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Alle Nationen haben gewisse öffentliche Ge bräuche, das volle Eigenthum oder dingliche Rechte, welchen durch keine ältern, geheimen persönlichen Rechte Abbruch geschehen kan, zu übertragen. Diese Gebräuche sollen die getroffene Verabhand lung öffentlich bekant machen, und die übertragen de Person, ausser Stand setzen, nachgehends andre zu hintergehen. Die Ueberantwortung befördert diesen Endzweck bey beweglichen Sachen; und der Besitz unbeweglicher Güter wird durch gewisse öf fentliche symbolische Handlungen erlangt, oder aber durch öffentliche Registraturen über die erfolg te Uebergabe. Wenn ein Contract auf diese Art bestätiget wird: so wird dadurch ein dingliches Recht erlangt, welchem kein persönliches Abbruch thun kan. Und doch kan die Person, welche um ihr persönliches Recht, durch das nachherige dingli che und das Eigenthum übertragende Recht, ge bracht worden, von dem Verkäufer, welcher sie auf diese Art, hintergangen, nicht nur den Ersatz alles erlittenen Schadens, sondern auch die Schadlos haltung wegen aller Vortheile, die sie erlangt haben würde, wenn sie nicht hintergangen worden wäre, Von dem abgeleiteten Eigenthume. 503Achter Abschnit. zu fordern. Allein, ohne diesen Vorzug der ding lichen Rechte vor den persönlichen, würde kein Ge werbe statt finden.
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This rule holds generally in all matters of com-merce † committed to human prudence, in all alien-able rights, in such actions or performances as are notdirectly impious toward God, nor opposite to someperfect right of another, nor to some special law prohi- biting our transactions about them: contracts in which men sin against some general law may be obligatory;or such as are against the interests of their friends or families, where their right is only imperfect: such con-tracts too must like wise be of some detriment to the publick. But the allowing men to recede from all im- prudent contracts would be of far greater detriment, as it would obstruct all commerce, or occasion innu- merable inextricable debates. Whoever repented ofa bargain, could always plead the imprudence of it,
* Plurima fieri non debent, quae sactavalent.
† Here moral writers regard chiefly themoral power, or right of administration or
managing such matters: the principium velfacultas dans validitatem actui, more thanthe prudence of what is done.
ContractsandCovenants. 5 the loss his friends or family would sustain, its opposi-Chap. 9.tion to the general command of providing for ourown, and to our obligations of humanity. All nationsappear sensible of this, by confirming imprudent con-tracts about matters of commerce, and seldom allow-ing redress, except where the inequality or the loss sus-tained by one party is very great and manifest.48 - /
4. In cases where the person with whom I make theRights valid from publick treaties.contract has extorted it by his own unjust violence, adistinction must be made between „violence really un-just, yet upon such species of reasons as may imposeupon men whose general purpose of life is to actjustly;“ and that „violence which is used withoutany shew of right by men who openly renounce allregard to the social laws of mankind.“ The formersort of unjust violence at least, must ever be on oneside in all the solemn wars of nations, and in all civil wars: and sometimes there is unjust violence of the la- ter sort even in these publick wars. More frequently indeed there are even on the unjust side in publickwars such specious pretences, as through the secret in-fluence of the passions of ambition, zeal for one's ownside, or desires of advantages, may impose upon mento believe their cause to be just: and many in lowerstations upon the unjust side are under invincible igno- rance of the injustice. The side which is really unjust,cannot by violence obtain any perfect right which theycan use with a good conscience: what is taken ought to be restored, and the promises or contracts extorted should be remitted again. And yet where there aresuch specious reasons on their side, there is an exter-nal right acquired by treaties obtained. The other 20 TheNatureofContracts.Book II. side are under an obligation, out of regard to the ge-neral interest of mankind, not to violate such treaties,tho' very disadvantageous to themselves and natural-ly iniquitous; at least, while they are not quite incon-sistent with their liberty, independency, and enjoy- ment of the grand rights of mankind, for securingof which all these laws of nature are constituted: un-less they can prevail upon the victorious side to re-lease them from their covenants, they are bound bythem. Some extraordinary pleas of necessity may makejust exceptions from any general rules which can befound out in those matters. Of these hereafter.
