[885] Sect. 13.

[886] Sect. 14.

[887] Sect. 15.

17. This common good, not any minute particle of it, as the benefit of a single man, is the great end of the legislator and of him who obeys his will. And such human actions as by their natural tendency promote the common good may be called naturally good, more than those which tend only to the good of any one man, by how much the whole is greater than this small part. And whatever is directed in the shortest way to this end may be called right, as a right line is the shortest of all. And as the whole system of the universe, when all things are arranged so as to produce happiness, is beautiful, being aptly disposed to its end, which is the definition of beauty, so particular actions contributing to this general harmony may be called beautiful and becoming.[888]

[888] Sect. 16.

18. Cumberland acutely remarks, in answer to the objection to the practice of virtue from the evils which fall on good men, and the success of the wicked, that no good or evil is to be considered, in this point of view, which arises from mere necessity, or external causes and not from our virtue or vice itself. He then shows that a regard for piety and peace, for mutual intercourse, and civil and domestic polity, tends to the happiness of every one; and in reckoning the good consequences of virtuous behaviour we are not only to estimate the pleasure intimately connected with it, which the love of God and of good men produces, but the contingent benefits we obtain by civil society which we promote by such conduct.[889] And we see that in all nations there is some regard to good faith and the distribution of property, some respect to the obligation of oaths, some attachments to relations and friends. All men therefore acknowledge, and to a certain extent perform, those things which really tend to the common good. And though crime and violence sometimes prevail, yet these are like diseases in the body which it shakes off; or if, like them, they prove sometimes mortal to a single community, yet human society is immortal; and the conservative principles of common good have in the end far more efficacy than those which dissolve and destroy states.

[889] Sect. 20.

19. We may reckon the happiness consequent on virtue as a true sanction of natural law annexed to it by its author, and thus fulfilling the necessary conditions of its definition. And though some have laid less stress on these sanctions, and deemed virtue its own reward, and gratitude to God and man its best motive, yet the consent of nations and common experience show us that the observance of the first end, which is the common good, will not be maintained without remuneration or penal consequences.

20. By this single principle of common good, we simplify the method of natural law, and arrange its secondary precepts in such subordination as best conduces to the general end. Hence, moral rules give way in particular cases, when they come in collision with others of more extensive importance. For all ideas of right or virtue imply a relation to the system and nature of all rational beings. And the principles thus deduced as to moral conduct are generally applicable to political societies, which in their two leading institutions, the division of property and the coercive power of the magistrate, follow the steps of natural law, and adopt these rules of polity, because they perceive them to promote the common weal.

21. From all intermixture of scriptural authority Cumberland proposes to abstain, building only on reason and experience; since we believe the scriptures to proceed from God because they illustrate and promote the law of nature. He seems to have been the first christian writer who sought to establish systematically the principles of moral right independently of revelation. They are indeed taken for granted by many, especially those who adopted the Platonic language; or the schoolmen may have demonstrated them by arguments derived from reason, but seldom, if ever, without some collateral reference to theological authority. In this respect, therefore, Cumberland may be deemed to make an epoch in the history of ethical philosophy, though Puffendorf, whose work was published the same year, may have nearly equal claims to it. If we compare the Treatise on the Laws of Nature with the Ductor Dubitantium of Taylor, written a very few years before, we shall find ourselves in a new world of moral reasoning. The schoolmen and fathers, the canonists and casuists, have vanished like ghosts at the first daylight; the continual appeal is to experience, and never to authority; or if authority can be said to appear at all in the pages of Cumberland, it is that of the great apostles of experimental philosophy, Descartes or Huygens, or Harvey or Willis. His mind, liberal and comprehensive as well as acute, had been forcibly impressed with the discoveries of his own age, both in mathematical science and in what is now more strictly called physiology. From this armoury he chose his weapons, and employed them, in some instances, with great sagacity and depth of thought. From the brilliant success, also, of the modern analysis, as well as from the natural prejudice in favour of a geometrical method, which arises from the acknowledged superiority of that science in the determination of its proper truths, he was led to expect more from the use of similar processes in moral reasoning than we have found justified by experience. And this analogy had probably some effect on one of the chief errors of his ethical system, the reduction, at least in theory, of the morality of actions to definite calculation.

His theory expanded afterwards. 22. The prolegomena or preface to Cumberland’s treatise contains that statement of his system with which we have been hitherto concerned, and which the whole volume does but expand. His manner of reasoning is diffuse, abounding in repetitions, and often excursive; we cannot avoid perceiving that he labours long on propositions which no adversary would dispute, or on which the dispute could be little else than one of verbal definition. This however is almost the universal failing of preceding philosophers, and was only put an end to, if it can be said yet to have ceased, by the sharper logic of controversy, which a more general regard to metaphysical inquiries, and a juster sense of the value of words, brought into use.

