tread this path with credit to themselves, and with advantage to their country?

In the United States, a system of republicks, the law of nations acquires an importance still more peculiar and distinguished. In the United States, the law of nations, operates upon peculiar relations, and upon those relations with peculiar energy. Well am I justified, on every account, in announcing the dignity and greatness of the subject, upon which I am now to enter.

On all occasions, let us beware of being misled by names. Though the law, which I am now to consider, receives a new appellation; it retains, unimpaired, its qualities and its power. The law of nations, as well as the law of nature, is of obligation indispensable: the law of nations, as well as the law of nature, is of origin divine. The opinions of many concerning the law of nations have been very vague and unsatisfactory; and if such have been the opinions, we have little reason to be surprised, that the conduct of nations has too often been diametrically opposite to the law, by which it ought to have been regulated. In the judgment of some writers, it would seem, for instance, that neither the state which commences an unjust war, nor the chief who conducts it, derogates from the general sanctity of their respective characters. An ardent love of their country they seem to have thought a passion too heroick, to be restrained within the narrow limits of systematick morality; and those have been too often considered as the greatest patriots, who have contributed most to gratify the publick passion for conquest and power. States, as well as monarchs, have too frequently been blinded by ambition. Of this there is scarcely a page in ancient or in modern history, relating to national contentions, but will furnish the most glaring proofs. The melancholy truth is, that the law of nations, though founded on the most solid principles of natural obligation, has been but imperfectly viewed in theory, and has been too much disregarded in practice.

The profound and penetrating Bacon was not inattentive to the imperfect state, in which he found the science of the law of nations. As, in another science, that enlightened philosophical guide pointed to the discoveries of a Newton; so in this, in all probability, he laid a foundation for the researches of a Grotius. For we have reason to believe, as we are told by Barbeyrac,[33] that it was the study of the works of Lord Bacon, that first inspired Grotius with the design of writing a system concerning the law of nations. In this science Grotius did much; for he was well qualified to do much. Extensive knowledge, prodigious reading, indefatigable application to study, all these were certainly his. Yet with all these, he was far from being as successful in law, as Sir Isaac Newton was in philosophy. He was unfortunate in not setting out on right and solid principles. His celebrated book of the Rights of War and Peace is indeed useful; but it ought not to be read without a due degree of caution: nor ought all his doctrines to be received, without the necessary grains of allowance. At this we ought not to wonder, when we consider the extent, the variety, and the importance of his subject, and that, before his time, it was little known, and much neglected. His opinion concerning the source and the obligation of the law of nations is very defective. He separates that law from the law of nature, and assigns to it a different origin. “When many men,” says he,“at different times and places, unanimously affirm the same thing for truth; this should be ascribed to a general cause. In the subjects treated of by us, this cause can be no other than either a just inference drawn from the principles of nature, or a universal consent. The first discovers to us the law of nature, the second the law of nations.”[34] The law of nations, we see, he traces from the principle of universal consent. The consequence of this is, that the law of nations would be obligatory only upon those by whom the consent was given, and only by reason of that consent. The farther consequence would be, that the law of nations would lose a part, and the greatest part, of its obligatory force, and would also be restrained as to the sphere of its operations. That it would lose the greatest part of its obligatory force, sufficiently appears from what we have said at large concerning the origin and obligation of natural law, evincing it to be the will of God. That it would be restrained as to the sphere of its operations, appears from what Grotius himself says, when he explains his meaning in another place. He qualifies the universality of his expression by adding these words, “at least the most civilized nations;” and he afterwards says that this addition is made “with reason.”[35] On the least civilized nations, therefore, the law of nations would not, according to his account of it, be obligatory.

I admit that there are laws of nations—perhaps it is to be wished that they were designated by an appropriate name; for names, after all, will have their influence on operations—I freely admit that there are laws of nations, which are founded altogether upon consent. National treaties are laws of nations, obligatory solely by consent. The customs of nations become laws solely by consent. Both kinds are certainly voluntary. But the municipal laws of a state are not more different from the law of nature, than those voluntary laws of nations are, in their source and power, different from the law of nations, properly so called. Indeed, those voluntary laws of nations are as much under the control of the law of nations, properly so called, as municipal laws are under the control of the law of nature. The law of nations, properly so called, is the law of nature applied to states and sovereigns. The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory upon individuals. Universal, indispensable, and unchangeable is the obligation of both.

But it will naturally be asked, if the law of nations bears, as from this account it bears, the same relation to states, which the law of nature bears to individuals; if the law of nature and the law of nations are accompanied with the same obligatory power, and are derived from the same common source; why should the law of nations have a distinct name? Why should it be considered as a separate science? Some have thought that the difference was only in name; and if only in name, there could surely be no solid reason for establishing even that difference. Of those, who thought so, Puffendorff was one. “Many,” says he, “assert the law of nature and of nations to be the very same thing, differing no otherwise than in external denomination. Thus Mr. Hobbes divides natural law, into the natural law of men, and the natural law of states, commonly called the law of nations. He observes, that the precepts of both are the same; but that as states, when once instituted, assume the personal properties of men, what we call the law of nature, when we speak of particular men, we denominate the law of nations, when we apply it to whole states, nations, or people. This opinion,” continues Puffendorff, “we, for our part, readily subscribe to; nor do we conceive, that there is any other voluntary or positive law of nations, properly vested with a true and legal force, and obliging as the ordinance of a superiour power.”[36] By the way, we may here observe, that, with regard to the law of nations, Grotius and Puffendorff seem to have run into contrary extremes. The former was of opinion, that the whole law of nations took its origin and authority from consent. The latter was of opinion, that every part of the law of nations was the same with the law of nature, that no part of it could receive its obligatory force from consent; because, according to his favourite notion of law, no such thing could exist without the intervention of a superiour power. The truth seems to lie between the two great philosophers. The law of nations, properly so called, or, as it may be termed, the natural law of nations, is a part, and an important part, of the law of nature. The voluntary law of nations falls under the class of laws that are positive. If a particular name had been appropriated to this last species of law, it is probable that much confusion and ambiguity, on this subject, would have been avoided; and the distinction between the different parts of that law, comprehended, at present, under the name of the law of nations, would have been as clearly marked, as uniformly preserved, and as familiarly taken, as the well known and well founded distinction between natural and municipal law. But to return.

As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects, treated of the law of nations separately; but has every where joined it with the law of nature, properly so called. His example has been followed by the greatest part of succeeding writers. But the imitation of it has produced a confusion of two objects, which ought to have been viewed and studied distinctly and apart. Though the law of nations, properly so called, be a part of the law of nature; though it spring from the same source; and though it is attended with the same obligatory power; yet it must be remembered that its application is made to very different objects. The law of nature is applied to individuals: the law of nations is applied to states. The important difference between the objects, will occasion a proportioned difference in the application of the law.[37] This difference in the application renders it fit that the law of nature, when applied to states, should receive an appropriate name, and should be taught and studied as a separate science.

Though states or nations are considered as moral persons; yet the nature and essence of these moral persons differ necessarily, in many respects, from the nature and essence of the individuals, of whom they are composed. The application of a law must be made in a manner suitable to its object. The application, therefore, of the law of nature to nations must be made in a manner suitable to nations: its application to individuals must be made in a manner suitable to individuals. But as nations differ from individuals; the application of the law suitable to the former, must be different from its application suitable to the latter. To nations this different application cannot be made with accuracy, with justness, and with perspicuity, without the aid of new and discriminating rules. These rules will evince, that, on the principles themselves of the law of nature, that law, when applied to nations, will prescribe decisions different from those which it would prescribe, when applied to individuals. To investigate those rules; to deduce, from the same great and leading principles, applications differing in proportion to the difference of the persons to which they are applied, is the object of the law of nations, considered as a science distinct and separate from that of the law of nature.

Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people. Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority; as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature’s God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all. How vast—how important—how interesting are these truths! They announce to a free people how exalted their rights; but, at the same time, they announce to a free people how solemn their duties are. If a practical knowledge and a just sense of these rights and these duties were diffused among the citizens, and properly impressed upon their hearts and minds; how great, how beneficial, how lasting would be their fruits! But, unfortunately, as there have been and there are, in arbitrary governments, flatterers of princes; so there have been and there are, in free governments, flatterers of the people. One distinction, indeed, is to be taken between them. The latter herd of flatterers persuade the people to make an improper use of the power, which of right they have: the former herd persuade princes to make an improper use of power, which of right they have not. In other respects, both herds are equally pernicious. Both flatter to promote their private interests: both betray the interests of those whom they flatter.

It is of the highest, and, in free states, it is of the most general importance, that the sacred obligation of the law of nations should be accurately known and deeply felt. Of all subjects, it is agreeable and useful to form just and adequate conceptions; but of those especially, which have an influence on the practice and morality of states. For it is a serious truth, however much it has been unattended to in practice, that the laws of morality are equally strict with regard to societies, as to the individuals of whom the societies are composed. It must be owing either to ignorance, or to a very unjustifiable disregard to this great truth, that some transactions of publick bodies have often escaped censure, nay, sometimes have received applause, though those transactions have been such, as none of the individuals composing those bodies would have dared to introduce into the management of his private affairs; because the person introducing them would have been branded with the most reproachful of names and characters. It has been long admitted, by those who have been the best judges of private life and manners, that integrity and sound policy go hand in hand. It is high time that this maxim should find an establishment in the councils of states, and in the cabinets of princes. Its establishment there would diffuse far and wide the most salutary and benign effects.

Opinions concerning the extent of the law of nations have not been less defective and inadequate, than those concerning its origin and obligatory force. Some seem to have thought, that this law respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law—that containing the duties which a nation owes itself—seems to have escaped their attention. “The general principle,” says Burlamaqui, “of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals. Thus the law of natural equality, which prohibits injury and commands the reparation of damage done; the law of beneficence, and of fidelity to our engagements, are laws respecting nations, and imposing, both on the people and on their respective sovereigns, the same duties as are prescribed to individuals.”[38] Several other writers concerning the law of nations appear to have formed the same imperfect conceptions with regard to its extent. Let us recur to what the law of nature dictates to an individual. Are there not duties which he owes to himself? Is he not obliged to consult and promote his preservation, his freedom, his reputation, his improvement, his perfection, his happiness? Now that we have seen the law of nature as it respects the duties of individuals, let us see the law of nations as it respects the duties of states, to themselves: for we must recollect that the law of nations is only the law of nature judiciously applied to the conduct of states. From the duties of states, as well as of individuals, to themselves; a number of corresponding rights will be found to arise.

A state ought to attend to the preservation of its own existence. In what does the existence of a state consist? It consists in the association of the individuals, of which it is composed. In what consists the preservation of this existence? It consists in the duration of that association. When this association is dissolved, the state ceases to exist; though all the members, of whom it was composed, may still remain. It is the duty of a state, therefore, to preserve this association undissolved and unimpaired. But in this, as in many other instances, a difference between the nature of states and the nature of individuals will occasion, for the reasons already mentioned, a proportioned difference in the application of the law of nature. Nations, as well as men, are taught by the law of nature, gracious in its precepts, to consider their happiness as the great end of their existence. But without existence there can be no happiness: the means, therefore, must be secured, in order to secure the end. But yet, between the duty of self-preservation required from a state, and the duty of self-preservation required from a man, there is a most material difference; and this difference is founded on the law of nature itself. A nation has a right to assign to its existence a voluntary termination: a man has not. What can be the reasons of this difference? Several may be given. By the voluntary act of the individuals forming the nation, the nation was called into existence: they who bind, can also untie: by the voluntary act, therefore, of the individuals forming the nation, the nation may be reduced to its original nothing. But it was not by his own voluntary act that the man made his appearance upon the theatre of life; he cannot, therefore, plead the right of the nation, by his own voluntary act to make his exit. He did not make; therefore, he has no right to destroy himself. He alone, whose gift this state of existence is, has the right to say when and how it shall receive its termination.

Again; though nations are considered as moral persons, and, in that character, as entitled, in many respects, to claim the rights, and as obliged, in many respects, to perform the duties of natural persons; yet we must always remember that of natural persons those moral persons are composed; that for the sake of natural persons those moral persons were formed; and that while we suppose those moral persons to live, and think, and act, we know that they are natural persons alone, who really exist or feel, who really deliberate, resolve, and execute. Now none of these observations resulting from the nature and essence of the nation, can be applied, with any degree of propriety, to the nature and essence of the man: and, therefore, the inferences drawn from these observations, with regard to the case of the nation, are wholly inapplicable to the case of the man.

One of these inferences is, that as it was for the happiness of the members that the moral existence of the nation was produced; so the happiness of the members may require this moral existence to be annihilated. Can this inference be applied to the man?

Further; there may be a moral certainty, that, of the voluntary dissolution of the nation, the necessary consequence will be an increase of happiness. Can such a consequence be predicted, with moral certainty, concerning the voluntary death of the man?

This instance shows, in a striking manner, how, on some occasions, the law of nature, when applied to a nation, may dictate or authorize a measure of conduct very different from that, which it would authorize and dictate with regard to a man. As it is, in general, the duty of a state to preserve itself; so it is, in general, its duty to preserve its members. This is a duty which it owes to them, and to itself. It owes it to them, because their advantage was the final cause of their joining in the association, and engaging to support it; and they ought not to be deprived of this advantage, while they fulfil the conditions, on which it was stipulated. This duty the nation owes to itself, because the loss of its members is a proportionable loss of its strength; and the loss of its strength is proportionably injurious both to its security, and to its preservation. The result of these principles is, that the body of a nation should not abandon a country, a city, or even an individual, who has not forfeited his rights in the society.

The right and duty of a state to preserve its members are subject to the same limitations and conditions, as its right and duty to preserve itself. As, for some reasons, the society may be dissolved; so, for others, it may be dismembered. A part may be separated from the other parts; and that part may either become a new state, or may associate with another state already formed. An illustration of this doctrine may be drawn from a recent instance, which has happened in the commonwealth of Virginia. The district of Kentucky has, by an amicable agreement, been disjoined from the rest of the commonwealth, and has been formed into a separate state. It is a pleasure, perhaps I may add it is a laudable pride, to be able to furnish, to the world, the first examples of carrying into practice the most sublime parts of the most sublime theories of government and law.

When a nation has a right, and is under an obligation to preserve itself and its members; it has, by a necessary consequence, a right to do every thing, which, without injuring others, it can do, in order to accomplish and secure those objects. The law of nature prescribes not impossibilities: it imposes not an obligation, without giving a right to the necessary means of fulfilling it. The same principles, which evince the right of a nation to do every thing, which it lawfully may, for the preservation of itself and of its members, evince its right, also, to avoid and prevent, as much as it lawfully may, every thing which would load it with injuries, or threaten it with danger.

It is the right, and generally it is the duty, of a state, to form a constitution, to institute civil government, and to establish laws. If the constitution formed, or the government instituted, or the laws established shall, on experience, be found weak, or inconvenient, or pernicious; it is the right, and it is the duty of the state to strengthen, or alter, or abolish them. These subjects will be fully treated in another place.

A nation ought to know itself. It ought to form a just estimate of its own situation, both with regard to itself and to its neighbours. It ought to learn the excellencies, and the blemishes likewise of its own constitution. It ought to review the instances in which it has already attained, and it ought to ascertain those in which it falls short of, a practicable degree of perfection. It ought to find out what improvements are peculiarly necessary to be promoted, and what faults it is peculiarly necessary to avoid. Without a discriminating sagacity of this kind, the principle of imitation, intended for the wisest purposes in states as well as in individuals, would be always an uncertain, sometimes a dangerous guide. A measure extremely salutary to one state, might be extremely injurious to another. What, in one situation, would be productive of peace and happiness, might, in another, be the unfortunate cause of infelicity and war. Above all things, the genius and manners of the people ought to be carefully consulted. The government ought to be administered agreeably to this genius and these manners; but how can this be done, if this genius and these manners are unknown? This duty of self-knowledge is of vast extent and of vast importance, in nations as well as in men.

To love and to deserve honest fame, is another duty of a people, as well as of an individual. The reputation of a state is not only a pleasant, it is also a valuable possession. It attracts the esteem, it represses the unfriendly inclinations of its neighbours. This reputation is acquired by virtue, and by the conduct which virtue inspires. It is founded on the publick transactions of the state, and on the private behaviour of its members.

A state should avoid ostentation, but it should support its dignity. This should never be suffered to be degraded among other nations. In transactions between states, an attention to this object is of much greater importance than is generally imagined. Even the marks and titles of respect, to which a nation, and those who represent a nation, are entitled, ought not to be considered as trivial: they should be claimed with firmness: they should be given with alacrity. The dignity, the equality, the mutual independence, and the frequent intercourse of nations render such a tenour of conduct altogether indispensable.

It is the duty of a nation to intrust the management of its affairs only to its wisest and best citizens. The immense importance of this duty is easily seen; but it is not sufficiently regarded. The meanest menial of a family will not be received without examination and cautious inquiry. The most important servants of the publick will be voted in without consideration and without care. In electioneering, as it is called, we frequently find warm recommendations and active intrigues in favour of candidates for the highest offices, to whom the recommenders and intriguers would not, if put to the test, intrust the management of the smallest part of their own private interest. An election ground, the great theatre of original sovereignty, on which nothing but inviolable integrity and independent virtue should be exhibited, is often and lamentably transformed into a scene of the vilest and lowest debauchery and deception. An election maneuvre, an election story, are names appropriated to a conduct, which, in other and inferiour transactions, would be branded, and justly branded, with the most opprobrious appellations. Even those, who may be safely trusted every where else, will play false at elections. The remarks, which I have made concerning general elections, may be too often made, with equal truth, concerning other appointments to offices. But these things ought not to be. When the obligation and the importance of the great national duty required at elections—a duty prescribed by him who made us free—a duty prescribed that we may continue free—when all this shall be sufficiently diffused, and known, and felt; these things will not be. The people will then elect conscientiously; and will require conscientious conduct from those whom they elect.

