The exact politician, or, Compleat statesman briefly and methodically resolved into such principles whereby gentlemen may be qualified for the management of any publick trust, and thereby rendered useful in every station to the establishment of the common welfare / written by Leonard Willan, Esq.

The several Objects of the Law, in Refe∣rence to the Improvement of the Internal, or Intellectual Faculties, are contained un∣der two Principles, The Extralegal Re∣ward of Vertue, and the Extralegal Pu∣nishment of Vice.

XXXIV. The Extralegal Reward of Vertue.

HAving exactly fitted the Members of our Civil Body to an apt Progression (by the Preservation and Improve∣ment of their Natural Faculties) e're we display the Objects of their Course, It will be materially useful to a perfect success in our undertaking, to persue the Improvement of the Interior or Intellectual Faculties, by encouraging the Transactors with the Glory and advantage of Achiving, or deterring with the Re∣proach and Dammage of their failing in our Enterprise, so ani∣mating or restraining them, that a generous Emulation might prompt them with more Ardour to pursue the publick Benefit included in their own, And though our corrupt Nature may seem to need no other Motive to the plausible persuit of our Functions, then our own Passion for ensuing Gain: Yet the Relishes of youth (the aptest seasons to a perfect Institution) are not yet fitted to the Baits of Avarice; or if they were, the publick Test no small Induction is to the Enlargement of such Acquisition; whence probably is formed that Notion, Honos alit Artes, Honor is the Nurse of Arts: Why no Civil Law pro∣pounds a Benefit or Advantage unto any for the Intended or the Perpetrated Good; but the Infliction only for the Evil acted,

is probably, in Respect, That Virtue in her self is held her own implicit Recompence, it being a Blemish to her Purity to have any Object forth her proper Sphere: which motion only figures her Distinction: Nevertheless, on these Two Pillars was the sa∣cred Law erected, though but the Latter only therein expressed. A Law without this implicitly in it self, seeming but a servile Im∣position; and having This explicitly in it self, a mercinary Exacti∣on. To figure which Mystery, though the General Clauses of the Sacred Law were published, yet the particular Covenant, Ground, and Pledges of the Law were secretly, with the Law, unfolded in the Ark, which none but the chief Ministers to the Law approached, and every curious eye forbid therein to make Inspection. Of such Nature should the Investure be of Vertues Dignity, Indefinite and immaterial, that her Actions being free and without propounded Compact, might render the Purity of her sources to be suspected neither vain or Mercinary. Equivo∣lent to this Rule was that prudent Generals Dispensation in his Ministry, who to dignifie the vertue of his Magnanimous Cou∣rage, to whom they were indebted for two Victories in one day (on his generous refusal of the spoil designed for his Recompense, as too mercinary an endowment for a Noble Temper) presented him his Horse for Martial Service, with the Caparison of Emi∣nence belonging to his State, and qualified him with the Title of that * 1.1 Place, his valour had acquired to the publick Benefit and Honour. And although such a procedure may possibly engen∣der private Envy and Grudges to the forming of Civil Discord to the publick Prejudice: yet such Inevitable and Corrupt Pro∣ductions spring but from the Rankor of abject and degenerate Spirits. Mindes elevated and refin'd, receive from thence (with Cato) a more noble Resentment, Who failing in his Pre∣tences to the publick Ministry, conferred by Election on his Compe∣titor, was so far from a distaste thereat, that he wished that all his fellow Citizens were justly in that, and in all things else to be pre∣ferr'd before him. It was this Glorious, Lost, Forgotten, and misprised Idea of the Soul, acquir'd to antick Rome, her Dig∣nity and Extent. The publick welfare in general is but remisly persu'd, nor the particular Members thereof but faintly sup∣ported. Where the Prescription of the Law extendeth our De∣voyr only to the performance of our Contract, and not to im∣pair anothers Property: And notwithstanding It agrees not with the Nature and Dignity of so illustrious an Attribute, to bor∣row an Original from any Retribution, or exterior Advantage whatsoever. Yet shall that Prince or Magistracy, which but neglects (nay nicely not encourageth such eminent Proceedings) never attain the Glory or Felicity of a flourishing Society.

To avoid the Hazzard of which Consequence, we will pro∣ceed

yet farther to distinguish the Nature of our Subject, with the several Objects: and the Capacity of the publick to im∣prove the Effects thereof.

The General Objects thereof are either Publick or Private. The particular Objects in Reference to the Publick, may be in∣ferr'd in these Distinctions, Martial, Civil, Natural, Mecanick, and Munificent: nor yet in Reference to Particulars, is any Ob∣ject thereof rightly instanced, which may not be reduced under the extent of these Principles: as also sometime possibly in one Subject may they meet a Complication in their Nature.

In the Distinction of the Martial, we may imply such ex∣ploits in Arms, either Offensive or Defensive, as in a Lawful War peculiarly conduce unto the Publick Benefit and Honor, beyond the Simple Intimation of Devoir inherent to our charge. Ac∣cording to the Pattern of▪ the first Difference, was Coriolanus Atchievement, Who in the close persuit of his Enemies, entred the City with them, and with the Aid only of a few that followed him, reduc't it to the Roman Government. And while yet freshly ba∣thing with the Sweat of his Toyl, and the Blood of his Foes (having secured the City) returned to a doubtful Conflict without, betwixt his Party, and their Adversaries, both Ignorant of what had pas∣sed, where magnanimously fighting for his Countries Glory, both Victories were imputed soly to his Valour. A Parallel to the Latter Distinction, was that Romans * 1.2 Adventure, Who, with his Company, persued closely by his Enemies to the entrance of the City, caused that part of the Bridge, was betwixt him and his Companions, to be cut off; That he alone making a head against the fury of his Enemies, might so afford them time to enter for their own Security, without a farther hazzard to the City: which done, he (with his Arms in his hand) leaping into the Mo•…•…e, sur∣rounded it, s•…•…um to the Banks thereof, where his Associates Re∣ceived him with Ioy, and Admiration of his Vertue.

Nor truly can it be denied, but that as we have lent this Di∣stinction the Precedency in order, so both in Right of Anti∣quity and use, It seems herein to challenge the Preheminence, not only as the Founder and Establisher of the Civil Order, whence issueth the Capacity of the Rest; but as the most pe∣nible, dangerous, and highest Adventure to the undertaker: which seriously considered, we may undoubtedly affirm, the real Source and Element of Dignity most properly is sea•…•…ed in This Exercise, as appeareth in the Nature and Signature of the Primitive Institution of Honour on Esc•…•…sions Antick Pieces of Armory. And in the successive Additions Thereof in several Orders of Knighthood; although both the one and the other have been promiscuously conferr'd without a Reference to any such Distinction: yet hath It not been without Blemish and

Detraction of the Grace Intended in the Institution, whence probably hath issued the Misprision and Inefficacy of the Or∣dinance, especially when the Corruption of succeeding Ages had prostituted her highest Attributes to a venal Acquisition, or other interessed Intercession. It were very requisite there∣fore (that every Qualification might reach the Intention of the Institution) to form such Illustrations of Honor proper and pe∣culiar to the Nature and Distinction of the Fact. That the more noble Consequences might not be ballanced in esteem with the Less, nor the Less with the Greater, to the Envy or Misprision of the Institution. And farthermore, that such In∣vestures of Dignity might have no other Tract of Acquisition, but the Free Grace, Acceptance, and Acknowledgement of the Institutor, in Reference only to the due Merit of the Acquisi∣tor. Otherwise the use and Benefit thereof will soon be frustra∣ted and void.

These Ornaments of Civil Distinction may probably ap∣pear a Vain, Ridiculous and but an empty Gratuity, un∣becoming the Majesty and Magnificence of a Prince, or State; not accompanied with more essential Inherences: Yet rightly conferr'd, they are but Ceremonious Pledges of the ensuing Necessity to enlarge their Civil Faculty in future Employment to the publick Benefit: Notwithstanding They may possibly meet in such a Subject, whose Indigence might exact more timely and material Gratuity, else such intended Grace might prove to them both Burdensome and Reproachful: which In∣convenient might happily be supplied from the Common Treasury in some Annual Pension. Provided, that neither the Proportion nor Continuance thereof, had other Reference then the due support of that Dignity conferr'd, until some Acci∣dent might form an Opportunity to transact like Advantage on them in some useful Ministry most proper to so eminent a Capacity. Otherwise, if such Munificence were more Gene∣ral or unlimited, The Treasury would either thereby become so burdened, or exhausted by the continual Affluence of Pre∣tenders, that either new Sources thereto must be derived from the Subjects by a general Levy of Impositions, to the publick Prejudice, or else the Majesty of a Prince or State become eclipst through Penury and Want.

Under the Intimation of Civil Offices to the Publick ex∣tending the simple Latitude prescribed to our Charge, may be comprised the Council or Advice, that with undaunted Inte∣grity makes either Proposition or Opposition against the Pur∣poses, Designs, or Practises of a Prince or Populace to the Ad∣vancement of a Common Good, or the Declining of a Publick Damage: though to the hazzard of Estate, Liberty; or Life.

Such was Regulus Advertisement to the Senate, When they in∣clined to conclude a shameful Peace with their insulting Enemies in favour only of his Safety, become their enlarged Intercessor, on his Faith, failing thereof to return: which resolute Perseverance in a Publick Convention, may sometime possibly pass under Censure of an incautious or corrupt Obstinacy, that with sin∣gularity in form tendeth but to foment intestine Faction. But the Grounds, Inherence, and Consequence of such Debates ex∣amined, will evidently disclose the Nature of the Intention: The Former usually proceedeth with more Modesty and Suffe∣rance. The Latter with more insolence and Passion. That but endeavours to enform or to enlighten his Pretences to an equal Reception: This to impower them to a servile Imposition. In private Conventions such Procedure may seem but to decline that Interest for which peculiarly the Members thereof were united. Yet rightly understood, it may become a Paradox to af∣firm, that Prince or State can be endued with Capacity to re∣ceive any real Advantage involved in a Publick Prejudice, or disjoyn'd from a Publick Benefit; though such a Notion hath unhappily passed for a general Posit•…•…on. Whereby, Princes too frequently resent with high Indignity Repugnance to their will, corrupted by the Adulation of adulterate Glosses: But a pru∣dent inspection will from ensuing Consequents soon collect the Error of their Apprehension: And Honor that Integrity, ad∣ventureth rather to incur the hazzard of his Princes Favour, then wilfully to betray his Masters Interests. Such a resentment was plausibly exprest by one of our illustrious Princes, Whose youthful Licentiousness (during his Fathers Reign) being gravely checked by a Civil Magistrate, proceeded to that heighth to strike him; for which, he being by the Magistrate committed, He after for such Procedure, was by him (succeeding to his Fathers Throne) most highly dignified, acknowledging he worthily had therein main∣tained the Dignity of his Laws.

3. By Inference of a Natural Beneficence, we may imply such genuine Discoveries of Natures Mysteries, as may con∣duce unto the safety or Felicity of the Civil Union, which ei∣ther the Avarice or Envy of others had concealed, or their own Industry or Experience hath disclosed. Of this Nature was Hy∣pocrates overture to the Publick, Who that they might escape the Ruine of a raging Pestilence surrounded all the Confines of their Territories, advis'd them timely set on Fire the interjacent Forests; whereby the Air being purified, his Country was preserved from the danger of an encroaching Contagion. In promoting such Advantages to the Publick Benefit, Custom hath so cor∣rupted the use of Industry, That it will become necessary to lend This and the succeeding Distinction, a more material Com∣pensation,

besides the Grace inherent to a plausible Reception, then probably may agree with the exact Definition of the Na∣ture of our Subject. All Arts and Sciences receiving now no other vigour, then what from abject Lucre is inspir'd.

4. In persuit of our Order, ensueth the Mecanick Ministry to the Advancement or Preservation of the Publick Interest; which notwithstanding It may seem inferiour to the Rest, as a more proper Subject to less elevated Capacities; yet in Respect It is immediately necessary to most uses visibly inherent to the due support of the Civil Frame. We equally may hereto lend a considerable Reflection, not weighing the excellence of her Na∣ture, either in the Curiosity, Rarity, or Delight of Her ope∣ration, but soly in the material Consequence and use thereof; essentially conducing to the Civil Welfare. Of this Quality in the Military practice was Archimedes Engines for the Defence of Syracusa, against the Fury of the Romans. Or what other, in Civil uses, may be produced against the sterility of the Soil, Natural, or Adventitious, or what otherwise tend to the Im∣provement of a National Commerce. But such hath in our Age, been the unhappy Dispensations of Publick Grace, That those Arts have received the most essential Indulgence and En∣couragement, That most licentiously have conduced to Vanity and Lux, contrary to the Resentment of that generous Prince, Who prudently weighing tht use of every singular Faculty, to him that with infallible Dexterity, could cast a Grain of Millet through the Eye of a Needle, ordered for Reward a peck of seed, he might not want Materials to keep his Skill by frequent Exercise. On this Design of Publick Benefit, are grounded the Pretence of most Monopolies; it seeming to a Prince most equitable, that every man should soly •…•…eap the Benefit of his own Industry, or Inven∣tion for a time prescribed, that the Fruition thereof may in future be returned to the publick use. But such Motions might possibly meet a more plausible entertainment and a happier Issue. If the pretender were enjoyned to attend the Test of their own Proposition, in an approved Consequence, and totally rest dis∣joyned from all peculiar Benefit therein, depending only on the favour of the Magistracy, to make an equal Compensation, agreeing to the Advantage of the Issue.

Fo•…•… closure to our Publick Objects of Beneficence, succeed∣eth the Distinction of▪ Munificent; which in honour to the At∣tribute, we may seem in order here to lend but an improper po∣sition, in Respect, that all the former Objects may possibly be masked with other private or peculiar Interests; whereof This altogether rests only unsuspected, imparting voluntarily of their Own, without a Reference to any Retribution, or peculiar Be∣nefit whatever. Yet nevertheless, since commonly such Distri∣butions

proceed rather from the Excrescence of a private Store, then simply the Benignity of a Generous Inclination, wherein is nothing really of our selves, or hazzarded, or communicated, and what is so dispenced usually, but the Fragments of what our Frailty will no longer suffer us to enjoy: so that the essential Circumstances of the Motive clearly considered, we rather, in favour of the publick Interest, have lent such a Distinction here, a more noble Association, then properly is inherent to the Na∣ture Thereof. Nor can we thereto yield so eminent a Qualifica∣tion in Honor, as might induce Another to an equal Emulation of Munificence (where the Donor scarce survives the Induction of his Act) more then what the dull Letter of a Monument barely will infer: But to dignifie that Benignity, which shall, with a well composed Minde, cast from his Sense the Charm∣ing Minister to Vanity and Lux; while yet in the Capacity of Fruition, to constitute the reviving Affluence thereof upon the languishing Misery of the Indigent, we no way can afford too illustrious an Inscription to His Merit.

2. Before we enter to treat of the Second General Object, A private Beneficence extending beyond the common prescription of a Civil Devoyr. Two Arguments, thereon depending, will re∣quire a more distinct solution. First, whether the Publick may immediately be concern'd therein (remotely It alwayes of Ne∣cessity must.) And whether without such Reference the Pub∣lick may be concern'd to agitate thereon: The First Proposition may, without Difficulty, admit of an Affirmative. The Lat∣ter not without some Intricacy. Insomuch as private Be∣nificence may sometime be conferred on a private Person, im∣ployed in a publick Use, Military, or Civil. And in that same Degree oft honoured by the Romans, who had design'd a Crown of Triumph unto him, that had in publick Conflict sav'd the life but of the meanest of their Fellow Citizens; whereby the Band of Unity became amongst them far more strictly, vigorously, and intirely secur'd to give a happy repulse to the fury of their Enemies. But whether the Publick be so far interessed, as to censure of the unequal Resentment of a Pri∣vate Beneficence betwixt Party and Party, is a Subject yet un∣determined. If example may bear authentick weight to an Assertion, we may produce sufficient evidence from the Re∣cords of many Civil Jurisdictions, wherein It by Prescription of the Law hath been allowed actionable, as a Private Plea. But in more severe Governments, prosecuted by the Publick as a Capital Delinquence: As may be instanced from the Athe∣nian Judicature, Where Callias was publickly arraign'd for his Ingratitude to Aristides, suffering Him and his Children even to perish through Indigence; by whose peculiar favour he had attain'd

an eminent Acquisition. In Objection to the procedure of the First Pattern may justly be alledged, that it is against the very Nature of a perfect Benefit, ev'n but to expect, much more to exact a Restitution. And he that formeth but a Repetition of the Circumstance of his Munificence, blemisheth the Grace of his Benignity. But he that reduceth It to the Reproach of the Receiver, perverteth the Nature of his own Intention. In Reference to the Latter Rule, though This may be alledg'd no proper Subject for the Institution of the Law: forasmuch as neither Publick nor Private prejudice ensueth the Mecognisance. This not endammaged in regard the freeness of the Act ta∣keth away the very shadow of a Pretence. That not impaired in Respect the Consequence Thereof not immediately reacheth the Publick Interest: collaterally it may, in that the Impu∣dence of the vice, not checked, may probably make so great a Breach in the moral Constitution of our Civil Union, as to introduce a common Barbarisme.

As to the farther Discussion of our suspended Subject, A Private Beneficence; the Nature thereof (under the same ex∣tent of Latitude in Devoyr•…•…, as formerly exprest) may seem inferior to our former General Object in Excellence considered in Gross; in that, Bonum quo communius eo melius; but taken in the mutual Coherency of Parts, of a far greater Efficacy to the Structure of a happy Union. To a Publick Advantage of this Nature rarely is encountered Matter but to work upon, and possibly more rarely meeteth a Capacity to entertain It. To communicate a Private Beneficence every Place, Time, and Person affordeth us both Subject and Ability in one kinde or other; so that rightly distinguished, the most advised Legisla∣tors have considerately endeavoured on This Baiz to erect the Felicity of their Societies. But how the Publick should distin∣guish of such singular Aids totally to be divided from all pecu∣liar References, or how cleerly discerning their Nature, duly to cherish and approve them in an honourable Reception, is a Con∣sequence not unworthy the Reflection. For solution to the first Branch of our Proposition, we may infer, that he justly de∣serves to fall unpittied, by a Common Decree, under the bur∣den of a future Misery, who shall so far become restrained by the shame of his own Indigence or Impotence, as to smother in his silence either to God or Man, the immediate means to his security. In Reference to the Latter Position may be asserted, that to such Manifestation of the Act, may justly follow an ex∣emplary Encouragement from the Moral Censor, with due Ap∣plause to dignifie the Action.

It may here probably be objected, that having propounded our Subject in General, we have as yet omitted, clearly to

handle all the Dimensions thereof; insomuch as we have yet only consider'd Vertue in her Communicative Faculties; where∣as Vertue frequently wanting such materials, may rest confin'd, and only but concentrate in It self. In answer, Although It may seem ev'n against the Nature of Vertue to be indu'd with an incommunicable Essence, since both in Example and Pre∣cept, she needeth not to borrow the Endowments of Fortune to illustrate her Expansion: but admit the Influence of her Graces so powerful and absolute from her own proper Nature: Nevertheless (to the common reproach of our Age be it attest∣ed) Vertue wants more material Ornaments to plead for her Re∣ception. Who adhereth to the Counsel of the Wisest, if Po∣verty o're shadow the Consultation, and be his minde never so impenetrably compos'd against the various and continual Bat∣teries of an impetuous Adversity, if obscured in Indigence, Who regardeth or distinguisheth his Fortitude. So both his Iu∣stice and his Temperance seem smothered in his Impotence. But happier Ages lend us more exemplary Presidents from their Fe∣licity, where we may observe, that in the most flourishing So∣cieties, Vertue so humbly seated, did never want her Dignity, as appeareth in the Antick Grecian Glory, extracted from the Justice of Aristides. The Prudence and Moderation of Phocion. The Fortitude and Magnanimity of Epimenondes. Nor shall we need here farther to trace a Prescription to qualifie such emi∣nence with Honour, since we already have in the Inception of our Treatise thereon rais'd the true Capacity to our Ministry.