23. The question between Cumberland and his adversaries, that is, the school of Hobbes, is stated to be, whether certain propositions of immutable truth, directing the voluntary actions of men in choosing good and avoiding evil, and imposing an obligation upon them, independently of civil laws, are necessarily suggested to the mind by the nature of things and by that of mankind. And the affirmative of this question he undertakes to prove from a consideration of the nature of both; from which many particular rules might be deduced, but above all that which comprehends all the rest, and is the basis of his theory—namely, that the greatest possible benevolence (not a mere languid desire but an energetic principle) of every rational agent towards all the rest constitutes the happiest condition of each and of all, so far as depends on their own power, and is necessarily required for their greatest happiness; whence, the common good is the supreme law. That God is the author of this law appears evident from his being the author of all nature and of all the physical laws according to which impressions are made on our minds.

27. Natural good is defined by Cumberland, with more latitude than has been used by Paley and by those of a later school, who confine it to happiness or pleasurable perception. Whatever conduces to the preservation of an intelligent being, or to the perfection of his powers, he accounts to be good, without regard to enjoyment. And for this he appeals to experience, since we desire existence, as well as the extension of our powers of action, for their own sakes. It is of great importance to acquire a clear notion of what is truly good, that is, of what serves most to the happiness and perfection of everyone; since all the secondary laws of nature, that is, the rules of particular virtues, derive their authority from this effect. These rules may be compared one with another as to the probability, as well as the value of their effects upon the general good; and he anticipates greater advantage from the employment of mathematical reasoning and even analytical forms in moral philosophy than the different nature of the subjects would justify, even if the fundamental principle of converting the theory of ethics into calculation could be allowed.[890]

[890] Ea quippe tota (disciplina morum) versatur in æstimandis rationibus virium humanarum ad commune bonum entium rationalium quicquam facientium, quæ quidem variant in omni casuum possibilium varietate. Cap. ii., sect. 9. The same is laid down in several other passages. By rationibus we must understand ratios; which brings out the calculating theory in the strongest light.

28. A law of nature, meaning one subordinate to the great principle of benevolence, is defined by Cumberland to be a proposition manifested by the nature of things to the mind according to the will of the First Cause, and pointing out an action tending to the good of rational beings, from the performance of which an adequate reward, or from the neglect of which a punishment, will ensue by the nature of such rational beings. Every part of this definition he proves with exceeding prolixity in the longest chapter—namely the fifth, of his treatise; but we have already seen the foundations of his theory upon which it rests. It will be evident to the reader of this chapter that both Butler and Paley have been largely indebted to Cumberland.[891] Natural obligation he defines thus:—No other necessity determines the will to act than that of avoiding evil and of seeking good, so far as appears to be in our power.[892] Moral obligation is more limited, and is differently defined.[893] But the main point, as he justly observes, of the controversy, is the connection between the tendency of each man’s actions, taking them collectively through his life, to the good of the whole, and that to his own greatest happiness and perfection. This he undertakes to show, premising that it is twofold; consisting immediately in the pleasure attached to virtue, and ultimately in the rewards it obtains from God and from man. God, as a rational being, cannot be supposed to act without an end, or to have a greater end than the general good; that is, the happiness and perfection of his creatures.[894] And his will may not only be shown à priori, by the consideration of his essence and attributes, but by the effects of virtue and vice in the order of nature, which he has established. The rewards and punishments which follow at the hands of men are equally obvious; and whether we regard men as God’s instruments, or as voluntary agents, demonstrate that virtue is the highest prudence. These arguments are urged rather tediously, and in such a manner as to encounter none of the difficulties which it is desirable to overcome.

[891] A great part of the second and third chapters of Butler’s Analogy will be found in Cumberland. See cap. v., sect. 22.

[892] Non alia necessitas voluntatem ad agendum determinat, quam malum in quantum tale esse nobis constat fugiendi bonumque quatenus nobis apparet prosequendi. Cap. v., sect. 7.

[893] Sect. 27.

[894] Sect. 19.

29. Two objections might be alledged against this kind of proof; that the rewards and punishments of moral actions are too uncertain to be accounted clear proofs of the will of God, and consequently of their natural obligation, and that by laying so much stress upon them we make private happiness the measure of good. These he endeavours to repel. The contingency of a future consequence has a determinate value, which, if it more than compensates, for good or evil, the evil or good of a present action, ought to be deemed a proof given by the author of nature that reward or punishment are annexed to the action, as much as if they were its necessary consequences.[895] This argument, perhaps sophistical, is an instance of the calculating method affected by Cumberland, and which we may presume, from the then recent application of analysis to probability, he was the first to adopt on such an occasion. Paley is sometimes fond of a similar process. But after these mathematical reasonings, he dwells, as before, on the beneficial effects of virtue, and concludes that many of them are so uniform as to leave no doubt as to the intention of the Creator. Against the charge of postponing the public good to that of the agent, he protests that it is wholly contrary to his principle, which permits no one to preserve his life, or what is necessary for it, at the expense of a greater good to the whole.[896] But his explication of the question ends in repeating that no single man’s greatest felicity can, by the nature of things, be inconsistent with that of all; and that every such hypothesis is to be rejected as an impossible condition of the problem. It seems doubtful whether Cumberland uses always the same language on the question whether private happiness is the final motive of action, which in this part of the chapter he wholly denies.

[895] Sect. 37.