A nation ought to encourage true patriotism in its members. The first step towards this encouragement is to distinguish between its real and its pretended friends. The discrimination, it is true, is often difficult, sometimes impracticable: but it is equally true, that it may frequently be made. Let the same care be employed, let the same pains be taken, to ascertain the marks of deceit and the marks of sincerity in publick life, and in intriguing for publick office, which are usually taken and employed in private life, and in solicitations for acts of private friendship. The care and pains will sometimes, indeed, be fruitless; but they will sometimes, too, be successful; at all times, they will be faithful witnesses, that those, who have employed them, have discharged their duty.

If a nation establish itself, or extend its establishment in a country already inhabited by others; it ought to observe strict justice, in both instances, with the former inhabitants. This is a part of the law of nations, that very nearly concerns the United States. It ought, therefore, to be well understood. The whole earth is allotted for the nourishment of its inhabitants; but it is not sufficient for this purpose, unless they aid it by labour and culture. The cultivation of the earth, therefore, is a duty incumbent on man by the order of nature. Those nations that live by hunting, and have more land than is necessary even for the purposes of hunting, should transfer it to those who will make a more advantageous use of it: those who will make this use of it ought to pay, for they can afford to pay, a reasonable equivalent. Even when the lands are no more than sufficient for the purposes of hunting, it is the duty of the new inhabitants, if advanced in society, to teach, and it is the duty of the original inhabitants, if less advanced in society, to learn, the arts and uses of agriculture. This will enable the latter gradually to contract, and the former gradually to extend their settlements, till the science of agriculture is equally improved in both. By these means, the intentions of nature will be fulfilled; the old and the new inhabitants will be reciprocally useful; peace will be preserved, and justice will be done.

It is the duty of a nation to augment its numbers. The performance of this duty will naturally result from the discharge of its other duties: by discharging them, the number of persons born in the society will be increased; and strangers will be incited to wish a participation in its blessings. Among other means of increasing the number of citizens, there are three of peculiar efficacy. The first is, easily to receive all strangers of good character, and to communicate to them the advantages of liberty. The state will be thus filled with citizens, who will bring with them commerce and the arts, and a rich variety of manners and characters. Another means conducive to the same end is, to encourage marriages. These are the pledges of the state. A third means for augmenting the number of inhabitants is, to preserve the rights of conscience inviolate. The right of private judgment is one of the greatest advantages of mankind; and is always considered as such. To be deprived of it is insufferable. To enjoy it lays a foundation for that peace of mind, which the laws cannot give, and for the loss of which the laws can offer no compensation.

A nation should aim at its perfection. The advantage and improvement of the citizens are the ends proposed by the social union. Whatever will render that union more perfect will promote these ends. The same principles, therefore, which show that a man ought to pursue the perfection of his nature, will show, likewise, that the citizens ought to contribute every thing in their power towards the perfection of the state. This right involves the right of preventing and avoiding every thing, which would interrupt or retard the progress of the state towards its perfection. It also involves the right of acquiring every thing, without which its perfection cannot be promoted or obtained.

Happiness is the centre, to which men and nations are attracted: it is, therefore, the duty of a nation to consult its happiness. In order to do this, it is necessary that the nation be instructed to search for happiness where happiness is to be found. The impressions that are made first, sink deepest; they frequently continue through life. That seed, which is sown in the tender minds of youth, will produce abundance of good, or abundance of evil. The education of youth, therefore, is of prime importance to the happiness of the state. The arts, the sciences, philosophy, virtue, and religion, all contribute to the happiness, all, therefore, ought to receive the encouragement, of the nation. In this manner, publick and private felicity will go hand in hand, and mutually assist each other in their progress.

When men have formed themselves into a state or nation, they may reciprocally enter into particular engagements, and, in this manner, contract new obligations in favour of the members of the community; but they cannot, by this union, discharge themselves from any duties which they previously owed to those, who form no part of the union. They continue under all the obligations required by the universal society of the human race—the great society of nations. The law of that great and universal society requires, that each nation should contribute to the perfection and happiness of the others. It is, therefore, a duty which every nation owes to itself, to acquire those qualifications, which will fit and enable it to discharge those duties which it owes to others. What those duties are, we shall now very concisely and summarily inquire. The first and most necessary duty of nations, as well as of men, is to do no wrong or injury. Justice is a sacred law of nations. If the law of the great society of nations requires, as we have seen it to require, that each should contribute to the perfection and happiness of others; the first degree of this duty surely is, that each should abstain from every thing, which would positively impair that perfection and happiness. This great principle prohibits one nation from exciting disturbances in another, from seducing its citizens, from depriving it of its natural advantages, from calumniating its reputation, from debauching the attachment of its allies, from fomenting or encouraging the hatred of its enemies. If, however, a nation, in the necessary prosecution of its own duties and rights, does what is disagreeable or even inconvenient to another, this is not to be considered as an injury; it ought to be viewed as the unavoidable result, and not as the governing principle of its conduct. If, at such conduct, offence is taken, it is the fault of that nation, which takes, not of that nation, which occasions it.

But nations are not only forbidden to do evil; they are also commanded to do good to one another. The duties of humanity are incumbent upon nations as well as upon individuals. An individual cannot subsist, at least he cannot subsist comfortably, by himself. What is true concerning one, is true concerning all. Without mutual good offices and assistance, therefore, happiness could not be procured, perhaps existence could not be preserved. Hence the necessity of the duties of humanity among individuals. Every one is obliged, in the first place, to do what he can for himself; in the next, to do what he can for others; beginning with those with whom he is most intimately connected. The consequence is, that each man is obliged to give to others every assistance, for which they have a real occasion, and which he can give without being wanting to himself. What each is obliged to perform for others, from others he is entitled to receive. Hence the advantage as well as the duty of humanity. These principles receive an application to states as well as to men. Each nation owes to every other the duties of humanity. It is true, there may be some difference in the application, in this as well as in other instances: but the principles of the application are the same. A nation can subsist by itself more securely and more comfortably than an individual can; therefore the duty of mutual assistance will not, at all periods, be equally indispensable, or return with equal frequency. But when it becomes, as it may become, equally indispensable; and when it returns, as it may return, with equal frequency; it ought, in either case, to be equally performed. One individual may attack another daily: a longer time is necessary for the aggression of one nation upon another. The assistance, therefore, which ought to be given to the individual daily, will be necessary for the nation only at more distant intervals of time. But between nations, what the duties of humanity lose in point of frequency, they gain in point of importance, in proportion, perhaps, to the difference between a single individual, and all those individuals of whom the nation is composed. One nation ought to give to another, not only the assistance necessary to its preservation, but that also which is necessary to its perfection, whenever it is wanted, and whenever, consistently with other superiour duties, it can be given. The cases in which assistance ought to be demanded, and those in which it ought to be given, must be decided respectively by that nation which demands, and by that of which the demand is made. It is incumbent on each to decide properly; not to demand, and not to refuse, without strong and reasonable cause.

It may, perhaps, be uncommon, but it is certainly just, to say that nations ought to love one another. The offices of humanity ought to flow from this pure source. When this happily is the case, then the principles of affection and of friendship prevail among states as among individuals: then nations will mutually support and assist each other with zeal and ardour; lasting peace will be the result of unshaken confidence; and kind and generous principles, of a nature far opposite to mean jealously, crooked policy, or cold prudence, will govern and prosper the affairs of men. And why should not this be the case? When a number of individuals, by the social union, become fellow citizens, can they, by that union, devest themselves of that relation, which subsists between them and the other—the far greater—part of the human species? With regard to those, can they cease to be men?

The love of mankind is an important duty and an exalted virtue. Much has been written, much has been said concerning the power of intellectual abstraction, which man possesses, and which distinguishes him so eminently from the inferiour orders of animals. But little has been said, and little has been written, concerning another power of the human mind, still more dignified, and, beyond all comparison, more amiable—I may call it the power of moral abstraction.

All things in nature are individuals. But when a number of individuals have a near and striking resemblance, we, in our minds, class them together, and refer them to a species, to which we assign a name. Again; when a number of species have a resemblance, though not so near and striking, we, in the same manner, class them also together, and refer them to a genus, to which we likewise assign a name. Different genera may have a resemblance, though still less close and striking; we refer them to a higher genus, till we arrive at being, the highest genus of all. This is the progress of intellectual abstraction.

We are possessed of a moral power, similar in its nature and in its progress—a principle of good will as well as of knowledge. This principle of benevolence is indeed primarily and chiefly directed towards individuals, those especially, with whom we are or wish to be most intimately connected. But this principle, as well as the other, is capable of abstraction, and of embracing general objects. The culture, the improvement, and the extension of this principle ought to have made, in the estimation of philosophers, as important a figure among the moral, as the other has made among the intellectual powers and operations of the mind; for it is susceptible of equal culture, of equal improvement, and of equal extension.

“After having,” says the illustrious Neckar, in his book concerning the importance of religious opinions, “proved myself a citizen of France, by my administration, as well as my writings, I wish to unite myself to a fraternity still more extended, that of the whole human race. Thus, without dispersing our sentiments, we may be able to communicate ourselves a great way off, and enlarge, in some measure, the limits of our circle. Glory be to our thinking faculties for it! to that spiritual portion of ourselves, which can take in the past, dart into futurity, and intimately associate itself with the destiny of men of all countries and of all ages!”[39]

To the same purpose is the sentiment of Cicero, in his beautiful treatise on the nature and offices of friendship. “In tracing the social laws of nature,” says he, “it seems evident, that man, by the frame of his moral constitution, is supposed to consider himself as standing in some degree of social relation to the whole species in general; and that this principle acts with more or less vigour, according to the distance at which he is placed with respect to any particular community or individual of his kind.”[40]

This principle of benevolence and sociability, which is not confined to one sect or to one state, but ranges excursive through the whole expanded theatre of men and nations, instead of being always acknowledged and always recommended, as it ought to have been, has been altogether omitted by some philosophers: by some, its existence seems to have been doubted or denied.

“Some sort of union,” says Rutherforth, in his institutes of natural law, “there is between all nations: they are all included in the collective idea of mankind, and are frequently spoken of under this general name. But this is not a social union: the several parts of the collective idea, whether we consider the great body of mankind as made up of individuals or of nations, are not connected, as the several parts of a civil society are, by compact among themselves: the connexion is merely notional, and is only made by the mind, for its own convenience.”[41]

The very enlarged active power, concerning which I speak, is, to this day, so far as I know, without an appropriated name. The term philanthropy approaches near, but does not reach it. We sometimes call it patriotism, by a figurative extension of that term, which, in its proper meaning, denotes a circle of benevolence limited by the state, of which one is a member. When we speak of the most exalted of all characters, of the man who possesses this virtue, we generally describe him, by a metaphor, a “citizen of the world.” A “man of the world,” which would be the more natural expression, though it is in common use, is used to convey a very different idea.

If the general observations, which I have before made concerning the nature, the structure, and the evidence of language, be well founded, the particular remarks I have now made will appear to be striking and just.

This power of moral abstraction should be exercised and cultivated with the highest degree of attention and zeal. It is as necessary to the progress of exalted virtue, as the power of intellectual abstraction is to the progress of extensive knowledge. The progress of the former will be accompanied with a degree of pleasure, of utility, and of excellence, far superiour to any degree of those qualities, which can accompany the latter. The purest pleasures of mathematical learning spring from the source of accurate and extended intellectual abstraction. But those pleasures, pure as they are, must yield the palm to those, which arise from abstraction of the moral kind. By this power, exerted in different proportions, the commonwealth of Pennsylvania, the empire of the United States, the civilized and commercial part of the world, the inhabitants of the whole earth, become objects of a benevolence the warmest, and of a spirit the most patriotick; for custom, the arbitress of language, has not yet authorized a more appropriate epithet. By this power, a number of individuals, who, considered separately, may be so minute, so unknown, or so distant, as to elude the operations of our benevolence, yet, comprehended under one important and distinguished aspect, may become a general and complex object, which will warm and dilate the soul. By this power the capacity of our nature is enlarged; men, otherwise invisible, are rendered conspicuous; and become known to the heart as well as to the understanding. This enlarged and elevated virtue ought to be cultivated by nations with peculiar assiduity and ardour. The sphere of exertion, to which an individual is confined, is frequently narrow, however enlarged his disposition may be. But the sphere, to the extent of which a state may exert herself, is often comparatively boundless. By exhibiting a glorious example in her constitution, in her laws, in the administration of her constitution and laws, she may diffuse reformation, she may diffuse instruction, she may diffuse happiness over this whole terrestrial globe.

How often and how fatally are expressions and sentiments perverted! How often and how fatally is perverted conduct the unavoidable and inveterate effect of perverted sentiment and expression! What immense treasures have been exhausted, what oceans of human blood have been shed, in France and England, by force of the expression “natural enemy!” ’Tis an unnatural expression. The antithesis is truly in the thought: for natural enmity forms no title in the genuine law of nations, part of the law of nature. It is adopted from a spurious code.

The foregoing rules and maxims of national law, though they are the sacred, the inviolable, and the exalted precepts of nature, and of nature’s Author, have been long unknown and unacknowledged among nations. Even where they have been known and acknowledged, their calm still voice has been drowned by the solicitations of interest, the clamours of ambition, and the thunder of war. Many of the ancient nations conceived themselves to be under no obligations whatever to other states or the citizens of other states, unless they could produce in their favour a connexion formed and cemented by a treaty of amity.

At last, however, the voice of nature, intelligible and persuasive, has been heard by nations that are civilized: at last it is acknowledged that mankind are all brothers: the happy time is, we hope, approaching, when the acknowledgment will be substantiated by a uniform corresponding conduct.

How beautiful and energetick are the sentiments of Cicero on this subject. “It is more consonant to nature,” that is, as he said a little before, to the law of nations, “to undertake the greatest labours, and to undergo the severest trouble, for the preservation and advantage of all nations, if such a thing could be accomplished, than to live in solitary repose, not only without pain, but surrounded with all the allurements of pleasure and wealth. Every one of a good and great mind, would prefer the first greatly before the second situation in life.” “It is highly absurd to say, as some have said, that no one ought to injure a parent or a brother, for the sake of his own advantage; but that another rule may be observed concerning the rest of the citizens: such persons determine that there is no law, no bonds of society among the citizens, for the common benefit of the commonwealth. This sentiment tends to dissolve the union of the state. Others, again, admit that a social regard is to be paid to the citizens, but deny that this regard ought to be extended in favour of foreigners: such persons would destroy the common society of the human race; and if this common society were destroyed, the destruction would involve, in it, the fate also of beneficence, liberality, goodness, justice. Which last virtue is the mistress and the queen of all the other virtues.”[42] By justice here, Cicero clearly means that universal justice, which is the complete accomplishment of the law of nature.

It has been already observed, that there is one part of the law of nations, called their voluntary law, which is founded on the principle of consent: of this part, publick compacts and customs received and observed by civilized states form the most considerable articles.

Publick compacts are divided into two kinds—treaties and sponsions. Treaties are made by those who are empowered, by the constitution of a state, to represent it in its transactions with other nations. Sponsions are made by an inferiour magistrate or officer, on behalf of the state, but without authority from it. Such compacts, therefore, do not bind the state, unless it confirms them after they are made. These take place chiefly in negotiations and transactions between commanding officers, during a war.

Though the power of making treaties is usually, it is not necessarily annexed to sovereign power. Some of the princes and free cities of Germany, though they hold of the emperour and the empire, have nevertheless the right of making treaties with foreign nations: this right, as well as several other rights of sovereignty, the constitution of the empire has secured to them.

With a policy, wiser and more profound, because it shuts the door against foreign intrigues with the members of the union, no state comprehended within our national government, can enter into any treaty, alliance, or confederation.[43] It is in the constitution or fundamental laws of every nation, that we must search, in order to discover what power it is, which has sufficient authority to contract, with validity, in the name of the state.

A treaty is valid, if there has been no essential defect in the manner, in which it has been made; and, in order to guard against essential defects, it is only necessary that there be sufficient power in the contracting parties, that their mutual consent be given, and that that consent be properly declared.

It is a truth certain in the law of nature, that he who has made a promise to another, has given to that other a perfect right to demand the performance of the promise. Nations and the representatives of nations, therefore, ought to preserve inviolably their treaties and engagements: by not preserving them, they subject themselves to all the consequences of violating the perfect right of those, to whom they were made. This great truth is generally acknowledged; but too frequently an irreligious disregard is shown to it in the conduct of princes and states. But such a disregard is weak as well as wicked. In publick as in private life, among sovereigns as among individuals, honesty is the best policy, as well as the soundest morality. Among merchants, credit is wealth; among states and princes, good faith is both respectability and power.

A state, which violates the sacred faith of treaties, violates not only the voluntary, but also the natural and necessary law of nations; for we have seen that, by the law of nature, the fulfilment of promises is a duty as much incumbent upon states as upon men. Indeed it is more incumbent on the former than on the latter; for the consequences both of performing and of violating the engagements of the former, are generally more important and more lasting, than any which can flow from engagements performed or violated by individuals. Hence the strict propriety, as well as the uncommon beauty of the sentiment—that if good faith were banished from every other place, she should find an inviolable sanctuary at least in the bosoms of princes. Every treaty should be illuminated by perspicuity and candour. A tricking minister is, in real infamy, degraded as much below a vulgar cheat, as the dignity of states is raised above that of private persons. Ability and address in negotiation may be used to avoid, never to accomplish a surprise.

Fraud in the subsequent interpretation, is equally base and dishonourable as fraud in the original structure of treaties. In the scale of turpitude, it weighs equally with the most flagrant and notorious perfidy.

Treaties and alliances are either personal or real. The first relate only to the contracting parties, and expire with those who contract. The second relate to the state, in whose name and by whose authority the contract was made, and are permanent as the state itself, unless they determine, at another period, by their own limitation. Every treaty or alliance made with a commonwealth is, in its own nature, real; for it has reference solely to the body of the state. When a free people make an engagement, it is the nation which contracts. Its stipulations depend not on the lives of those, who have been the instruments in forming the treaty: nor even on the lives of those citizens, who were alive when the treaty was formed. They change; but the commonwealth continues the same.