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I. As nothing can have greater influence on onewho believes a righteous providence rewarding thegood, and punishing the evil, to engage him to truthin narrations, and faith in contracts, than „a so-lemn invocation of God as the witness and avengerof falshood,“ such confirmations have been requiredto matters of greater importance in all nations, andare called oaths. And when devoutly taken, they arenatural acknowledgements of the Divine Perfectionsand Providence. We do not either make the Deitymore attentive, or give him any new right of punish-ing. But by such invocation we present to our ownminds the strongest motives to veracity and fidelity,and exceedingly increase the guilt of falshood or in-fidelity.
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The qualities requisite to the most perfect standardQualities requi- site to it.are these; it must be something generally desired sothat men are generally willing to take it in exchange.The very making any goods the standard will of itselfgive them this quality. It must be portable; which will
* Pretium affectionis.
56 The Value ofGoodsand ofCoin.Book II. often be the case if it is rare, so that small quantitiesare of great value. It must be divisible without lossinto small parts, so as to be suited to the values of allsorts of goods; and it must be durable, not easily wea- ring by use, or perishing in its nature. One or other of these prerequisites in the standard, shews the incon-venience of many of our commonest goods for thatpurpose. The man who wants a small quantity of mycorn will not give me a work-beast for it, and hisbeast does not admit division. I want perhaps a pairof shoes, but my ox is of far greater value, and theother may not need him. I must travel to distantlands, my grain cannot be carried along for my sup-port, without unsufferable expence, and my winewould perish in the carriage. 'Tis plain therefore thatwhen men found any use for the rarer metals, silverand gold, in ornaments or utensils, and thus a de-mand was raised for them, they would soon also seethat they were the fittest standards for commerce, onall the accounts above-mentioned. They are rare, andtherefore a small quantity of them easily portable isequivalent to large quantities of other goods; theyadmit any divisions without loss; they are neither pe-rishable, nor easily worn away by use. They are ac-cordingly made standards in all civilized nations.51 - /
Laws too must follow these natural causes in settlingThe use of laws about it.the interest, otherways they will seldom have their ef-fect, and be iniquitous. If the legal interest is highin wealthy nations, where small gains are made uponany given sum employed in trade, traders will notborrow without abatement of interest, nor will menborrow for purchasing lands, when the annual rentsof them are far below the interest. Moneyed men mayfirst run upon purchases, and decline to lend uponsmaller than the legal interest; but the demand forlands will soon raise their price, so that they shall get much smaller annual rents for a given sum: many will therefore accept of interest below the legal, but high- er than the annual rents of lands. If the legal inte- rest is made too low, few will incline to lend; they will first attempt to purchase lands: if the price of them rise by the great demand, so that small annualprofit is made this way, moneyed men will turn totrade and manufactures. Men not educated to suchbusiness, or who choose to live without business, willfind active traders always fond of borrowing at high-er than the legal interest, and will find ways by dis-count, and annual gifts agreed upon, to elude thelaw.
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IX. In some contracts a certain price is paid foran uncertain prospect of gain, as in the purchase ofannuities for life, or of tickets in lotteries. If the sum of the prizes is no further exceeded by the sum of the prices paid for all the tickets, than what defrays the necessary charge of such projects, and makes a reason- able compensation for the attendance and labour of
* This Harrington and others judge to be the polity of the Hebrews; and hence in-terest was prohibited among them, but it might be exacted from foreigners. Deut.xxiii. 19. Psalm. xv. 5.