[896] Sua cujusque felicitas est pars valde exigua finis illius, quem vir verè rationalis prosequitur, et ad totum finem, scilicet commune bonum cui a natura seu a Deo intertexitur, eam tantum habet rationem quam habet unus homo ad aggregatum ex omnibus rationalibus, quæ minor est quam habet unica arenula ad molem universi corporis. Sect. 23 and sect. 28.

30. From the establishment of this primary law of universal benevolence, Cumberland next deduces the chief secondary principles, which are commonly called the moral virtues. And among these he gives the first place to justice, which he seems to consider, by too lax an use of terms, or too imperfect an analogy, as comprehending the social duties of liberality, courtesy, and domestic affection. The right of property, which is the foundation of justice, he rests entirely on its necessity for the common good; whatever is required for that prime end of moral action being itself obligatory on moral agents, they are bound to establish and to maintain separate rights. And all right so wholly depends on this instrumentality to good, that the rightful sovereignty of God over his creatures is not founded on that relation he bears to them, much less on his mere power, but on his wisdom and goodness, through which his omnipotence works only for their happiness. But this happiness can only be attained by means of an absolute right over them in their Maker, which is therefore to be reckoned a natural law.

31. The good of all rational beings is a complex whole, being nothing but the aggregate of good enjoyed by each. We can only act in our proper spheres, labouring to do good. But this labour will be fruitless, or rather mischievous, if we do not keep in mind the higher gradations which terminate in universal benevolence. No man must seek his own advantage otherwise than that of his family permits; or provide for his family to the detriment of his country; or promote the good of his country at the expense of mankind; or serve mankind, if it were possible, without regard to the majesty of God.[897] It is, indeed, sufficient that the mind should acknowledge and recollect this principle of conduct, without having it present on every single occasion. But where moral difficulties arise, Cumberland contends that the general good is the only measure by which we are to determine the lawfulness of actions, or the preference due to one above another.

32. In conclusion, he passes to political authority, deriving it from the same principle, and comments with severity and success, though in the verbose style usual to him, on the system of Hobbes. It is, however, worthy of remark, that he not only peremptorily declares the irresponsibility of the supreme magistrate in all cases, but seems to give him a more arbitrary latitude in the choice of measures, so long as he does not violate the chief negative precepts of the decalogue, than is consistent with his own fundamental rule of always seeking the greatest good. He endeavours to throw upon Hobbes, as was not uncommon with the latter’s theological opponents, the imputation of encouraging rebellion while he seemed to support absolute power; and observes with full as much truth that if kings are bound by no natural law, the reason for their institution—namely, the security of mankind, assigned by the author of the Leviathan, falls to the ground.

[897] Cap. viii., sect. 14, 15.

Remarks on Cumberland’s theory. 33. I have gone rather at length into a kind of analysis of this treatise, because it is now very little read, and yet was of great importance in the annals of ethical philosophy. It was, if not a textbook in either of our universities, concerning which I am not confident, the basis of the system therein taught, and of the books which have had most influence in this country. Hutcheson, Law, Paley, Priestley, Bentham, belong, no doubt some of them unconsciously, to the school founded by Cumberland. Hutcheson adopted the principle of general benevolence as the standard of virtue; but by limiting the definition of good to happiness alone, he simplified the scheme of Cumberland, who had included conservation and enlargement of capacity in its definition. He rejected also what encumbers the whole system of his predecessor, the including the Supreme Being among those rational agents whose good we are bound to promote. The schoolmen, as well as those whom they followed, deeming it necessary to predicate metaphysical infinity of all the divine attributes, reckoned unalterable beatitude in the number. Upon such a subject no wise man would like to dogmatise. The difficulties on both sides are very great, and perhaps among the most intricate to which the momentous problem concerning the cause of evil has given rise. Cumberland, whose mind does not seem to have been much framed to wrestle with mysteries, evades, in his lax verbosity, what must perplex his readers.

35. Sir James Mackintosh, whose notice of Cumberland is rather too superficial, and hardly recognises his influence on philosophy, observes that “the forms of scholastic argument serve more to encumber his style than to insure his exactness.”[898] There is not, however, much of scholastic form in the treatise on the Laws of Nature, and this is expressly disclaimed in the Preface. But he has, as we have intimated, a great deal too much of a mathematical line of argument which never illustrates his meaning, and has sometimes misled his judgment. We owe, probably to his fondness for this specious illusion, I mean the application of reasonings upon quantity to moral subjects, the dangerous sophism that a direct calculation of the highest good, and that not relatively to particulars, but to all rational beings, is the measure of virtuous actions, the test by which we are to try our own conduct and that of others. And the intervention of general rules, by which Paley endeavoured to dilute and render palatable this calculating scheme of utility, seems no more to have occurred to Cumberland than it was adopted by Bentham.

[898] Dissertation on Ethical Philosophy, p. 48.

36. Thus as Taylor’s Ductor Dubitantium is nearly the last of a declining school, Cumberland’s Law of Nature may be justly considered as the herald, especially in England, of a new ethical philosophy, of which the main characteristics were, first, that it stood complete in itself without the aid of revelation; secondly, that it appealed to no authority of earlier writers whatever, though it sometimes used them in illustration; thirdly, that it availed itself of observation and experience, alledging them generally, but abstaining from particular instances of either, and making, above all, no display of erudition; and fourthly; that it entered very little upon casuistry, leaving the application of principles to the reader.