XXXVI. The Extralegal Punishment of Vice.

HAving lent a competent weight to one extream of the Beam whereon our Civil Union chiefly doth depend, in dignifying Vertue beyond the due Intention of the Law, we may persist to cast an equilibrate Counterpoise in the opposed Ballance: In the Prosecution of Vice beyond the full Prescripti∣on of the Law, that from thence an harmonious uniformity may issue from the Texture of the whole Frame. Vice is the Ge∣neral and Principle Subject all Civil Societies, by rigour of their Laws endeavour to suppress, as the only promotor to Sedition. But few with so exact a Circumspection, as the Consequence of the Subject may require to the due modelising of a perfect So∣ciety, in that, Vice thereby becomes impeachable under the Prescription of anothers Prejudice, not simply under Notion of Its proper Nature. As though the germinating seeds of Vice, or the Effects thereof could be contained long within the Limits of a peculiar Continent, or the whole Body long pre∣served

sound, where the Members Thereof are already in themselves corrupted: To avoid which Danger, it were mate∣rially useful, to take away the very Appearance Thereof ev'n in the first Eruption. And lest the Indulgence or Neglect of Pa∣rents should farther yet the growth thereof in their licentious Issue, e're they become of due Capacity to a Civil Correction, 'twere necessary such Remisness in them were either check't by Fine, or Publick Infamy.

To attain yet a more clear Discovery of the Nature of our Subject, in Reference to our Common Welfare, we will reduce It with Relation only to these Principles, Divine, Civil, and Moral.

Under the Intimation of Divine, we chiefly may comprise Enormities are perpetrated against God, or his Sacred Instituti∣ons; which being the Supream Authority, from whence all humane power pretends to be deriv'd, should more severely be preserv'd from violation, ev'n to the due Conformity of the subordinate Ministry. And although we may in this Insertion, seem to digress from the Intention of our present Treatise, as an improper Object to our Civil Minister, extending far beyond the Latitude of his Faculty: yet, insomuch as the Remonstran∣ces, Menaces, or Exhortations of the Divine Minister, are unto Carnal and to •…•…ensual Spirits but an ineffectual Procedure to the due Restraint of our common Corruption, where the Civil Minister becomes not coadjutant to rectifie the Disorder, we may conclude the inconsiderate Neglect Hereof must inevitably form the Civil Power less successful in her Ministry, declining totally to agitate on the Infringement of Superior Orders. The Fundamental Establishment of their own. The first and highest Degree in such Delinquence, is the denying of his Essence, who of free Grace and Goodness imparted to us ours, which Dis∣claimour most justly may deserve the Forfeiture of his Tenor.

Subordinate to This, is the Derogating from his Sacred Attributes, which being properly and immediately inherent to his Holy Essence, more opprobiously and maliciously endeavoureth in Contempt to deny that supream Power, he is enforced to ac∣knowledge: Nor can such a presumptuous Repugnance against the inward Light be reputed in humane sense less hainous then the former.

Contingent to These is the Prophanation of his Name and Sa∣cred Ordinance, either in Licentious Discourses or Actions, tend∣ing irreverently to the Misprision of his adorable Essence, or his Holy Rites: which extravagant insolence may justly merit to be suspended from the Priviledge of a Common Union.

Collateral hereto is the solemn Invocation of his Sacred Name to the Attestation of a matter false, or falsified; which without

Reference to anothers Interest, as the Signet only of our own serious Resolutions, is a Crime of a most reproachful Levity, which requireth before God and Man, a penitent and high sub∣mission. But wherein others Interests immediately are concern'd a Crime of highest Treachery: In Respect such Assertions give Rules unto the Law It self, which is our common safeguard. But this Branch of our Subject falling under the Prescription of a Civil Penalty. We shall not farther here insist to treat upon, Reserving the Persuit Thereof to a more proper and peculiar order.

Farthermore we may yet hereto not improperly insert the Common and too frequent usage of His Name in vain; which heedless Custom forming into Habit, insensibly detracteth from that awful Reverence, should be revived in us on every ex∣plicit Intimation of his glorious Distinction. Nor can a more effectual Restraint be formed to suppress such unadvised Impre∣cations, then a private Reproof or a publick Reproach from His peculiar Minister.

2. What may ensue from the Licentiousness of Vice to the Infringement of the Civil Order, we here may properly omit to treat upon: insomuch, as the general Inference Thereof hath herein only Reference to the Impeachment of anothers Interest directly and immediately. A common Principle to the Decision of right, which may more clearly be enlightned in the peculiar Order, we design to the Discussion of each Branch thereof, on∣ly we may here generaly Note, that ev'n therein most Laws too strictly oft adhere more to the litteral formalities of a Plea, then the essential Result of a Proof.

As to the Moral Distinction of Vice which fall not under La∣titude of a Civil Penalty, being the peculiar Object of our pre∣sent discussion, we will yet more intentively endeavour to re∣flect upon.

Unity and Concord being the chief Objects should guide us to the lasting Establishment of a happy Society, it will be mate∣rially pertinent in the search thereof, to visit the primitive and secret underminings of a mutual Agreement, which may un∣doubtedly be discovered in the first subtle Practice of Mans common Adversary, under the Figure of a concealed Malice; whence This privy Ranchor should take Original, may pro∣bably be judged from a repining Envy, contracted by the sense of a Disparity in their present Conditions. This seed of com∣mon Sedition from thence scattered into the Heart of man, to finish in our overthrow, what This Imposture had so effectually commenced, by a perpetual commotion in our Civil Commu∣nities, hath enforced the exactest Constitutors of a Civil Society (not being able to extirpate the Roots hereof) utterly to remove

those Causes from amongst them, which might conduce unto the Birth or nourishment thereof, as Licurgus in taking away the use of money. And the primitive * Romans in the equal Partition* 1.3 of their Territories. But the Corruption of succeeding Ages falling from so happy Principles of Union, require more Cir∣cumspection in the mannagers of Rule, to the expulsion of such venome from the Civil Frame: which better to distinguish, we properly may lend to It this Signature. Malice is a secret and violent Transportation of the will unjustly to procure Evil to An∣other, nay often to our proper Detriment, proceeding from the af∣fected Advantage of Anothers Endowment.

Sundry branches, some more or less immediately issuing from This stock, become more or less prejudicial to the Common Unity, as the Degrees of vi•…•…ulence lend Influence to the first Contracti∣on, which may clearly be distinguished in the common Conse∣quences of Slanders, Calumnies, and Detractions. Others more remotely, as Incivilities, Affronts, Disgraces in general, Scoffing, and Deriding: All which particulars we severally will examine, more truly to discover the full weight of each irregular Motion, may form a Discord in our Civil Harmony.

At first Inspection it may appear an Impropriety in our order, here to insert the Treatise of a Slaunder, being a Subject pro∣pounded by the Law within the Limits of a Civil Penalty, but with so strict a Reference to the Letter, that few Degrees of Ob∣loquy will, under the common Rules thereof, fall within the exact Distinction of a Scandal: as if the nice Formalities of the Law intended but to sport with private and refined Infamy. To supply this Default in a Civil Prescription, we will endeavour yet more amply to define the Nature of Slaunders, Calumnies, and Detractions, with their ensuing Damages to a Civil Union, lest that their proper and implicit Sences should become con∣founded under the Notion of one common Distinction. A Slaunder here intended, is a false suggestion against another le∣gally extending to a Criminel Matter.

Calumny, A false Aspersion, extending only to the Civil preju∣dice of another.

Detraction, simply inferr'd, is a false Supposition obliquely insi nuated to blemish others Honour or Applause.

1. How material Breaches in a Civil Union, may ensue the sufferance or the slight Restraint of Slaunder (though taken in the obscurest and remotest Latitude of Sence) may evidently be conceived, when we shall seriously reflect on the inefficeable Impressions are secretly left behinde the Publick Discussion Thereof, in the unresolv'd Conjecture of the Auditors: So that though the mischief of the suggestor be clearly convicted, the innocence of the Plantiffe remains not fully vindicated, where∣by

unequal Resentments become fomented, to prosecute such illegal Reparations, as probably may extend to the extinction of many Families, if not unto a general Commotion in the Civil Frame. Nor can the extent of a Legal Verdict, directed only to a pecuniary Amercement, become an equal compensa∣tion to the Injury. Where the malicious Impeacher of anothers Fame remains unbranded with such Publick Infamy, may render him more obvious to a Civil Incapacity.

2. Calumny, though formed from the same Original, makes slighter Incursions on our Civil Fame; yet may the least De∣gree Thereof not pass the Burden of a Civil Censure, since our common Reputation is the visible Foundation to our Livlihood, or Civil Faculty: So that the secret and frequent Expansion thereof meeting with the Corruption of our humane Nature (prone to exagerate the very shadow of anothers Infirmity) may possibly reach the extinction of the Natural Existence.

3. Detraction takes a lower flight, by remote Tracts to winde the Matter to as high a pitch, lessening It self till It be∣come not obvious to the sence; which with more Art disguis'd, requires more Art in the Discovery. Her Traces hold no uni∣formity, but often shift the shadows of the Scene to trouble or confound the Appearance of the Matter, with an Ambigu∣ous or opponant Light. So that the Interessed not only hereby hazzardeth his present Advantages, but becomes unequally im∣peacht of Evils not in question. While the envious Imposture casts the Contagion of his Venome, without the Danger of Contraction. From hence (though more remote in Nature, more sudden in the Operation; and consequently more consi∣derable in the Circumspection) proceed Acts of Incivility, as Affronts, or Disgraces in general, Scoffings, and Deridings. The malignities of the Former moving more slowly, afford a time to lend the Civil Minister a Capacity to allay or stop the vigour of the Infirmity e're it attain the height. These, like Tinder, catching fire at the first Eruption, seldome become ex∣tinguisht, but with untimely Slaughter. In which Regard, It may become a wonder to a digested fence, to finde most Laws so unprovided or so slack in the Restraint hereof, as not, in the least manner, to reflect on their Nature, or their Consequence, since both directly tend to the Infringement of the Publick Peace. By which Neglect the injured is prompted to pursue un∣equal Reparation to his wrongs. Affronts more insolently and deliberately determine a Division in the Civil Frame. Scoffing more slily and obliquely. The Arrogance of That seems to as∣sume a priviledge to impose a Rule. The subtlety of This, but to insinuate a form in common usage.

Not inferiour to these are Acts of Inhumanity, whether in

the omission, or in the rigorous and untimely execution of Ci∣vil Rights; which most men (judging soly confined to the In∣junction or permission of the Law) make those the Stations of their Civil Duty, which are but fixed Lights, erected only on the extreams to avoid those shelves procure a common ship∣wrack. To the first Point we must come, to the Latter we may come, under this Caution, Summum Ius, summa injuria. Extream Right, is extream Wrong. Betwixt these, and the com∣mon Continent of a Civil Devoyr, there are many Degrees of Latitude, not specified in the Letter, to leave the will more Freedom in the Election of the Good or Evil, which thereby only are intitled ours. Nor can he justly be admitted as a Mem∣ber to the Civil Structure, whose Actions do endeavour to de∣face the very Nature of that Being doth qualifie him with his Distinction. How far This Savage Attribute may be repugnant to our Civil Order, explicitly is implyed in Intimation of the sence Thereof, expressed in the Letter, inserring a satisfactory and inflexible persisting to the Destruction of our kinde. To what extent might be reduc'd the Nature of our Subject, not easily is distinguisht; since each remorsless sence of others suf∣fering tending to Ruine, we impose or farther, may form thereto a perfect Definition. A proof whereof adjudg'd, may be ex∣tracted from * that Roman's entertainment, Who, on Reception of his Page, that much perplext his Sickness had detain'd him till the Period of the War, in that he ne're had seen the Slaughter of a Man. To satisfie his Reproachful Curiosity, commanded straight a Criminel to the Block: for which he by the Censor was expell'd the Senate.

As Twins, falling under one Similitude in Nature, may here∣to be annexed Acts unnatural, as the Inemnity and Neglect between Parents and their Children; Brother and Brother, and other nigh Relations in Affinity; where both Divine and Civil Institutions joyn to engraft the strictest Band of Unity, to lay a firmer Baiz unto the lasting Structure of a Civil Government, as may be instanc't in Conjunction of old Israels Tribes, who farther were by severe Laws enjoyn'd to support and supply the Members of their Families, even to the nighest union. Nor can in Reason it be figured, that any person Cordially should ad∣here unto the Publick Interests in remote Agitations, who so reproachfully deserteth the Contingence of his own in a nigher Intercourse.

Not far remov'd from This in Consequence are Actions of Ingratitude, when as the due Resentment of a free and timely Comfort to an afflicted Condition utterly is extinguished, an Impropriety so incongruous to a Civil Community, That com∣mon sense in every Beast may lend It infamy. The Oxe and

the Ass know and acknowledge the hand to them administers▪ And the most Savage will become reclaim'd, where they ac∣cept to Nature a Refection; whence man, of all distinguishing Creatures, should receive so unequal an Impression, must ei∣ther be the Arrogance of his haughty Spirit, detesting to ap∣pear inferiour by a Civil Fealty: or else the Av•…•…ice of his sor∣did Nature, retracting the Acknowledgement, lest It in Civil Rules might challenge a due Compensation: Both which Sour∣ces are to a Civil Union equally incommunicable. How far the Issue yet may probably obstruct the Circular Motion of our Civil Body, in a reproachful Mecognisance, may, to the gros∣sest sence be clearly evident; considering no Consequence can sooner form Reluctance in the will, to do another good, then whereour full Endeavours meet so bruitish a Reception.

Having thus traced out some irregular Motions in our Civil Frame, under a more Especial Reference unto others; we will endeavour now to treat of some Disorders, under a more im∣mediate Reference to our Selves, not pretending to attain the full extent of either. But to cast such a shadow thereof on our present Work, as may comparatively form the unexpressed more distinguishable, and hold a fairer Simitry with the Capacity of our Treatise.

The Subjects we would hereupon infer, are Actions of Li∣centiousness, as Drunkenness, Luxury, Gaming, Riot.

Drunkenness may possibly appear a Subject here improperly inserted in our Order, in that most Laws may seem to form thereto a due Punition. Yet in Reference to the Nature of the Crime, not totally equivolent, weighing judiciously the common Damage thereon may ensue unto the Civil Texture, in regard it is a reproachful exhauster of the Publick Store. A certain Ruine to a private Family. An apparent Introduction to every Mischief▪ A temporary Dissection of a Member from the Civil Frame. Under what Degree of Disorder this Distem∣per truly may be distinguished, is not altogether unworthy a due Perpensation, since the vulgar, in favour of their sensuality, have lent It so gross and ridiculous a Character, as is not to be encountered but in the highest extremity. But far more ration∣ally may be affirmed, That every extravagant Emotion of the Spirit, and every impotent and irregular Motion of the Body, by drink procur'd, may figure the Distinction.

Under the Intimation of Luxury may be imply'd all sensual Excesses whatsoever, more especially the inordinate Indulgence to the inticing Relishes of the Pallate, and the lascivious and unlawful Prosecution of a Bruitish Lust, How far the common Consequences Hereof may reach the Detriment of the Civil Structure, we will endeavour clearly to enlighten. Our Subject

taken in the former Sence, is not only a superfluous Consumer of the Publick Affluence to the enhancing of Provisions, most useful to a common Existence; but, with the inevitable Incum∣brance to our own private Fortunes, also a visible extinguisher of That, which It pretendeth but to cherish, smothering or enfeebling the innate Heat, the immediate Instrument to every Faculty of Nature. So that not only the Body, but the minde becomes hereby obscur'd, effeminate and slothful, and conse∣quently unuseful to every Civil Practice. Farthermore, the Charms of this Indulgence to our proper Genius, so endeareth the Affections to a bruitish Sensuality, that it totally alienates the Thought from any sense of others suffering, so far, that It becomes unto the Civil Frame a Burden incommunicable. This Subject taken in the Latter Sence, though from the other seldom found divided, the Latter being usually joynt Issue to the former, meeting a Celibate Condition, begetteth either a Protraction, or a perpetual Renunciation of an Hymeneal Union, both punishable by the Law in Civil Communities of severer Discipline, encountring a Conjugal Estate, It breaks that Band of Amity, which is the first strictest and most natural Founda∣tion to a Civil Union, in either (if any) It produceth but a spurious and degenerate Issue.

That sence which the Former Attribute could not reach to in the common usage of our Tongue, more properly may under the notion of Riot be exprest, having for Object a servile Assub∣jection to the Adulation of the senses (not formerly thereby inferr'd) at how profuse a rate soever: so that, in Respect of the vanity, This Piece of Licentiousness hath a Latitude beyond the Capacity of a Prescription; whether in the Curious, Sumptu∣ous, or Superfluous Ornaments inherent to a Person, Place, or Equipage; or in the alluring Rarities or Excesses of an enter∣tainment, tending rather to exhaust the Affluence of Nature, then satisfie with her Plenty. Where Noise and Vapour to af∣fect the aiery senses more, o're ballance in expence the Rest. Or what other fantastick Ministry to a distemper'd Fancy, tends but to form prodigious vanity, or a ridiculous singularity, which sometime meets so high extravagance, that sundry Figures, Drawn, Cut, or Grav'd in the Mettal, Earth, or Stone, (under the Honour only of Antiquity) become the price of a consider∣able Revenue. What measure of Disorder may hereby be pro∣cured to the Civil Frame, will clearly be distinguisht in those Breaches, which the most flourishing Societies have suffered un∣der so impetuous a distemper, which like a raging Fire consu∣meth All to satisfie It self, leaving no Rights unviolated. No Mischief unpractised, to yield new Fuel to the corrupted sense, when the Materials fail to satiate the unbridled will. This Exu∣berance

of the Wanton Blood most usually is engendred in the Greater Vessels of the Civil Body, from whence It by the lesser is attracted, by affected Emulation, till It become a gene∣ral infirmity, whereby the whole Frame, voluptuously effemi∣nated, becomes incapable of any generous Action, so conse∣quently a prey to the slightest Incursions of an Enemy.

Gaming, not taken in the sence of a Divertisement, but in the Nature of an ardent Persuit to a dishonourable Acquisition, where the Adventurer, to improve the Advantage of his Stock, puts it to the Question, whether his just Possessions be his own. A ridiculous and bewitching Itch of Avarice, where each one, in sport, persues Anothers Ruine in earnest. In the Victor the Facility of the Acquisition begets a Profuseness in expence. In the vanquisht a self-consuming Ranckour to repair the Dam∣mage: so that neither attain the end of the undertaking, since both become frustrate in the Improvement of their Condi∣tion. The former swelleth with vanity of success, although not raised on his own sufficiency. The latter shrinks away de∣jected as guilty of his Folly, more than ashamed of his For∣tune. Nor yet alwayes so silently passeth the Debate, Execrati∣ons and Imprecations usually fill up the Scenes, which frequent∣ly are closed in a Tragick Issue, the interlude too probably the Prelude to a Quarrel.