The ordinaryContracts. 75 the projectors; the contract is not censurable upon theChap. 13.account of any inequality; but such projects are of-ten blameable on another account. Private lotteries,wagering, and contracts of gaming, produce no goodto the publick, nor avert any evils. Some citizensare enriched by the loss of others, in a way whollyuseless to the publick. Through the vain hopes ofmultitudes, and a sort of self-flattery in their goodfortune, were there no restraint put to such practi-ces by law, great sums of money which otherwayswould have done good to the publick in trade ormanufactures advancing the wealth of a nation, wouldby base artifices be drawn into such useless channels,and men's minds be diverted from all useful industry.'Tis therefore just to restrain such private projects or contracts, even where there is nothing directly frau- dulent in them. Upon some publick exigence nodoubt money may be prudently raised by this way oflottery, which can cause no complaint, since none areforced to contribute.53 - /
In the private contracts of hazard, or partly ofhazard, partly of art, such as wagering upon uncer-tain events, or upon the success of a game; if thesums ventured do not exceed what the persons can af-ford to spend upon any amusement, without obstruc-ting any duty of life; if no more time is spent ingames than what is a necessary refreshment from se-rious business or study; and no habit of sloth or im-patient hankering after such diversions is contracted;the contracts cannot be called criminal or faulty. Butwhen the sums hazarded are so great that the loss ofthem would any way distress us, or our antagonist,and as no good can arise from such contracts, theyare highly criminal. 'Tis most inhumane, as well asfoolish, to expose the fortune which should supporta family, our friends, or the poor, or even assist ourcountry, to such unnecessary hazard. It is wicked toly in wait for the ruining our neighbour through hisown rashness or imprudence. No man of true virtueor conscience could retain such gains when he gotthem. And it is amazing how, in ages of luxuryand corruption, men can so far forget the true na-tures and names of things, as not to look upon allsuch gains as scandalously infamous to men of bettercondition, when they are plainly acquired by the samemean spirit of injustice, or avarice, that we all abhorin a thief or a pick-pocket. 'Tis wise therefore in TheObligationsquasi ex contractu. 77 every nation to restrain such practices by the severestChap. 14.laws, and most infamous punishments; especially inthose orders of men who ought to be most abovesuch baseness of soul, and whose vicious examplesmust be most extensively pernicious. But quid legessine moribus vanae proficiunt.----
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The partiality which appears in the laws of someThe partiality of many laws. nations that pretend to pay great regard to the na-tural rights and liberties of mankind, is very surpris-ing. Whatever expences are made by any one on thechild of the meanest citizen, or Fellow-Christian,must be a donation, whether so intended or not. Itfounds no right to the child's service, nor to claimany compensation. He may leave his supporter whenhe comes to the use of reason. And yet the equallyinnocent children of captives in war, or of men of adifferent complexion, are detained as slaves for ever,with all their posterity, upon no other pretence ofright than this claim upon them for their mainte-nance; as if such were not of our species, and hadnot bodies and souls of the same feelings with ourown; or as if mens secular rights were founded ontheir religion, or on their complexions.
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'Tis further pleaded, that in some barbarous na-tions, unless the captives were bought for slaves theywould all be murthered. They therefore owe theirlives, and all they can do, to their purchasers; andso do their children who would not otherways havecome into life. But this whole plea is no more thanthat of the negotium utile gestum, to which any civi-lized nation is bound by humanity; 'tis a prudentexpensive office done for the service of others withouta gratuitous intention: and this founds no other right than that to full compensation of all chargesand labour employed for the benefit of others. Thussuppose a merchant buys an hundred such slaves; sothat his whole charges on the voyage, and prime costof the captives, adding also a reasonable merchant's TheObligationsquasi ex contractu. 85 profit upon the stock employed, amount to a thou-Chap. 14.fand pounds. These captives are his debtors jointlyfor this sum; and as soon as the value of their la-bours beyond their maintenance amounts to this sum,and the legal interest from the time it was advanced,they have a right to be free; and this it would do inten or twelve years, tho' a third part of them died;and then all his claim, or that of any one under him,would cease.
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A set of inaccurate popular phrases blind us inCauses of our mistakes.these matters. Captives owe their lives and all tothe purchasers, say they. Just in the same manner, we,our nobles, and princes, often owe our lives to mid-wives, chirurgeons, physicians, fellow-soldiers, ser-vants, neighbours: one who was the means of pre-serving a man's life is not therefore entituled to makehim a slave, and sell him as a piece of goods. Strange,that in any nation where a sense of liberty prevails,where the Christian religion is professed, custom andhigh prospects of gain can so stupify the consciencesof men, and all sense of natural justice, that theycan hear such computations made about the value oftheir fellow-men, and their liberty, without abhor-rence and indignation!