Hence the stability and the security of treaties made with commonwealths. By the faithful observance of their treaties, the Cantons of Switzerland have rendered themselves respectable and respected over all Europe. Let it be mentioned to the honour of the parliament of Great Britain, that it has frequently thanked its king for his zeal and attachment to the treaties, in which he has engaged the nation. The corruption of the best things and institutions, however, always degenerates into the worst. The citizens of Carthage prostituted the character of their republick to such a degree, that, if we may believe the testimony of an enemy, Punica fides (Carthaginian faith) became proverbial, over the ancient world, to denote the extreme of perfidy. As the United States have surpassed others, even other commonwealths, in the excellence of their constitution and government; it is reasonably to be hoped, that they will surpass them, likewise, in the stability of their laws, and in their fidelity to their engagements.

In the great chart of the globe of credit, we hope to see American placed as the very antipode of Carthaginian faith.

CHAPTER V

Of Municipal Law

[OMITTED]

CHAPTER VI

Of Man, as an Individual

[OMITTED]

CHAPTER VII

Of Man, as a Member of Society

“It is not fit that man should be alone,” said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments. That we should be anxious to share, and, by sharing, to divide our afflictions, may, to some, appear by no means strange, because a certain turn of thinking will lead them to ascribe this propensity to the selfish rather than to the social part of our nature. But will this interested solution account for another propensity, equally uniform and equally strong? We are no less impatient to communicate our pleasures than our woes. Does self-interest predominate here? No. Our social affection acts here unmixed and uncontrolled.

     There’s not a blessing individuals find,
     But some way leans and hearkens to the kind.
     No bandit fierce, no tyrant mad with pride,
     No caverned hermit rests self-satisfied.
     Who most to shun or hate mankind pretend,
     Seek an admirer, or would fix a friend.
     Abstract what others feel, what others think,
     All pleasures sicken, and all glories sink.[44]

In all our pictures of happiness, which, at certain gay and disengaged moments, appear, in soft and alluring colours, to our fancy, does not a partner of our bliss always occupy a conspicuous place? When, on the other hand, phantoms of misery haunt our disturbed imaginations, do not solitary wanderings frequently form a principal part of the gloomy scenes? It is not an uncommon opinion, and, in this instance, our opinions must be vouched by our feelings, that the most exquisite punishment, which human nature could suffer, would be, in total solitude, to languish out a lengthened life.

. . .

How various and how unwearied are the workings of the social aim! Deprived of one support, it lays hold on another: deprived of that other, it lays hold on another still. While an intelligent, or even an animate being can be found, it will find an object for its unremitted pursuit and attachment.

We may extract sweet lessons of liberty and sociability from the prison of barbarous and despotick power. A French nobleman was long immured in a dreary and solitary apartment. When he had uttered many an unavailing sigh after society, he, at last, was fortunate enough to discover a spider, who had taken up his abode in the same room. Delighted with the acquisition, he immediately formed a social intercourse with the joint inhabitant of his sequestered mansion. He enjoyed, without molestation, this society for a considerable time. But the correspondence was, at last, discovered by his keeper, long tutored and accustomed to all the ingenious inventions and refinements of barbarity. By an effort, which evinced him a consummate master of his art, he killed the spider, and reduced his prisoner again to absolute solitude. The nobleman, after his release, used frequently to declare, that he had seldom experienced more poignant distress, than what he had suffered from the loss of his companion in confinement.

Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion. Their conclusion is, that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species. Humanity and hospitality towards strangers or those in distress are represented as selfishness, only of a more deliberate kind. An honest heart is only a cunning one; and good nature is a well regulated self-love. The love of posterity, of kindred, of country, and of mankind—all these are only so many different modifications of this universal self-love.

But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience. Indeed, an appeal to themselves will evince, that their philosophy is not consistent even with the instinctive principles of their own hearts—principles, of which the native lustre will, at some times, beam forth, notwithstanding all the care employed to cover or extinguish it. The celebrated Sage of Malmesbury,[45] savage and unsociable as he would make himself and all mankind appear, took the utmost pains that, during his life, and even after his death, others might be kindly rescued from the unhappy delusions, by which they were prevented from discovering the truth.b He told us “that both in religion and in morals, we were imposed on by our governours; that there is nothing, which, by nature, inclines us either way; and that nothing naturally draws us to the love of what is without or beyond ourselves.”[46] And yet he was the most laborious of all men in composing and publishing systems of this kind—for our use.

To such philosophers, animated with this preposterous zeal, this answer, in the spirit of their own doctrines, is plain and easy. If there is nothing to carry you without yourselves; what are we to you? From what motives do you give yourselves all this concern about us? What can induce you to trim your midnight lamp, and waste your spirits in laborious vigils, for our instruction? You disclaim all social connexion with your species; what, then, we say again, are we to you?

But a subject, in itself so material to the sciences of philosophy and of law, merits a serious, a full, and a patient discussion. For it is of high practical importance, that the principles of society should be properly explained and well understood. It has been one of the happy characteristicks of the present age, both on this and on the other side of the Atlantick, that the spirit of philosophy has been wisely directed to the just investigation of those principles; and that the spirit of patriotism has been vigorously exerted in their support.

In a very early part of these lectures, it was observed, concerning definitions and divisions, that by them we are in danger of circumscribing nature within the limits of our own notions, formed frequently on partial and defective views. A very remarkable instance of this occurs in the subject, on the examination of which we now enter.

The intellectual powers of the mind have been commonly divided into simple apprehension, judgment, and reasoning. This division has received the sanction of high antiquity, and of a very extensive adoption; yet it is far from being complete. From it many of the operations of the understanding are excluded, such as consciousness, moral perception, taste, memory, and our perception of objects by means of our external senses. But, besides all these, there is a whole class, and a very important one too, of our intellectual operations, which, because they were not fortunate enough to be included within the foregoing division, have been overlooked by philosophers, and have not even yet been distinguished by a name. Some operations of the mind may take place in a solitary state: others, from their very nature, are social; and necessarily suppose a communication with some other intelligent being. In a state of absolute solitude, one may apprehend, and judge, and reason. But when he bears or hears testimony; when he gives or receives a command; when he enters into an engagement by a promise or a contract; these acts imply necessarily something more than apprehension, judgment, and reasoning; they imply necessarily a society with other beings, social as well as intelligent.

Simple apprehension is unaccompanied with any judgment or belief, concerning the object apprehended. Judgment is formed, as these philosophers say, by comparing ideas, and by perceiving their agreements and disagreements. Reasoning is an operation, by which, from two or more judgments, we deduce a conclusion. Now, from this account of these three operations of the mind, it appears unquestionably, that testimony is neither apprehension, nor judgment, nor reasoning. The same observation will apply, with the same propriety, to a promise, to an agreement, to a contract. Testimony, agreements, contracts, promises form very distinguished titles in that law, which it is the object of these lectures to delineate: perhaps it has already been evinced to your satisfaction, that some of them form its very basis.

That system of human nature must, indeed, appear extremely inadequate and defective, by which articles of such vast importance, both in theory and in the business of life, are left without a place, and without a name.

The attempts of some philosophers to reduce the social operations under the common philosophical divisions, resemble very much the attempts of others, to reduce all our social affections to certain modifications of self love. The Author of our existence intended us to be social beings; and has, for that end, given us social intellectual powers. They are original parts of our constitution; and their exertions are no less natural than the exertions of those powers, which are solitary and selfish.

Our social intellectual operations appear early in life, and before we are capable of reasoning; yet they suppose a conviction of the existence of other intelligent and social beings. A child asks a question of his nurse, and waits for her answer: this implies a conviction that she is intelligent and social; that she can receive and return a communication of thoughts and sentiments.

All languages are fitted to express the social as well as the solitary operations of the mind. To express the former is indeed the primary and the direct intention of language. A man, who had no interchange of sentiments with other social and intelligent beings, would be as mute as the irrational animals that surround him. By language, we communicate to others that, which we know: by language, we learn from others that, of which we are ignorant: by language, we advise, persuade, console, encourage, sooth, restrain: in consequence of language, we are united by political societies, government, and laws: by means of language, we are raised from a situation, in which we should be as rude and as savage as the beasts of the woods.

In the more imperfect societies of mankind, such as those composed of colonies scarcely settled in their new seats, it might pass for sufficient good fortune, if the people proved only so far masters of language, as to be able to understand one another, to confer about their wants, and to provide for their common necessities. Their exposed and indigent state would not afford them either that leisure or that easy disposition, which is requisite for the cultivation of the fine arts. They, who were neither safe from violence, nor secure from want, would not be likely to engage in unnecessary pursuits. It could not be expected that they would turn their attention towards the numbers of their language, or to its best and most perfect application and arrangement. But when, in process of time, the affairs of the society were settled on an easy and secure foundation; when debates and discourses, on the subjects of common interest and of publick good, were become familiar; when the speeches of distinguished characters were considered and compared; then there would be observed, between one speaker and another, a difference, not only with regard to a more agreeable measure of sound, but to a happier and more easy arrangement of sentiment.

The attention paid to language is one distinguishing mark of the progress of society towards its most refined period: as society improves, influence is acquired by the means of reasoning and discourse: in proportion as that influence is felt to increase, in proportion will be the care bestowed upon the methods of expressing conceptions with propriety and elegance. In every polished community, this study has been considered as highly important, and has possessed a place in every plan of liberal education.

In all languages, a question, a promise, a contract, which are social acts, can be expressed as easily and as properly, as a judgment, which is a solitary act. The expression of a judgment has been dignified with a particular appellation; it has been denominated a proposition. It has been analyzed, with great logical parade, into its several parts: its elements of subject, predicate, and copula have been exhibited in ostentatious arrangement: their various modifications have been traced and examined in laborious and voluminous tracts. The expression of a question, of a covenant, or of a promise is as susceptible of analysis as the expression of a judgment: but this has not been attempted; these operations of the mind have not been honoured even with a distinct and appropriate name. Why has so much pains been taken, why has so much labour been bestowed in analyzing, and assigning appropriate names to the solitary operations, and the expression of the solitary operations of the understanding; while so little attention has been allotted to such of its operations as are social? Perhaps it will be difficult to assign any other reason than this: in the divisions, which have been made of the operations of the mind, the social ones have been omitted; and, consequently, have not been introduced to notice or regard.

Our moral perceptions, as well as the other powers of our understanding, indicate, in the strongest manner, our designation for society. Veracity, and its corresponding quality, confidence, show this, in a very striking point of view. If we were intended for solitude, those qualities could have neither operation nor use. On the other hand, without those qualities, society could not be supported. Without the latter, the former would be useless: without the former, the latter would be dangerous. Without confidence in promises, for instance, we must, in the greatest part of our conduct, proceed entirely upon the calculations of chance: but there could be no confidence in promises, if there was no principle, from which their performance might be reasonably expected.

Some may imagine, that though this principle did not exist, yet human affairs might, perhaps, be carried on as well; for that general caution and mutual distrust would be the necessary result; and where no confidence would be reposed, no breach of it could happen. But, not to mention the uneasiness and anxiety which would unavoidably attend such a situation, it is not considered how much, in every hour of our lives, we trust to others; and how difficult, if not entirely impracticable, it would be to perform the most common as well as the most important business of human life, without such trust. The conclusion is, that the performance of promises is essential to society.

Deeply laid in human nature, we now behold the basis of one of the principal pillars of private municipal law; that, which enforces the obligation of promises, agreements, and covenants.

Again; the moral sense restrains us from harming the innocent: it teaches us, that the innocent have a right to be secure from harm. These are two great principles, which prepare us for society; and, with regard to them, the moral sense discovers peculiar inflexibility: it dictates, that we should submit to any distress or danger, rather than procure our safety and relief by violence upon an innocent person. Similar to the restraint, respecting personal safety and security, is the restraint, which the moral sense imposes on us, with regard to property. Robbery and theft are indulged by no society: from a society even of robbers, they are strictly excluded. The necessity of the social law, with regard to personal security, is so evident, as to require no explanation. Its necessity, with regard to property, will be explained and made evident by the following remarks.

Man has a natural propensity to store up the means of his subsistence: this propensity is essential, in order to incite us to provide comfortably for ourselves, and for those who depend on us. But this propensity would be rendered ineffectual, if we were not secured in the possession of those stores which we collect; for no one would toil to accumulate what he could not possess in security. This security is afforded by the moral sense, which dictates to all men, that goods collected by the labour and industry of individuals are their property; and that property ought to be inviolable.

We beheld, a little while ago, one of the principal pillars of civil law founded deeply in our nature: we now perceive the great principles of criminal law laid equally deep in the human frame. Violations of property and of personal security are, as we shall afterwards show particularly, the objects of that law. To punish, and, by punishing, to prevent them, is or ought to be the great end of that law, as shall also be particularly shown.

That we are fitted and intended for society, and that society is fitted and intended for us, will become evident by considering our passions and affections, as well as by considering our moral perceptions, and the other operations of our understandings. We have all the emotions, which are necessary in order that society may be formed and maintained: we have tenderness for the fair sex: we have affection for our children, for our parents, and for our other relations: we have attachment to our friends: we have a regard for reputation and esteem: we possess gratitude and compassion: we enjoy pleasure in the happiness of others, especially when we have been instrumental in procuring it: we entertain for our country an animated and vigorous zeal: we feel delight in the agreeable conception of the improvement and happiness of mankind.

     The centre mov’d, a circle straight succeeds,
     Another still, and still another spreads.
     Friend, parent, neighbour first it will embrace,
     His country next, and next all human race;
     Wide and more wide, th’ o’erflowings of the mind
     Take ev’ry creature in, of ev’ry kind;
     Earth smiles around, with boundless bounty blest,
     And heav’n beholds its image in his breast.[47]

How naturally, and sometimes how strongly, are our passions communicated from one to another, without even the least knowledge of the cause, by which they were originally produced! They are conveyed by aspect: the very countenance is infectious: the emotion flies from face to face: it is no sooner seen than experienced: like the electrick shock, it is felt instantaneously by a whole multitude; though, perhaps, only one of them knows from whence it proceeds. Such is the force of society in the passions.

This sympathy is an important quality of many of our passions: in particular, it invites and produces a communication of joys and sorrows, hopes and fears. Spirits, the most generous and the most susceptible of strong impressions, are the most social and combining. They delight most to move in concert; and feel, in the strongest manner, the force of the confederating charm.

The social powers and dispositions of our minds discover themselves in the earliest periods of life. So soon as a child can speak, he can ask, and he can answer a question: before he can speak, he shows signs of love, of resentment, and of other affections necessarily pointed to society. He is capable of social intercourse long before he is capable of reasoning. We behold this charming intercourse between his mother and him, before he is a year old. He can, by signs, ask and refuse, threaten and supplicate. In danger, he clings to his mother—for I will not, on this occasion, distinguish between the mother and the nurse—he enters into her joy and grief, is happy in her caresses, and is unhappy in her displeasure.

As sociability attends us in our infancy; she continues to be our companion through all the variegated scenes of our riper years. By an irresistible charm, she insinuates herself into the hearts of every rank and class of men, and mixes in all the various modes and arrangements of human life. Let us suppose a man of so morose and acrimonious a disposition, as to shun . . . all communication with his species; even such a misanthropist would wish for at least one associate, into whose bosom he might discharge the rancour and virulence of his own heart.

Society is necessary as well as natural to us. To support life, to satisfy our natural appetites, to obtain those agreeable enjoyments of which our nature is susceptible, many external things are indispensable. In order to live with any degree of comfort, we must have food, clothing, habitations, furniture, and utensils of some sort. These cannot be procured without much art and labour; nor without the friendly assistance of our fellows in society.

Let us suppose a man of full strength, and well instructed in all our arts of life, to be reduced suddenly to solitude, even in one of the best of soils and climates: could he procure the grateful conveniences of life? It will not be pretended. Could he procure even its simple necessaries? In an ingenious and excellent romance, we are told this has been done. But it will be remembered, that the foundation of Robinson Crusoe’s future subsistence, and of all the comforts which he afterwards provided and collected, was laid in the useful instruments and machines, which he saved from his shipwreck. These were the productions of society.

Could one, uninstructed in our arts of life, and unfurnished with the productions of society, subsist in solitude, though he were of full age, and possessed of health and strength? the probabilities would run strong against him.

Could one subsist in solitude during the weak, uninformed, and inexperienced period of his infancy? This he could not do, unless, like another Romulus and Remus, he owed his subsistence to the social aid of the wolves.

But let us, for a moment, suppose, that food, raiment, and shelter were supplied even by a miracle; a solitary life must be continually harassed by dangers and fears. Suppose those dangers and fears to be removed; could he find employment for the most excellent powers and instincts of his mind? Could he indulge affection or social joy? could he communicate, or could he receive social pleasure or social regard? Dispositions very different indeed—sour discontentment, sullen melancholy, listless languor—must prey upon his soul.

The reciprocal assistance of those, who compose a single family, may procure many of the necessaries of life; and may diminish its dangers. In this state some room will be afforded for social enjoyments, and for the finer operations of the mind. Still greater pleasures and advantages would be obtained by the union of a few families in the same neighbourhood. They would undertake and execute laborious works for the common good of all; and social emotions would operate in a less contracted circuit. Associations, still larger, will enlarge the sphere of pleasure and enjoyment; and will furnish more diversified and delightful exercise to our powers of every kind. Knowledge is increased: inventions are discovered: experience improves them: and the inventions, with their improvements, are spread over the whole community. Designs of durable and extensive advantage are boldly formed, and vigorously carried into effect. The social and benevolent affections range in an ample sphere; and attain an eminent degree of strength and refinement.