How materially the unrestrained Liberty hereof may conduce to the Dammage of a Civil Society, we need not to infer, when we shall reflect upon the Consequence of the Practice, tending to a certain and sudden extirpation of a Family, where the falling Pillar not only shattereth his own Branches, but ei∣ther becomes an useless Burden to the whole Frame in a passive Indigence, or a common Incendiary in sinister Practises, to sup∣ply a Recruit by desperate Attempts. We have omitted to pro∣pound to every exorbitance an equal Penalty, according to our former Order. In Respect that divers Circumstances, both in Action, Place, Person, Age, Sex, &c. may not only vary the Measure of the Error, but the Nature also of the Penalty, which can only meet a plausible Infliction in the Judicious Imposition of the Moral Censor.

XXXVII. The General Properties inherent to our Civil Existence, with their ligitimate Fruition and Possession.

BEfore we proceed to treat of the Security and Improvement of our Civil Property, in Order immediately ensuing: It will first be requisite, that we should fully and clearly distin∣guish

the Dependences thereof, with their Legitimate Posses∣sion and Fruition, without which, our Enterprise will, in the most perfect Contexture encounter but an improper Issue, since Rebels, Out-laws, Thieves and Rovers may in their common Association, possibly pursue an equal Method to preserve the Spoil, Rapine, and Murder had congested; yet not attain the Dignity or Glory of a Civil Society. In order to our Proposi∣tion. The General Properties have Reference to our Civil Existence, may properly be specified under these Distinctions, Wife, Children, Servants, Office, House, Lands, Chattels, or Moveables; To which we become legally entitled, either by a just Acquisition: a free Donation, or a lineal Succession. How far, and in what the Nature of each Title may hold a due Confor∣mity with each Property, we severally shall endeavour to dis∣cover.

Though the explicit sence of Acquisition may seem impro∣perly applyed to so solemn an Institution, as a Conjugal Rela∣tion, in that the sympathetick Influence of Nature often se∣cretly determines the Contract, before the Overture is pub∣lished, constituting the subsequent Agreement rather a Dona∣tive, then a sollicitous Capitulation: nevertheless in Respect, the implicit Inference thereof may reach beyond the vulgar usage of our Tongue, we will apply It to the vulgar usage of the Ceremony, being in their Practise frequently, but a Mercinary Compact: under which Latitude of Sence, may be comprised divers species of Conjugal Acquisition; as that of Violence, which probably may be judged the most improper and unlaw∣ful kinde imaginable. Insomuch, as the Proceedure is altoge∣ther repugnant to the first, Natural, and most legitimate Mo∣tive of union▪ Love, yet weighed with a Reference to some Consequents, an enterprise unimpeachable, as the primitive Romans Incursions on the Sabines. And the abandon'd Rem∣nant of the Benjamites on the relenting Tribes; where the in∣veterate emnity of an Adversary maliciously would endeavour to extirpate a People, by intercepting so the course of Nature in a lawful Propagation.

In all other Respects every personal Violence herein may pro∣perly be held a Capital Delinquence.

Whether a Collateral Violence herein, where the assenting Childe is forced from the dissenting Parent, be a Crime so highly punishable, as the rigour of the Civil Law exacteth, im∣puting It equivalent to a Rape, is an Argument not unworthy an exact Discussion, since our most Legitimate inherence of Right is constituted in our own Natural Production. And the most proper and plausible Motive to be successive continuance of that Production, the impulsive Influence of a vertuous Love.

The Civil Ballances thus counterpoised, we will endeavour to remove the Impediments may probably obstruct their Motion; whether in Reference to Sex, Age, or Condition; As to the Di∣stinction of Sex, no Law admitteth the Male to a capacity of a Conjugal Violence, either Personal, or Collateral. Many subscribe to the disanulling of the Contract transacted without the Pa∣ternal Agreement: so that we may conclude the Female here only capable of a Personal, or a Collateral Violence. Neither can her Consent before Maturity for Generation free the At∣tempter from the Guilt of a Personal Violence. In Respect, the natural Motives to such Vnion are yet to them held indistin∣guishable. From the Impeachment of a Collateral Violence, no Age, under the Paternal Tuition, can exempt the undertaker; her widowhood falls not under such Prescription; insomuch, as the Parent hath formerly made a surrender of his Title in a free Donation▪ and her Husband deceasing, leaves her as Head to the successive Government of his Family.

In Reference to the Quality or Condition, why the Law should form the Distinction of a Violence, from her Civil Endowments, is not clearly obvious to a rational Inspection; since every Violence hath only for Object, the Impulsion of the will, either Personally or Collaterally, in Reference to the In∣fringement of anothers Inrerest, which is either Paternal or Guardiant. The former our Laws reflect not on, possibly, in Respect, it yet resteth in the Capacity of the Parent to fru∣strate the Fruition of her Pretences. The latter being but a Relation of Trust, can less in Reason, challenge the Priviledge to such a Procedure, not rightly entitled to a Property, unless we should avow the venal Acquisition of the Tutelage, now abolished, to the approved Ruine of a Family, which might yet nevertheless more equitably have been repaired in the Censure of a slighter Trespass, had not the Dignity of the Prince here∣in been immediately or remotely blemished; which being only successive to the Paternal or Natural Authority, why should the Parent be excluded such a Priviledge, where the succession is unalterable, depending on another Line: Which Proposition leads us again into the currant of our suspended Argument, whether the Parents Dissent only in a Conjugal Contract, may equitably fall under the Censure of a Rape? The Supream, Sacred, most General, and Authentick Rules to illuminate our wayes in the intercourse of humane Society afford us no appro∣ved Proof of Conjugal Union, but what hath been derived from the Agreement of the natural Parent, whose Reception of the Addresses properly did form the Introduction to the Con∣tract: insomuch, as the first most visible and legitimate Inhe∣rence of Right, is that which is extracted from the course of

Nature, This Procedure seems also most authentickly confir∣m'd in the Formality of the Ceremony, where the Transaction passeth from the Parents hand, or one that Personates his pre∣sence. In competition to the Filial Liberty herein (which pro∣bably might lessen the Nature of the Trespass) may be alledg'd the Irresistable Influence of the Celestial Orbes ordain'd to such Impressions on Inferior Bodies, as may impulsively attract them to an Union, without the Consultation of the will, which not submitting to the exactest Result of the Interior Light, in op∣position of their Motion, may equitably be dispenc't from the subordinance to anothers will, when as not under the subjecti∣on of our own. Nor can the Advantages of Fortune, which usually herein o're-sway the Parents Inclination, be a plausible Inducement to so material a Consequence, where the Perfecti∣on of the Institution dependeth immediately on the mutual Agreement of the Interior Faculties; which in their Conjun∣ction can produce but a degenerate Composure in Another, when formed from so Gross and Corrupt an Object. In favour of the Trespassor, where her Civil endowments are but volun∣tary or casual, may be alledged the Sincerity of the Motive to an honourable Persuit, limiting his Pretences in the Fruition only of her Person, without the Inherences to her Fortune, having in the Disorder of his Proceeding frustrated his Capacity to acquire it. From the Result of our Discussion, may possibly be formed a Conclusion sufficient to suspend the Impeached from a Capital Offence: but nothing yet from thence inferr'd, might counterpoise the Parents Injury in the Miscarriage of a Childe, did the Loss extend no farther then the Ravishing of his Comfort might have redounded from the endearments of an agreeable Community, if but establisht by his Counsel or Election. In Reference therefore to the Trespassors may be af∣firm'd, that to the Disobedience of the Childe is justly bal∣lanced the forfeiture of her Patrimonial Inherency. To the In∣solence of the Violator, such Reparation in Honour, as the Dignity of the Family may require. In the sequel of our pur∣pose remaineth yet a Difficulty not enlightned, whether It rest in the Civil Capacity of the Parent to disanul the Contract past by Nuptial Ceremony? For solution to the Question, may be reply'd, Few Laws herein dissent from the Affirmative. But how such Procedure may be consistent with the Honour or Ad∣vantage of the Childe, or yet the Parents future Satisfaction (All conjugal Rights transacted) is indistinguishable.

Another kinde of Conjugal Acquisition, more properly so tearmed, is the Venal Acquisition; where the Acquisitor pur∣chaseth his Pretences from the Parent, for a certain summe of Mony, or other Consideration, which passeth sometime under

the formality of a Present. A Method of Acquisition very im∣proper and unsuitable to the Practice of our Age, where the highest perfection of personal Endowments, cannot win so much as the shadow of Attraction on our sordid Inclinations: yet wants it not the Authority of the exactest Models of a Civil So∣ciety, to form the Institution Regular. Probably in Respect, that such Proceeding is the highest Pledge to an inviolable Ami∣ty, the surest and most plausible Foundation to the happy Con∣dition and end of so necessary an Institution. But whether such Forms of Contract may meet no Inconvenient in the Conse∣quence, is not so clearly obvious: Insomuch as the Nature of the Introduction may possibly figure a more hig•…•… and unequal Inherence to the Property, the•…•… probably may be consistant with so perfect an Amity; seeming in the intention, rather to imply a Distance of Servilty, then a Coadjutance in the Ministry: We may therefore herein conclude, that a mutual Retribution of the Civil Faculties is as proper an Order to a happy Instituti∣on in this Civil Union, as the reciprocal communication of the Natural Faculties is to the successful Constitution of the Natural Union: yet in either Transaction will such a method be preposterous, if the Motive thereto do proceed rather from the means, then from the end or Object of the Institution: to the perfect forming whereof, the former should be but a con∣cealed subsequent to the latter, not a primary and visible In∣ducement. Such Procedure, among the Spartans, adjudged so irregular to a happy Union, that It fell, by publick Ordinance, under the Censure of a Civil Penalty.

The succeeding Title to a Conjugal Adherence is that of Do∣nation, the most usual, proper, and legitimate Method in con∣stituting so material an Union, where the uncorrupted will moves freely to a deliberate Result in the Election, that a happy and agreeable Community may thence issue to every Branch inhe∣rent to the Alliance. To what Latitude the Agreement of Par∣ties may justly be extended, is a Subject not altogether incon∣siderable. The Parent and the Espous'd may probably here li∣mit the Proposition, though Custom, in Civil usage, requires it ev'n from the Remotest of the Family, yet rather under a Form of Ceremony, then a Pretence of Right. But why the Maternal Assent (she being the sole Regent to her Family) should here not be admitted to an equal Priviledge, in the suc∣cessive Authority to her deceased Husband, as to appear a Principle in the Ceremony, is a Civil Impropriety, scarce sha∣dowed with a Rational Pretence, unless the practice be volun∣tarily waved, in favour to the decent Restraint of a womanly Passion, which might possibly extend to a disorderly Erruption, personally to separate from her self by her own publick Act,

Whom tender Nature had so nighly united.

From the example of that exact Pattern of Morality, Cato Uti∣censis may here be possibly inferr'd a Proposition, which seldom could elsewhere finde out a President, but in licentious Practises, whether this Conjugal inherence may be (with due conformity to Civil Rules) transacted by the Principle to anothers Possession, as a Common Property. The solution may properly without con∣tradiction, pass in the Negative. Insomuch as there was a mu tual Reception in the Contract, and the Husband not in right impowr'd to alienate himself from her Possession; to whom he was conferr'd by his own proper Act, Nor can a joynt Conces∣sion from both Principles form equitably a Retraction of so strict a vow in so solemn an Institution. In Reference to Cato's procedure herein may be alledg'd, that such elevated and refi∣ned Spirits, have in the source and course of their Communi∣ties more noble Objects, then the vulgar can reflect upon, as the plausible Reception of his Wife again on her first Widow∣hood may express. Such Traces therefore can visibly form no proper Rules to common Actions.

The latter Method of a Conjugal Investure is that of a Suc∣cession, an Order not any where found in use, but in the Iudaick Society: And there also under a Conditional Position, If the Brother dyed without Issue. The intention of the Prescription had possibly both explicitly and implicitly a plausible Persuit. Explicitly, the support of the Brothers Name and Family. Im∣plicitly, that such a nighness of Relation might more peculiarly in them engraft a stricter Union.

To the Right of Possession must necessarily proceed the Right of Institution, either Civil, or Divine, as the Legislative Power shall adjudge most proper to the Nature of the Transaction; which concluding in the latter, may possibly lend more weight unto the Ordinance: But both tending to a due and orderly establishment, require authentick Publication, to avoid promiscuous, scandalous, and litigious mixtures. Whence consequently ensues this Proposition, Whe∣ther private and concealed Contracts, under what form soever passed, tending to a Conjugal Union, may be admitted to the full Capacity of a legal Institution. For solution, may be af∣firm'd, that such Agreement equally and effectually may engage the Transactors to a mutual Coherence. But not oblige the Ci∣vil Society to an equal Reception of their Transactions under such Distinction, until by perfect and authentick Publication specified.

One Ambiguity inherent to our Subject, may probably here require a due Discussion, whether the Allowance of Poligamy might prove consonant or useful to our Civil Order. If the Fe∣licity or security of a Civil Society consisted in a numerous

multitude; the certain'st means to attain it in a lawful Propaga∣tion might be allowed warrantable. But questionless, a due Proportion of the parts thereof is requisite to form a perfect Harmony in the Civil Frame. A noxious Repletion may as well happen to the Body Politick as Natural; both Quoad Vires. In respect of becoming a burden to the whole Frame, or Quoad Vassa. In regard of the excessive Extent of each peculiar Con∣tinent beyond a due Capacity of Reception. Furthermore, Unity being the sole Object of a Civil Felicity, can no way ra∣tionally be attained in so unequal a Diversity.

Having thus lent a legitimate Prescription to the Conjugal Union, e're we proceed to treat upon the subsequent Particu∣lars, it will be yet material here to trace a Rule to their legiti∣mate Separation, in Respect, it possibly may extend to so valid a Retraction, that each surviving party may legally be endowed with Capacity to transact their Persons, on another in a new Election.

To what Latitude of sence a legal Separation here may be ex∣tended, is not yet clearly obvious, since vulgar usage thereby only would imply a temporary Division, either voluntary or Im∣pulsive. The Total only falling under notion of Divorce.

In Reference therefore to such Distinction, we will proceed to agitate on their Nature. A Conjugal Separation is either Ex∣tralegal, or Voluntary, or Legal and Impulsive.

Extralegal or Voluntary Separation is such a Division in a con∣jugal Union, as may be constituted by mutual Assent or Agree∣ment of the Parties, which may either be repealed or continued, without any Procedure or Formality of the Law.

A Legal Separation is such, as by due course of Law becomes imposed on complaint. and by due course of Law, may with consent of Parties be repealable; if irrepealable, the true Di∣stinction Thereof more properly falls under Nature of Di∣vorce.

The Extralegal or Voluntary Separation form'd from Divine or Moral Prescription, not reaching any Civil Ordinance, we will omit here farther to discuss upon, as altogether improper to our Subject.

The Legal or Impulsive Separation presents unto us a double Ambiguity, whether, and on what Ground, such Separation, may plausibly be constituted by a Civil Ordinance: And whe∣ther any Act under such Separation passed joyntly or severally, wherein both Parties are concerned, may be accounted valid.

For solution, we may conclude, that such a Procedure pos∣sibly may justly fall under the Concession of a Civil Judicature. But with this strict Limitation only, where a visible Attempt hath been practised against the Life of either party by the joynt

Associate, in regard our common safety is the immediate Ob∣ject of a Civil praescription. And although it here may be al∣ledged, that the Civil Texture hath more forceable and ge∣neral Rules form'd in it self to the due restraint of such Acci∣dents. Yet where the Fewel to the Action so nighly and con∣tinually is fomented, the Civil Judicature might justly be held guilty of the barbarous Issue, should It decline from the removal of such opportunity, might minister to the Mischief.

As to the Transactions joyntly may concern the Conjugal Union under a legal Separation, we either may reduce them to a Civil or a Natural Reference. The Civil have their Limits under private Contract or under publique Ordinance.

The Natural suspended by Decree, cannot without a pub∣lique Repeal, either severaly or joyntly transacted, attain a true Legitimacy.

The nature of a Divorce, extendeth to a vaster Latitude, having for Object a total or perpetual Separation from a conju∣gal Society, impulsively constituted by a Civil Ordinance,

But under what Remonstrance such a censure may justly pass the Civil Judicature, is not so fully specified. Acts of Adultery are only explicit'ly expressed in the sacred Letter, and so far pro∣secuted by the Institution of the Civil Law, but under such Ob∣scurity and Difficulty in the distinction, that the intention there∣of totally thereby becomes frustrate. In Reference to the First obstacle, where the ground of the Procedure falls under a criminel Trespass. The Praescription vainly tendeth to a Civil Division, in Relation to the second, where the Charge requireth an occular Testimony to forme the Impeachment regular; the proof rests totally o're-shadowed with a humane impossibility.

We may yet more properly hereto annex such incapa∣cities as may frustrate the intention of the Conjugal Instituti∣on; whether Civil, Natural, or Accidental.

Under the Notion of a Civil Incapacity, may pass not only such, as are excluded by a common Praescription in the Civil Order, as Ideots, Lunaticks. &c. But such Relations also of a Blood, as in regard of their Proximity may decently fall under Legal Interdiction, Quiloco Parentum inter se habent, &c.

Under the distinction of a Natural Incapacity, we may in∣fer such incorrigeable Imperfections, as by nature happen through the error of her work.

The Accidental Incapacity may be extended to Praeternatu∣ral or Artificial Affections.

The Praeternatural, where either Naturally or Adventiti∣ously, ex morbosa aliqua constitutione partis aliquid deest, vel su∣perest; by imperfect constitution of Parts, some thing is either wanting or superfluous. The Latter Imperfection may fall un∣der

the possibility of a Remedy to render it a capacity of Con∣jugal Union. As Imperforatae. The Former never.

Under an Artificial Incapacity may be inserted such an Im∣potence, as is contracted by inward Assumption or outward Application, or by Enchantment, as Ligati. But in respect such disabilities seldom are incorrigeable, we cannot justly ex∣clude them from capacity of Conjugal union.

Some difficulties inherent to our Subject may pertinently be here enlightned, as whether such a legal Incapacity ought to be subsequent or preceding the Conjugal Association? And whither such an Incapacity predistinguishable may justly, in concealment, fall under censure of a Civil Trespass.

The First Position seems a scruple scarce worth an Exposi∣tion. Since every just pretence of a Retraction in agreement (of this kind) is grounded on Deffaut preceeding contract. The Latter being a Subject more proper to another Principle we will remit to their peculiar Order.

2. From the perfect fruition of the First Property usually pro∣ceeds the justest Acquisition of the Second. Children, which nevertheless, without so strict a Reference, materially may be considered under the Distinction of the Natural and the Civil.

The Natural Acquisition is either Ligitimate or Illegitimate. The Civil only is Adoptive.

The most proper and agreeable coherence is without doubt the Natural, in which our very Essence seems in the Currant of succession transferred to Eternity, without which, Mans suc∣cessful endeavors (though Crown'd with opulence and Ho∣nor,) yield in their fullest Affluence but an imperfect satisfaction, their charming Harmony still grating the affected Heart, with the good Patriarchs interjected Discord. Quid mihi. That the il∣legitimate Dependence, though naturally constituted, should reach so high a consequence, can scarcely be affirmed. Since Infamy and Infidelity associate the Production.