Puffendorf’s Law of Nature and Nations. 37. In the same year, 1672, a work still more generally distinguished than that of Cumberland, was published at Lund, in Sweden, by Samuel Puffendorf, a Saxon by birth, who filled the chair of moral philosophy in that recently-founded university. This large treatise, On the Law of Nature and Nations, in eight books, was abridged by the author, but not without some variations, in one perhaps more useful, On the Duties of a Man and a Citizen. Both have been translated into French and English; both were long studied in the foreign universities, and even in our own. Puffendorf has been, perhaps, in moral philosophy, of greater authority than Grotius, with whom he is frequently named in conjunction; but this is not the case in international jurisprudence.

Analysis of this work. 38. Puffendorf, after a very diffuse and technical chapter on moral beings, or modes, proceeds to assert a demonstrative certainty in moral science, but seems not to maintain an inherent right and wrong in actions antecedent to all law, referring the rule of morality altogether to the divine appointment. He ends, however, by admitting that man’s constitution being what it is, God could not, without inconsistency, have given him any other law than that under which he lives.[899] We discern good from evil by the understanding, which judgment when exercised on our own actions is called conscience; but he strongly protests against any such jurisdiction of conscience, independent of reason and knowledge, as some have asserted. This notion “was first introduced by the schoolmen, and has been maintained in these latter ages by the crafty casuists for the better securing, of men’s minds and fortunes to their own fortune and advantage.”[900] Puffendorf was a good deal imbued with the Lutheran bigotry which did no justice to any religion but its own.

[899] C. 2.

[900] C. 3.

39. Law alone creates obligation; no one can be obliged except towards a superior. But to compel and to oblige being different things, it is required for this latter that we should have received some great good at the hands of a superior, or have voluntarily submitted to his will. This seems to involve an antecedent moral right, which Puffendorf’s general theory denies.[901] Barbeyrac, his able and watchful commentator, derives obligation from our natural dependence on the supreme authority of God, who can punish the disobedient and reward others. In order to make laws obligatory, it is necessary, according to Puffendorf, that we should know both the law and the lawgiver’s authority. Actions are good or evil, as they conform more or less to law. And, coming to consider the peculiar qualities of moral actions, he introduces the distinction of perfect and imperfect rights, objecting to that of Grotius and the Roman lawyers, expletive and distributive justice.[902] This first book of Puffendorf is very diffuse; and some chapters are wholly omitted in the abridgment.

[901] C. 6.

[902] C. 7.

40. The natural state of man, such as in theory we may suppose, is one in which he was never placed, “thrown into the world at a venture, and then left entirely to himself, with no larger endowments of body or mind than such as we now discover in men.” This, however, he seems to think physically possible to have been, which I should incline to question. Man, in a state of nature, is subject to no earthly superior; but we must not infer thence that he is incapable of law, and has a right to everything that is profitable to himself. But, after discussing the position of Hobbes that a state of nature is a state of war, he ends by admitting that the desire of peace is too weak and uncertain a security for its preservation among mankind.[903]

[903] L. ii. c. 2.

41. The law of nature he derives not from consent of nations, nor from personal utility, but from the condition of man. It is discoverable by reason; its obligation is from God. He denies that it is founded on the intrinsic honesty or turpitude of actions. It was free to God whether he would create an animal to whom the present law of nature should be applicable. But supposing all things human to remain constant, the law of nature, though owing its institution to the free will of God, remains unalterable. He therefore neither agrees wholly with those who deem this law as one arbitrary and mutable at God’s pleasure, or those who look upon it as an image of his essential holiness and justice. For he doubts whether the law of nature is altogether conformed to the divine attributes as to a type; since we cannot acquire a right with respect to God; so that his justice must be of a different kind from ours. Common consent, again, is an insufficient basis of natural law, few men having searched into the foundations of their assent, even if we could find a more general consent than is the case. And here he expatiates, in the style of Montaigne’s school, on the variety of moral opinions.[904] Puffendorf next attacks those who resolve right into self-interest. But, unfortunately, he only proves that men often mistake their interest. “It is a great mistake to fancy it will be profitable to you to take away, either by fraud or violence, what another man has acquired by his labour; since others have not only the power of resisting you, but of taking the same freedom with your goods and possessions.” This is evidently no answer to Hobbes or Spinosa.

[904] C. 3.

42. The nature of man, his wants, his powers of doing mischief to others, his means of mutual assistance, show that he cannot be supported in things necessary and convenient to him without society, so that others may promote his interests. Hence, sociableness is a primary law of nature, and all actions tending towards it are commanded, as the opposite are forbidden by that law. In this he agrees with Grotius; and, after he had become acquainted with Cumberland’s work, observes that the fundamental law of that writer, to live for the common good, and show benevolence towards all men, does not differ from his own. He partly explains, and partly answers, the theory of Hobbes. From Grotius he dissents in denying that the law of nature would be binding without religion, but does not think the soul’s immortality essential to it.[905] The best division of natural law is into duties towards ourselves and towards others. But in the abridged work, the Duties of a Man and a Citizen, he adds those towards God.