On what does our security—on what do our enjoyments depend? On our mutual services and sympathetick pleasures. Other animals have strength or speed sufficient for their preservation and defence. Man is, in all states, encompassed with weakness and dangers: but the strength and safety, which he wants by himself, he finds, when he is united with his equals. Nature has endowed him with a principle, which gives him force and superiority, where otherwise he would be helpless and inferiour. By sociability, they, who separately could make no effectual resistance, conquer and tame the various kinds of the brute creation. Society is the cause, that, not satisfied with the element on which he was born, man extends his dominion over the sea. Society supplies him with remedies in his diseases, with comfort in his afflictions, and with assistance in his old age. Take away society, and you destroy the basis, on which the preservation and happiness of human life are laid.

“There is nothing more certain,” says Cicero, “than the excellent maxim of Plato—that we are not intended solely for ourselves; but that our friends and our country claim a portion of our birth. Since, according to the doctrine of the stoicks, the productions of the earth are designed for men, and men are designed for the mutual aid of one another; we should certainly pursue the design of Nature, and promote her benign intention, by contributing our proportion to the general interest, by mutually performing and receiving good offices, and by employing our care, our industry, and even our fortune, in order to strengthen the love and friendship, which should always predominate in human society.”[48]

In point of dignity, the social operations and emotions of the mind rise to a most respectable height. The excellency of man is chiefly discerned in the great improvements, of which he is susceptible in society: these, by perseverance and vigour, may be carried on progressively to degrees higher and higher, above any limits which we can now assign.

Our social affections and operations acquire still greater importance, in another point of view: they promote and are necessary to our happiness. “If we could suppose ourselves,” says Cicero, who knew so well how to illustrate law by philosophy—“if we could suppose ourselves transported by some divinity into a solitude, replete with all the delicacies which the heart of man could desire, but excluded, at the same time, from every possible intercourse with our kind, there is not a person in the world of so unsocial and savage a temper, as to be capable, in these forlorn circumstances, of relishing any enjoyment.” “Nothing,” continues he, “is more true, than what the philosopher Archytas is reported to have said: If a man were to be carried up into heaven, and see the beauties of universal nature displayed before him, he would receive but little pleasure from the wonderful scenes, unless there was some person, to whom he could relate the glories, which he had viewed. Human nature is so constituted, as to be incapable of solitary satisfactions. Man, like those plants which are formed to embrace others, is led, by an instinctive impulse, to recline on those of his own kind.”[49]

     Man, like the gen’rous vine, supported lives;
     The strength he gains is from th’ embrace he gives.[50]

The observations, which we make in common life, vouch the justness of these sentiments. We see those persons possess the greatest share of happiness, who have about them many objects of love and endearment. To the want of these objects, may be ascribed the moroseness of monks, and of those who, without entering into any religious order, lead the lives of monks.

Of the same nature with the indulgence of domestick affections, and equally refreshing to the spirit, is the pleasure, which flows from acts of beneficence, either in bestowing pecuniary favours, or in imparting, to those who want it, the benefit of our advice, or the assistance of our professional skill. The last consideration is urged, with peculiar propriety, by the professor of law. Innumerable instances occur, in which gentlemen of the bar, who possess abilities and character, can bestow what may be called favours, even on those, who are both able and willing to pay well for their services. When a client has an important business depending, entire confidence in the integrity and talents of his counsel diffuses over his mind a degree of composure and serenity, against which a fee, weighed in the balance, would be found wanting. This is particularly the case, when the life or the reputation of the client is at stake.

The foregoing observations may also be applied to publick services done for the state, by assisting her in her councils, or by defending or prosecuting her interests. Even if no suitable return, as it sometimes happens, should be received from the state for such services; yet a mind, nurtured to the refined and enlarged exercise of the social passion, will find no trivial pleasure in the reflection that it has performed them, and that those, for whom they were performed, enjoy the advantages resulting from them. Virtue, in such an instance, will prove herself her own reward. A man, whose soul vibrates in unison with the benevolent affections, will always find within him an encouragement, and a compensation too, for discharging his duty—an encouragement and a compensation, of which ingratitude itself cannot deprive him.

I will not appeal to vanity, and ask, if any thing can be more flattering, than to obtain the praises and acclamations of others. But I will appeal to conscious rectitude, and ask, whether any thing can be more satisfactory, than to deserve their regard and esteem. The possession of science is always attended with pleasure: but science, believe me, acquires an increased relish, when we have an opportunity of pouring it into the bosoms of others. We receive a redoubled satisfaction from the agreeable, though, perhaps, the flattering opinion, that we communicate entertainment and instruction; and from the opinion, better founded, that even weak attempts to communicate entertainment and instruction are received with reflected social emotions.

What can be more productive of happiness than even those wants, which are the foundations of so many blessings—love and friendship, generosity and reliance, kindness and gratitude? The gratifications even of sense lose their relish, if not heightened by the “spes mutui credula animi”[51]—corresponding social emotions.

Our esteem of others, too, arising from the approbation of their conduct, is a most pleasing affection. The contemplation of a great and good character warms the heart, and invigorates the whole frame.

The wisest and most benign constitution of a rational and moral system is that, in which the degree of private affection, most useful to the individual, is, at the same time, consistent with the greatest interest of the system; and in which the degree of social affection, most useful to the system, is, at the same time, productive of the greatest happiness to the individual. Thus it is in the system of society. In that system, he who acts on such principles, and is governed by such affections, as sever him from the common good and publick interest, works, in reality, towards his own misery: while he, on the other hand, who operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth, and at the same time, his own felicity.

Regulated by this standard, extensive, unerring, and sublime, self-love and social are the same.

To a state of society, then, we are invited from every quarter. It is natural; it is necessary; it is pleasing; it is profitable to us. The result of all is, that for a state of society we are designated by Him, who is all-wise and all-good.

Society may be distinguished into two kinds, natural and civil. This distinction has not been marked with the accuracy, which it well merits. Indeed some writers have given little or no attention to the latter kind; others have expressly denied it, and said, that there can be no civil society without civil government. But this is certainly not the case. A state of civil society must have existed, and such a state, in all our reasonings on this subject, must be supposed, before civil government could be regularly formed and established. Nay, ’tis for the security and improvement of such a state, that the adventitious one of civil government has been instituted. To civil society, indeed, without including in its description the idea of civil government, the name of state may be assigned, by way of excellence. It is in this sense that Cicero seems to use it, in the following beautiful passage. “Nothing, which is exhibited on our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated,—jure sociati—are denominated states.”[52]

How often has the end been sacrificed to the means! Government was instituted for the happiness of society: how often has the happiness of society been offered as a victim to the idol of government! But this is not agreeable to the true order of things: it is not consistent with the orthodox political creed. Let government—let even the constitution be, as they ought to be, the handmaids; let them not be, for they ought not to be, the mistresses of the state.

A state may be described—a complete body of free persons, united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person: it has an understanding and a will peculiar to itself: it has its affairs and its interests: it deliberates and resolves: it has its rules; it has its obligations; and it has its rights. It may acquire property, distinct from that of its members: it may incur debts, to be discharged out of the publick stock, not out of the private fortunes of individuals: it may be bound by contracts, and for damages arising quasi ex contractu (as though from contract). In order to constitute a state, it is indispensably necessary, that the wills and the power of all the members be united in such a manner, that they shall never act nor desire but one and the same thing, in whatever relates to the end, for which the society is established. It is from this union of wills and of strength, that the state or body politick results. The only rational and natural method, therefore, of constituting a civil society, is by the convention or consent of the members, who compose it. For by a civil society we properly understand, the voluntary union of persons in the same end, and in the same means requisite to obtain that end. This union is a benefit, not a sacrifice: civil is an addition to natural order.

This union may rationally be supposed to be formed in the following manner: if a number of people, who had hitherto lived independent of each other, wished to form a civil society, it would be necessary to enter into an engagement to associate together in one body, and to regulate, with one common consent, whatever regards their preservation, their security, their improvement, their happiness.

In the social compact, each individual engages with the whole collectively, and the whole collectively engage with each individual. These engagements are obligatory, because they are mutual. The individuals who are not parties to them, are not members of the society. Smaller societies may be formed within a state by a part of its members. These societies also are deemed to be moral persons; but not in a state of natural liberty: their actions are cognizable by the superiour power of the state, and are regulated by its laws. To these societies the name of corporations is generally appropriated, though somewhat improperly; for the term is strictly applicable to supreme as well as to inferiour bodies politick. The foregoing account of the formation of civil society, which refers it to original engagements; and consequently resolves the duty of submission to the laws of the society, into the universal obligation of fidelity in the performance of promises, is warmly attacked by a sensible and ingenious writer.[53] He represents it, as founded on a supposition, false in fact; as insufficient, if it was true, for the purposes, for which it is produced; and as leading to dangerous consequences. He acknowledges, however, that, in the United States, transactions have happened, which bear the nearest resemblance to this political idea, of any, of which history has preserved the account or the memory. This subject has already received some; it will afterwards receive more attention and examination. At present, it is sufficient, and it is proper, to intimate to you the point of discussion; for it is a very important one in the science of government.

In civil society, previously to the institution of civil government, all men are equal. Of one blood all nations are made; from one source the whole human race has sprung. When we say, that all men are equal; we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements. In all these respects, there is, and it is fit for the great purposes of society that there should be, great inequality among men. In the moral and political as well as in the natural world, diversity forms an important part of beauty; and as of beauty, so of utility likewise. That social happiness, which arises from the friendly intercourse of good offices, could not be enjoyed, unless men were so framed and so disposed, as mutually to afford and to stand in need of service and assistance. Hence the necessity not only of great variety, but even of great inequality in the talents of men, bodily as well as mental. Society supposes mutual dependence: mutual dependence supposes mutual wants: all the social exercises and enjoyments may be reduced to two heads—that of giving, and that of receiving: but these imply different aptitudes to give and to receive.

Many are the degrees, many are the varieties of human genius, human dispositions, and human characters. One man has a turn for mechanicks; another, for architecture; one paints; a second makes poems: this excels in the arts of a military; the other, in those of civil life. To account for these varieties of taste and character, is not easy; is, perhaps, impossible. But though their efficient cause it may be difficult to explain; their final cause, that is, the intention of Providence in appointing them, we can see and admire. These varieties of taste and character induce different persons to choose different professions and employments in life: these varieties render mankind mutually beneficial to each other, and prevent too violent oppositions of interest in the same pursuit. Hence we enjoy a variety of conveniences; hence the numerous arts and sciences have been invented and improved; hence the sources of commerce and friendly intercourse between different nations have been opened; hence the circulation of truth has been quickened and promoted; hence the operations of social virtue have been multiplied and enlarged.

     Heaven, forming each on other to depend,
     Bids each on other for assistance call,
     ’Till one man’s weakness grows the strength of all.
     Wants, frailties, passions closer still ally
     The common interest, or endear the tie:
     To these we owe true friendship, love sincere,
     Each home-felt joy, that life inherits here.[54]

How insipidly uniform would human life and manners be, without the beautiful variety of colours, reflected upon them by different tastes, different tempers, and different characters!

But however great the variety and inequality of men may be with regard to virtue, talents, taste, and acquirements; there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all, there is an equality in rights and in obligations; there is that “jus aequum,” that equal law, in which the Romans placed true freedom. The natural rights and duties of man belong equally to all. Each forms a part of that great system, whose greatest interest and happiness are intended by all the laws of God and nature. These laws prohibit the wisest and the most powerful from inflicting misery on the meanest and most ignorant; and from depriving them of their rights or just acquisitions. By these laws, rights, natural or acquired, are confirmed, in the same manner, to all; to the weak and artless, their small acquisitions, as well as to the strong and artful, their large ones. If much labour employed entitles the active to great possessions, the indolent have a right, equally sacred, to the little possessions, which they occupy and improve.

As in civil society, previous to civil government, all men are equal; so, in the same state, all men are free. In such a state, no one can claim, in preference to another, superiour right: in the same state, no one can claim over another superiour authority. Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty. Every man has a sense of this right. Every man has a sense of the impropriety of restraining or interrupting it. Those who judge wisely, will use this liberty virtuously and honourably: those, who are less wise, will employ it in meaner pursuits: others, again, may, perhaps, indulge it in what may be justly censured as vicious and dishonourable. Yet, with regard even to these last, while they are not injurious to others; and while no human institution has placed them under the control of magistrates or laws, the sense of liberty is so strong, and its loss is so deeply resented, that, upon the whole, more unhappiness would result from depriving them of their liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.

The right of natural liberty is suggested to us not only by the selfish parts of our constitution, but by our generous affections; and especially by our moral sense, which intimates to us, that in our voluntary actions consist our dignity and perfection. The laws of nature are the measure and the rule; they ascertain the limits and the extent of natural liberty.

In society, when the sentiments of the members are not unanimous, the voice of the majority must be deemed the will of the whole. That the majority, by any vote, should bind not only themselves, but those also who dissent from that vote, seems, at first, to be inconsistent with the well known rules—that all men are naturally equal; and that all men are naturally free. From these rules, it may be alleged, that no one can be bound by the act of another, without his own consent. But it is to be remembered, that society is constituted for a certain purpose; and that each member of it consents that this purpose shall be carried on; and, consequently, that every thing necessary for carrying it on shall be done. Now a number of persons can jointly do business only in three ways—by the decision of the whole, by the decision of the majority, or by the decision of the minority. The first case is not here supposed, nor is there occasion to make a question concerning it. The only remaining question, then, which can be proposed, is, which is most reasonable and equitable—that the minority should bind the majority—or that the majority should bind the minority? The latter, certainly. It is most reasonable; because it is not so probable, that a greater number, as that a smaller number, concurring in judgment, should be mistaken. It is most equitable; because the greater number are presumed to have an interest in the society proportioned to that number. Besides; though, in the case supposed, the minority are bound without their immediate consent; they are bound by their consent originally given to the establishment of the society, for the purposes which it was intended to accomplish. For it has been already observed, that those, who enter not into the original engagement forming the society, are not to be considered as members: all the members, therefore, must have originally given their consent.

The rule, which we have mentioned, may be altered and modified by positive institution. In some cases, the consent of a number larger than a mere majority: in others, even unanimity may be required.

This is the proper place for considering a question of very considerable importance in civil society, and concerning which there has been much diversity in the sentiments of writers, and in the laws and practice of states: has a state a right to prohibit the emigration of its members? may a citizen dissolve the connexion between him and his country? On the principles of the compact of association, which I have already stated, there seems to be but little doubt that one article of it may be, that each individual binds himself indissolubly to the society, while the society performs, on its part, the stipulated conditions. This engagement each individual may make for himself: . . . but can he make it for his children and his posterity? must they be and continue bound by the act of their father and ancestor?

The notion of natural, perpetual, and unalienable allegiance from the citizen to the society, or to the head of the society, of which he was born a member, has, by some writers and in some countries, been carried very far indeed: and their practice has been equally rigorous with their principles. The well known maxim, which the writers upon the law of England have adopted and applied to this case is, “Nemo potest exuere patriam” (No one can case of his country). It is not, therefore, as is holden by that law, in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince. Nor is it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown. . . .

The reasons in favour of the position, that a citizen cannot dissolve the political connexion between him and his country, may be stated in the following manner. Every citizen, as soon as he is born, is under the protection of the state, and is entitled to all the advantages arising from that protection: he, therefore, owes obedience to that power, from which the protection, which he enjoys, is derived. But while he continues in infancy and nonage, he cannot perform the duties of obedience. The performance of them must be respited, till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection, which he then enjoys, but also for that, which, from his birth, he has enjoyed. Obedience now becomes a duty founded upon principles of gratitude, as well as upon principles of interest: it becomes a debt, which nothing but the performance of the duties of citizenship, during a whole life, will discharge.[55]

But, notwithstanding this train of thought and reasoning, there are certainly cases, in which a citizen has an unquestionable right to renounce his country, and go in quest of a settlement in some other part of the world. One of these cases is, when, in his own country, he cannot procure a subsistence. Another is, when the society neglects to fulfil its obligations to the citizen. A third is, when the society would establish laws, on things, to which the original social compact cannot oblige the citizen to submit.[56]

In answer to the inferences drawn from principles of gratitude, it may be observed, that every man being born free, a native citizen, when he arrives at the age of discretion, may examine whether it be convenient for him to join in the society, for which he was destined by his birth. If, on examination, he finds, that it will be more advantageous to him to remove into another country, he has a right to go, making to that which he leaves a proper return for what it has done in his favour, and preserving for it, as far as it shall be consistent with the engagements, which his new situation and connexions may require, the sentiments of respect and attachment.

The sentiments of Mr. Locke on this subject go much further. “’Tis plain,” says he, “by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under; what body politick he will unite himself to.”[57]

“O glorious regulations!” says Cicero, “originally established for us by our ancestors of Roman name; that no one of us should be obliged to belong to more than one society, since a dissimilitude of societies must produce a proportioned variety of laws; that no one, contrary to his inclination, should be deprived of his right of citizenship; and that no one, contrary to his inclinations, should be obliged to continue in that relation. The power of retaining and of renouncing our rights of citizenship, is the most stable foundation of our liberties.”[58]

In the digest of the Roman law, it is laid down as a rule, that every one is at liberty to choose the state, of which he wishes to be a member.[59] Indeed, excepting in some very particular cases, every one ought to be at liberty to leave the state. This general liberty is not only just, but may be productive of much generous emulation among states, and of extensive advantages to their citizens. Those states, which manage their affairs best, will offer the strongest inducements to their own citizens to remain, and to others to incorporate among them. On the other hand, it is both inhuman and unjust to convert the state into a prison for its citizens, by preventing them from leaving it on a prospect of advantage to themselves. True it is, that they ought to make compensation for any advantages, which they have derived from the state at its expense: but equally true it is, that this compensation is generally made, by their having contributed annually, during their past residence, towards the publick revenue, by paying taxes on property, as all men, even minors, do; and by consuming goods, on which imposts or duties have been levied.