It will therefore be materially pertinent to our Order fully to appropriate unto either their Distinctions. Children intitled with Adherence of Legitimacy, may such be figured either properly or improperly.

Properly, such, as after due solemnity of their Nuptial Rites, are in due season and maturety of time produc't.

Improperly, such as before Terme, under Terme, or after Terme of Conjugal Institution, untimely are produc'd.

The Two First Distinctions the Civil Law admitteth to a priviledge of Legitimacy, and sometime the Latter, when con∣firmed by some Accident, that Nature was disturbed in her usual course. Our Laws more Rationally, exclude them all from such capacity: Insomuch, as the succession of Families, (in

regard of their Possessions) ought to be preserv'd, so regu∣larly pure, as not to become subject to the blemish of a visi∣ble suggestion.

The Illegitimate coherence of Children may also bear the same distinction, being such either Properly or Improperly.

Properly, such as without Reference either to Preceeding or Succeeding contract, at any time are produced.

Improperly, such, as with Reference either to Preceeding, or Succeeding contract, or unto both, untimely are produced.

The Latter Distinction of Illegitimacy may sometime plau∣sibly (in reference to many circumstances in the Transaction) by especial Grace of Prince or People, be admitted to a capa∣city of Legitimacy. The former regularly and without Oppro∣by never.

To these Distinctions of Filial Inherency, may properly be annexed that of our Adoption. A Custome very frequent a∣mong the Romans, where Vertue being esteem'd the highest Dignity, became invested with adherence of the nighest Re∣lation; on the immediate extinction of a Family, but to sup∣port their Name.

How farr the Agreement should extend to form the Insti∣tution regular, may probably frame an Argument material in Discussion. Besides the Principles both Pater & Patria are concerned in the Agitation, nor can either justly be excluded in consent to the Transaction. The Parenty in respect, a Member thus becomes desected from the Family; The Ci∣vil Society, in regard no alteration of Order in so Essential a Distinction can justly be admitted in the Civil Frame, with∣out a publique Act, so that we may hereby conclude the In∣herence to his Property must pass under the Title of Do∣nation.

Whither the Paternal Inherencies, as Lands, Goods, Ho∣nours, &c. may justly be transferred with the Person to an∣other Family, is a Subject materially considerable, and may possibly without opposition pass in the Negative; insomuch as the common Affluence tending to support but one peculiar Stock, becomes enfeebled, when diverted to the enlargement of another.

3. Servants in Reference to their Use and Nature, have a vast extent in their Distinction, as Bond-servants and Free-ser∣vants, Domestiques and Retainers, Fealists and Facultists.

Bond-servants are distinguished in the Perpetuity of their Servitude, terminating only with their Owners special Grace in a publique Enfranchisement, or by the Common Law of Nature.

Of These there are sundry sorts of Acquisition, The Pri∣mitive and most Antick, was, questionless, the chance of War,

which inevitable Thraldom to the vanquished, was probably the highest and the justest Motive to a generous opposition. The hope of future enlargement, tending but to unnerve the Resolution. But Man contracting still corruption with the Time, formed hereto another species of Acquisition, the victor not contented with the use and Glory of These living Trophies to his valour, made them the Subject of his Avarice in a sordid Traffique. 3. To These two kinds of Acquisition succeeds a Third, not altogether properly so term'd, in respect it seems framed on a voluntary Concession, where the Bondman at∣taining by publique Ordinance: the privilege of Enfran∣chisement, prefers his Bondage 'fore his Liberty, not accepting the Permission, whereon the Master nailing his Ear to the Post of the House, became entitled to his use for ever. Yet may this probably be judged an Acquisition of Benignity, which in his former Bondage had so engratiated the servant, he could not hope to improve in future his Condition.

4. From these Distinctions of Acquisition may possibly pro∣ceed a Fourth, more just and absolute then all the other, when in a lawful propagation, they are multipli'd, where the en∣thralled Infant receiving his Elevement in the Family by his Masters care, more sensibly accepts him for his Father, of such were form'd the good old Patriarchs Families.

Whether the Authority of the Lord over his Bondman, justly might extend to Life and Death, is an Argument may properly be here reflected on. The practice of most Common∣wealths in which this sort of servitude was formerly in use, af∣firms it regular. To which the sacred Letter not much dissents, prescribing to the term of an accidental Dispensation, but the extent of three days from the Fact unto his expiration, rather as a Restraint to Inhumanity then a rule of Equity, as appears by the sequel, for he was his Money, which seems to acquit him from a voluntary Act, in reference to his own Interest. The weight of This Proposition chiefly depends upon the Rond∣mans adherence to the Civil frame, to which admitting him a Member, he justly then may claim a priviledge of security from the Civil Rule, if not admitted such, he must at least be yet allow'd to be a Civil Property inherent to the Pub∣lique benefit, which no way can be wilfully destroy'd, without a common prejudice, so that if the Fact prove not a criminel De∣linquence, it of necessity must be adjudged a publique Tres∣pass; which conclusion also will meet a farther impropriety in Rule, since every Bondmans life extinguished by any hand, can onely pass the censure of his Price, nor falls it equaly within a Civil Reparation, if the Agent be of equal incapacity, so that such a Liberty may possibly extend to a preposterous dis∣order

in the publique Peace. To take away the cruelty of the Masters, redounding often to the publick prejudice. Antonius com∣manded they should be sold to others, not barbarously Treated by their Owners.

Bodin concludes our Customary forms of Apprentisage under this Distinction, though but improperly, in Respect, there is herein a voluntary and conditional Ingress and Egress of Con∣tract: All which Parts of progression are utterly inconsistent with the proper Nature of a Bondage.

Free Servants are by voluntary and mutual Contract under the subjection only of a Temporary Servitude: and may such properly be qualified from the voluntary Initiation of This Ser∣vitude, which limited by prescription of a Covenant, renders to them a voluntary capacity of enlargement; of which there are divers kindes, either in Reference to their Tearm of Servi∣tude, as Septannual, Annual, Mensal or Journal; or in Respect of their Abode, as Domesticks or Retainers. These sort of Servants in their simple Nature, without a Reference to pecu∣liar Covenant, are properly inherent only to the title of an Ac∣quisition, In Respect the agreement is usually raised only on a personal adherence, which Ceasing by decease of either Party, the efficacy of the Contract must of necessity be void, though custom possibly may lend It other priviledge.

Fealists are such, who by the Tenor of a real Possession, owe personal Service or Vassalage to the peculiar Lord, and might not altogether improperly be reduced to the Distinction of a Bondage. A Species of Assubjection not without due con∣sideration dissected from our Civil sufferance by publick Ordi∣nance: Insomuch as It hath heretofore been found a visible fo∣menter to our Civil Broils, and hath now only lest a shadow Thereof in our Court Suits and Services. These sort of Depen∣dents fall under a Capacity of every Title to a Civil Property, whether Acquisitive, Donative, or Successive, being usually in∣herent to the possession of the Royalty.

Facultists have their subjection formed voluntary, by a mu∣tual Contract, in Reference only to the Civil Function, under Limitation of a tearm exprest; which being expir'd, they legal∣ly may challenge their Infranchisement to the publick Profes∣sion of their Art, and may properly be comprised under the Distinction of Free Servants. Freedom preceeding the Electi∣on, and Freedom succeeding the Intention, as the Object of their Servitude. In the common usage of this inherent, Custom hath form'd an Impropriety not equitably allowable. That any one, not yet, by Civil Rule, admitted to the Capacity of Frui∣tion of his own Property, should be permitted to dispose of his own Person. 'Tis true, the Parents frequently are supervisors

to the Contract, but yet therein no real Agitators, nor yet where their assent is not so evident, doth any Civil Rule afford a priviledge to the Retraction of the Covenant.

4. Offices in Reference to a Civil Property, are formed on∣ly to the Publick use: Nor, can plausibly be either admitted Acquisitive or Successive: Not Acquisitive insomuch as such an Introduction doth figure a pretence unto unequal purposes, and lends a colour to the corrupt execution of his Trust. Lucre being the common object of a venal Commerce, farthermore so improper a Reception detracteth from the Worth and Digni∣ty of the Minister, who should lend weight and Grace to the prescription of his Charge: under the license also of such cu∣stom, improper Agents are admitted to the managing of Im∣portant Agitations; not leaving the Institutor a priviledge of Election, while worth and vertue not stooping to so abject a procedure, become excluded the Capacity of a Civil Negotia∣tion, Their proper and peculiar Sphere to lend true Lustre to their Nature. Such Imployments therefore might more hap∣pily be reserved to the Immediate Dispensation of a Prince or People, to recompence and dignifie approved Vertue in a plau∣sible Distinction, and gratifie especial Services, without ex∣hausting of the common Treasury. Whether this Mercinary Commerce fall under the practice of a Prince, his more pecu∣liar or more general Ministers. The Inconvenients not differ much in Nature, only the Improvement of a Princes Treasure (though with impeachment to his Honour) may to a vulgar In∣spection seem possibly to conduce more to the Publick Benefit: Yet the material Influence of either well distinguished, in Refe∣rence to the Publick Good. The Dignity, Vertue, and Benig∣nity of a Prince, clearly o're ballanceth such sordid Conse∣quents.

Not Successive, For then the Impropriety of the Agent to the Action were irrepairable; and the Civil Frame must some∣time of necessity sinck under the Insufficience or Corruption of engrafted Ministers. Farthermore the progression of Vertue to a Civil use, would utterly be obstructed, were the transacti∣ons of her Ministry only inherent to the Natural Order. And the Influence of a Princes Grace not materially communicable, the Subject should dispence the same, removed from his pro∣per Act.

Lands and Houses have one and the same Distinction in Possession, being either Real, or Personal. And though the Latter Inherence may seem to issue from the Former, yet with∣out doubt the Latter had first the preheminence in use; as ap∣pears in the primitive and unstable abode of our Fore-fathers, before the Sword had yet establisht a distinct property, which

in process of time having reduced many Families of nighest Al∣liance to one Civil Subjection, assumed, according to the Ca∣pacity of their Powers, such a Proportion of the earth, as might preserve their lives with Pleasure and Tranquility. And to avoid the Incursion of their Borderers, erected such Receipts for their Assemblies, as might make Opposition to Invasion: In which, that every one might equally be concern'd, their pre∣cincts to each Owner was prescrib'd by common Divident, un∣der the Tenor of the Institution, to whose Jurisdiction they be∣came subordinate by a mutual Interest: So that we may con∣clude the Tenor of each Real Possession, is primitively inhe∣rent to the Prince or State presideth the Society under the form of a Donation, with such Reserves of Interest therein, as might support the Investure of such Dignity. In Reference to such Consequence might probably become instituted the first Title of Inherency, as Feofs en taile, where the nighest male succeeds to the Possession.

Subsequent to Feofs en taile, are Feofs simple, where the Real Possession descendeth to the Heirs General, under which Title Custom admitteth the Primogenitor also to succeed to the Succession, resting only this Difference betwixt This and the former Title of Inherence, that herein the Possessor hath a ca∣pacity to dispose of his Possession, in present or future, where and how he pleaseth, in the Former neither, being but Tenant for Life, and the next Male, lineally descended, must, though against his liking, become invested in the Right of his Succes∣sion.

Another Title of Inherence to a Real Possession, is Feof en Farme; A Title usually issuing from the Concession of a Prince, where the Possession is transacted to a lineal Adherence, under the Reservation of a certain Rent.

These Titles of Inherence have also Reference to certain Tenors, and are either held in Capite, Soccage, Knight-Service, &c. But why such Distinction of Tenors should remain, where the personal Engagements are dissolved, may prove an Argu∣ment to a farther Inquisition: besides these general Tenors, there are also with us, customary or particular Tenors, as Gavil kinde, where every Party equal in Proximity, is admitted to an equal partage in the possession, borrow English where the youngest only.

Personal Possessions are such, as by mutual Contract of Par∣ties are consigned under certain Covenants, and for certain tearm, either by Copy, or Lease; though the former Title may seem under customary Priviledge to challenge a succes∣sion of Right. Yet since the Condition of the Copy bearing a Personal Prescription, and falling under a Ca∣pacity

of Retraction, may become void and divided from the Right of a Succession, without any voluntary Act or Surrender, it properly may fall under this Distinction.

Every Real Possession being originally derived from the Civil Institutor, whether his Investure therein were constituted by Agreement, or the Sword. Under the Title of Donation exten∣ded to a special, or a general Succession, ought equitably to be serv'd by Civil Ordinance in such adherence to a perpetuity: such was the Constitution of the Iudaick Possessions in their primitive Dividents, which could not be alienated from the Family or Succession, but till the ensuing Iubile, nor so pas∣sed from the next Successor, unless he had refused to accept the Sale. A plausible Institution to preserve agreeing Simitry in each Part of the Civil Structure, lend bounds to insatiate Ava∣rice, and succor to the Indigent. The Latter part of the Insti∣tution remaineth still in Force under the Texture of the Civil Law. The nighest in Relation, under Prescription of time, re∣taining a Capacity of Redemption. But the Corruption of Hu∣mane Nature still findes evasion to frustrate the Intent of any Ordinance establisht to the publick Benefit, usually disguising the Nature of the Sail, under the colour of exchange, though the pretence be never so unequally designed. That it may justly in this, as in many others, become a wonder to a rational In∣spection. Why Civil Societies so exactly consult, and so long deliberate on the Establishment of Their Decrees: yet suffer the Intent thereof, to become violated, mock't and cheated by adulterate Practises.

No Title can truly impower the owner to pass the Possession of a Real Estate, equitably by Donation or Deed, but that of Acquisition, unles the Possession issue from a simple Donation, without reference to Succession; which then according to the Letter must terminate in his, to whom it is Transacted. In which case, if feasable, a Donation might fall under the Na∣ture of an Acquisition: In all other Respects the successors have a just Title of Inherence to the possession, and can no way be alienated without Injury, till the succession fail. The Industry of the Predecessors having equally for Object the common In∣terest of the Family.

A Real Acquisition is a Priviledge inherent only to the Na∣tives, Aliens being generally excluded from the Capacity of a Real Possession under what Title soever, lest the substance In∣herent to a Civil Society, should be transferred to a forreign use.

Real Acquisitions are not without Reason limited in some So∣cieties by Civil Ordinance, especially falling under usage of a Commulty; where the possession finding no Issue by succes∣sion,

might possibly in process of time swell to so unequal a proportion, as might not be consistant with the Publick Inte∣rest. To form the Acquisition legal, the Civil Law exacts the consideration be in a certain measure valuable, else becomes void in the Transaction.

Real Possessions admitted general in Succession, are properly not subject to a Distinction in Sex.

Chattels or Moveables hold a vast extent in the Definition of their Nature, which may nevertheless be reduced to one Species, under the Distinction of Money, the Common Receptacle to all the Rest. In this Property we justly may become intitled from any hand by way of Donation, since no inherence can be constituted on so moveable and uncertain a Commodity, though Nature seem to claim the first Direction, and her order thereto the Progression: yet being the fruit of Industry or Parcimony, the Possessor denying himself the use thereof, may justly be al∣lowed his Inclination in the Fruition of another, how remote so∣ever. But the most plausible Title to the Possession of this Property, is a just and regular Acquisition. The first and least subject to Corruption is the Manual, next the Official, last the Venal. Of the Venal the forreign. Of the Official the voluntary. Of the Manual the most necessary, from which principles issue all the Branches of a Civil Commerce.

This Property also falls sometime under the Title of Succes∣sion, when the Possessor dyes Intestate. But why the right of Administration should be so constituted in one Principle, by the Civil Law, contrary to her proper Order, as to exclude others equal in Descent, from equal Divident, may become a Cauti∣on not unworthy a Publick Reflection, though the error seems cast on the untimely Advertisement of the pretenders. Or why as some affirm, the Female Line should be preferr'd before the Masculine, without Infringement to the Civil Order. The pro∣cedure admitting of no other Rule then what might blemish her own Institution, inclining rather to the certainty of Nature, then the Authority of her own Prescription.

XXXIX. The security of our Civil Property.

THE security of our Civil Property (without Contra∣diction) consisteth totally under the Tuition of the Law, But such is the frailty of our Condition, that we pervert the very Nature and Intention of all things that fall under our depraved usage, whether Civil, Natural, or Divine, though never so happily constituted to our Benefit. A more visible Proof whereof cannot be instanced, then what we may extract

from the Constitution and Issue of all humane Laws, though never so exactly constituted, being ordained for the Peace and Preservation of the whole Frame of Civil Union, are universally the highest fomenter of Division, and the most destructive Burden that any way imaginable can happen to It, insomuch, as all other Calamities and Inconvenients of what kinde soever have their peculiar Seasons, Relaxes, and Intermissions. But this inevitable poison, under the colour of a common Ali∣ment, is distributed, ev'n to the smallest Vessels of the Civil Structure. It will therefore be very material (more successfully to approach the general Nature of the Object of our Treatise) to search into the ground of so unhappy a Consequence, which probably may be disclosed in the Reflection of these Particu∣lars. 1. The mutual Disaffection of the People. 2. The Dam∣mage that attends on the Issue and Pursuit of a Civil Decision. Though possibly might hereto be inferr'd divers other more im∣mediate Circumstances, which frequently pervert the Instituti∣on of the Law: as, 1. The Improper Constitution of Courts of Iudicature. 2. Their Error in Practice. 3. The Corruption of their Practitioners. 4. The Impropriety of the Law. Yet never∣theless, since the two former causes removed, will inevitably frustrate all Inconvenience might arise from any such Disorder, we only will insist on their Discussion.