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VII. One may justly reckon among these rights ofhuman society that one also of preserving a just vene-ration toward the dignity of our kind, and prevent-ing any practices which would tend to make it despi-cable in the judgment of the vulgar; or which wouldhave a tendency to introduce savage and inhumandispositions. The dead carcases of men can have norights, and yet 'tis plain men cannot so entirely separate in their thoughts the body from its former inhabitant, as to be unaffected with the treatment of the body.All nations have expressed their affectionate or grate-ful remembrance of the man, by some rites or otherdeemed respectful toward the body: and repute somesorts of treatment of dead bodies as inhuman and sa-vage, expressing either hatred and contempt of theman, or a disrespect in general for our fellow-creatures. Every society therefore should prevent such practices as would incourage savage manners, or such as arethe usual testimonies of contempt and hatred, towardany who have not by their vices incurred the just ab-horrence of all good men.
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Abstract from this previous knowledge by reasonand reflection, the Scripture-precepts would be of nouse to us, as they are of none to idiots. Thou shaltnot kill. All killing is not prohibited, 'tis only mur-der. Now where is the Scripture-definition of mur-der? 'Tis our reason must shew what is the lawful,and what the unlawful killing; the lawful, is in self-defence, in just war, in the execution of criminals: andthe same reason will shew some extraordinary cases TheRightsofNecessity. 131 wherein it may be just, for the defence or recovery ofChap. 17.all the valuable rights or liberties of a nation. Thoushalt not steal is another precept. It does not prohibitall taking either by violence, or secret means, what wassometime possessed by another; 'tis only taking awaywhat another has a right or property in. 'Tis our rea-son again must teach us the origin, the nature, andextent of property; and it will shew us too that pro-perty must often give place to some great publick in-terests. Lye not to each other, is another precept. Butwhat is a lye? how defined? 'Tis not every speechwhich the speaker foresees will lead the hearer into afalse opinion; not every sentence which is false in itsmost obvious meaning. Our Saviour often spake in thismanner. 'Tis our reason again that must shew us whatsort of speech hurts society and what not; and whenit is that some extraordinary cases may justify reced-ing from the common rule. Without having previ-ously fixed the notion of these duties, and their pro-per limits, the above-mentioned precepts amount tono more than these vague undertermined sentences,„Take not away the life of another when you shouldnot take it away. Take nothing out of the possessi-on of another, when he should still possess it, or hasa right to it. Do not deceive by speech when it iswrong to deceive.“ What are these precepts, with-out the aid of moral reasonings?
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Again, unlimited indulgences in promiscuous for-Destroying pa- rental affection.nication would have this effect, that the fathers wouldgenerally be uncertain about their own offspring, andhave no other incitement to any cares about themthan the general tye of humanity, which we know isnot sufficient. They must want one of the most natu-ral satisfactions in the knowledge and love of their off- spring, and one of the chief incitements to labour and industry. The mothers, upon whom the whole bur-then of education would be cast, must find it intole-rable. They would grow negligent, and give them-selves up to brutal indulgences as well as the fathers.The natural purpose of this instinct would thus bein a great measure defeated, partly by the barrennessof women, and partly by their neglect of their off-spring. The mischiefs of a dissolute state, where allfollowed the brutal instinct without restraint, are butvery imperfectly represented to us by the evil effectswe see ensuing upon a few irregular indulgences, in anation where the generality are under the wise re- theStateofMarriage. 155 straints of laws, and of modesty confirmed by educa-Chap. 1.tion. And yet 'tis easy from them to discern what ge-neral misery must ensue, if all restraints were removed, and if all gratified the brutal impulse without anycontroul.
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We are all sensible how grievous this injury is, whe-ther done by violence or fraudulent solicitations, to aThe injury done by lewdness.sister or child of our own; the guilt is equal when o-thers suffer by it. It must therefore be incumbent onall who have the charge of educating the young of either sex, to habituate them as much as possible to all mo- desty in speech and action, and restrain every contrary appearance. 'Tis a strange corruption of manners and sentiments in any nation which boasts of maintaining liberty and equality in rights to all their people, thatsuch cruel injuries to any, even of the lowest condi- tion should escape without severe punishment. The 158 TheRightsandDutiesinBook III. lowest orders of men feel the joys of conjugal loveand of a certain offspring; they have the same naturaldesires and senses with the highest. The crime there-fore of depriving any of them of these satisfactions,and of a decent condition in life, and that for grati-fying a mean appetite, must be greater than many ofthose which subject to capital punishments. 'Tis strange that the party less criminal should generally suffer so much, and no punishment abide the chief criminal,the seducer, and that by the basest arts of falshoodand perjury!