Emigration may arise from various causes. It may be occasioned by the population of a country. In this case, great numbers may be constantly leaving the state, and yet the state may be increasing in population. It has been suggested by some writers, that the right of exposing children has been one cause of the populousness of China. Surely the prospect that they will be comfortably provided for, if not in their own, yet in another country, must be a much more powerful, as well as more humane incentive to marriages.

Insecurity, hardships, oppression may be the causes of emigration. A nation whose inhabitants are in a predicament so disagreeable, may be in declining circumstances; but those circumstances, indicating a decline, are not the effects of emigration; they are the effects of the evils and calamities which occasion it. Two things, which are commonly considered as cause and effect, are often no more than two collateral effects of the same cause.

Independently, therefore, of the question of right, there can be but few cases, in which emigration could be prohibited on the sound principles of policy. Emigration, it is true, may be a symptom of languor and decay; but it may also be an evidence and a consequence of the overflowing vigour and prosperity of the state.

Permit me to suggest a still further reason—to me it appears a strong one—in favour of unrestrained emigration. In a free state, the consent of every citizen to its institution and government ought to be evinced either by express declarations, or by the strongest and justest presumptions. When a state is formed, the residence of a citizen is presumed a sufficient evidence of his assent and acquiescence in its institutions: to reside in any country is universally deemed a submission to its authority. But that these presumptions may be fairly drawn, we must be understood as speaking of a state, from which the citizens have liberty to depart with their effects at pleasure. Where this liberty is not enjoyed, the considerations of family, of property, and many other considerations that are without a name, may detain a man, much against his inclination, in a country, in which he finds himself trammelled. In such case, his residence is no reasonable evidence of his consent to the formation, the constitution, the government, or the laws of the state.

Upon the whole it appears, that the right of emigration is a right, advantageous to the citizen, and generally useful even to the state. . . .

CHAPTER VIII

Of Man, as a Member of a Confederation.

[OMITTED]

CHAPTER IX

Of Man, as a Member of the Great Commonwealth of Nations

Every civil society, under whatever form it appears, whether governed merely by the natural laws of such a society, or by them and civil institutions superadded—every such society, not subordinate to another, is a sovereign state.

Those, who unite in society, lived, before their union, in a state of nature: a state of nature is a state of equality and liberty. That liberty and that equality, belonging to the individuals, before the union, belong, after the union, to the society, which those individuals compose. The consequence is, that a society is subjected to no power or authority without it; that it may do what is necessary for its preservation; that it may exercise all its rights, and is obliged to give an account of its conduct to no one. But these things constitute what is called sovereignty. Every state, therefore, composed of individuals, free and equal, is a state sovereign and independent. The aggregate body possesses all the rights of the individuals, of whom it is formed.

Another consequence is, that the rights of any one state are naturally the same as those of every other. States are moral persons, who live together in a natural society, under the law of nations. To give a state a right to make an immediate figure in the great society of nations, it is sufficient, if it be really sovereign and independent; that is, it must govern itself by its own authority.[60] Thus, when the United Colonies found it necessary to dissolve the political bonds, which had connected them with Great Britain, and to assume among the powers of the earth the separate and equal station, to which the laws of nature and of nature’s God entitled them; they had a right to publish and declare, as, in fact, they did publish and declare, that “they were free and independent states; and that, as free and independent states, they had full power to levy war, to conclude peace, contract alliances, establish commerce, and to do all other acts and things, which independent states may of right do”; though, at that time, no articles of confederation were agreed upon; nor was any form of civil government instituted by them.

A number of individuals, who have formed themselves into a society or state, are, with regard to the purposes of the society, bound to consider themselves as one moral person. But the rest of mankind, who are not parties to this social compact, are under no obligation to take notice of it; and may still consider the society as a large number of unconnected persons. This personality—I know no better expression for it—of a state must, as to other nations, be derived from their consent and agreement. But when a society have once associated, and considered and announced themselves to other nations as a moral person, this consent and agreement ought not to be refused, without solid and special reasons, which will justify the refusal. On this consent and agreement, the mutual and mutually beneficial intercourse of nations is founded: whatever, therefore, promotes this intercourse, should be zealously encouraged; whatever prevents or interrupts it, should be cautiously avoided. Though one state has, by an unequal alliance, formed a connexion with another state more powerful; still the weaker state is to be reckoned in the class of sovereigns. To the weaker state, the unequal alliance may secure the most assistance; on the stronger, it may reflect the most honour; but it leaves both the same rank among the society of nations.

We may go further; if a state, in order to provide for its own safety, finds it necessary to place itself under the protection of another; and, in consideration of that protection, stipulates to perform equivalent offices, without devesting itself of the right of self-government; such a state ceases not to preserve its place among sovereigns. The payment even of tribute, though it may diminish the dignity of the society, by no means destroys or impairs its sovereignty or its rights.

Two sovereign states may employ the same executive magistrate, or bear allegiance to the same prince, without any dependence on each other; and each may retain all its national rights, free and undiminished. This last, under the house of Stuart, was the case of England and Scotland, before the nation of Great Britain was formed by their union. This last, also, as shall be hereafter shown at large, was the case of Great Britain and the American colonies, before the political connexion between them was declared to be dissolved.

But one people who have passed under the dominion of another, can no longer form a state: they can no longer retain a place in the great society of nations. Of that great society, equality is the basis and the rule. To this equality, the inferiority of subjection and the superiority of command are, alike, repugnant.

This equality of nations is the great and general foundation of national rights. In this matter, no regard is had to names. On the great theatre of the world, empires, kingdoms, commonwealths, principalities, dukedoms, free towns, are all equally imperial. A society, which, without subordination to any other, exercises within itself all the essential powers of society, is sovereign, and has all the rights of a sovereign and independent state; however narrow its territories; however small its numbers may be.

Every nation deserves consideration and respect; because it makes an immediate figure in the grandest society of the human race; because it is independent of all earthly power; and because it is an assemblage of a number of men, who, doubtless, are more considerable than any individual.

With regard to precedency, or the first place among equals, power and antiquity are grounds, upon which it is claimed or allowed. Into this question, the forms of government do not enter.

. . .

CHAPTER X

Of Government

[OMITTED]

CHAPTER XI

Comparison of the Constitution of the United States, with that of Great Britain.

[OMITTED]

 


 

FOOTNOTES

1.     William Blackstone, Commentaries on the Laws of England, Book 1, §38.

2.     Richard Hooker, Of the Laws of Ecclesiastical Polity, Book 1, ch. 2.

3.     Daws. Orig. Laws, 4. 14.

4.     Hooker, Laws of Ecclesiastical Polity, Book 1, ch. 11.  

5.     Blackstone, Commentaries, Book 1, §38.

6.     Blackstone, Commentaries, Book 1, §43.

7.     Frederick II ("Frederick the Great"), King of Prussia. Works. Vol. 6, p. 48, 50. (Editor: Probably a quotation of the essay "The Anti-Macchiavel," which Frederick II published, in close collabortion with Voltaire, in 1740.)

8.     Frederick II, King of Prussia. Works. Vol. 6, pp. 83, 84.

9.     Jean Jacques Burlamaqui, Principles of Natural and Politic Law (1748). (Translated into English by Nugent. Cambridge, 1752). Volume 1, Part 1, Ch. 9 ("Of the foundation of sovereignty, or the right of commanding"), section II.

10.   Burlamaqui, Principles of Natural Law, Vol. 1, Part 1, ch. 9, section III.1. (Editor: The whole paragraph is lifted verbatim from Burlamaqui. The portion in quotation marks is Burlamaqui's own quote of Thomas Hobbes's De Cive, ch. 15, section 5.)

11.   Ibid.

12.   Burlamaqui, Principles of Natural Law, Vol. 1, Part 1, ch. 9, section III.2.

13.   Ibid., IV.1.

14.   Ibid., V.2.

15.   Thomas Rutherforth (Rutherford), Institutes of Natural Law, Volume 1, Ch. 1, section VI.

16.   Hugo Grotius, "Preliminary Discourse Concerning the Certainty of Right," in The Rights of War and Peace, Volume 1,  Book 1, Chapter 1, section X.2, footnote 3. (Editor: This is actually a quotation of a footnote by the early editor of this text, Jean Barbeyrac, who is here commenting on Grotius's text).

17.   Hein. 63; Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Sections VI, VIII, X (pages 207, 210, 212); Samuel von Pufendorf (Puffendorf), The Whole Duty of Man According to the Law of Nature, Book 1, chapter 2, sections 5 and 6.

18.   Jean Jacques Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Sections VIII, X, I (pages 210, 212, 202); Hein. 10.

19.   Thomas Rutherforth, Institutes of Natural Law, Volume 1, section 9.

20.   Jean Jacques Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Section 13.1–3,7; Ch. 8, Section 1 (pages 214, 216; 219, 220).  

21.   William Paley, The Principles of Moral Philosophy (1785), Book 2, Ch. 6 [82 in Wilson's numbering]; Hein., 51.

22.   Hein., 50; Grotius, Preliminary Discourse Concerning the Certainty of Right, section 17; Pufendorf, The Whole Duty of Man, Book 2, chapter 3, section 15 [Book I, ch. 3, section IX in the edition linked here].

23.   Thomas Rutherforth, Institutes of Natural Law, Volume 1, section 9.

24.  "Principem legem illam et ultimam, mentem esse dicebant, omnia ratione aut cogentis, aut vetantis dei." ("They [the wisest men] said that the primary and ultimate law was the mind of God who either compels or forbids all things by reason.") Cicero, De Legibus Book 2, section 8.

25.  "Quae est gens, aut quod genus hominum, quod non habeat sine doctrina antecipationem quandam [deorum? . . . ], id est, anteceptam animo rei quandam informationem, sine qua nec intelligi quidquam, nec quaeri, nec disputari potest." ("What nation is there, or what race of men is there, that does not have, [and] without instruction, some preconception [of the gods? . . .]—that is, some information of the reality already taken into one's soul, without which nothing can be understood, sought, or debated.") Cicero, De Natura Deorum, Book 1, Ch. 16. Wilson's text omits the portion of the original represented here by [deorum? . . .].

26.  Titus Lucretius Carus (99–55 BC) was a Roman poet and Epicurean philosopher who wrote De Rerum Natura (On the Nature of Things). [Comment of the Online Library of Liberty]

27.  William Paley, Principles of Moral Philosophy, Book I, Ch. 5; Henry Home, Lord Kames, Principles of Equity (1760), Ch. 1, page 8.

28.  Francis Hutcheson, An Essay on the Nature anc Conduct of the Passions and Affections, with Illustrations on the Moral Sense, 237, 121.

29.  Joseph Addison (1672–1719) was an English writer and politician who founded The Spectator. [Comment of the Online Library of Liberty]

30.  Alexander Pope, Essay on Man, Epistle 3, verse 99.

31.  Cicero, De Republica, Book 3, Section 33.

32.  Richard Hooker, The Laws of Ecclesiastical Polity, Book 1, section 6, page 8.

33.  Barbeyrac, Preface to Pufendorf, The Whole Duty of Man, section 29, page 79.

34.  Hugo Grotius, Preliminary Discourse Concerning the Certainty of Right, section 41.

35.  Ibid., section 14.

36.  Pufendorf, The Whole Duty of Man, page 149. Book 2, chapter 3, section 23.

37.  Emer (Emmerich) de Vattel, The Law of Nations, Preface.

38.  Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, Volume 1, Part 2, Ch. 6, Section 7; Burlamaqui, 196.

39.  Jacques Necker, On the Importance of Religious Opinions. Preface, 19.

40.  Cicero, De Amicitia, section 5[16].

41.  Thomas Rutherforth (Rutherford), Institutes of Natural Law, Volume 2, 463, 464.

42.  Cicero, De Officiis, book 3, section 5[183] and section 6[184].

43.  U.S. Constitution, Article 1, section 10.

44.  Alexander Pope, Essay on Man, Epistle 4, verse 39.

45.  William of Malmesbury (c. 1090–c. 1143) was a great English historian who lived much of his life as a monk at Malmesbury Abbey. [Comment of the Online Library of Liberty]

46.  William of Malmesbury, Historia Novella, The Shaftsbury Charter, 90.

47.  Pope, Essay on Man, Epistle 4, verse 365.

48.  Cicero, De Officiis, Book 1, section 22.

49.  Cicero, De Amicitia, section 23[87, 88].

50.  Pope, Essay on Man, Epistle 3, verse 311.

51.  Literally, “the trusting hope of mutual feeling,” but a clearer sense of the tone is “the naive hope that love will be requited.” The phrase is from Horace, Odes, 4.1.29. [Comment of the Online Library of Liberty]

52.  Cicero , "The Dream of Scipio," De Republica, Book 6, ch. 3[section 13].

53.  William Paley, The Principles of Moral and Political Philosophy, Book 6, Ch. 3 ("The Duty of Submission to Civil Government Explained").

54.  Pope, Essay on Man, Epistle 2, verse 249.

55.  2 P. Williams, 123, 124.

56.  Vattel, The Law of Nations. Book 1, Ch. 19, sections 223–25.

57.  John Locke, Second Treatise of Government, Section 118.

58.  Cicero, Pro Balbo, ch. 13[31].

59.  The Digest/Pandects of Justinian [of Roman Law], book 49, t. 15.

60.  Vattel, The Law of Nations, book 1, Preliminaries, section 4.

Chisholm v. Georgia, 2 US 419 - Supreme Court 1793

The Opinion of Justice James Wilson

 


 

...

WILSON, Justice

This is a case of uncommon magnitude. One of the parties to it is a STATE; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this — "do the people of the United States form a NATION?"

A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall examine it, 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular States and Kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several States and Governments spread over our globe, are considered as forming a society, not a NATION. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3dly. and chiefly, I shall examine the important question before us, by the Constitution of the United States, and the legitimate result of that valuable instrument.

I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an æra not less remarkable, and far more illustrious, than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common sense, speaking of the sceptical and illiberal 454*454 philosophy, which under bold, but false, pretentions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark: "The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shews him to advantage, which yet will fit very aukward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received." With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this Court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those, who wished and meant to be free. In the place of those expressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those, for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that, to which it has hitherto been more frequently, I may say almost universally, applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best Constitutions known to modern times. With regard to one of the terms — State — this authority is declared: With regard to the other — sovereign — the authority is implied only: But it is equally strong: For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive

To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration.

Having thus avowed my disapprobation of the purposes, for which the terms, State and sovereign, are frequently used, and of the object, to which the application of the lost of them is almost universally made; it is now proper that I should disclose the meaning, which I assign to both, and the application, 455*455 which I make of the latter. In doing this, I shall have occasion incidently to evince, how true it is, that States and Governments were made for made for man; and, at the same time, how true it is, that his creatures and servants have first deceived, next vilified, and, at last, oppressed their master and maker.

MAN, fearfully and wonderfully made, is the workmanship of his all perfect CREATOR: A State; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to that, which is divine: Of all human contrivances, it is certainly most transcendantly excellent. It is concerning this contrivance that Cicero says so sublimely, "Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated, are denominated STATES[*]".

Let a State be considered as subordinate to the PEOPLE: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals: It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this 456*456 feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men.

Is the foregoing description of a State a true description? It will not be questioned but it is. Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed? Less proper it surely cannotbe. The only reason, I believe, why a free man is bound byhuman laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorised by those laws. If one free man, an original sovereign, may do all this; why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired. A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, wilfully refuses to discharge it: The latter is amenable to a Court of Justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am a SOVEREIGN State? Surely not. Before a claim, so contrary, in its first appearance, to the general principles of right and equality, be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim, should certainly be well known and authenticated. Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable. To enumerate all, therefore, will not be expected: To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term sovereign has for its correlative, subject, In this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. "Citizen of the United States[*]". "Citizens of another State." "Citizens of different States." "A State or citizen thereof[†]". The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet "foreign"[‡] is prefixed. In this sense, I presume the State of Georgia has no claim upon 457*457 her own citizens: In this sense, I am certain, she can have no claim upon the citizens of another State.

In another sense, according to some writers[*], every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their later instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; there are questions, to which, as a Judge in this cause. I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given. As a citizen, I know the Government of that State to be republican; and my short definition of such a Government is, — one constructed on this principle, that the Supreme Power resides in the body of the people. As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the "People of the United States," did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State. If the Judicial decision of this case forms one of those purposes; the allegation, that Georgia is a sovereign Stat, is unsupported by the fact. Whether the judicial decision of this cause is, or is not, one of those purposes, is a question which will be examined particularly in a subsequent part of my argument.

There is a third sense, in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this Court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us, that, about the end of the second race of Kings, a new kind of possession was acquired, under the name of Fief. The Governors of Cities and Provinces usurped equally the property of land, 458*458 and the administration of justice; and established themselves as proprietary Seigniors over those places, in which they had been only civil magistrates or military officers. By this means, there was introduced into the State a new kind of authority, to which was assigned the appellation of sovereignty[*]. In process of time the feudal system was extended over France, and almost all the other nations of Europe: And every Kingdom became, in fact, a large fief. Into England this system was introduced by the conqueror: and to this æra we may, probably, refer the English maxim, that the King or sovereign is the fountain of Justice. But, in the case of the King, the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power; and, consequently, on feudal principles, no right of jurisdiction. "[†] The law, says Sir William Blackstone, ascribes to the King the attribute of sovereignty: he is sovereign and independent within his own dominions; and owes no kind of objection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the King, even in civil matters; because no Court can have jurisdiction over him: for all jurisdiction implies superiority of power." This last position is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this fide of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences, The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of found and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.

I have now fixed, in the scale of things, the grade of a State; and have described its composure: I have considered the nature of sovereignty; and pointed its application to the proper object. I have examined the question before us, by the principles of general jurisprudence. In those principles I find nothing, which tends to evince an exemption of the State of Georgia, from the jurisdiction of the Court. I find every thing to have a contrary tendency.

459*459 II. I am, in the second place, to examine this question by the laws and practice of different States and Kingdoms. In ancient Greece, as we learn from Isocrates, whole nations defended their rights before crouded tribunals. Such occasions as these excited, we are told, all the powers of persuasion; and the vehemence and enthusiasm of the sentiment was gradually infused into the Grecian language, equally susceptible of strength and harmony. In those days, law, liberty, and refining science, made their benign progress in strict and graceful union: The rude and degrading league between the bar and feudal barbarism was not yet formed.