1. The mutual Disaffection of the People, without Question lendeth the first Combustable Matter to a Civil Dissention, and may properly be tearmed the Tinder of Debate; which catch∣ing fire on every slight Emotion, prompts the heady will to snatch at every slight occasion, that may Minister to the Di∣stemper, and to justifie the Resentment, though never so ir∣regular, and warrant the satisfaction, though never so destru∣ctive; most fly unto the Law, which both in the Procedure and Issue, leaving fresh Matter to more violent Debates, instead of a peaceable Decision, multiply an impetuous Division: On which inevitable Consequence of humane Infirmity, the ex∣actest Legislators maturely reflecting, have endeavour'd to erect the structure of their Civil Society, chiefly on the Baiz of a mutual Unity, Concinity, and Agreement of the Parts thereof, utterly removing all Obstacles might therein visibly ob∣struct their happy enterprise; and imploying all the Ayds imaginable, might either through Use or Advantage, Form in them the perfect'st Habit of Affection, more strictly regard∣ing in their Transactions the Rights of Amity, then of Justice; as may, in Reference to the first part of the Assertion, appear in Licurgus, Taking away the use of Money from among tho La∣cedemonians. Numas equal Division of the Lands Inherent to the Jurisdiction among the Romans. In proof of the sequel afore∣said,

may be instanced The strict * 1.4 Association of their Com∣munities. Every one, if able, was enjoyned under Penalty to repair unto the publick Intercourse of their Associates, for their refection, under this Limitation, that on those dayes design'd for Hunting, his Absence was permitted, conditionally, The whole Society might participate with him of the success of his Industry: the Residue was licenc't to his private usage and his Families. According to this Rule was form'd the Association of the Esseans, a Sect among the Iews, whose happy condi∣tion did far transcend the Pharisee, or Sadduce: Insomuch, as under their inherence, none fail'd of his security, depending wholly on the mutual succor of the whole Society, whose joynt Interest was engaged both to the timely, and the due support of every Member of their Civil Frame. In relation to this Model were reduced the Centuries into Maniples, and Chambriers, In the Military Order among the Romans, by so nigh an Associa∣tion to linck them in a stricter Union for their mutual Succor and Defence, and for encouragement to this their Coligation, to insti∣tute a publick Triumph to him in Particular, that had secured his Associate from the Enemy. Nor is the cautious Distinction of their Tribes, among the Iews, so nicely passed on Record, established on any other Purpose or Intention, then to oblige them to an Inseparable Conjunction in their fellowship for their joynt security. Our common Distinctions of Consanguinity, Al∣liance and Affinity, but spurious Emblems are of our Relations, in Reference to the proper use, and primitive Institution, being only kept alive by Record or Tradition, for the Advantage on∣ly of Particulars, not for the mutual Benefit of the joynt In∣herency, which are no otherwayes therein concern'd, then as remote Collaterals, in future possibility, not in present Act; from whence ariseth Controversie, Dissention, and Debate; Batteries rather for mutual Ruine and Destruction, then Cytta∣dels for their common preservation; whose effects are more ob∣vious and deplorable, in that they frequently are distinguisht in the Transactions of the nighest Reference to a Natural Union: On whose Composure the Civil but pretends to raise her perfect Structure and Establishment: So that the Reflection of the Consequence justly may beget Astonishment in a digested sence, how it is possible the Civil Jurisdiction should resent the violation thereof, with so much Indifferency, since her Rights are to Natures but subordinate. Nor yet is our Positions only fram'd on Civil or on Moral Practises; our perfect'st Guide hath lent It a more eminent Distinction, affirming, Love to be the fulfilling of the Law. And how that Law should meet a happy Consti∣tution, which pursueth not in Her Prescriptions the Object of Her Execution, is questionless in Civil Rules a visible Incon∣gruity,

whether it be in the Imperfection of Her Nature, or Impropriety of Her Order. Whether in the Coruption of Her Ministers, or Error in their Practice, whereby the Members of a Civil Union may either be o're-powred, or ensnared in a Civil Transaction, lest any Grievance or Oppression hapning under such a procedure, might instigate the sufferers (judging the Na∣ture Thereof by the Consequents) utterly to desert those Prin∣ciples, whereon the Civil Fabrick chiefly was erected, and follow strange Chimero's of their own Invention, so form in their Division, such a Rupture in our Common Union, as pos∣sibly may extend to the subversion of the Civil Frame.

From the Result of this our present Argument, will necessa∣rily ensue a due Perpensation of the next Collateral Impediment to the Intention, Propriety, and use of the Law. The first No∣tion being the common Clause of a Civil Division, the second of a Relapse; In Regard that the Dammage and Disparagement attendeth on the Procedure and Issue of the Law, produceth in the resentment of the Agitators new passion for Revenge on any frivolous Pretence, which frequently are pursued and con∣tinued till both the Parties thereby become ruin'd with their Fa∣milies. To remove this unhaypy Consequence from the Pro∣ceeding of the Law, whose proper Object only is, Suum cuique reddere & conservare. It will be highly requisite to the Propriety of a Civil Institution, in Reference to a Plea, that neither in the Issue or Persuit thereof be left remaining either sting or scar between the Agitators, which usually are therein enduced, either by Personal Disparagement, Indignity or Disgrace. Or Dammage in Cost or Delay. Or Burden of the Penalty. The former and the latter inconvenients may easily be rectified in a Plausible Summons only, and a feisable Reparation. The second not without Difficulty, in Respect the inevitable charge, which attendeth the Prosecution of a Plea, is not any other way distinguishable to be avoided, It seeming altogether Impossible, that so numerous a multitude should daily wait on the Proceeding of our Civil Agitation without any Advantage, more then the Demerit of the Action. In Reference to the Assertion, we may affirm, that there can not be a more honourable or satisfactory Imployment designed to any Person, whose fortune shall afford him vacancy from the urgency of his own Affairs, inherent to the necessity of his own subsistence, then to lend a voluntary assistance to so im∣portant a Ministry, according to the Capacity and Number of his Associates: Such was the procedure of those ancient He∣roes, whose Vertue only lent a more splendid Lustre to the Dignity of their Countrey, then all the Glory of their Victo∣ries. In Reference to which pattern he conform'd his practice, whose vertue justly had entitled him with the Denomination of

her Essence, * 1.5 Cato, daily repairing from one Court of Judica∣ture to Another, to plead without Pretence of Gratuity, the Causes of the Indigent and opprest, till he was (of a stranger and obscure Extraction) held worthy to become admitted to the highest * 1.6 Ministry.

But admit the parallel (in favour of our Infirmity) more pro∣per for our speculation, then our Imitation; might not Courts of Judicature be constituted in every County at the Publick Charge, allowing a sufficient entertainment annually to such a Number of Officiates, as might be fit to mannage the Affairs Co-incident to the Bounds of each peculiar Jurisdiction, whose Number being reduced into several Divisions, might alternately officiate ev'ry Moneth: so that the daily Agitation of the Court yielding a speedy Issue to their Pleas, they rarely could become o're-burdened in their Functions, either to their own Inconvenience, or anothers Prejudice: especially if no Action were admitted pleadable, which had not passed the Allowance of a peculiar Arbitrator, who might be so impowr'd as to com∣pose a multitude of Frivolous Debates, which usually do but multiply one another to the Disturbance of the common Peace, and the Dammage and Destruction of the Agitators.

In opposition to which Order may probably be alledg'd, that the inevitable Charge attendeth on the Issue of the Law, can∣not possibly encounter a more just and proper Imposition, then that the Burden of the Agitation should fall upon the Injurer. The Objection may pass as an irrefutable Position, provided the Conclusion fall under the Restriction of a clear Capacity to di∣stinguish, and a full Ability to perform.

But where the sence of the Law is involv'd with such Obscu∣rity and Mystery, as no cause, how bad soever, doth not only finde authentick Promoters to encourage the undertaking, but as impudent Advocates to maintain the Prosecution under a le∣gal formality of Right: And where the inveterate Malice of Man is universally so great, on every slight Advantage to pur∣sue the Opposers of his will to such extreams, as utterly might ruine and destroy them. It plausibly may be allowed very per∣tinent to the Establishment of a Civil Welfare, that the Le∣gislators should reflect on a more happy Constitution of Judi∣cature, then what must of necessity thus cast their joynt Asso∣ciates into their hands would sell them to the Inemnity and Rage of one Another, in persuit only of their sordid Lucre.

XXXIX. The Principle Subjects fall under Re∣gulation of the Law, in Reference to the Security of our Civil Property.

HAving placed the Security of our Civil Property under the due prescription and Execution of the Law, it will be ne∣cessary to the exact Establishment of her work, that we briefly lay forth those accidents which in the infringement of a Civil In∣terest, may lend an opposition to her Enterprise, which visibly may be comprised under these Distinctions, Fraud, Violence, Injury, Oppression, Fire, Inundation, Excess.

XL. Of Fraud.

WHen we shall with due Perpensation reflect on the extent of this Principle, in Reference to a Civil Transaction, It justly may produce a wonder in the shallowest Apprehension, that the Constitution of most Laws, in general, so remisly weigh the Consequence Hereof, as to cast the Decision in the common Ballance of a casual Trespass: under which indulgence probably the Practice Hereof hath spread It self into the most honourable Professions, and the nighest Relations, not only as an Act of Frailty, but as a plausible Habit in sufficiency, inhe∣rent to the Mystery of every mans Function in a Civil use: so that we might in Reason rather tearm some Civil Societies Artificial Pieces of disguised Impostury, then Essential or Agree∣ing Communities: In which Regard we will endeavour to disco∣ver the Nature, Prejudice, and Regulation Hereof most perti∣nent to a Civil welfare.

The Nature Hereof is questionless a Breach of Trust. Fraud only consisting in Reference to a Trust: so that we may con∣clude the Civil Prejudice, that ensues the Practice, may reach as vast a Latitude, as the Benefit of a Trust can properly extend to in a Civil usage: In which ballance we will cast the weight of our ensuing Argument, to lend us a more clear Inspection to guide us in the due Regulation of our present Subject.

Trust is visibly the Band of Common Union, or the Principle conduct of a Civil Commerce; through which the nourishment of every Faculty therein becomes conveyed to the smallest and re∣motest Vessels of the Civil Frame, which received, as a regular Position, we may clearly from thence Collect how highly mate∣rial It must be to the Improvement of a Civil Welfare to secure Trust from all manner of Fraud whatever, that it may be pre∣serv'd

so far as possibly we may, in a clear and insubvertible Purity.

In persuit whereof, we must first distinguish the Nature of a Trust e're we can reach our Intention, plac't in the extent of the use.

In Reference to which Order, Trust is a free Act of the will to impart any thing in our Possession to anothers, under the Li∣mit of a Retribution, either simply for the Interest of the Trustor, or soly for the Benefit of the Trustee, or generally for the mutual and common Advantage of either, or particularly for the use of neither; but to the use and Benefit of some other or others specified in the Trust.

From which Distinction, in Reference to the Act, we may observe two Circumstances in manner of the Trust to establish it Authentick. First, That it be an Act of the Trustor's free will, not enforc't on him by Violence, Urgency, Necessity, or any such Advantage on the Inclination of the will. Secondly, That whatever is transacted in the Trust be really without en∣gagement in the clear Possession of the Trustor, as his unque∣stionable Property: otherwise, that Trust can prove but an im∣perfect Trust, which is but raised on the Breach of Trust unto another, who may more justly claim an Interest in the pro∣perty.

The Object of the Definition extends It self to four Branches, the two first, and the last, have soly Reference to a Common Unity, the Penultimate only to a Civil Commerce. The first may reach a Casual or Impulsive Breach to render It rationally unactionable. The second, but with Difficulty may be admit∣ted to such Priviledge. The two latter never fall under that Ca∣pacity. In Regard the first Branch of Trust hath only Reference to the Interest of the Trustor. The Trustee only accepting of the trouble inherent to the Trust, as an Office of Amity, which is perfectly discharged in his endeavour to effect it; but not reaching the intention of either by casual or impulsive Acci∣dent; the Dammage of necessity unjustly is imposed upon him.

The second Branch of Trust, where the Trustee only reaps the Advantage of the Trust, meeteth some scruple in the Dis∣pensation of a Civil Procedure, on Casual or Impulsive Breaches of a Trust; inasmuch as the Trustor pretendeth to no benefit in the Trust. But possibly to his own Inconvenience, or other Disadvantage, for a season, hath resigned the use Thereof unto the Benefit and Advantage only of the Trustee: So that in Reference to the Priviledge aforesaid, on Casual or Impulsive Breaches of Trust, We only can, in Civil Rules, lay the ground of the Trustees Plea, upon a Right alone unto the Trustors Be∣nignity, rather then in the inefficacy of the Trust, or the

Incapacity of the Trustee. It appearing a high Impropriety in Civil Rule to prosecute an Act of Retribution to the Dammage or Destruction of him to whose Improvement or Preservation It only was directed; and where the succor was friendly dispen∣sed, the Advantage Casually failing, a Reparation seems ma∣liciously exacted. But, as the Trustee, to whose use only the trust was intended, may seem too favourably admitted to the Exception of a Civil Procedure on Casual or Impulsive Breach of Trust; so the voluntary or Perverse Breaches of trust inten∣ded only to the Advantage of the Trustee, may seem but too remisly Censured in a Bare Reparation of the trust: insomuch, as Pain for Profit must yet make the Return but too unequally Ballanced in a due Compensation of Right, which far more justly might extend to the Advantage, was thereby acquired, as a Retraction of the Intention of the trust so infamously in∣fringed.

The third Branch of trust, which tendeth to the mutual Be∣nefit of the Transactors, is excluded such Capacity; insomuch as the trust is formed under a Conditional Contract, in pursuit of a common Lucre, where either runs the hazzard of the Ad∣venture by his proper Act, in Reference only to their own Ad∣vantages; so that the trust infringed, the Trustee voluntarily casts himself on the penalty of his Covenant.

The latter Branch of trust, which requireth only the Cir∣cumspection of the Trustee to the specifick use of others pri∣vately or publickly concerned in the trust, can pretend to no Civil Incapacity to free him from a Legal Prosecution, in re∣ference to a Breach of trust, in that it rests wholly in the Ele∣ction of the trustee, to accept or renounce the trust, to separate the Inherents of the trust from his own property, or alter or transact them as his own: so that nothing being exacted from the trustee, in execution of his trust, but his own will, It soly is his will that can infringe it, which tending to so material and charitable an use, failing only in the Retraction and Remisness of his will, he justly may sustain the penalty of his reproachful and injurious Reluctance or Neglect. This trust is usually a Te∣stamentary trust, which accepted, engageth the trustee as his own proper Act, so far as the Capacity of the Subject will ex∣tend, which may also be farther distinguisht in a publick or a private trust.

The Private so constituted, have frequently this Default, that they seldome reach to the intended use, when as directed to the Benefit of Children, who commonly have most need thereof; in that their present advantage is not only suspended, but the trust also many times so oft removed, e're they attain a due Capacity to exact it; that either the Inherents to the trust

fail, or the trust it self falleth to the Ground, wanting either real or equitable Grounds yet farther to produce it: which de∣fect scarcely will be exactly rectified, but under the tuition of a Publick Court, constituted only for the safeguard of such Per∣sons as properly fall under a Civil Incapacity.

A trust exacted to a Publick use, seldom or never reacheth the Intention of the trustor, in that the Election is not sufficiently separated from the Interest of the trustees, who exercising their trust, as if only establisht for the Advantage of their own Re∣lations, mutually assent to the Remonstrance or Intercession of one another, in favour of Particulars: whereas every Member of the Common-wealth, under the Capacity of the trust, ought to have an equal Priviledge in the Benefit thereof. And having, without just exception, attested his Capacity in Presentation, should by equal Lot be cast into a visible and orderly Reception with the rest, from thence to be extracted by an impartial hand. Farthermore, in such partial Elections, all Abuses and Breaches of trust whatsoever, become utterly smothered by taking away the freedom of Impeachment from those are soly interessed in the trust, in a servile Adherence to the patronage of the trustees.

To conclude our Discussion of the Nature of our Subject, we may pertinently here insert one General Exception against all the former Branches of a trust, That none of them be passed under such a form, oblickly constituted for collateral and impli∣cit uses, not exprest in the trust: which Procedure may justly be excluded the Suffrage of a Civil Jurisdiction, being the common shrouds to the most specious and Considerable Frauds in Practice.

As to those Forms of trust, passed on Contracts of Marriage, they seem improperly constituted in the Hands of a Particular, or Particulars, of how nigh Relation soever; in that every small Occurrent tending to the inconvenience but of some con∣cern'd therein, have commonly sufficient Influence to o'rethrow the trust, unto the Prejudice of the Rest, not of Capacity to yield to the Transaction: so that necessity will lend us a Dire∣ction to fly to publick safeguard for Redress; where such Acts becoming totally irrevocable, they may infallibly attain the pro∣per use to which they were directed.

Under which Notion may likewise be comprised. Guardiant trusts, either Testamentary, Successive, or Elective; which having, for Object only the Benefit of such as are not under a capacity to act either judiciously, or freely for their own Ad∣vantages, in respect of their Civil Incapacity, or else the strict subordinacy to a nigh Relation. Their Interests (in reference to

many Inconvenients may thereon ensue) might more successful∣ly be managed under the publick Tutelage.

Having thus far generally discussed on the Nature of our Sub∣ject, we will proceed to agitate on the use thereof in some Par∣ticulars; in the Introduction whereof we incounter some diffi∣culty, both in Reference to our Order, and Importance in our matter; which is, whether the Natural or Civil Relation ought first to be admitted to a Precedency in trust? The Que∣stion may at the first Inspection appear of little Ambiguity, and as little moment, one only exception but reserv'd: insomuch, as we have formerly inserted, that the Civil Frame is only form'd from the connexion and concinety of the Natural: yet when the Dissolution of the Former may be threatned in the Preservation of the Latter. We must affirm it much juster, that one cri∣minel perish in the Infringement of a natural Law, then that ma∣ny innocents should be destroyed by the dispensation of a Civil Ordinance: As in matter of Treason, where in every Act of unviolated trust, the Trustee becomes an Accessary to the Trea∣son, In which Respect, the Transaction falling between the Father and the Son, the Son may probably claim Advantage from the same Law of Nature to warrant his Discovery, as the Father might exact to enjoyn Concealment. Quisque sibi Proximus. Yet the Romans held such Primitive Inherencies in so great Reverence, that they dispenced with all Civil Tyes in favour of their Rights. A Slave might without Impeachment conceal his detected Master, much rather a Wife, a Childe might be admitted to such a Priviledge; though the case pos∣sibly may require a more exact Distinction; since after detecti∣on: the Attempt falls under a Capacity of Prevention: And the concealment then tends but to the safeguard of the Delin∣quent, not to the Promoting the Delinquence: From whence we may conclude, that such Relations may, without Impeach∣ment, be licenc't the Protection of the Criminel, provided It reach not a participation of the Crime: which exception in al∣legiance interjected, we may without farther scruple, accept the Wife to the first and highest degree of trust, since on her Faith we cast the Model of our Oeconomy for the enlargement of our Fortunes; and in the Affiance of her Fidelity, we trans∣fer them to our Succession. In Reference to these two Objects of a Civil Union, though perhaps unequally Ballanced, the se∣verest Societies of a Civil Jurisdiction have passed the Infringe∣ment of her trust under a Criminel Sentence, specified in the Interdiction of these Principles, Adultery, Suborning a Childe, Drinking Wine, Counterfeiting Kayes. The three first take is∣sue from one and the same Intention, which is the security of our own succession in a lawful Propagation: the two first really,

in regard of the Action. The third but conjecturally, in regard of scandalous Intention. The last particular reflecteth only on the safeguard of the Civil Property, which in such Infringement of trust manifestly tending to a fraudulent subversion; the Ci∣vil Judicature conceiving them to hold one and the same Conse∣quence in the Intent, lent them but one and the same weight in the Punishment; yet with this Limitation, that the execution should pass under the Authority only of the Principal. The Civil Jurisdiction, in all Ages, seeming very scrupulous to intervene in the Decision of Differences between Parties so in∣tirely united, that should, in Reason, but enjoy one common Interest; so that if any such permission in a Domestick Trans∣action were derived from the Civil Authority, which might in Reference to the Offence, seem too severe. It might be con∣cluded, that the Trespass was not only obvious, but of a very high Nature, that should enforce a man so to divide Himself ev'n from Himself, where the very sense of Nature was suffi∣ciently effectual to leniate the most rigorous Austerity: In re∣ference to which Conclusion, possibly, Moses Civil Institution forbore to judge the weight of a Filial Disobedience to lend it a Criminel Infliction, but commanded, that the Offender should be brought forth by the hand of his Parent; whose Bowels would ev'n in the first Intention, have relented in a natural En∣dearment, so to expose their own Flesh and Blood to the Fury of the People, had not the offence been altogether held inex∣piable, But the Frailty of Humane Nature, in succession of Time contracting new and extravagant Corruptions to the ex∣tinction of the Natural Light, whose Motives now becoming not the Object of their Union, must not, without Reason, fail in her Resentment, hath justly deprived him of so material a Priviledge, without a Reference to the Civil Jurisdiction. The Civil Law not so much as admitting him to a capacity unequal∣ly to divide his own Goods amongst his Children, without sufficient ground confirm'd by legal Procedure: to which Me∣thod of Decision, we will contract our former Principles, that we better may conclude on the equity of their Censure.