[905] C. 8.

43. The former class of duties he illustrates with much prolixity and needless quotation,[906] and passes to the right of self-defence, which seems to be the debatable frontier between the two classes of obligation. In this chapter Puffendorf is free from the extreme scrupulousness of Grotius; yet he differs from him, as well as from Barbeyrac and Locke, in denying the right of attacking the aggressor, where a stranger has been injured, unless where we are bound to him by promise.[907]

[906] C. 4.

[907] C. 5.

44. All persons, as is evident, are bound to repair wilful injury, and even that arising from their neglect; but not where they have not been in fault.[908] Yet the civil action ob pauperiem, for casual damage by a beast or slave, which Grotius held to be merely of positive law, and which our own (in the only applicable case) does not recognise, Puffendorf thinks grounded on natural right. He considers several questions of reparation, chiefly such as we find in Grotius. From these, after some intermediate disquisitions on moral duties, he comes to the more extensive province of casuistry, the obligation of promises.[909] These, for the most part, give perfect rights which may be enforced, though this is not universal; hence, promises may themselves be called imperfect or perfect. The former, or nuda pacta, seem to be obligatory rather by the rules of veracity, and for the sake of maintaining confidence among men, than in strict justice; yet he endeavours to refute the opinion of a jurist who held nuda pacta to involve no obligation beyond a compensation for damage. Free consent and knowledge of the whole subject are required for the validity of a promise; hence, drunkenness takes away its obligation.[910] Whether a minor is bound in conscience, though not in law, has been disputed; the Romish casuists all denying it unless he has received an advantage. La Placette, it seems, after the time of Puffendorf, though a very rigid moralist, confines the obligation to cases where the other party sustains any real damage by the non-performance. The world, in some instances, at least, would exact more than the strictest casuists. Promises were invalidated, though not always mutual contracts, by error; and fraud in the other party annuls a contract. There can be no obligation, Puffendorf maintains, without a corresponding right; hence, fear arising from the fault of the other party invalidates a promise. But those made to pirates or rebels, not being extorted by fear, are binding. Vows to God he deems not binding, unless accepted by him; but he thinks that we may presume their acceptance when they serve to define or specify an indeterminate duty.[911] Unlawful promises must not be performed by the party promising to commit an evil act, and as to performance of the other party’s promise, he differs from Grotius in thinking it not binding. Barbeyrac concurs with Puffendorf, but Paley holds the contrary; and the common sentiments of mankind seem to be on that side.[912]

[908] L. iii., c. 1.

[909] C. 5.

[910] C. 6.

[911] C. 6.

[912] C. 7.

45. The obligations of veracity Puffendorf, after much needless prolixity on the nature of signs and words, deduces from a tacit contract among mankind, that words, or signs of intention, shall be used in a definite sense which others may understand.[913] He is rather fond of these imaginary compacts. The laxer casuists are in nothing more distinguishable from the more rigid than in the exceptions they allow to the general rule of veracity. Many, like Augustin and most of the fathers, have laid it down that all falsehood is unlawful; even some of the jurists, when treating of morality, had done the same. But Puffendorf gives considerable latitude to deviations from truth, by mental reserve, by ambiguous words, by direct falsehood. Barbeyrac, in a long note, goes a good deal farther, and indeed beyond any safe limit.[914] An oath, according to those writers, adds no peculiar obligation; another remarkable discrepancy between their system and that of the theological casuists. Oaths may be released by the party in favour of whom they are made; but it is necessary to observe whether the dispensing authority is really the obligee.

[913] L. iv., c. 1.

[914] Barbeyrac admits that several writers of authority since Puffendorf had maintained the strict obligation of veracity for its own sake; Thomasius, Buddæus, Noodt, and above all, La Placette. His own notions are too much the other way, both according to the received standard of honourable and decorous character among men, and according to any sound theory of ethics. Lying, he says, condemned in Scripture, always means fraud or injury to others. His doctrine is, that we are to speak the truth, or to be silent, or to feign and dissemble, accordingly as our own lawful interest, or that of our neighbour, may demand it. This is surely as untenable one way as any paradox in Augustin or La Placette can be the other.

46. We now advance to a different part of moral philosophy, the rights of property. Puffendorf first inquires into the natural right of killing animals for food; but does not defend it very well, resting this right on the want of mutual obligation between man and brutes. The arguments from physiology and the manifest propensity in mankind to devour animals, are much stronger. He censures cruelty towards animals, but hardly on clear grounds; the disregard of moral emotion, which belongs to his philosophy, prevents his judging it rightly.[915] Property itself in things he grounds on an express or tacit contract of mankind, while all was yet in common, that each should possess a separate portion. This covenant he supposes to have been gradually extended, as men perceived the advantage of separate possession, lands having been cultivated in common after severalty had been established in houses and moveable goods; and he refutes those who maintain property to be coeval with mankind, and immediately founded on the law of nature.[916] Nothing can be the subject of property which is incapable of exclusive occupation; not therefore the ocean, though some narrow seas may be appropriated.[917] In the remainder of this fourth book he treats on a variety of subjects connected with property, which carry us over a wide field of natural and positive jurisprudence.