When the laws and practice of particular States have any application to the question before us; that application will furnish what is called an argument a fortiori; because all the instances produced will be instances of subjects instituting and supporting suits against those, who were deemed their own sovereigns. These instances are stronger than the present one; because between the present plaintiff and defendant no such unequal relation is alledged to exist.

Columbus atchieved the discovery of that country, which, perhaps, ought to bear his name. A contract made by Columbus furnished the first precedent for supporting, in his discovered country, the cause of injured merit against the claims and pretentions of haughty and ungrateful power. His son Don Diego wasted two years in incessant, but fruitless, solicitation at the Court of Spain, for the rights which descended to him in consequence of his father's original capitulation. He endeavoured, at length, to obtain, by a legal sentence, what he could not procure from the favour of an interested Monarch. He commenced a suit against Ferdinand before the Council, which managed Indian affairs; and that Court, with integrity which reflects honour on their proceedings, decided against the King, and sustained Don Diego's claim.[*]

Other States have instituted officers to judge the proceedings of their Kings: Of this kind were the Ephori of Sparta: of this kind also was the mayor of the Palace, and afterwards the constable of France.[†]

But of all the laws and institutions relating to the present question, none is so striking as that described by the famous Hottoman, in his book entitled Francogallia. When the Spaniards of Arragon elect a King, they represent a kind of play, and introduce a personage, whom they dignify by the name of LAW, la Justiza, of Arragon. This personage they declare, by a public decree, to be greater and more powerful than their King; and then address him in the following remarkable expressions. "We, who are of as great worth as you, and can do more 460*460 than you can do, elect you to be our King, upon the conditions stipulated: But between you and us there is one of greater authority than you."[*]

In England, according to Sir William Blackstone, no suit can be brought against the King, even in civil matters. So, in that Kingdom, is the law, at this time, received. But it was not always so. Under the Saxon Government, a very different doctrine was held to be orthodox. Under that Government, as we are informed by the Mirror of Justice, a book said, by Sir Edward Coke, to have been written, in part, at least, before the conquest; under that Government it was ordained, that the King's Court should be open to all Plaintiffs, by which, without delay, they should have remedial writs, as well against the King or against the Queen, as against any other of the people.[†] The law continued to be the same for some centuries after the conquest. Until the time of Edward I. the King might have been sued as a common person. The form of the process was even imperative. "Præcipe Henrico Regi Angliæ" &c. "Command Henry King of England" &c.[‡] Bractan, who wrote in the time of Henry III. uses these very remarkable expressions concerning the King "in justitia recipienda, minimo de regno suo comparetur" — "in receiving justice, he should be placed on a level with the meanest person in the Kingdom[§]." True it is, that now in England the King must be sued in his Courts by Petition; but even now, the difference is only in the form, not in the thing. The judgments or decrees of those Courts will substantially be the same upon a precatory as upon a mandatory process. In the Courts of Justice, says the very able author of the considerations on the laws of forfeiture, the King enjoys many privileges; yet not to deter the subject from contending with him freely[†]. The Judge of the High Court of Admiralty in England made, in a very late cause, the following manly and independent declaration. "In any case, where the Crown is a party, it is to be observed, that the Crown can no more withhold evidence of documents in its possession, than a private person. If the Court thinks proper to order the production of any public instrument; that order must be obeyed. It wants no Insignia of an authority derived from the Crown[¶]."

"Judges ought to know, that the poorest peasant is a man as well as the King himself; all men ought to obtain justice; since in the estimation of justice, all men are equal; whether the Prince complain of a peasant, or a peasant complain of the Prince."[*] These are the words of a King, of the late Frederic of Prussia. In his Courts of Justice, that great man stood 461*461 upon his native greatness; and disdained to mount upon the artificial stilts of sovereignty.

Thus much concerning the laws and practice of other States and Kingdoms. We see nothing against, but much in favour of, the jurisdiction of this Court over the State of Georgia, a party to this cause.

III. I am, thirdly, and chiefly, to examine the important question now before us, by the Constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the Constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court? I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation, which has been denominated free, the state has assumed a supercilious pre-eminence above the people, who have formed it: Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both degradations, striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand Monarch of France. This Prince, who diffused around him so much dazzling splendour, and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression, under which he held his subjects during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his Kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his Ministers represented to him the miserable condition, to which those subjects were reduced, and, in the course of his representation, frequently used the word L'Etat, the state, the King, though he felt the truth and approved the substance of all that was said, yet was shocked at the frequent repetition of the expression L'Etat; and 462*462 complained of it it as an indecency offered to his person and character. And, indeed, that Kings should imagine themselves the final causes, for which men were made, and societies were formed and Governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers, have taught or favoured principles, which necessarily lead to the same conclusion. Another instance, equally strong, but still more astonishing, is drawn from the British Government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic Government. It is a Government without a people. In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested:[*] In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere. The constituent parts of the Parliament are the King's Majesty, the Lord's Spiritual, the Lord's Temporal, and the Commons. The King and there three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions are found verbatim[†] in the commentaries upon the laws of England.[†] The Parliament form the great body politic of England! What, then, or where, are the PEOPLE? Nothing! No where! They are not so much as even the "baseless fabric of a vision!" From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government? Whether this description is or is not a just one, is a question of very different import.

In the United States, and in the several States, which compose the Union, we go not so far: but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the PEOPLE, for whose sakes the States exist, are frequently the objects which attract and arrest car principal attention. This, I believe, has produced much of the confusion and perplexity, which have appeared in several proceedings and several publications on state-politics, and on the politics, too, of the United States. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? "The United States," instead of the "People of the United States," is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: It presents only the second: It presents only the artificial person, instead of the natural persons, who spoke it into existence. A State I cheerfully 463*463 admit, is the noblest work of Man: But, Man himself, free and honest, is, I speak as to this would, the noblest work of GOD.

Concerning the prerogative of Kings, and concerning the sovereignty of States, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression, which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens, a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct as well as the oldest of human authorities, enumerates the other nations of Greece, whose forces acted at the fiege of Troy, he arranges them under the names of their different Kings or Princes: But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the PEOPLE[*] of Athens. The well known address used by Demosthenes, when he harrangued and animated his assembled countrymen, was "O Men of Athens." With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object, which the nation could present. "The PEOPLE of the United States" are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separate Constitution and Government, and all of which were connected together by articles of consederation. To the purposes of public strength and felicity, that confederacy was totally inadequate. A requisition on the several States terminated its Legislative authority: Executive or Judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution. By that Constitution Legislative power is vested, Executive power is vested, Judicial power is vested.

The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the Legislative, Executive, and Judicial power to vested? If the principles, on which I have founded myself, are just and true; this question must unavoidably receive an affirmative answer. If those States were the work of those people; those people, and, that I may apply the case closely, the people of Georgia, in particular, 464*464 could alter, as they pleased, their former work: To any given degree, they could diminish as well as enlarge it. Any or all of the former State-powers, they could extinguish or transfer. The inference, which necessarily results, is, that the Constitution ordained and established by those people; and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular.

The next question under this head, is, — Has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations. In order, ultimately, to discover, whether the people of the United States intended to bind those States by the Judicial power vested by the national Constitution, a previous enquiry will naturally be: Did those people intend to bind those states by the Legislative power vested by that Constitution? The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon states, This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just; the defect remedied, on one side, was balanced by a defect introduced on the other: For they seem to think, that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be "subject to the revision and control of the Congress;"[*] it cannot, surely, be contended that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national Government.

In order to make the discovery, at which we ultimately aim, a second previous enquiry will naturally be — Did the people of the United States intend to bind the several States by the Executive power of the national Government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Bracton, his maxim, I believe, has been deemed a good one — "Supervacuum esset leges condere, nisi esset qui leges tueretur."[†] "It would be superfluous to make laws, unless those laws, when made, were to be enforced." When the laws are plain, and the application of them is uncontroverted, they are enforced immediately by the 465*465 Executive authority of Government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle, therefore, which directed us from the first to the second step, will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects, and the general texture of the Constitution of the United States. One of its declared objects is, to form an union more perfect, than, before that time, had been formed. Before that time, the Union possessed Legislative, but uninforced Legislative power over the States. Nothing could be more natural than to intend that this Legislative power should be enforced by powers Executive and Judicial. Another declared object is, "to establish justice." This points, in a particular manner, to the Judicial authority. And when we view this object in conjunction with the declaration, "that no State shall pass a law impairing the obligation of contracts;" we shall probably think, that this object points, in a particular manner, to the jurisdiction of the Court over the several States. What good purpose could this Constitutional provision secure, if a State might pass a law impairing the obligation of its own contracts; and be amenable, for such a violation of right, to no controuling judiciary power? We have seen, that on the principles of general jurisprudence, a State, for the breach of a contract, may be liable for damages. A third declared object is — "to ensure domestic tranquillity." This tranquillity is most likely to be disturbed by controversies between States. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By such exercise and establishment, the law of nations; the rule between contending States; will be enforced among the several States, in the same manner as municipal law.

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When 466*466 so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court.

But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself. "The judicial power of the United States shall extend, to controversies between two States."[*] Two States are supposed to have a controversy between them: This controversy is supposed to be brought before those vested with the judicial power of the United States: Can the most consummate degree of professional ingenuity devise a mode by which this "controversy between two States" can be brought before a Court of law; and yet neither of those States be a Defendant? "The judicial power of the United States shall extend to controversies, between a state and citizens of another State." Could the strictest legal language; could even that language, which is peculiarly appropriated to an art, deemed, by a great master, to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language, describe, with more precise accuracy, the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.

I have now tried this question by all the touchstones, to which I proposed to apply it. I have examined it by the principles of general jurisprudence; by the laws and practice of States and Kingdoms; and by the Constitution of the United States. From all, the combined inference is; that the action lies.

James Wilson, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament

Used with the permission of the Online Library of Liberty

 


 

1774

No question can be more important to Great Britain, and to the colonies, than this—does the legislative authority of the British parliament extend over them?

On the resolution of this question, and on the measures which a resolution of it will direct, it will depend, whether the parent country, like a happy mother, shall behold her children flourishing around her, and receive the most grateful returns for her protection and love; or whether, like a step dame, rendered miserable by her own unkind conduct, she shall see their affections alienated, and herself deprived of those advantages which a milder treatment would have ensured to her.

The British nation are generous: they love to enjoy freedom: they love to behold it: slavery is their greatest abhorrence. Is it possible, then, that they would wish themselves the authors of it? No. Oppression is not a plant of the British soil; and the late severe proceedings against the colonies must have arisen from the detestable schemes of interested ministers, who have misinformed and misled the people. A regard for that nation, from whom we have sprung, and from whom we boast to have derived the spirit which prompts us to oppose their unfriendly measures, must lead us to put this construction on what we have lately seen and experienced. When, therefore, they shall know and consider the justice of our claim—that we insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonour by our degeneracy, it is reasonable to hope, that they will approve of our conduct, and bestow their loudest applauses on our congenial ardour for liberty.

But if these reasonable and joyful hopes should fatally be disappointed, it will afford us at least some satisfaction to know, that the principles on which we have founded our opposition to the late acts of parliament, are the principles of justice and freedom, and of the British constitution. If our righteous struggle shall be attended with misfortunes, we will reflect with exultation on the noble cause of them; and while suffering unmerited distress, think ourselves superiour to the proudest slaves. On the contrary, if we shall be reinstated in the enjoyment of those rights, to which we are entitled by the supreme and uncontrollable laws of nature, and the fundamental principles of the British constitution, we shall reap the glorious fruit of our labours; and we shall, at the same time, give to the world and to posterity an instructive example, that the cause of liberty ought not to be despaired of, and that a generous contention in that cause is not always unattended with success.

The foregoing considerations have induced me to publish a few remarks on the important question, with which I introduced this essay.

Those who allege that the parliament of Great Britain have power to make laws binding the American colonies, reason in the following manner. “That there is and must be in every state a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii,1 or the rights of sovereignty, reside:”a “That this supreme power is, by the constitution of Great Britain, vested in the king, lords, and commons:”b “That, therefore, the acts of the king, lords, and commons, or, in other words, acts of parliament, have, by the British constitution, a binding force on the American colonies, they composing a part of the British empire.”

I admit that the principle, on which this argument is founded, is of great importance: its importance, however, is derived from its tendency to promote the ultimate end of all government. But if the application of it would, in any instance, destroy, instead of promoting, that end, it ought, in that instance, to be rejected: for to admit it, would be to sacrifice the end to the means, which are valuable only so far as they advance it.

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.c

This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself.d The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are, every moment, exposed to slavery. For “civil liberty is nothing else but natural liberty, devested of that part which constituted the independence of individuals, by the authority which it confers on sovereigns, attended with a right of insisting upon their making a good use of their authority, and with a moral security that this right will have its effect.”e

Let me now be permitted to ask—Will it ensure and increase the happiness of the American colonies, that the parliament of Great Britain should possess a supreme, irresistible, uncontrolled authority over them? Is such an authority consistent with their liberty? Have they any security that it will be employed only for their good? Such a security is absolutely necessary. Parliaments are not infallible: they are not always just. The members, of whom they are composed, are human; and, therefore, they may err; they are influenced by interest; and, therefore, they may deviate from their duty. The acts of the body must depend upon the opinions and dispositions of the members: the acts of the body may, then, be the result of errour and of vice. It is no breach of decency to suppose all this: the British constitution supposes it: “it supposes that parliaments may betray their trust, and provides, as far as human wisdom can provide, that they may not be able to do so long, without a sufficient control.”f Without provisions for this purpose, the temple of British liberty, like a structure of ice, would instantly dissolve before the fire of oppression and despotick sway.

It will be very material to consider the several securities, which the inhabitants of Great Britain have, that their liberty will not be destroyed by the legislature, in whose hands it is intrusted. If it shall appear, that the same securities are not enjoyed by the colonists; the undeniable consequence will be, that the colonists are not under the same obligations to intrust their liberties into the hands of the same legislature: for the colonists are entitled to allg the privileges of Britons. We have committed no crimes to forfeit them: we have too much spirit to resign them. We will leave our posterity as free as our ancestors left us.

To give to any thing that passes in parliament the force of a law, the consent of the king, of the lords, and of the commonsh is absolutely necessary.i If, then, the inhabitants of Great Britain possess a sufficient restraint upon any of these branches of the legislature, their liberty is secure, provided they be not wanting to themselves. Let us take a view of the restraints, which they have upon the house of commons.

They elect the members of that house. “Magistrates,” says Montesquieu,j2 “are properly theirs, who have the nomination of them.” The members of the house of commons, therefore, elected by the people, are the magistrates of the people; and are bound by the ties of gratitude for the honour and confidence conferred upon them, to consult the interest of their constituents.

The power of elections has ever been regarded as a point of the last consequence to allk free governments. The independent exercise of that power is justly deemed the strongest bulwark of the British liberties.l As such, it has always been an object of great attention to the legislature; and is expressly stipulated with the prince in the bill of rights. All those are excluded from voting, whose poverty is such, that they cannot live independent, and must therefore be subject to the undue influence of their superiours. Such are supposed to have no will of their own: and it is judged improper that they should vote in the representation of a free state. What can exhibit in a more striking point of view, the peculiar care which has been taken, in order to render the election of members of parliament entirely free? It was deemed an insult upon the independent commons of England, that their uninfluenced suffrages should be adulterated by those who were not at liberty to speak as they thought, though their interests and inclinations were the same. British liberty, it was thought, could not be effectually secured, unless those who made the laws were freely, and without influence, elected by those for whom they were made. Upon this principle is reasonably founded the maxim in law—that every one, who is capable of exercising his will, is party, and presumed to consent, to an act of parliament.

For the same reason that persons, who live dependent upon the will of others, are not admitted to vote in elections, those who are under age, and therefore incapable of judging; those who are convicted of perjury or subornation of perjury, and therefore unworthy of judging; and those who obtain their freeholds by fraudulent conveyances, and would therefore vote to serve infamous purposes, are all likewise excluded from the enjoyment of this great privilege. Corruption at elections is guarded against by the strictest precautions, and most severe penalties. Every elector, before he polls, must, if demanded by a candidate or by two electors, take the oath against bribery, as prescribed by 2. Geo. 2. c. 24. Officers of the excise, of the customs, and of the post offices; officers concerned in the duties upon leather, soap, paper, striped linens imported, hackney coaches, cards and dice, are restrained from interfering in elections, under the penalty of one hundred pounds, and of being incapable of ever exercising any office of trust under the king.

Thus is the freedom of elections secured from the servility, the ignorance, and the corruption of the electors; and from the interposition of officers depending immediately upon the crown. But this is not all. Provisions, equally salutary, have been made concerning the qualifications of those who shall be elected. All imaginable care has been taken, that the commons of Great Britain may be neither awed, nor allured, nor deceived into any nomination inconsistent with their liberties.

It has been adopted as a general maxim, that the crown will take advantage of every opportunity of extending its prerogative, in opposition to the privileges of the people; that it is the interest of those who have pensions or offices at will from the crown, to concur in all its measures; that mankind in general will prefer their private interest to the good of their country; and that, consequently, those who enjoy such pensions or offices are unfit to represent a free nation, and to have the care of their liberties committed to their hands.m All such officers or pensioners are declared incapable of being elected members of the house of commons.

But these are not the only checks which the commons of Great Britain have, upon the conduct of those whom they elect to represent them in parliament. The interest of the representatives is the same with that of their constituents. Every measure, that is prejudicial to the nation, must be prejudicial to them and their posterity. They cannot betray their electors, without, at the same time, injuring themselves. They must join in bearing the burthen of every oppressive act; and participate in the happy effects of every wise and good law. Influenced by these considerations, they will seriously and with attention examine every measure proposed to them; they will behold it in every light, and extend their views to its most distant consequences. If, after the most mature deliberation, they find it will be conducive to the welfare of their country, they will support it with ardour: if, on the contrary, it appears to be of a dangerous and destructive nature, they will oppose it with firmness.