Adultery can want no other weight to lend it a Criminel In∣fliction, then the Light of the sacred Institution, and the pra∣ctice of the Civil Law.

To suborn a Childe, must without contradiction, in Respect of the Consequence, reach the highest Nature of a Felony, both in the Contriver and the Coadjutor: Insomuch as the Estate, both Personal and Real, unjustly is took from the Natural and immediate Inherents to the succession. As to the trust con∣signed to the Wife, which probably might herein alter the Na∣ture of the Trespass; since Breach of trust can properly not be

extended to an actual Felony: which granted, yet neverthe∣less the Felony (not extending to the Trustor, both in Respect of his trust, and that he yet remains in full Possession of his Property) may notwithstanding be so qualified, extending un∣to others Interest, betwixt whom and the Trustee, passed no act of trust.

To drink Wine seems but a frivolous offence to counterpoise so rigorous an Imposition as their Death, and probably may be rather judg'd an Inhibition only appropriated to some peculiar Custom or Climate, then an essential Rule to form a rational conclusion to a General use: yet taken universally, as extend∣ing to a Habit in excess. It may be held more then a conjectu∣ral circumstance to the former impeachment, in that (without Reference to the motive thus visibly fomented in the Practice) A Woman in such Disorder can make pretence but to a slight safeguard of her Honour: So that, both in regard of the Scan∣dal and Danger in the consequence of the use. We justly may suspend the Trespassor from the capacity of a Conjugal Union, the ground being of sufficient weight to exact a legal Sepa∣ration.

To counterfeit Keyes, This Interdiction was probably con∣stituted under the usage of Palygamy, where the Wife was rather esteemed the purchase of their Property, then a companion in Society: in which servile condition of Wedlock, like so many several Factions, every one endeavoured by all means possible to enlarge the Fortune of their own Production, and extendeth only to a breach of trust imposed on the safety of our Goods; wherein, according to the Institution of our Law, the Trustee hath an equal Interest, although sequestred from her use under the Tuition of another: in which Respect the Civil Judicature reflects not on the Nature of the Fact, but as a private Tres∣pass, and leaves it only to the regulation of the Principle, in whose capacity alone It is to separate His Wife from his Pro∣perty, or his Property from his Wife.

The Children can by the priviledge of their Extraction pro∣perly be intitled to no inherence of a Civil trust more then the Father shall assign him by his special Order; and in the Breach thereof, become only liable to such correction, as the Father shall impose, without a Reference to a Civil censure: insomuch, as they have a collateral Right inherent to the property, and should in Reason, need no stricter tye to the due Execution of their trust, then their proper Interest.

Servants fall under the next Adherence to a trust, which may yet more clearly be distinguished in an Explicit, and an Implicit trust. The Implicit trust extendeth generally unto the safeguard of his Masters Goods. The Explicit lends a more visible In∣timation

of the Nature of this trust, under the limits of a a conditional Prescription: so that the Infringement of the Im∣plicit trust may properly be tearmed a breach of Contract, though not so fully under the Distinction of a Civil Trespass, as the Explicit is: Yet if the Trustee shall under pretence of his General trust appropriate to his peculiar use, or otherwise alie∣nate the Goods of his Master not committed to his charge, the guilt may be extended to a Criminel impeachment.

In these Particulars only is establisht a Domestick Trust, with Reference to a Civil Unity. Our order next requires, that we reflect on other forms of trust, which properly may be reduced to a more general usage, either Publick or Private.

A Publick trust is either General or Special. The General is either Implicit or Explicit: The Special only is Commissionary; both are derived from one common Principle; Publick Autho∣rity, and directed to one common Object, the Publick use: So that falling under one common Consequence in their Nature, they may meet one common Distinction in their Infringement. though in Reference to the Subject they handle, some have a more material extent of Dammage in their Issue then others: every visible and voluntary Delinquence in a Publick trust ex∣tending to a Crime of Iese Majesty, in respect, that not only the common welfare or Dammage depend on the Transaction: But the Dignity or Honour of a Prince or State become ble∣mished in such miscarriages, passing as his or their own proper Act, either in the Election of their Ministers, or in the order of their Ministry.

A General trust in Publick Interest, is what every Member of a Civil Capacity, was born to in common Right of his ex∣traction, and may be specifi'd in Acts of his Allegiance either Implicitly, as a National Injunction, or Explicitly, as an Adjur'd Prescription. The former engageth as a Civil duty; the latter also, as our proper Act. A Trespass against the first order may possibly seem but to infringe a Civil Institution. The latter al∣so a sacred Ordinance: The first may by Act of Grace become restored to his Purity. The latter justly never to be admitted to a Civil Capacity.

Special Acts of Publick trust, extending to a Publick use, may reach a vaster Latitude. The National, Iusticial, Negotiary, and the Military. The two latter more properly inherent to the exterior object of our Minister, we have reserv'd to their pecu∣liar Order.

The National trust extending to a Publick use, is the highest and most material Distinction of a trust (implied such under the License of a free Election) where the people under Commission of the Supream Authority, make a peculiar choice of their

Trustees to agitate on their common Interests, in a Publick Con∣vention. How this trust may become visibly and wilfully im∣peached in the trustee's prosecution of his trust, is not clearly obvious, where the lesser Number must of necessity recede unto the Greater, unless it might be imputed to a Remissness in his Agitation. If any Subject should fall in discussion, which might possibly be repugnant to the peculiar Interest of the trustors. The trustee led by Integrity, and Judgement, may, without blemish, promote the matter, tending more universal∣ly to the Advantage of the Civil Frame, since the whole Con∣vention consisting of many trustees, can properly fo•…•…m but one Body of trust, whose object is not the welfare only of some peculiar parts, but of the whole Structure. Neither is the trust transigned to the trustee by the People, other then a Col∣lateral trust, whose original resideth in the Supream Authority; to whose Councel they are summon'd to consult on the welfare of the whole Frame. So that the Infringement of trust must properly be derived, Either from the Peculiar Exercise of their Office, or the General Object of their use, inherent to the Prin∣cipal trustor, and diffus'd from thence to the Collaterals. The Office is soly posited in Council, not in Rule; to Consult, not to Determine; to Remonstrate, not to Conclude; to Apply, not to Exact; to Present, not to Enact: All such Improprie∣ties in the Publick Transaction of the trustee may properly ex∣tend to the infringement of the Publick trust, if singularly not cleared in a Publick Attestation.

The General Object of their use, is one common Agreement the Publick Good; but that Good sometimes not rightly distin∣guished, wanting a due coherence with the Principle, whereas rightly understood, the Interests of the Prince have so nigh a Reference with those of the people, that they are properly but termini Convertibiles. The Benefit of the Prince being the Ad∣vantage of the People, and the Advantage of the People be∣ing the Benefit of the Prince; so that of necessity, who oppo∣seth the one, impaireth the other, and consequently falleth in∣to a visible Delinquence of that trust, which was imposed on Him in the Transaction.

The next succeeding Act of special trust, is the Iusticial, or Iusticiary, which passeth also under a Commissionary Form. This Distinction of trust hath apparently a material Influence in a Civil welfare, and seems but too abstrusely limited in the capacity of the Principle, where so many Substitutes necessarily depend on the Transaction, unless we might conclude them li∣able to all Miscarriages, as visible Defaults in their Election. Suffrage or Incircumspection, too heavy a Burden for him to undergo, is only called to the simple Exposition of the Letter,

and the Regularity of the Court. Yet nevertheless, since every material infringement of trust must be enlightned by the inten∣tion of the will (not distinguishable, but in an equal Remon∣strance clearly preceding to exact the Remedy) either in Opposi∣tion, Difficulty, or Defect to our Addresses, may render the said Principal impeachable in his trust.

Private trust extending to a Publick use, holds only Appli∣cation to a Civil Commerce, although ready money, or other visible Commodities may possibly pass in exchange between the Agitators: yet insomuch as there must be in equity, an ulti∣mate rate to every Commodity, which extended either by in∣essential or adulterate Glosses, serious Attestations, or any other Manner of Circumvention, on the Ignorance, Insufficiency, or Credit of another beyond the extrinsick value, is an actual Fraud tending to the subversion of that General trust, should dignifie and support a Civil welfare; in which Respect, the most com∣petent Judge lent the ejected traders, no other Distinction then Thieves; as Solomon had formerly noted their Incapacity to re∣tain their Integrity. This inconvenience hath taken Root in most Civil Societies, either through a Licentious tolleration, or a Difficulty in Regulation. Pretences of Improvement, and En∣couragement of Trade probably ushering an Indulgence to the Former, while Lux and Neglect lent Obstruction to the Latter; every one no farther weighing a General Interest, but in resent∣ment of his own particular: So that the whole Method of a Civil Commerce, becomes but one general intercourse of Pippery: But it may here possibly be objected, that this Dis∣order may sooner fall under every Mans Observation, then any Mans Regulation. In Reply we will only return a Pattern from some Particulars, as the common Materials to our Livelihood; which, under sundry Civil Societies, have their publick, known, and limited Imposition of Rates, rising and falling, as their depending Exigents require: From which method we may col∣lect a Paralel to a more General usage.

For Closure of our Argument, as an equilibrate to this Civil Trespass, in General; we may cast into the Ballance a due Esti∣mate of the essential Dammage in Relation to the Fact; which reaching not a due Reparation to the Offence in a meer impul∣sive Restitution, being but a bare Consequent to the Casual Discovery: we must yet exact a weightier Imposition to lend the Crime an equal compensation, contracted from the more potential Issue, in Reference to the Intent, where the conceal∣ment meets an equal Consequence in the Adventure: It may otherwayes be figured a Game but at half Stakes; where the Winner draws nothing but his own, and the Loser hazzards no∣thing but Aire, in the Impeachment of his Fame, as the due

Penalty only to the Infringement of a Publick Institution, which might justly extend to a Civil Incapacity.

Neither is the infringement of a Private trust alwayes con∣tained under the Latitude of a Civil Trespass▪ where the •…•…rans∣action hath a collateral Adherence to a Publick Interest; as may clearly be distinguished in the Delinquence of false Moneyres, and Diminutors of the true; whose trespass hath not only Re∣ference to the private Dammage of the Receiver, but reacheth the subversion of a publick trust, transigned under warrant of the publick Dignity, whose Majesty becomes directly blemished in the Transaction: So that in the general Constitution of eve∣ry several Jurisdiction, the Offence may justly reach a Capital Delinquence.

Of equal weight, and far more justly, in Respect of the Con∣sequence, may hereto be annexed Acts of Iusticial Perjury, from whence a Dammage not only is contracted to particulars; but Iustice it self thereby becomes Impeachable, raising her Fabrick on a corrupt Foundation, unto whose Evidence she had resign'd her full Authority. A matter of the highest trust, where Goods, Fame, Liberty, and Life become subverted in a treacherous Procedure. In reference to which Trespass the Sacred Letter (according to the Potential and Intentional Con∣sequence of the Matter) layes an authentick Reparation, in an equal Prescription, Then shall you do unto him, as he would have done unto his Brother.

Some other Acts of Private trust, may also here be instanced, which in their simple Nature hold not so strict a Reference with the Publick Interest, though according to the Matter they do work upon, may sometime possibly, with the Former hold an equal Paralel, as Acts of Forgery; which according to vulgar usage, strictly taken, is, Aliquid, Manus Artificio falsi vero In∣sinuare, whether the quality of this Fact may reach a higher na∣ture then a Civil Trespass, is not clearly yet determinable. Most Laws seem in the Nature of their Penalty, which tending but to Infamy, yet leave the Trespassor, still Subject to a Civil Reparation; though usually the Practicers are in a condition not capable of either.

The Constitution of the Trespass yet more nighly visited, we properly may lend the Fact a higher consequence: not only, in that such vilde Transactions pass usually under the Authority of such Publick Forms should guide us to a true Distinction in every thing transacted, but also, in regard the Infringement of a Pri∣vate trust becometh Introduced by assuming something proper to another, not intrusting, as their own; wherein, although the Party not intrusting seems to lose nothing really: yet in Re∣spect, it possibly may engage his Honour, Goods, and Person in

the Transaction not meeting an exact Discovery. It may be far∣ther justly censur'd as an actual Felony, whereby the Penalty may duly be extended to every Person concerned in the Offence. Infamy and Civil Incapacity in Reference of the Indignity to the Civil Jurisdiction. A Civil Reparation, in Relation to the Interest of the Trustee, and a Penal Infliction, in Respect of the Dammage ensuing to the Party or Parties not In∣trusting.

As to Acts of Forgery (if we may properly so call them) which tend but to adulterate, corrupt, or otherwayes Sophisti∣cate any common vendable Commodity; they may justly be remitted to the Distinction of a Breach of Publick trust, vi∣sibly tending to the subversion of a common Traffique.

To this Distinction of private trust may also possibly be re∣duced such Transactions, as pass between parties under the com∣mon Notion of another, whom they but falsly Personate.

XLI. Of Violence.

HAving formerly searched into the Nature of this Principle, in Reference to the Security of the Natural Union, we will here Reflect on It in Relation only to the Security of the Civil Property; wherein we may first generally observe, that no Civil Trespass whatever more highly infringeth the order of a Civil Society, then Violence, however figured, being as it were, a private Insurrection against the Civil Power; In which regard, 'tis probable our Laws do interdict, that any one in such a Pro∣cedure should become reinvested in his Property, though visibly never so injuriously detain'd: And on this Consideration only have possibly formed the severity of their Penal Statutes against Acts of Felony, which seldom are specifically committed, but under some degree of Violence, though frequently the enter∣prise may finde no Opposition: for whether such Goods assu∣med were under safeguard of House, P•…•…il, Wall, or Ditch, or other Enclosure; yet nevertheless, the indirect Ingression or Extersion manifest in the Act, is without other Circumstance a perfect Violence, whether Manable Goods, and unguarded in Waste or Common, may properly fall under such Distinction, is not so clearly evident, unless they have a proper Signature, or Brand peculiar to the Bounds of such a Priviledge, besides that of the owner: Otherwise passing but under Notion of a Common Stray, the Fact may sometime want Distinction, sha∣dowed with Mistake. As to Goods Immaniable or Wilde, to which no one can properly lay a just claim of Right, but as co∣incidents to the Prescription of their own Possessions. The

matter of their taking, though within compass of their pro∣per Bounds, can questionless extend but to a Civil Trespass, unless in opposition of their Keeper, if forth their Limits ta∣ken, they justly pay the Forfeit of their Dammage.

What other Circumstance in Particular, with Reference to Place, Matter, Motive, Manner, or Measure, may either aggra∣vate or lenefie the Matter or Nature of the Offence, we farther will endeavour to discover.

The Place can lend no other weight to the offence, then what may thereto be appropriated, in Reference to the person damnified; which not extending any farther Detriment, then barely the privation of his Goods, may yet be weighed in a higher Consequence, either taken violently from his Person, wheresoever encountered, or from his House, the place of his security: Insomuch, as Nature prompting every one to a de∣fence, either in Opposition or Persuit; both equally adven∣tur'd by the Injured, with hazzard of his life, may equally be ballanced with the Forfeiture of his, shall wrongfully at∣tempt the Issue.

The Quality of the materials may sometime amplifie the Na∣ture of the Offence; as Goods consecrated to a holy use, where the Malefactor not only makes an hostile Incursion upon Civil Rights, but in contempt of his Creator's Ordinance; yet farther seems to violate and cast off the Rites of his Exterior Worship, should binde us in one common Union by his impious Sacriledge.

The Motive may sometime not only vary the measure of the Crime, but also change the nature of the Fact, when every Circumstance therein shall tend but to support the present ur∣gency of Nature; it being but a Reproach unto a Civil Society. to qualifie that with the Distinction of anothers Trespass, was properly their own, either in Remisness of their Circumspection; or of Relief unto an useless or languishing Member of their Frame.

The Manner also frequently may leniate the Nature of the offence, where the negligence of the safeguard may Minister oc∣casion to the attempters practise, and instigate a facile Inclinati∣on to a Design, not formed in his purpose: In which Respect perhaps our Laws reflect on the depriving of our Goods by slight, when under personal Tuition, with no more severity then a petty Larcin.

The measure or value of the Trespass can lend us but a doubt∣ful Inspection into the weight thereof to moderate or aggravate the Nature of the Attempt: For as a small matter may some∣time prove an evidence to a high necessity or Indigence, so may It often be an Argument of an habitual inclination to a vitious

Custome, which may yet probably be further distinguished in the frequency of the Fact.

Having thus enlightned the Nature of our Subject in gene∣ral with some material Circumstances therein. We will insist to agitate thereon with more peculiar Reference to the Civil Property. Every Personal violence tending to Alienation, under what Relation soever, Wife, Child, Servant or Principle, is without doubt a Criminel Trespass: not only, in that a private Person is thereby usually reduced into Bondage, and the whole Family suffer under the calamity of the Outrage. But the Civil Society becomes thereby dismember'd of a Branch belonging to their Common union, in an hostile Insurrection against the Publique Peace. In which respect alone, 'tis probable the Crime should meet so high a penalty, wherein, as in other Criminel Trespasses, the Dignity of the Civil Ju∣dicature would yet become more illustrated in the Reflection also of the Interest of Collaterals therein damnified

A Personal Violence to Wife, Child, or Servant without an Alienation, may sometime fall under the distinction of a Cri∣minel Trespass, as in matter of Rape, where not only the Civil but the Natural Order becomes barbarously perverted.

The House may also suffer actual violence, as in Acts of Burglary, which Outrage is justly censured as a Criminel Tres∣pass without any regard to the Materials, or strength of the structure; Insomuch as ev'ry mans Habitation is to the safe∣guard of his Goods and Person a fortress of Defence. The Sa∣cred Letter prescribes hereto a certain Limitation, in reference to the Time. If the Sun be risen on him, his bloud shall not be spilt. Whether it were that his Person were with the Light become distinguishable, or that the People, then roused from their slumbers, were in a capacity to pursue or attache him, is not clearly manifest, neither being necessarily inherent to the exception, which in the ground of the Interdiction annexed, seems explicitely thereby to have changed the Nature of the Trespass. For he should make Restitution, lending it no other weight in such a Circumstance, than a Civil Trespass, follow∣ing therein the general Distinction of a Theft according to the Sacred Letter, from whence we may collect new Matter to an Argument Material to a farther Discussion. Whether it were more Consonant to Reason and the Civil welfare to pass sim∣ple Larcins under the distinction of a Civil or a Criminel Tres∣pass. The prementioned Authority might seem to silence the pretence of an Objection, had not the spreading corruption of Mans depraved Nature daily required a more Rigorous op∣position. In which respect, we will decline the Luster of so eminent a Light, (though it more plausibly might be our

guide,) more clearly to disclose the weight thereof in every Circumstance, hath reference to our Frailty in a Civil Practice.