[915] C. 3.

[916] C. 4. Barbeyrac more wisely denies this assumed compact, and rests the right of property on individual occupancy.

[917] C. 5.

47. The fifth book of Puffendorf relates to price, and to all contracts onerous or lucrative, according to the distinction of the jurists, with the rules of their interpretation. It is a running criticism on the Roman Law, comparing it with right reason and justice. Price he divides into proper and eminent; the first being what we call real value, or capacity of procuring things desirable by means of exchange; the second the money value. What is said on this subject would now seem common-place and prolix; but it is rather interesting to observe the beginnings of political economy. Money, he thinks, was introduced by an agreement of civilized nations, as a measure of value. Puffendorf, of more enlarged views than Grotius, vindicates usury which the other had given up; and mentions the evasions usually practised such as the grant of an annuity for a limited term.

48. In the sixth book we have disquisitions on matrimony and the rights incident to it, on paternal and on herile power. Among other questions he raises one whether the husband has any natural dominion over the wife. This he thinks hard to prove, except as his sex gives him an advantage; but fitness to govern does not create a right. He has recourse therefore to his usual solution, her tacit or express promise of obedience. Polygamy he deems contrary to the law of nature, but not incest except in the direct line. This is consonant to what had been the general determination of philosophers.[918] The right of parents he derives from the general duty of sociableness, which makes preservation of children necessary, and on the affection implanted in them by nature; also on a presumed consent of the children in return for their maintenance.[919] In a state of nature this command belongs to the mother, unless she has waived it by a matrimonial contract. In childhood, the fruits of the child’s labour belong to the father, though the former seems to be capable of receiving gifts. Fathers, as heads of families, have a kind of sovereignty, distinct from the paternal, to which adult children residing with them are submitted. But after their emancipation by leaving their father’s house, which does not absolutely require his consent, they are bound only to duty and reverence. The power of a master over his servant is not by nature, nor by the law of war, but originally by a contract founded on necessity. War increased the number of those in servitude. A slave, whatever Hobbes may say, is capable of being injured by his master; but the laws of some nations give more power to the latter than is warranted by those of nature. Servitude implies only an obligation to perpetual labour for a recompence (namely, at least maintenance); the evil necessary to this condition has been much exaggerated by opinion.[920]

[918] L. vi., c. 1.

[919] C. 2.

[920] C. 3.

Puffendorf and Paley compared. 49. Puffendorf and Cumberland are the two great promoters, if not founders of that school in ethics, which abandoning the higher ground of both philosophers and theologians, that of an intrinsic fitness and propriety in actions, resolved them all into their conduciveness towards good. Their utile indeed is very different from what Cicero has so named, which is merely personal, but it is different also from his honestum. The sociableness of Puffendorf is perhaps much the same with the general good of Cumberland, but is somewhat less comprehensive and less clear. Paley, who had not read a great deal, had certainly read Puffendorf; he has borrowed from him several minor illustrations, such as the equivocal promise of Timur (called by Paley Temures) to the garrison of Sebastia, and the rules for division of profits in partnership. Their minds were in some respects alike; both phlegmatic, honest, and sincere, without warmth or fancy; yet there seems a more thorough good-nature and kindliness of heart in our countryman. Though an ennobled German, Puffendorf had as little respect for the law of honour as Paley himself. They do not indeed resemble each other in their modes of writing; one was very laborious, the other very indolent; one sometimes misses his mark by circuity, the other by precipitance. The quotations in Puffendorf are often as thickly strewed as in Grotius, though he takes less from the poets; but he seems not to build upon their authority, which gives them still more the air of superfluity. His theory indeed, which assigns no weight to anything but a close geometrical deduction from axioms, is incompatible with much deference to authority; and he sets aside the customs of mankind as unstable and arbitrary. He has not taken much from Hobbes, whose principles are far from his; but a great deal from Grotius. The leading difference between the treatises of these celebrated men is that, while the former contemplated the law that ought to be observed among independent communities as his primary object, to render which more evident he lays down the fundamental principles of private right or the law of nature, the latter, on the other hand, not only begins with natural law, but makes it the great theme of his inquiries.

Rochefoucault. 50. Few books have been more highly extolled or more severely blamed than the Thoughts or Maxims of the Duke of Rochefoucault. They have, indeed, the greatest advantages for popularity; the production of a man less distinguished by his high rank than by his active participation in the factions of his country at a time when they reached the limits of civil war, and by his brilliancy among the accomplished courtiers of Louis XIV.; concise and energetic in expression; reduced to those short aphorisms, which leave much to the reader’s acuteness, and yet save his labour; not often obscure and never wearisome; an evident generalisation of long experience, without pedantry, without method, without deductive reasonings, yet wearing an appearance at least of profundity, they delight the intelligent though indolent man of the world, and must be read with some admiration by the philosopher. Among the books in ancient and modern times which record the conclusions of observing men on the moral qualities of their fellows, a high place should be reserved for the Maxims of Rochefoucault.