Every social and generous affection concurs with their interest, in animating the representatives of the commons of Great Britain to an honest and faithful discharge of their important trust. In each patriotick effort, the heart-felt satisfaction of having acted a worthy part vibrates in delightful unison with the applause of their countrymen, who never fail to express their warmest acknowledgements to the friends and benefactors of their country. How pleasing are those rewards! How much to be preferred to that paltry wealth, which is sometimes procured by meanness and treachery! I say sometimes; for meanness and treachery do not always obtain that pitiful reward. The most useful ministers to the crown, and therefore the most likely to be employed, especially in great emergencies, are those who are best beloved by the people; and those only are beloved by the people, who act steadily and uniformly in support of their liberties. Patriots, therefore, have frequently, and especially upon important occasions, the best chance of being advanced to offices of profit and power. An abject compliance with the will of an imperious prince, and a ready disposition to sacrifice every duty to his pleasure, are sometimes, I confess, the steps, by which only men can expect to rise to wealth and titles. Let us suppose that, in this manner, they are successful in attaining them. Is the despicable prize a sufficient recompense, for submitting to the infamous means by which it was procured, and for the torturing remorse with which the possession of it must be accompanied? Will it compensate for the merited curses of the nation and of posterity?

These must be very strong checks upon the conduct of every man, who is not utterly lost to all sense of praise and blame. Few will expose themselves to the just abhorrence of those among whom they live, and to the excruciating sensations which such abhorrence must produce.

But lest all these motives, powerful as they are, should be insufficient to animate the representatives of the nation to a vigorous and upright discharge of their duty, and to restrain them from yielding to any temptation that would incite them to betray their trust; their constituents have still a farther security for their liberties in the frequent election of parliaments. At the expiration of every parliament, the people can make a distinction between those who have served them well, and those who have neglected or betrayed their interest: they can bestow, unasked, their suffrages upon the former in the new election; and can mark the latter with disgrace, by a mortifying refusal. The constitution is thus frequently renewed, and drawn back, as it were, to its first principles; which is the most effectual method of perpetuating the liberties of a state. The people have numerous opportunities of displaying their just importance, and of exercising, in person, these natural rights. The representatives are reminded whose creatures they are; and to whom they are accountable for the use of that power, which is delegated unto them. The first maxims of jurisprudence are ever kept in view—that all power is derived from the people—that their happiness is the end of government.

Frequent new parliaments are a part of the British constitution: by them only, the king can know the immediate sense of the nation. Every supply, which they grant, is justly to be considered as a testimony of the loyalty and affection, which the nation bear to their sovereign; and by this means, a mutual confidence is created between the king and his subjects. How pleasing must such an intercourse of benefits be! How must a father of his people rejoice in such dutiful returns for his paternal care! With what ardour must his people embrace every opportunity of giving such convincing proofs, that they are not insensible of his wise and indulgent rule!

Long parliaments have always been prejudicial to the prince, who summoned them, or to the people, who elected them. In that called by King Charles I,4 in the year 1640, the commons proceeded at first, with vigour and a true patriotick spirit, to rescue the kingdom from the oppression under which it then groaned—to retrieve the liberties of the people, and establish them on the surest foundations—and to remove or prevent the pernicious consequences, which had arisen, or which, they dreaded, might arise from the tyrannical exercise of prerogative. They abolished the courts of the star chamber and high commission: they reduced the forests to their ancient bounds: they repealed the oppressive statutes concerning knighthood: they declared the tax of ship money to be illegal: they presented the petition of rights, and obtained a ratification of it from the crown. But when the king unadvisedly passed an act to continue them till such time as they should please to dissolve themselves, how soon—how fatally did their conduct change! In what misery did they involve their country! Those very men, who, while they had only a constitutional power, seemed to have no other aim but to secure and improve the liberty and felicity of their constituents, and to render their sovereign the glorious ruler of a free and happy people—those very men, after they became independent of the king and of their electors, sacrificed both to that inordinate power which had been given them. A regard for the publick was now no longer the spring of their actions: their only view was to aggrandize themselves, and to establish their grandeur on the ruins of their country. Their views unhappily were accomplished. They overturned the constitution from its very foundation; and converted into rods of oppression those instruments of power, which had been put into their hands for the welfare of the state; but which those, who had formerly given them, could not now reassume. What an instructive example is this! How alarming to those, who have no influence over their legislators—who have no security but that the power, which was originally derived from the people, and was delegated for their preservation, may be abused for their destruction! Kings are not the only tyrants: the conduct of the long parliament will justify me in adding, that kings are not the severest tyrants.

At the restoration, care was taken to reduce the house of commons to a proper dependence on the king; but immediately after their election, they lost all dependence upon their constituents, because they continued during the pleasure of the crown. The effects soon dreadfully appeared in the long parliament under Charles the second.5 They seemed disposed ingloriously to surrender those liberties, for which their ancestors had planned, and fought, and bled: and it was owing to the wisdom and integrity of twon6 virtuous ministers of the crown, that the commons of England were not reduced to a state of slavery and wretchedness by the treachery of their own representatives, whom they had indeed elected, but whom they could not remove. Secure of their seats, while they gratified the crown, the members bartered the liberties of the nation for places and pensions; and threw into the scale of prerogative all that weight, which they derived from the people in order to counterbalance it.

It was not till some years after the revolution, that the people could rely on the faithfulness of their representatives, or punish their perfidy. By the statute 6. W. & M. c. 2. it was enacted, that parliaments should not continue longer than three years. The insecure situation of the first prince of the Hanoverian line,7 surrounded with rivals and with enemies, induced the parliament, soon after his accession to the throne, to prolong this term to that of seven years. Attempts have, since that time, been frequently made to reduce the continuance of parliaments to the former term: and such attempts have always been well received by the nation. Undoubtedly they deserve such reception: for long parliaments will naturally forget their dependence on the people: when this dependence is forgotten, they will become corrupt: “Whenever they become corrupt, the constitution of England will lose its liberty—it will perish.”o

Such is the provision made by the laws of Great Britain, that the commons should be faithfully represented: provision is also made, that faithful representatives should not labour for their constituents in vain. The constitution is formed in such a manner, that the house of commons are able as well as willing to protect and defend the liberties intrusted to their care.

The constitution of Great Britain is that of a limited monarchy; and in all limited monarchies, the power of preserving the limitations must be placed somewhere. During the reigns of the first Norman princes, this power seems to have resided in the clergy and in the barons by turns. But it was lodged very improperly. The clergy, zealous only for the dignity and preeminence of the church, neglected and despised the people, whom, with the soil they tilled, they would willingly have considered as the patrimony of St. Peter. Attached to a foreign jurisdiction, and aspiring at an entire independence of the civil powers, they looked upon the prerogatives of the crown as so many obstacles in the way of their favourite scheme of supreme ecclesiastical dominion; and therefore seized, with eagerness, every occasion of sacrificing the interests of their sovereign to those of the pope. Enemies alike to their king and to their country, their sole and unvaried aim was to reduce both to the most abject state of submission and slavery. The means employed by them to accomplish their pernicious purposes were, sometimes, to work upon the superstition of the people, and direct it against the power of the prince; and, at other times, to work upon the superstition of the prince, and direct it against the liberties of the people.

The power of preserving the limitations of monarchy, for the purposes of liberty, was not more properly placed in the barons. Domineering and turbulent, they oppressed their vassals, and treated them as slaves; they opposed their prince, and were impatient of every legal restraint. Capricious and inconstant, they sometimes abetted the king in his projects of tyranny; and, at other times, excited the people to insurrections and tumults. For these reasons, the constitution was ever fluctuating from one extreme to another; now despotism—now anarchy prevailed.

But after the representatives of the commons began to sit in a separate house; to be considered as a distinct branch of the legislature; and, as such, to be invested with separate and independent powers and privileges; then the constitution assumed a very different appearance. Having no interest contrary to that of the people, from among whom they were chosen, and with whom, after the session, they were again to mix, they had no views inconsistent with the liberty of their constituents, and therefore could have no motives to betray it. Sensible that prerogative, or a discretionary power of acting where the laws are silent, is absolutely necessary, and that this prerogative is most properly intrusted to the executor of the laws, they did not oppose the exercise of it, while it was directed towards the accomplishment of its original end: but sensible likewise, that the good of the state was this original end, they resisted, with vigour, every arbitrary measure, repugnant to law, and unsupported by maxims of publick freedom or utility.

The checks, which they possessed over prerogative, were calm and gentle—operating with a secret, but effectual force—unlike the impetuous resistance of factious barons, or the boisterous fulminations of ambitious prelates.

One of the most ancient maxims of the English law is, that no freeman can be taxed at pleasure.p But taxes on freemen were absolutely necessary to defray the extraordinary charges of government. The consent of the freemen was, therefore, of necessity to be obtained. Numerous as they were, they could not assemble to give their consent in their proper persons; and for this reason, it was directed by the constitution, that they should give it by their representatives, chosen by and out of themselves. Hence the indisputable and peculiar privilege of the house of commons to grant taxes.q

This is the source of that mild but powerful influence, which the commons of Great Britain possess over the crown. In this consists their security, that prerogative, intended for their benefit, will never be exerted for their ruin. By calmly and constitutionally refusing supplies, or by granting them only on certain conditions, they have corrected the extravagancies of some princes, and have tempered the headstrong nature of others; they have checked the progress of arbitrary power, and have supported, with honour to themselves, and with advantage to the nation, the character of grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults. Those princes, who have favoured liberty, and thrown themselves upon the affections of their people, have ever found that liberty which they favoured, and those affections which they cultivated, the firmest foundations of their throne, and the most solid support of their power. The purses of their people have been ever open to supply their exigencies: their swords have been ever ready to vindicate their honour. On the contrary, those princes, who, insensible to the glory and advantage of ruling a free people, have preferred to a willing obedience the abject submission of slaves, have ever experienced, that all endeavours to render themselves absolute were but so many steps to their own downfall.

Such is the admirable temperament of the British constitution! such the glorious fabrick of Britain’s liberty—the pride of her citizens—the envy of her neighbours—planned by her legislators—erected by her patriots—maintained entire by numerous generations past! may it be maintained entire by numerous generations to come!

Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed—can they be blamed by their brethren in Britain—for claiming still to enjoy those rights? But can they enjoy them, if they are bound by the acts of a British parliament? Upon what principle does the British parliament found their power? Is it founded on the prerogative of the king? His prerogative does not extend to make laws to bind any of his subjects. Does it reside in the house of lords? The peers are a collective, and not a representative body. If it resides any where, then, it must reside in the house of commons.

Should any one object here, that it does not reside in the house of commons only, because that house cannot make laws without the consent of the king and of the lords; the answer is easy. Though the concurrence of all the branches of the legislature is necessary to every law; yet the same laws bind different persons for different reasons, and on different principles. The king is bound, because he assented to them. The lords are bound, because they voted for them. The representatives of the commons, for the same reason, bind themselves, and those whom they represent.

If the Americans are bound neither by the assent of the king, nor by the votes of the lords, to obey acts of the British parliament, the sole reason why they are bound is, because the representatives of the commons of Great Britain have given their suffrages in favour of those acts.r But are the representatives of the commons of Great Britain the representatives of the Americans? Are they elected by the Americans? Are they such as the Americans, if they had the power of election, would probably elect? Do they know the interest of the Americans? Does their own interest prompt them to pursue the interest of the Americans? If they do not pursue it, have the Americans power to punish them? Can the Americans remove unfaithful members at every new election? Can members, whom the Americans do not elect; with whom the Americans are not connected in interest; whom the Americans cannot remove; over whom the Americans have no influence—can such members be styled, with any propriety, the magistrates of the Americans? Have those, who are bound by the laws of magistrates not their own, any security for the enjoyment of their absolute rights—those rights, “which every man is entitled to enjoy, whether in society or out of it?”s Is it probable that those rights will be maintained? Is it “the primary end of government to maintain them?”t Shall this primary end be frustrated by a political maxim intended to promote it?

But from what source does this mighty, this uncontrolled authority of the house of commons flow? From the collective body of the commons of Great Britain. This authority must, therefore, originally reside in them: for whatever they convey to their representatives, must ultimately be in themselves.u And have those, whom we have hitherto been accustomed to consider as our fellow subjects, an absolute and unlimited power over us? Have they a natural right to make laws, by which we may be deprived of our properties, of our liberties, of our lives? By what title do they claim to be our masters? What act of ours has rendered us subject to those, to whom we were formerly equal? Is British freedom denominated from the soil, or from the people of Britain? If from the latter, do they lose it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America? Are those, who fled from the oppression of regal and ministerial tyranny, now reduced to a state of vassalage to those, who, then, equally felt the same oppression? Whence proceeds this fatal change? Is this the return made us for leaving our friends and our country—for braving the danger of the deep—for planting a wilderness, inhabited only by savage men and savage beasts—for extending the dominions of the British crown—for increasing the trade of the British merchants—for augmenting the rents of the British landlords—for heightening the wages of the British artificers? Britons should blush to make such a claim: Americans would blush to own it.

It is not, however, the ignominy only, but the danger also, with which we are threatened, that affects us. The many and careful provisions which are made by the British constitution, that the electors of members of parliament may be prevented from choosing representatives, who would betray them; and that the representatives may be prevented from betraying their constituents with impunity, sufficiently evince, that such precautions have been deemed absolutely necessary for securing and maintaining the system of British liberty.

How would the commons of Great Britain startle at a proposal, to deprive them of their share in the legislature, by rendering the house of commons independent of them! With what indignation would they hear it! What resentment would they feel and discover against the authors of it! Yet the commons of Great Britain would suffer less inconvenience from the execution of such a proposal, than the Americans will suffer from the extension of the legislative authority of parliament over them.

The members of parliament, their families, their friends, their posterity must be subject, as well as others, to the laws. Their interest, and that of their families, friends, and posterity, cannot be different from the interest of the rest of the nation. A regard to the former will, therefore, direct to such measures as must promote the latter. But is this the case with respect to America? Are the legislators of Great Britain subject to the laws which are made for the colonies? Is their interest the same with that of the colonies? If we consider it in a large and comprehensive view, we shall discern it to be undoubtedly the same; but few will take the trouble to consider it in that view; and of those who do, few will be influenced by the consideration. Mankind are usually more affected with a near though inferiour interest, than with one that is superiour, but placed at a greater distance. As the conduct is regulated by the passions, it is not to be wondered at, if they secure the former, by measures which will forfeit the latter. Nay, the latter will frequently be regarded in the same manner as if it were prejudicial to them. It is with regret that I produce some late regulations of parliament as proofs of what I have advanced. We have experienced what an easy matter it is for a minister, with an ordinary share of art, to persuade the parliament and the people, that taxes laid on the colonies will ease the burthens of the mother country; which, if the matter is considered in a proper light, is, in fact, to persuade them, that the stream of national riches will be increased by closing up the fountain, from which they flow.

As the Americans cannot avail themselves of that check, which interest puts upon the members of parliament, and which would operate in favour of the commons of Great Britain, though they possessed no power over the legislature; so the love of reputation, which is a powerful incitement to the legislators to promote the welfare, and obtain the approbation, of those among whom they live, and whose praises or censures will reach and affect them, may have a contrary operation with regard to the colonies. It may become popular and reputable at home to oppress us. A candidate may recommend himself at his election by recounting the many successful instances, in which he has sacrificed the interests of America to those of Great Britain. A member of the house of commons may plume himself upon his ingenuity in inventing schemes to serve the mother country at the expense of the colonies; and may boast of their impotent resentment against him on that account.

Let us pause here a little.—Does neither the love of gain, the love of praise, nor the love of honour influence the members of the British parliament in favour of the Americans? On what principles, then—on what motives of action, can we depend for the security of our liberties, of our properties, of every thing dear to us in life, of life itself? Shall we depend on their veneration for the dictates of natural justice? A very little share of experience in the world—a very little degree of knowledge in the history of men, will sufficiently convince us, that a regard to justice is by no means the ruling principle in human nature. He would discover himself to be a very sorry statesman, who would erect a system of jurisprudence upon that slender foundation. “He would make,” as my Lord Bacon says, “imaginary laws: for imaginary commonwealths; and his discourses, like the stars, would give little light, because they are so high.”v

But this is not the worst that can justly be said concerning the situation of the colonies, if they are bound by the acts of the British legislature. So far are those powerful springs of action, which we have mentioned, from interesting the members of that legislature in our favour, that, as has been already observed, we have the greatest reason to dread their operation against us. While the happy commons of Great Britain congratulate themselves upon the liberty which they enjoy, and upon the provisions—infallible, as far as they can be rendered so by human wisdom—which are made for perpetuating it to their latest posterity; the unhappy Americans have reason to bewail the dangerous situation to which they are reduced; and to look forward, with dismal apprehension, to those future scenes of woe, which, in all probability, will open upon their descendants.

What has been already advanced will suffice to show, that it is repugnant to the essential maxims of jurisprudence, to the ultimate end of all governments, to the genius of the British constitution, and to the liberty and happiness of the colonies, that they should be bound by the legislative authority of the parliament of Great Britain. Such a doctrine is not less repugnant to the voice of her laws. In order to evince this, I shall appeal to some authorities from the books of the law, which show expressly, or by a necessary implication, that the colonies are not bound by the acts of the British parliament; because they have no share in the British legislature.

The first case I shall mention was adjudged in the second year of Richard the third. It was a solemn determination of all the judges of England, met in the exchequer chamber, to consider whether the people in Ireland were bound by an act of parliament made in England. They resolved, “that they were not, as to such things as were done in Ireland; but that what they did out of Ireland must be conformable to the laws of England, because they were the subjects of England. Ireland,” said they, “has a parliament, who make laws; and our statutes do not bind them; because they do not send knights to parliament: but their persons are the subjects of the king, in the same manner as the inhabitants of Calais, Gascoigne, and Guienne.”w

This is the first case which we find in the books upon this subject; and it deserves to be examined with the most minute attention.