In order to the proposition we may inferr, where general Acts of Theft fall under a Criminel distinction, the manner of the Fact is more mischievously prosecuted, on the least jealousie of Surprize, or a Discovery. And the Attempters life once visi∣bly attainted, anothers Life becomes too slight a consideration to lend restraint to farther Insolence: So that the Rights of Na∣ture often urge to perpetrate an Evil not intended. In persuit of their safety to destroy Another; Nor is there Matter to de∣liberate, when as the pilfering Circumstance is with the Tra∣gique Issue held equivalent. Whereas the Fact extending but unto a Civil Trespass, no rational Man would wilfully incurr a greater Hazard to avoid a less. Where the Trespass is ballanc'd with the forfeit of a Life, the Injured prosecuteth the Offender to his farther Damage, without any hope to be restored to his Property. Where Reparation only is the Penalty to the Fact, the Trespassee becomes not only reinvested in his Property, but makes a considerble advantage of the Injury. The Restitution reaching to a double Retribution, when the Property was taken in the custody of the Trespassor, when alienated extending to a Quadruple or a Quintuple compensation, So that every Member of a Civil Society is not only hereby animated to a vigilant Circumspecti∣on for the Preservation, but the Improvement also of his Property, which intentive Caution becomes remissly abated in a supine neglect, where the possession seems fortified under the severity of a Criminel Infliction.

To which conclusion may possibly be alledg'd; that Tres∣passes of this Nature are seldome perpetrated but by persons of a desperate Fortune, who are incapable of other Reparati∣on than a Corporal Infliction.

The Objection passing for Receivable, may probably on a more exact Inquisition, fortifie the former Assention. When we shall duely consider, that who flie from a certain existence by Industry, to acquire an uncertain Livelihood by the daily hazard of their Lives, will, questionless with greater Terror, resent the rigorous Imposition of their Hands, then the Mo∣mentary Interception of their Breath. They only become indulgent to Life, who daily taste of the indulgences of Life. It being frequently observed among Licencious, desperate, and deboist People, that the Innocent, for a petty Salary, will cast the fatal Lot imposed on the Criminel.

Perhaps in the Propriety of the Rule may yet appear a farther difficulty. How restitution should really be exacted, where nothing can visibly be Leavied. The Sacred Prescrip∣tion answer•…•… the Objection, He shall be sold for his Theft; but

such Impropriety may be alledg'd in Christian Practice not so warrantable: Nor was it so under the former Institution, but with limitation of time, which not reaching the value of the Trespass, in the Term prescribed, might probably become renewed, though not explicitely implyed in the Letter. It may also fall under some Ambiguity; what advantage should be acquir'd from the imployment of Persons so improper for a Trust, and so unapt for Labor. As to the former Instance, we may grant them utterly excluded such capacity; and the Latter may be concluded Fruitless, without the high severity of their Keepers, which aggravated either by the Avarice of the One, or the stubborn remissness of the Other, may some∣time probably extend unto a Breach in our Humanity. In which respect alone tis probable the use of slaves have so long been ('mong civiliz'd Nations) quite abolished. But the Imposi∣tion equally remitted to the vigilance of the Iusticiary Pow∣er may probably meet an Institution more approveable, which being appropriated to the advantage of our Foreign Plantati∣ons. The Civil Frame would not only be discharged of a pre∣judicial and superfluous Burden, but reap a common Benefit from their impulsive Industry.

XLII. Injurie.

UNder the Latitude of this Subject is formed the Dimen∣sion of every Trespass. But what Rule should lead us to the Definition of Her Nature; is not clearly obvious.

Custome and common usage have made prepostrous Incur∣sions on the Rights of Nature; and no Civil Authority so ex∣actly refined, but oversway'd by Mans common corruption, wilfully digresseth from her Principles, though the Sacred Pre∣scription hath visibly rais'd her Institution on That Moddel, what ever you would that others should do unto you, the same do you unto them; from whence we may safely conclude, that whatso∣ever we do unto Others, we would not have done to our selves, is an unquestionable Trespass justiciable by an Ordinance se∣cretly recorded within our proper Brest, whatever in Repug∣nance may proceed from the Result of humane Institution, we must appeal to this high Tribunal. Not only to restrain us from the Prejudice of others Interest, but also in the Legal Prosecu∣tion of our own, to leniate and allay the rigor of Decrees, en∣acted to suppress our growing Evils. Whose Execution else might possibly subvert the Nature of a Civil Institution, Insist∣ing on extreams of Right to render Right injurious. But though every man hath a competent Impression of this Light

to guide him perfectly in the Decision of his Rights, yet few men have Integrity to follow it. Avarice and Animosity, both furiously persue and passionately embrace the heaviest Imposition can be warranted by Authority; so that it will be very material to the useful Ministry of a Civil Jurisdiction, not to yield up Her sword without Reserve to any, though the ground exacting It, be never so considerable, lest a vindi∣ctive Fury should press the Consequence to the Subversion of a joynt Associate. The severity of the Letter, being consti∣tuted to suppress an Evil, more by Awe then Act. In which respect, it will be highly necessary, in reference to the Tres∣passer, to distinguish of the Manner of the Trespass, whither voluntary or Casual, though the Civil Jurisdiction adhering on∣ly to the Matter, do make no difference in their Nature. For∣asmuch, as Trespasses, under the First distinction, may justly merit the severest penaltie, clearly figuring a presumptuous disbanding from the Civil union in an insolent infringement of the publick Peace, whereas Trespasses, under the latter Di∣stinction, removed from the Intention of the will, meeting a plausible Reparation in a voluntary Restitution become not, un∣der a Civil Permission, justly Actionable, nor must we so strict∣ly adhere to the First Circumstance of the Fact, as to neglect the Latter. Since either making a Retraction from the Proce∣dure, may possibly change the Quality of the Distinction, what being voluntarily commenced, in the timely Reluctance of the will, becoming as receivable, as the Casual. And what Casu∣ally produced, maintained in an obstinate opposition, becoming as insupportable, as the voluntary, which Di∣stinction seems implicitly enfolded in the Imposition of the Sacred Letter, where the reparation of every Trespass extend∣ing to a Fifth part more then the Trespass, was the highest Esti∣mate to a voluntary Restitution; but where the Trespass was so perversely defended, as to be brought to a Iusticiary Audi∣ence, the Reparation instituted, was double the value of the Trespass.

Subsequent to this Distinction in a Civil Trespass, is that infrequent usage, which our Practitioners reduce under Real and Personal Actions. The Real properly taken, issue from some Breach of Contract formed under Speciality, and recei∣ving such Distinction, in reference only to the Extent of the en∣gagement, which passeth to the Real Possession of the deceas∣ed Trespassor, though legally remov'd to his succession. The Personal hath simply an Adherence to the Person of the Tres∣passor, without collateral Reference to his Succession or Succes∣sors, and properly doth terminate with Him But as the In∣tention of the First Distinction becomes too often frustrated by

the fraudulent mixtures of sundry Interests collaterally consistant with the Trespassors. So the Latter may seem not altogether properly so limited; in respect the Trespassor deceasing, e're the Agitation of the Trespass is determined, the Trespassee is to∣tally left void of reparation, though the advantage of the Tres∣pass be possibly translated on the Successor of the Trespassor; to the no small impropriety in a Civil Institution.

A Personal Trespass may sometime possibly fall under the in∣fringement of a special Contract, where usually the Letter lends a Rule unto the Law; but falling under the omission of a verbal Covenant, the weight thereof may reach too high a Consequence, to lend it an exact Decision from auricular proof; Insomuch, as the Principles have not waded into so mature a consideration, as to become exactly understood to one another, much less unto an unadvising Auditory, who ea∣sily become diverted from a Subject, wherein they totally should be disinteressed, to render thereof an Authentique Evi∣dence.

Having thus far made Inspection into the General Nature of a Civil Trespass, we farther in particular will advise of the Extent thereof, in Reference to each peculiar Property, inhe∣rent to a Civil usage.

The Dignity of a Family materially consisting in the Ho∣nour of the Wife, we properly may First reflect on such As∣persions as tend unjustly to defame her Conjugal Fidelity. Not only in respect of future blemishes, may thereby be transferr'd on her succession, to a lasting prejudice: but also in Regard the present welfare of this Civil unity, chiefly depending on their mutual Love, is thereby shoke, if not subverted in the ensueing breaches of undermining Jealousies, which often∣times break forth in Tragique Issues; so that it will become highly material to the safeguard of a Civil union, that the Ci∣vil Iudicature should make a considerable defence against so important a Disorder: not to the suppressing of such scandals as are implyed only under the strict Notes of their Formali∣ties; but such licencious Imputations also as become shadow∣ed with artificial and disguised Glosses, extending to oppro∣brious terms of Infamy, though such general Notes of Oblo∣quy, may pass as unimpeachable, seeming but to figure an unadvised passion; no purposed design of Malice, in respect, that if ev'ry such momentary distemper of the Mind might lend our Frailty such a Priviledge, no mischief but would find a shelter under such Protection: and though the Civil Judi∣cature should impute it but an Act of Passion; the common Auditory will scarcely so interpret it, in whose censure alone, the Fact becomes injurious and impeachable.

Farthermore, the Civil Jurisdiction declining in the Proce∣dure, the protection of the innocent in a plausible satisfacti∣on, exasperates the fury of incensed Parties to prosecute a Reparation of their own Election, which frequently extend∣ing to a deplorable Issue, reverts the Guilt upon the Civil Fa∣culty; whose remiss Institution had lent Licenciousness to the fomenting of so high Disorders.

This scandalous Imputation extending to a Criminel Im∣peachment (according to the Constitution of divers Civil Jurisdictions) may farther justly meet an Attribute of a high∣er Nature then a Civil Trespass: although most Laws have (under such a Reference in their censure, not visibly implyed such Distinction. Where the Charge is so invectively insist∣ed on, that the Life of the Innocent becomes cast into a doubtful ballance. To warrant the assertion Regular; we shall need to insert no farther proof, then what we may collect from Sacred Practises, as the Prophets Imposition on Susanna's malicious Prosecutors. So likewise other Trespasses of Defa∣mation reaching to a Criminel Impeachment (though inef∣fectualy succeeding in the Prosecution) incurr equivalent In∣fliction, though perhaps it may be instanced, that Laws have in the weight of each Transaction, no other Object to direct their course, then the Result of those occurrents onely fall in Act, without reflection on the Intentional, which rarely are discoverable.

In answer to the Objection is reply'd. That every general Axiome of such Dignity, to become proper to so considera∣ble a Structure, ought to have such Solidity in the Position, that every Branch Thereof should also thereto become Regular. But the true Efficacie of this Rule hath but uncertain Tenure. As we may visibly inferr on Acts of Slaughter. Where the Fact becomes distinguishable in her Nature, only by such Circum∣stance, as may give Light to the Intention. And in matter of Treason, where the intention only (without any reference to the Fact) becomes impeachable.

But where such Defamation extending to a Criminel Im∣peachment is legally not prosecuted. The Nature thereof que∣stionless, may properly be distinguished within the Limits of a Civil Trespass.

Farthermore, Since all Acts of Defamation are no other ways Actionable, then as they may become prejudicial to Life or Livelihood. We may here also reflect on the Capacity of the Wife in reference to a Civil Function, which sometime, possibly, may be divided from the Husbands Commerce. And in As∣persions should impeach the Fame in Civil Rules may bear an equal weight, as if she were the Principle. But where the Im∣putation

can visibly extend to neither Life nor Livelihood, the Trespass may more properly fall under Regulation of the Moral Censor.

The Sacred Letter intimates a Trespass in Reference to our present Subject, not so exactly visited under the Constitution of most Laws, on casual Mischances, which in Disorders of others, happen to women with Childe, to the Destruction of their Fruit, where the Punishment was at discretion of the Hus∣band, and the Fine under Censure of the Judge.

Whether▪ in the voluntary separation of the Wife from her Husband, the Suggestors and Coadjutors become liable to a Civil Trespass, may possibly sometime meet Exception, where the fury of the Husband is so violently pursu'd, That the safety of her Person is visibly endangered, and that the manner there∣of be no farther protracted, then the Civil Magistrate may be truly informed of the Disorder; Insomuch as every Member of the Civil Union is on every occasion obliged to become assistant to the Publick Peace, but where the Opposition is continued, without Remonstrance, or Allowance of the Civil Rule, the Procedure is Civilly Impeachable, under what Relation soever it be shadowed: All other Trespasses extending to the Infringe∣ment of the Civil Order, are only common to the Wife, with other Persons of the Civil Frame, however Qualified.

Nor can the Dignity of a Family be intirely preserved in the safeguard of the Conjugal Reputation, were the Constitution of the Law herein never so exactly constituted, where the tran∣slation is not supported in a Regular adherence to the succession: In which Respect, we must here Reflect upon such Trespasses as have a Reference to the Interest of the Father under the Relati∣on of a Childe; who frequently are seduced to their Infamy and Ruine, and the irrepairable Discomfort of the Parents: And although the mutual Agreement of the Parties herein transact∣ing may seem to take away the Nature of the Trespass transact∣ed, in Reference to the Interest of the Principle peculiarly here∣in concern'd, Volenti non fit injuria. Yet in Regard the Incl na∣tion of the Seduc'd is usually too fraudulently acquir'd to lend the Procedure such a Priviledge, where solemn vows and Im∣precations are the preface to pretended Contracts; which want∣ing other Evidence then the Interessed, the Infirmity of the cre∣dulous is betray'd to common Infamy: on which Credible Suppositions, the Civil Law erecteth a positive Institution, ex∣acting for Reparation to the Abuse, a competent Dow'r to the deluded party. And in reference to the Parents Interest, de∣pending on the Consequence (The will of the Childe being ac∣cording to the Rights of Nature, on which the Civil is erected, but subordinate to the Parents Direction) Were the Fact first

qualified with all due rights of Honour, not reaching a Paternal Priviledge. The Attempt in reference only to his Dammage falls under a Criminel Infliction; the weight of which Prescri∣ption seems implicitly enfolded in the Sacred Letter, where the Trespassor was not only enjoyn'd to Marry the Seduced, but to give the Father also Satisfaction for the Trespass: Insomuch as the Father may probably pursue other Advantages in the Alli∣ance of his Childe for the Honour, Support, and Advance∣ment of his Family then visibly is distinguishable: Besides the Comfort and Delight might Issue from the satisfaction of his proper Choice, in an agreeable Succession: whereas other sir∣rupticious Proceedings tending to sinister Purposes, prove fre∣quently the destruction of the Childe, and a lasting grievance to the Family.

Servants hold usually their Adherence to their Masters Inte∣rest under a special Contract, and can, without their License, not equitably be sequestred from their personal Devoyr, under the Authority of what Relation soever, except the Publick: in which all private Interests, but collaterally involv'd, may pos∣sibly receed to such Injunction. Yet to preserve the Dignity of the use, it were material, that it should legally be exacted, but as the latest Remedy unto the highest Exigents, in favour of the Civil Commerce, the chiefest Column that supports a Civil Union.

Such Sequestration may also be considered, as voluntary, or Impulsive. If the Act proceed from the mutual concurrence of the Servants will, with any others, shall retain him from his Masters use. Both parties may therein joyntly or severally be∣come Trespassors.

Nor is it yet improbable, but that a Servant oftentimes may be suspended or Restrained from his Masters use Impulsively, where others violence shall either Intercept his Industry, or actually disable him from his Imployment; in which the Repa∣ration justly may exact a double Penalty, in Reference to the In∣terest of the Principal and the Collateral, as also to the satisfacti∣on of such Breaches may ensue thereon unto the Common Peace.

Whether the Master in Correction of his Servant, disabling him from present use, become liable to a Trespass, in Reference to his suffering, is not exacly obvious, in that the Servants In∣dustry is but the Masters Benefit: Yet nevertheless the Sacred Letter seems to imply a compensation to his prejudice, Equivo∣lent to his Service, extending to Privation of a Part, though in∣considerable, perhaps but to restrain the fury of the incensed, in Authority, by his proper Interest: But where such disability inflicted shall extend the tearm of Servitude, the Trespass is in∣dubitable.

On what ground the Female Servant is enfranchis'd from her Contract, on Transaction of her Nuptials, under the favour of some Laws, is a difficulty not easie to unfold. If the Pri∣viledge be authoris'd from the Publique Benefit, may proba∣bly ensue the change of her Condition, in the advantage of a useful Succession; the consequence can take no weight from the distinction of her Sex. In that the Male excluded from the grant of such a Priviledge, is equally endued with the same capacity; so that the Procedure must be admitted to∣tally inscrutable, or partially inequitable.

Under the distinction of Office, may properly be imply'd the Nature of our Civil Faculty or Function, which either Publique or Private is sundry ways impeachable in a common Prejudice. The highest and most visible subvertors of our Interest in this Proper∣ty, are such Disparagements or Imputations, as may infringe our credit in the Ability or Integrity of our Civil Faculty, on which especially depend our Livelihood. Nor can peculiar Interests be herein secur'd, without the Circumspection be assign'd by Civil Ordinance, to such Principles may regulate the Order of their Faculty. Admitting secluding or suspending from their Practises, as the Capacity or Comportment of the Pretenders or Associates may usefully exact, lest promiscuous Intrusion might vilifie, corrupt, or otherwise impeach the Intercouse of Commerce; of which Nature unpractised Novitiates may be in∣stanced, who not attaining the perfection of their Faculty, In∣fringe the Dignity and use thereof, should render it to advan∣tage more communicable. In which obstruction also to the common Benefit, may also be annexed Foreigners, who with adulterate Glosses, new Appearances, and strange Varieties possess the vulgar (incompotent to judge) in credit with their loud sufficiency, that the most skilful in their Faculty, become totally declin'd in their approved Ministry. And the whole Society discouraged in their undertaking, not only to the Pri∣vate but the Publique Prejudice.

All the succeeding Adherents to a Civil Interest, House, Lands, Goods and Chattels may properly in reference to our present Subject be reduced under One and the same Forme of Discussion. Since they fall under one common Capacity of Dammage which taking yet Original from distinct Principles may joyntly (with like reference to such Order) receive their Agitation: every Civil Trespass, in Relation to the Last inserted Properties; issueing either from some former Contract, Trust, Intrusion, or Casualty. Contracts are either Special or Verbal; the speci∣al pass under intimation of the Letter; the Verbal take Di∣stinction from the Intention of the Word. Both in a clear and warrantable Testimonie, fall under One and the same common

Estimate, though the Latter seem usually derived from an un∣advised and irregular Proceeding, much subject to Corrupti∣on, nor usually extending a Personal engagement. The For∣mer, more maturely transacted, is with more Difficulty retract∣ed, and usually conveigh their force to a successive Inherency; Both in their distinct Notion (as formerly imply'd) lend Rules unto the Law. Yet with this Limitation, that the Con∣tents thereof, become no way repugnant to any one Prescri∣ption of the Law. No private Act being Legally receiveable, which tendeth to infringe a general decree. Our Laws extract the weight of such an Introduction only from the publique Interest; as in disanulling Private Acts intending to conveigh Possessions, that are Real, when wanting such or such Forma∣lities. The Civil Law more frequently forms an exception to the Procedure, in reference only to the Private Interest. As in Repeal of Private Acts are constituted to pass away E∣states are real, under such or such Proportion to their value: or, in Redemption to transfer Them to Proximity.