51. The censure that has so heavily fallen upon this writer is founded on his proneness to assign a low and selfish motive to human actions, and even to those which are most usually denominated virtuous. It is impossible to dispute the partial truth of this charge. Yet it may be pleaded, that many of his maxims are not universal even in their enunciation; and that, in others, where, for the sake of a more effective expression, the position seems general, we ought to understand it with such limitations as our experience may suggest. The society with which the Duke of la Rochefoucault was conversant could not elevate his notions of disinterested probity in man, or of unblemished purity in woman. Those who call themselves the world, it is easy to perceive, set aside, in their remarks on human nature, all the species but themselves, and sometimes generalise their maxims, to an amusing degree, from the manners and sentiments which have grown up in the atmosphere of a court or an aristocratic society. Rochefoucault was of far too reflecting a mind to be confounded with such mere worldlings; yet he bears witness to the contracted observation and the precipitate inferences which an intercourse with a single class of society scarcely fails to generate. The malignity of Rochefoucault is always directed against the false virtues of mankind, but never touches the reality of moral truths, and leaves us less injured than the cold, heartless indifference to right which distils from the pages of Hobbes. Nor does he deal in those sweeping denials of goodness to human nature which are so frequently hazarded under the mask of religion. His maxims are not exempt from defects of a different kind; they are sometimes refined to a degree of obscurity, and sometimes, under an epigrammatic turn, convey little more than a trivial meaning. Perhaps, however, it would be just to say that one third of the number deserve to be remembered, as at least partially true and useful; and this is a large proportion, if we exclude all that are not in some measure original.

Locke on Education. Its merits. 54. Locke, many years afterwards, turned his thoughts to education with all the advantages that a strong understanding and entire disinterestedness could give him; but, as we should imagine, with some necessary deficiencies of experience, though we hardly perceive much of them in his writings. He looked on the methods usual in his age with severity, or, some would say, with prejudice; yet I know not by what proof we can refute his testimony. In his Treatise on Education, which may be reckoned an introduction to that on the Conduct of the Understanding, since the latter is but a scheme of that education an adult person should give himself, he has uttered, to say the least, more good sense on the subject than will be found in any preceding writer. Locke was not like the pedants of his own or other ages, who think that to pour their wordy book-learning into the memory is the true discipline of childhood. The culture of the intellectual and moral faculties in their most extensive sense, the health of the body, the accomplishments which common utility or social custom have rendered valuable, enter into his idea of the best model of education, conjointly at least with any knowledge that can be imparted by books. The ancients had written in the same spirit: in Xenophon, in Plato, in Aristotle, the noble conception which Milton has expressed, of forming the perfect man, is always predominant over mere literary instruction, if indeed the latter can be said to appear at all in their writings on this subject; but we had become the dupes of schoolmasters in our riper years, as we had been their slaves in our youth. Much has been written, and often well, since the days of Locke; but he is the chief source from which it has been ultimately derived; and though the Emile is more attractive in manner, it may be doubtful whether it is as rational and practicable as the Treatise on Education. If they have both the same defect, that their authors wanted sufficient observation of children, it is certain that the caution and sound judgment of Locke have rescued him better from error.

And defects. 55. There are, indeed, from this or from other causes, several passages in the Treatise on Education to which we cannot give an unhesitating assent. Locke appears to have somewhat exaggerated the efficacy of education. This is an error on the right side in a work that aims at persuasion in a practical matter; but we are now looking at theoretical truth alone. “I think I may say,” he begins, “that of all the men we meet with nine parts of ten are what they are, good or evil, useful or not, by their education. It is this which makes the great difference in mankind. The little or almost insensible impressions on our tender infancies have very important and lasting consequences; and there it is as in the fountains of some rivers, where a gentle application of the hand turns the flexible waters into channels that make them take quite contrary courses; and by this little direction given them at first in the source, they receive different tendencies, and arrive at last at very remote and distant places.” “I imagine,” he adds soon afterwards, “the minds of children as easily turned this or that way as water itself.”[921]

[921] Treatise on Education, § 152. “The difference,” he afterwards says, “to be found in the manners and abilities of men is owing more to their education than to anything else.” § 32.

56. This passage is an instance of Locke’s unfortunate fondness for analogical parallels, which, as far as I have observed, much more frequently obscure a philosophical theorem, than shed any light upon it. Nothing would be easier than to confirm the contrary proposition by such fanciful analogies from external nature. In itself, the position is hyperbolical to extravagance. It is no more disparagement to the uses of education that it will not produce the like effects upon every individual, than it is to those of agriculture (I purposely use this sort of idle analogy) that we do not reap the same quantity of corn from every soil. Those who are conversant with children on a large scale will, I believe, unanimously deny this levelling efficacy of tuition. The variety of characters even in children of the same family, where the domestic associations of infancy have run in the same trains, and where many physical congenialities may produce, and ordinarily do produce, a moral resemblance, is of sufficiently frequent occurrence to prove that in human beings there are intrinsic dissimilitudes, which no education can essentially overcome. Among mere theorists, however, this hypothesis seems to be popular. And as many of these extend their notion of the plasticity of human nature to the effects of government and legislation, which is a sort of continuance of the same controlling power, they are generally induced to disregard past experience of human affairs, because they flatter themselves that under a more scientific administration mankind will become something very different from what they have been.