1. It appears, that the matter under consideration was deemed, at that time, to be of the greatest importance: for ordinary causes are never adjourned into the exchequer chamber; only such are adjourned there as are of uncommon weight, or of uncommon difficulty. “Into the exchequer chamber,” says my Lord Coke,x “all cases of difficulty in the king’s bench, or common pleas, &c. are, and of ancient time have been, adjourned, and there debated, argued, and resolved, by all the judges of England and barons of the exchequer.” This court proceeds with the greatest deliberation, and upon the most mature reflection. The case is first argued on both sides by learned counsel, and then openly on several days, by all the judges. Resolutions made with so much caution, and founded on so much legal knowledge, may be relied on as the surest evidences of what is law.

2. It is to be observed, that the extent of the legislative authority of parliament is the very point of the adjudication. The decision was not incidental or indigested: it was not a sudden opinion, unsupported by reason and argument: it was an express and deliberate resolution of that very doubt, which they assembled to resolve.

3. It is very observable, that the reason, which those reverend sages of the law gave, why the people in Ireland were not bound by an act of parliament made in England, was the same with that, on which the Americans have founded their opposition to the late statutes made concerning them. The Irish did not send members to parliament; and, therefore, they were not bound by its acts. From hence it undeniably appears, that parliamentary authority is derived solely from representation—that those, who are bound by acts of parliament, are bound for this only reason, because they are represented in it. If it were not the only reason, parliamentary authority might subsist independent of it. But as parliamentary authority fails wherever this reason does not operate, parliamentary authority can be founded on no other principle. The law never ceases, but when the reason of it ceases also.

4. It deserves to be remarked, that no exception is made of any statutes, which bind those who are not represented by the makers of them. The resolution of the judges extends to every statute: they say, without limitation—“our statutes do not bind them.” And indeed the resolution ought to extend to every statute; because the reason, on which it is founded, extends to every one. If a person is bound only because he is represented, it must certainly follow that wherever he is not represented he is not bound. No sound argument can be offered, why one statute should be obligatory in such circumstances, and not another. If we cannot be deprived of our property by those, whom we do not commission for that purpose; can we, without any such commission, be deprived, by them, of our lives? Have those a right to imprison and gibbet us, who have not a right to tax us?

5. From this authority it follows, that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown. The inhabitants of Ireland were the subjects of the king as of his crown of England; but it is expressly resolved, in the most solemn manner, that the inhabitants of Ireland are not bound by the statutes of England. Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection: the latter, on representation. An inattention to this difference has produced, I apprehend, much uncertainty and confusion in our ideas concerning the connexion, which ought to subsist between Great Britain and the American colonies.

6. The last observation which I shall make on this case is, that if the inhabitants of Ireland are not bound by acts of parliament made in England, a fortiori,9 the inhabitants of the American colonies are not bound by them. There are marks of the subordination of Ireland to Great Britain, which cannot be traced in the colonies. A writ of errour lies from the king’s bench in Ireland,y to the king’s bench, and consequently to the house of lords, in England; by which means the former kingdom is subject to the control of the courts of justice of the latter kingdom. But a writ of errour does not lie in the king’s bench, nor before the house of lords, in England, from the colonies of America. The proceedings in their courts of justice can be reviewed and controlled only on an appeal to the king in council.z

The foregoing important decision, favourable to the liberty of all the dominions of the British crown that are not represented in the British Parliament, has been corroborated by subsequent adjudications. I shall mention one that was given in the king’s bench, in the fifth year of King William and Queen Mary,10 between Blankard and Galdy.a11

The plaintiff was provost marshal of Jamaica, and by articles, granted a deputation of that office to the defendant, under a yearly rent. The defendant gave his bond for the performance of the agreement; and an action of debt was brought upon that bond. In bar of the action, the defendant pleaded the statute of 5. Ed. 6. made against buying and selling of offices that concern the administration of justice, and averred that this office concerned the administration of justice in Jamaica, and that, by virtue of that statute, both the bond and articles were void. To this plea the plaintiff replied, that Jamaica was an island inhabited formerly by the Spaniards, “that it was conquered by the subjects of the kingdom of England, commissioned by legal and sufficient authority for that purpose; and that since that conquest its inhabitants were regulated and governed by their own proper laws and statutes, and not by acts of parliament or the statutes of the kingdom of England.” The defendant, in his rejoinder, admits that, before the conquest of Jamaica by the English, the inhabitants were governed by their own laws, but alleges that “since the conquest it was part of the kingdom of England, and governed by the laws and statutes of the kingdom of England, and not by laws and statutes peculiar to the island.” To this rejoinder the plaintiff demurred, and the defendant joined in demurrer.

Here was a cause to be determined judicially upon this single question in law—Were the acts of parliament or statutes of England in force in Jamaica? It was argued on the opposite sides by lawyers of the greatest eminence, before Lord Chief Justice Holt12 (a name renowned in the law) and his brethren, the justices of the king’s bench. They unanimously gave judgment for the plaintiff; and, by that judgment, expressly determined—That the acts of parliament or statutes of England were not in force in Jamaica. This decision is explicit in favour of America; for whatever was resolved concerning Jamaica is equally applicable to every American colony.

Some years after the adjudication of this case, another was determined in the king’s bench, relating to Virginia; in which Lord Chief Justice Holt held, that the laws of England did not extend to Virginia.b

I must not be so uncandid as to conceal, that in Calvin’s case, where the above mentioned decision of the judges in the exchequer chamber, concerning Ireland, is quoted, it is added, by way of explanation of that authority,—“which is to be understood, unless it (Ireland) be especially named.” Nor will I conceal that the same exceptionc is taken notice of, and seems to be allowed, by the judges in the other cases relating to America. To any objection that may, hence, be formed against my doctrine, I answer, in the words of the very accurate Mr. Justice Foster, that “general rules thrown out in argument, and carried farther than the true state of the case then in judgment requireth, have, I confess, no great weight with me.”d

The question before the judges in the cases I have reasoned from, was not how far the naming of persons in an act of parliament would affect them; though, unless named, they would not be bound by it: the question was, whether the legislative authority of parliament extended over the inhabitants of Ireland or Jamaica or Virginia. To the resolution of the latter question the resolution of the former was by no means necessary, and was, therefore, wholly impertinent to the point of the adjudication.

But farther, the reason assigned for the resolution of the latter question is solid and convincing: the American colonies are not bound by the acts of the British parliament, because they are not represented in it. But what reason can be assigned why they should be bound by those acts, in which they are specially named? Does naming them give those, who do them that honour, a right to rule over them? Is this the source of the supreme, the absolute, the irresistible, the uncontrolled authority of parliament? These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them.e

The obligatory force of the British statutes upon the colonies, when named in them, must be accounted for, by the advocates of that power, upon some other principle. In my Lord Coke’s13 Reports, it is said, “that albeit Ireland be a distinct dominion, yet, the title thereof being by conquest, the same, by judgment of law, may be, by express words, bound by the parliaments of England.” In this instance, the obligatory authority of the parliament is plainly referred to a title by conquest, as its foundation and original. In the instances relating to the colonies, this authority seems to be referred to the same source: for any one, who compares what is said of Ireland, and other conquered countries, in Calvin’s case, with what is said of America, in the adjudications concerning it, will find that the judges, in determining the latter, have grounded their opinions on the resolutions given in the former.f It is foreign to my purpose to inquire into the reasonableness of founding the authority of the British parliament over Ireland, upon the title of conquest, though I believe it would be somewhat difficult to deduce it satisfactorily in this manner. It will be sufficient for me to show, that it is unreasonable, and injurious to the colonies, to extend that title to them. How came the colonists to be a conquered people? By whom was the conquest over them obtained? By the house of commons? By the constituents of that house? If the idea of conquest must be taken into consideration when we examine into the title by which America is held, that idea, so far as it can operate, will operate in favour of the colonists, and not against them. Permitted and commissioned by the crown, they undertook, at their own expense, expeditions to this distant country, took possession of it, planted it, and cultivated it. Secure under the protection of their king, they grew and multiplied, and diffused British freedom and British spirit, wherever they came. Happy in the enjoyment of liberty, and in reaping the fruits of their toils; but still more happy in the joyful prospect of transmitting their liberty and their fortunes to the latest posterity, they inculcated to their children the warmest sentiments of loyalty to their sovereign, under whose auspices they enjoyed so many blessings, and of affection and esteem for the inhabitants of the mother country, with whom they gloried in being intimately connected. Lessons of loyalty to parliament, indeed, they never gave: they never suspected that such unheard of loyalty would be required. They never suspected that their descendants would be considered and treated as a conquered people; and therefore they never taught them the submission and abject behaviour suited to that character.

I am sufficiently aware of an objection, that will be made to what I have said concerning the legislative authority of the British parliament. It will be alleged, that I throw off all dependence on Great Britain. This objection will be held forth, in its most specious colours, by those, who, from servility of soul, or from mercenary considerations, would meanly bow their necks to every exertion of arbitrary power: it may likewise alarm some, who entertain the most favourable opinion of the connexion between Great Britain and her colonies; but who are not sufficiently acquainted with the nature of that connexion, which is so dear to them. Those of the first class, I hope, are few; I am sure they are contemptible, and deserve to have very little regard paid to them: but for the sake of those of the second class, who may be more numerous, and whose laudable principles atone for their mistakes, I shall take some pains to obviate the objection, and to show that a denial of the legislative authority of the British parliament over America is by no means inconsistent with that connexion, which ought to subsist between the mother country and her colonies, and which, at the first settlement of those colonies, it was intended to maintain between them: but that, on the contrary, that connexion would be entirely destroyed by the extension of the power of parliament over the American plantations.

Let us examine what is meant by a dependence on Great Britain: for it is always of importance clearly to define the terms that we use. Blackstone, who, speaking of the colonies, tells us, that “they are no part of the mother country, but distinct (though dependent) dominions,”g explains dependence in this manner. “Dependence is very little else, but an obligation to conform to the will or law of that superiour person or state, upon which the inferiour depends. The original and true ground of this superiority, in the case of Ireland, is what we usually call, though somewhat improperly, the right of conquest; a right allowed by the law of nations, if not by that of nature; but which, in reason and civil policy, can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.”h

The original and true ground of the superiority of Great Britain over the American colonies is not shown in any book of the law, unless, as I have already observed, it be derived from the right of conquest. But I have proved, and I hope satisfactorily, that this right is altogether inapplicable to the colonists. The original of the superiority of Great Britain over the colonies is, then, unaccounted for; and when we consider the ingenuity and pains which have lately been employed at home on this subject, we may justly conclude, that the only reason why it is not accounted for, is, that it cannot be accounted for. The superiority of Great Britain over the colonies ought, therefore, to be rejected; and the dependence of the colonies upon her, if it is to be construed into “an obligation to conform to the will or law of the superiour state,” ought, in this sense, to be rejected also.

My sentiments concerning this matter are not singular. They coincide with the declarations and remonstrances of the colonies against the statutes imposing taxes on them. It was their unanimous opinion, that the parliament have no right to exact obedience to those statutes; and, consequently, that the colonies are under no obligation to obey them. The dependence of the colonies on Great Britain was denied, in those instances; but a denial of it in those instances is, in effect, a denial of it in all other instances. For, if dependence is an obligation to conform to the will or law of the superiour state, any exceptions to that obligation must destroy the dependence. If, therefore, by a dependence of the colonies on Great Britain, it is meant, that they are obliged to obey the laws of Great Britain, reason, as well as the unanimous voice of the Americans, teaches us to disown it. Such a dependence was never thought of by those who left Britain, in order to settle in America; nor by their sovereigns, who gave them commissions for that purpose. Such an obligation has no correspondent right: for the commons of Great Britain have no dominion over their equals and fellow subjects in America: they can confer no right to their delegates to bind those equals and fellow subjects by laws.

There is another, and a much more reasonable meaning, which may be intended by the dependence of the colonies on Great Britain. The phrase may be used to denote the obedience and loyalty, which the colonists owe to the kings of Great Britain. If it should be alleged, that this cannot be the meaning of the expression, because it is applied to the kingdom, and not to the king, I give the same answer that my Lord Bacon gave to those who said that allegiance related to the kingdom and not to the king; because in the statutes there are these words—“born within the allegiance of England”—and again—“born without the allegiance of England.” “There is no trope of speech more familiar,” says he, “than to use the place of addition for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset, or earls of Warwick. And in the very same manner, the statute speaks, allegiance of England, for allegiance of the king of England.”i

Dependence on the mother country seems to have been understood in this sense, both by the first planters of the colonies, and also by the most eminent lawyers, at that time, in England.

Those who launched into the unknown deep, in quest of new countries and habitations, still considered themselves as subjects of the English monarchs, and behaved suitably to that character; but it no where appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king’s name: they treated, or made war with the Indians by his authority: they held the lands under his grants, and paid him the rents reserved upon them: they established governments under the sanction of his prerogative, or by virtue of his charters:—no application for those purposes was made to the parliament: no ratification of the charters or letters patent was solicited from that assembly, as is usual in England with regard to grants and franchises of much less importance.

My Lord Bacon’s15 sentiments on this subject ought to have great weight with us. His immense genius, his universal learning, his deep insight into the laws and constitution of England, are well known and much admired. Besides, he lived at that time when settling and improving the American plantations began seriously to be attended to, and successfully to be carried into execution.j Plans for the government and regulation of the colonies were then forming: and it is only from the first general idea of these plans, that we can unfold, with precision and accuracy, all the more minute and intricate parts, of which they now consist. “The settlement of colonics,” says he, “must proceed from the option of those who will settle them, else it sounds like an exile: they must be raised by the leave, and not by the command of the king. At their setting out, they must have their commission, or letters patent, from the king, that so they may acknowledge their dependency upon the crown of England, and under his protection.” In another place he says, “that they still must be subjects of the realm.”k “In order to regulate all the inconveniences, which will insensibly grow upon them,” he proposes, “that the king should erect a subordinate council in England, whose care and charge shall be, to advise, and put in execution, all things which shall be found fit for the good of those new plantations; who, upon all occasions, shall give an account of their proceedings to the king or the council board, and from them receive such directions, as may best agree with the government of that place.”l It is evident, from these quotations, that my Lord Bacon had no conception that the parliament would or ought to interpose,m either in the settlement or the government of the colonies. The only relation, in which he says the colonists must still continue, is that of subjects: the only dependency, which they ought to acknowledge, is a dependency on the crown.

This is a dependence, which they have acknowledged hitherto; which they acknowledge now; and which, if it is reasonable to judge of the future by the past and the present, they will continue to acknowledge hereafter. It is not a dependence, like that contended for on parliament, slavish and unaccountable, or accounted for only by principles that are false and inapplicable: it is a dependence founded upon the principles of reason, of liberty, and of law. Let us investigate its sources.

The colonists ought to be dependent on the king, because they have hitherto enjoyed, and still continue to enjoy, his protection. Allegiance is the faith and obedience, which every subject owes to his prince. This obedience is founded on the protection derived from government: for protection and allegiance are the reciprocal bonds, which connect the prince and his subjects.n Every subject, so soon as he is born, is under the royal protection, and is entitled to all the advantages arising from it. He therefore owes obedience to that royal power, from which the protection, which he enjoys, is derived. But while he continues in infancy and nonage, he cannot perform the duties which his allegiance requires. The performance of them must be respited till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection which he now enjoys, but also for that which, from his birth, he has enjoyed; and to which his tender age has hitherto prevented him from making a suitable return. Allegiance now becomes a duty founded upon principles of gratitude, as well as on principles of interest: it becomes a debt, which nothing but the loyalty of a whole life will discharge.o As neither climate, nor soil, nor time entitle a person to the benefits of a subject; so an alteration of climate, of soil, or of time cannot release him from the duties of one. An Englishman, who removes to foreign countries, however distant from England, owes the same allegiance to his king there which he owed him at home; and will owe it twenty years hence as much as he owes it now. Wherever he is, he is still liable to the punishment annexed by law to crimes against his allegiance; and still entitled to the advantages promised by law to the duties of it: it is not cancelled; and it is not forfeited. “Hence all children born in any part of the world, if they be of English parents continuing at that time as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are ipso facto naturalized: and if they have issue, and their descendants intermarry among themselves, such descendants are naturalized to all generations.”p

Thus we see, that the subjects of the king, though they reside in foreign countries, still owe the duties of allegiance, and are still entitled to the advantages of it. They transmit to their posterity the privilege of naturalization, and all the other privileges which are the consequences of it.q

Now we have explained the dependence of the Americans. They are the subjects of the king of Great Britain. They owe him allegiance. They have a right to the benefits which arise from preserving that allegiance inviolate. They are liable to the punishments which await those who break it. This is a dependence, which they have always boasted of. The principles of loyalty are deeply rooted in their hearts; and there they will grow and bring forth fruit, while a drop of vital blood remains to nourish them. Their history is not stained with rebellious and treasonable machinations: an inviolable attachment to their sovereign, and the warmest zeal for his glory, shine in every page.

From this dependence, abstracted from every other source, arises a strict connexion between the inhabitants of Great Britain and those of America. They are fellow subjects; they are under allegiance to the same prince; and this union of allegiance naturally produces a union of hearts. It is also productive of a union of measures through the whole British dominions. To the king is intrusted the direction and management of the great machine of government. He therefore is fittest to adjust the different wheels, and to regulate their motions in such a manner as to cooperate in the same general designs. He makes war: he concludes peace: he forms alliances: he regulates domestick trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of government; so that he can check every jarring movement in the administration. He has a negative on the different legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws.

The connexion and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate, and on which her prosperity, as well as ours, so materially depends, will be better preserved by the operation of the legal prerogatives of the crown, than by the exertion of an unlimited authority by parliament.r