57. In the age of Locke, if we may confide in what he tells us, the domestic education of children must have been of the worst kind. “If we look,” he says, “into the common management of children we shall have reason to wonder, in the great dissoluteness of manners which the world complains of, that there are any footsteps at all left of virtue. I desire to know what vice can be named which parents and those about children do not season them with, and drop into them the seeds of, as often as they are capable to receive them.” The mode of treatment seems to have been passionate and often barbarous severity alternating with foolish indulgence. Their spirits were often broken down and their ingenuousness destroyed by the former; their habits of self-will and sensuality confirmed by the latter. This was the course used by parents; but the pedagogues of course confined themselves to their favourite scheme of instruction and reformation by punishment. Dugald Stewart has animadverted on the austerity of Locke’s rules of education.[922] And this is certainly the case in some respects. He recommends that children should be taught to expect nothing because it will give them pleasure, but only what will be useful to them; a rule fit, in its rigid meaning, to destroy the pleasure of the present moment in the only period of life that the present moment can be really enjoyed. No father himself, Locke neither knew how ill a parent can spare the love of his child, nor how ill a child can want the constant and practical sense of a parent’s love. But if he was led too far by deprecating the mischievous indulgence he had sometimes witnessed, he made some amends by his censures on the prevalent discipline of stripes. Of this he speaks with the disapprobation natural to a mind already schooled in the habits of reason and virtue.[923] “I cannot think any correction useful to a child where the shame of suffering for having done amiss does not work more upon him than the pain.” Esteem and disgrace are the rewards and punishments to which he principally looks, and surely this is a noble foundation for moral discipline. He also recommends that children should be much with their parents, and allowed all reasonable liberty. I cannot think that Stewart’s phrase “hardness of character,” which he accounts for by the early intercourse of Locke with the Puritans, is justly applicable to anything that we know of him; and many more passages in this very treatise might be adduced to prove his kindliness of disposition, than will appear to any judicious person over austere. He found in fact everything wrong; a false system of reward and punishment, a false view of the objects of education, a false selection of studies, false methods of pursuing them. Where so much was to be corrected, it was perhaps natural to be too sanguine about the effects of the remedy.

[922] Preliminary Dissertation to Encyclop. Britann.

[923] If severity carried to the highest pitch does prevail, and works a cure upon the present unruly distemper, it is often bringing in the room of it a worse and more dangerous disease by breaking the mind; and then in the place of a disorderly young fellow, you have a low-spirited moped creature, who however with his unnatural sobriety he may please silly people, who commend tame inactive children, because they make no noise, nor give them any trouble; yet at least will probably prove as uncomfortable a thing to his friends, as he will be all his life an useless thing to himself and others. § 51.

58. Of the old dispute as to public and private education he says, that both sides have their inconveniencies, but incline to prefer the latter, influenced, as is evident, rather by disgust at the state of our schools than by any general principle.[924] For he insists much on the necessity of giving a boy a sufficient knowledge of what he is to expect in the world. “The longer he is kept hood-winked, the less he will see when he comes abroad into open daylight, and be the more exposed to be a prey to himself and others.” And this experience will, as is daily seen, not be supplied by a tutor’s lectures, any more than by books; nor can be given by any course save a public education. Locke urges the necessity of having a tutor well-bred, and with knowledge of the world, the ways, the humours, the follies, the cheats, the faults of the age he is fallen into, and particularly of the country he lives in, as of far more importance than his scholarship. “The only fence against the world is a thorough knowledge of it.... He that thinks not this of more moment to his son, and for which he more needs a governor, than the languages and learned sciences, forgets of how much more use it is to judge right of men and manage his affairs wisely with them, than to speak Greek and Latin, and argue in mood and figure, or to have his head filled with the abstruse speculations of natural philosophy and metaphysics; nay, than to be well versed in Greek and Roman writers, though that be much better for a gentleman, than to be a good Peripatetic or Cartesian; because these ancient authors observed and painted mankind well, and give the best light into that kind of knowledge. He that goes into the eastern parts of Asia will find able and acceptable men without any of these; but without virtue, knowledge of the world, and civility, an accomplished and valuable man can be found nowhere.”[925]

[924] § 70.

[925] § 94.

59. It is to be remembered, that the person whose education Locke undertakes to fashion is an English gentleman. Virtue, wisdom, breeding, and learning, are desirable for such an one in their order, but the last not so much as the rest.[926] It must be had, he says, but only as subservient to greater qualities. No objections have been more frequently raised against the scheme of Locke than on account of his depreciation of classical literature, and of the study of the learned languages. This is not wholly true: Latin he reckons absolutely necessary for a gentleman, though it is absurd that those should learn Latin who are designed for trade, and never look again at a Latin book.[927] If he lays not so much stress on Greek as a gentleman’s study, though he by no means would abandon it, it is because, in fact, most gentlemen, especially in his age, have done very well without it; and nothing can be deemed indispensable in the education of a child, the want of which does not leave a manifest deficiency in the man. “No man,” he observes, “can pass for a scholar who is ignorant of the Greek language. But I am not here considering of the education of a professed scholar, but of a gentleman.”[928]

[926] § 138.