In which Respect, it will be highly necessary to the exact security of our common Interest, that they might be passed un∣der such Remonstrances as might not only lend them a clear Authentique and insubvertible sense in the Letter, to conveigh the intention of the Act, under Allowance of the Civil Power, we might be freed from the Imposturie of Schicaneurs, Sedi∣tious vermine to a Common welfare, and reproachful Impeach∣ers of the Dignity of the Law. But also to remove all obsta∣cles might frustrate the Fruition of the Right Tranfacted. The Law must else in the Permission, but make work for her Mi∣nisters, leaving an entrance to such Trespasses, may possibly not fall within capacity of Reparation, which more effectually cannot be constituted, then under Publique Register, as an ex∣act Recognisance, where every contract might take place ac∣cording to Precedence of their Introduction, without distin∣ction of their Nature, in reference to a Priviledge in their Or∣der, might lend them weight to supercede each other. No con∣ditional contract under limitation of Time suspended longer from a Legal Issue, then the usual Term of their Prescripti∣on, lest any One might interpose Anothers Prosecution. So should the Inception of every Contract be void of Error; and the Issue free from Circumvention, which shadowed of∣tentimes with other specious Forms of surety involve us in a certain Deffidence in every Transaction, from which no Cau∣tion can deliver us.

Such Forms of special Contract, falling under a visible Di∣stinction of Trust, may also usefully be removed from the sha∣dow of sinister Practises under Regulation of the Former Me∣thod;

whose Nature, Use and Difference, having sufficiently (in Reference to the Capacity of our Treatise) been enlight∣ned in the Discussion of another Principle, we will omit here farther to insist upon.

Acts of Intrusion, depending only on the Will, seem to take on a Nature of Infringement, in our common Right, too re∣missly treated under so favourable a Distinction, as a Civil Tres∣pass. Though tending but to the subversion of a Private In∣terest. Insomuch as the Civil Order is infringed also in the Procedure; which otherwise is so jealous of incroachments on her Rights, that we are thereby interdicted to assume our proper Goods in the possession of another; though visibly never so injuriously detain'd, but under Form of her Prescrip∣tion: much less not on our own Presumption, to be invested with Anothers Property; which Institution is directed to a con∣siderable use in the composure of the Civil Union, whose Con∣sequence might else meet Acts of such Hostility, as possibly might shake the structure of the Civil Frame. In which Re∣spect, our present Forms of Conjectural Ejectment, are happily, of late, admitted to a Legal Procedure in the Decision of a Title.

As Trespasses of Intrusion are by the Civil Jurisdiction of∣ten censur'd too indulgently; so Trespasses of Casualty are some∣time by the Law too rigorously persu'd, where the joynt in∣terest of the Trespassor is equally involved in the Accident, as in common Damage by Fire, which may possibly seem equaly impos'd on Him, that was the first visible Motive to the Acci∣dent, in that under the severity of such an Ordinance, we should become more vigilant to avoid occasion might mini∣ster unto so dangerous an Event. Yet nevertheless, in re∣gard, the most advised sometime may incurr the Casualty, in which his proper Interest being sufficient evidence to clear him of Neglect; the publique Interest might more plausibly su∣stain the Damage; which only is endued with Capacity to stop the Issue of such violent Erruptions.

XLIII. Oppression.

UNder the common Influence of this Principle, may pro∣bably be imply'd, all the Calamities can tend to the subversion of a Civil Society. Nor can an Evil to the sense be Figured from the severest Menaces of Heav'n, whose Extra∣ction may not arise from this Original, either, as a Judgement to It, or as a Judgement in It, That may be figured in Aegypts Misery, This in Iuries Captivity. Oppression being the com∣mon

Pretence to every Insurrection 'gainst the Civil Power; in whose Suppression frequently is urged a necessity to impose It. So that in reference to our mutual Interest with the Magistra∣cy, united or divided. It will be equally requisite, that the Civil Power be not too rigorous to exact, nor the Subject too scrupulous to suffer. We need not to insert a farther proof to lend more weight to the Position, then what we may extract from the Commencement of our late Disorders. In which con∣sequence the Transactors were enforced to persue extravagant encroachments on our Liberty, attempting to secure success∣ful Mischief in Impunity. But to lend a clearer evidence to the Assertion, it will be useful truly to distinguish of the Nature of our Subject, which thus may properly become enlightned. Op∣pressio est, quicquid sub forma Iuris, ultra Iuris Praescriptionem, ad existendi Difficultatem à nobis Exigitur. Whatsoever is exact∣ed from us under the form of Right, beyond the Prescription of Right, to reduce us to a difficulty of existence. Which Exposi∣tion erected on a Form of Right may possibly seem limited within the Faculty of a distinct Iurisdiction. In that, the Insti∣tution of Right is properly peculiar only to a Civil Power sub∣ordinate to none. Yet in respect the general Quality of Right extendeth to a vaster Latitude then a Civil Prescription, as we may perfectly discover in the Rights of Nature and of Nations.

The First, distinguisht in Humanity, the Latter rais'd on Customary Forms. The Nature of our Subject may extend to such Acts of Hostility, as are imposed on us by a foreign Power beyond the Rules of their Prescription. Yet since it falls not in Capacity of a Civil Jurisdiction to regulate the Consequence of such Disasters, more then in a timely Circumspection to di∣vert, oppose, or otherwise prevent the Incursion of an Enemy, which being a Subject more properly inherent to the Foreign or Exterior Object of our Minister, we will remit to Treat thereof in our premised Order, Insisting here to take a view on the Di∣stinction of our Subject in Reference onely to the National or Interior use of our Community.

In persuit of our Proposition; having extracted the Nature of our Subject from a Dependence of Right. Which Faculty peculiarly inherent to the Capacity of the Civil Ministry, ei∣ther in Permission or Commission; either Allowance or Pre∣scription. The weight of this our Argument may seem only to rest on the Ballance of the Publique Faculty. Yet since from the same general Influence of Right is derived a Faculty in Right, distinctly inherent to every Member of the Civil frame, we severally may reflect on their Transactions in or∣der to the Parts of our Distinction.

Farthermore, from the ensueing Branches of our Distincti∣on,

may possibly be inferr'd, That the Nature of our Subject, plac'd under a forme of Right extending the Prescription of Right, doth not only require the Authority of the Civil Iurisdiction to lend It such an Attribute, under the Influence of whose Rules, Right only is distinguishable. But in such Ordinance Prescribed, may seem to take away the Matter, in the Circum∣stance, should qualifie the Nature of our Subject▪ since the ex∣action, should pass the Bounds of such Prescription▪ doth fall with∣in the Limits of a Civil Rule: In which conclusion would arise an impropriety not feisable. That the true Nature of Oppressi∣on, so figured, can neither be consistent with a Civil Instituti∣on, nor without It. To remove a pretence to the exception, we may infer, That every perfect Ordinance in a Civil Rule is not only formed under Circumscription of a Divine and Natural Institution, but in the Object of Her proper Constitution (our common Welfare) establisheth a Rule, but truly qualifies her Nature: so that to infringe that Order should sustain her Stru∣cture, or to digress from the Intention of her proper work in the Contexture of her own Injunctions may properly imply what is inferr'd in our Distinction. To exact that of us under a Form of Right, which is beyond a due Prescription of Right. Nor can It be consistant with the Nature of a Civil Regence, under a form of Right, to exact without Prescription, since in such Procedure, the Civil Power casts off the Ornament of her Investure, to take on those, are only proper to Hostility. So work a certain dissolution in her Frame.

Whether a Customary Right extending to a Civil Prescripti∣on should bear an equal weight in our Distinction, may meet a high perplexity in the Decision, since every Customary Right within their Circumscription becomes equivolent to a Civil Ordinance, under Tuition of the Civil Suffrage, though total∣ly repugnant to the Constitution of her general Order. An im∣propriety scarce receivable in a Civil usage. That the Influence of a Decree should neither move equally nor universally to every part of like Capacity, to discover the ground of such a Priviledge, were not of little moment to the rational Establish∣ment of a Civil Institution. In persuit of the enlightning may be inferr'd, that her admittance to a Civil Allowance may pos∣sibly meet divers Occurrents scarce obvious to the nicest obser∣vation, involv'd in the obscurity of many Circumstances are lost in the Elapse of Time, and sundry changes. The most vi∣sible and frequent may take original from these Particulars, Circumvention, Opposition, Improvement, or Necessity.

Under the first Intimation, the Gibeonites frustrated the Or∣dinance of the invading Israelites, in shadow of a Covenant, but syrupticiously acquir'd; whose subtlety, nevertheless, met

but the Imposition of a slavery, To be Hewers of Stone, and Bear∣ers of Water. In Reference to the Second, may be instanc't the Kentish Immunity, freed from a Civil Prescription, in Attach∣ment of the Conqueror; which grant was nevertheless signed with the Blood of the Conspirators, under the Reward of Trea∣son. The two former Occurrents, transacted impulsively, or beyond the Intention of the Civil Iurisdiction, can equally not be charg'd on her Account, more then in the Immaturity of Consultation, which not impowr'd to recede from the Injun∣ction of her proper Act, without Impeachment to her Dignity may justly enterpose a Penalty to Counterpoise the Fraud or Violence, and execute the Incroachers on her Rights in a signal Infliction, invested with the Rights of so singular an Im∣munity.

The two Latter Inducements may plead a more plausible Re∣ception to their Establishment, pretending only to the Advan∣tage of the Civil Frame: As in the Publick Devastations of Towns, Cities, or Harbours, by eminent Disaster. The Civil Jurisdiction sometime is enforced to invite Recourse of Forreign∣ers, to re-edifie and re-populate such Scituations, with the Ad∣vantage of some new Immunities, peculiar to their Habitations. So on urgency of Affairs, where Receipts of Commerce, Ports, Harbours, Places of Defence, are on the Borders of a Civil Circumscription, peculiarly erected for the common Safe∣ty or Encouragement of Trade. Immunities are often granted by the Civil Power for the Advantage of the Common Welfare in a plausible Institution. But where the cause of such Establish∣ment shall cease, or where no Ground for such a Priviledge can be suggested; but the Inherents of equivolent Capacity with any other of their joynt Associates in the Civil Frame. Such Graces are unequally enlarged or continued under Allowance of a Civil Institution, in that those singular Advantages may fre∣quently impeach a common Interest, either in Opposition, Di∣version, Interception, Obstruction, or Impediment in a common Procedure or Commerce, or other Civil Transaction.

Having made Inspection into some Parts of our Distinction, we will assume the overture of the Sequel, to which alone the Induction holdeth Reference; since whatsoever is Exacted un∣der Form of Right, and beyond the Prescription of Right, must also be extended to the Prejudice of our Existence. To intimate the Nature proper to our Subject, the burden must be heavy, under whose support a man is forc't to stagger. Nor is the bur∣den judged by the weight. but by their Faculty on whom It is imposed, which yet more clearly to discover, it will be requisite here farther to imply how far the Bounds of such a Difficulty in Existence, as is figured may really extend. In order to the In∣quisition,

we may infer a double Faculty inherent to Existence, the Natural and the Civil; and though there may appear too vast a Latitude between their Exigents, to cast them Both into one common consequence: yet since they have so inseparable a Dependence on each other, that the continued Breaches in the one, are but infallible Progressions to the Ruine of the other. We may admit them to an equal Perpensation in their several Distinctions.

The Natural Existence falls under a prescription of Humani∣ty, not only, not to impair, but to secure. And though the Civil Power seem frequently to cast restraint upon her Imposi∣tions, in reference to the Incapacity of our primitive support, (whereon her Fabrick is erected) without reflection on the Latter, plac't in the Constitution of Her Frame. Yet the Concession is∣sues at so wilde a Distance, that the relief may rather figure Re∣medies applied to a dying man, then timely Comforts to secure the living, desisting rather to exact from whence naught can be levied, then at a farther Distance to forbear in Apprehension of a future Exigence. To form the Institution more considerably adjutive to our frail Composure, such Exigents fall under the Tuition of the Civil Ministry, as passive Breaches in her proper structure, who should fore-run the Incidents in a timely Preven∣tion, either in an useful Imployment, or in a considerable sup∣port, agreeing to their proper and distinct capacities. The Ob∣ject of a civil Institution being to improve our Natural Condi∣tion, not to abandon us in such Extreams, might thrust us on a Savage Procedure, but to sustain our Frailty, when Natures Store becomes sequestred from our use by Her Prescription; so that the urgency of our Being must now of Necessity, fall un∣der a Civil Distinction, which may properly be limited in Order, Decency, and Sufficience: Under the Prescription of the First, to avoid Confusion; under the Second, Reproach; under the Third, Indigence: And though the two Former Dimensions appear of little Moment in Competition with the Latter, yet duly examin'd from their Dependents only are deriv'd the very Essence of a Civil Constitution, which is not plac't in those osten∣tive Investures, that seem to claim the Homages of Honour from a vulgar Sense: But what may free us from the insulting scorn of others, and our own dejecting Inconveniences; Improprieties are truly inconsistent with the Nature of a Civil Association, which requireth a due concinety of Parts to the Establishment of an exact Community: So that the Civil Indulgence will be of little Efficacy to the Security of our common Properties, if to∣tally abandoned to the unequal Advantages of one another, when necessity shall urge submission: The highest Tyrant in a Civil Transaction, which the Civil Iurisdiction weigheth not,

as passing under warrant of our proper will, though oftentimes not in Capacity of a free Election, bound in the Fetters of more pressing Evils, With such Advantage Jacob wrought on his Bro∣thers extremity, to supplant him in his Birth-Right: which Practice is so far become a general Habit in the Civil Frame, that common observation justly hath entitled us but Wolves to one Another: so that the most considerable Relief can be expe∣cted from the Civil Power, in Reference to such Grievances, is to secure us from the mutual Rapine of one another.

Publick Exigents may sometime possibly require high Imposi∣tions for our common safety, beyond the visible Prescription of the Civil Institution, either in Measure, Matter, or Manner of their Levies, which closing in a more advantagious Restitu∣tion, then any Civil Commerce can pretend to. The Blemish of the Procedure will easily be avoided, and form of each mans Private Store a Publick Treasury. Such is the present Practice of the most advised * 1.7 Society in Civil Rule, to exact without a Legal Formality beyond a private Capacity, or with∣out a Publick urgency, were but to make so sensible a Fracture in her proper Frame, as possibly might leave Her destitute of Aid in times of highest Exigence, rendring Her Members un∣willing, unable, or destrustive: So that we may conclude, with the Dignity and credit of the Civil Power is form'd Her pro∣per safeguard, secured by the mutual Interest of Her Parts: From which Consequence we may collect, how materially It conduceth to our Common Welfare, that the Civil Power should make a nice Inspection into the Agitation of Her Mini∣sters, of what Nature soever; since acting under Her Autho∣rity, their Indirect Proceeding should attract a common Disaf∣fection to their Principle, the extent of their Commission not so exactly visible in every Circumstance, under which shelter Mans innate Corruption is fomented to licentious Practises.

To the Restraint of such attempts may possibly be inferr'd, The Ordinance of the Civil Jurisdiction in Reference to such a Procedure, under Distinction of Extortion; in which the Inten∣tion of the Institution might probably attain an useful Remedy, were the Procedure more clear, the Penalty and the Reparation more considerable. But the Remonstrance becomes usually ob∣scured, if not smothered, under the unequal Interests of the Mannagers. The Amercement meerly formal, or of little Mo∣ment; and the Reparation scarcely worth the owning: So that the Trouble, Opposition, and Charge of the Persuit distinguished before the Prosecution is commenc't, will hardly finde a rational undertaker (unarmed of Revenge) fondly so much to wound himself in Prejudice of another: Nor were it much material, were the Laws yet herein more severe, or far more strictly put

in execution, since every shallow apprehension can avoid the Attainture of the Letter, in a disguised Procedure, turning their Guilt not seldom on the Sufferer, 'gainst which evasion the Civil Power not cautious to secure Her Purposes, frustrates the Intention of Her Institution: For Proof to the Position, omitting to insert secret Gratuities, oblick Covenants, and usual Brocages for common Loans beyond a Legal Estimate of usury. Is it not a prodigious Inconvenience in Civil Rule, that what the Civil Ordinance hath under Penalty confined to eight per centum, should Publickly, and with Impunity extend to thirty, forty, fifty per cent. at a common Broakers, but sheltered in the abstruse Distinction of the Letter, which limits the Transaction only to specifick Matter, no general Act of Commerce: where∣as the perfect Nature of Extortion consisteth in excess of Lucre, raised on Another's Exigence, under what Form soever the Subject of Advantage is Communicable. Money, Goods, Lands, or any other vendible Commodity. Nor can it be exacted from a Rational Agreement, except the Party so assenting were thereto prest by urgency of Affairs, to avoid a higher Inconve∣nience: So that the weight of such a Procedure falls only on the weaker Vessel; who rather might (as a Religious Priviledge) claim the Protection of the Civil Power. In this Currant runs every irregular Acquisition in the Civil Texture, whether it have Reference to the Inherents of Her Ministry, Publick Com∣merce, or other Private Transaction. Custom having digested the Practice to a form of Right, as may be instanc't in Officiates, where it sufficeth not to the success of our Affairs, to render Publick Agents their prescribed Fees; but their Remissness there to will require their Rights of Expedition, Circumspection, and those of Circumvention too: essential Gratuities must make return unto disguis'd Civilities, and no one thinks he hath his due, without Addition made thereto. We underva∣lue their Abilities, not answering to their Expectation; and setting not an equal estimate on our Affairs, fail thereby in our proper Interests.

Commerciants pass usually all Rules of Circumscription in this Licentiousness, meeting no Arbitration but the Will: Nor is the manner subject to a scruple, where all Advantages are held allowable, as a plausible Faculty to the improvement of their Interest. Nor is in Nature or in Civil Rules so nigh Re∣lation found to lend Restraint to such a Procedure. Necessity casts us not only on Neglect, but on Inequity▪ Not prompts us only to abandon, but destroy. Each exigent in our Transacti∣ons but exposing us to become a prey to one another.

Having thus Briefly searcht into the general Nature of our Subject, order requires, that we should next reflect particularly

on the extent Thereof, in Reference to our several Properties, whose Security may likewise meet a useful Regulation under the same Advertisements, either as an Incident to Publick Order, or our own mutual Occurrents with one another. But since the Civil Ministry hath an Interest in the distinct Advantages of all her Parts; we may proceed to visit their Support, under the mannage of their proper Owners.

In which persuit, though It may seem an Impropriety in Ci∣vil use, to take more care of us then we do of our selves: Yet in Respect the common good consisteth in the welfare of each Part, and that a Private Family is constituted of sundry Parts, not soly, nor yet alwayes, (in reference to each other) inherent only to the present owner. We may here farther weigh the use of such an Institution, not only exclusively, in Reference to the Subordinates, but Inclusively, in reference to our selves. Stating the Question under the Authority of Divine Prescripti∣on, as an Indulgence to Nature, which Avarice might other∣wise o'rethrow, insisting to exact beyond her Faculty. The se∣venth day thou shalt do no labour, nor thy Sons, nor thy Daughters, nor thy Man—Servant, nor thy Maid-Servant, nor thy Oxe, nor thy Ass, &c. Which Injunction had not only Reference to a vacancy for Holy Duties, as visibly appeareth in the Nature of the Coherents improper and Incapable of such Intention; but was establish't to a Civil use, as more authentickly is prov'd in the exposition of the Institutor. Man was not made for the Sab∣bath, but the Sabbath was made for Man. Nor did the Institution extend only to the rational and sensible Adherents, but likewise to the irrational and sensless. The Earth had her Sabbaths, and times of Rest. Nor yet in Reason can it be conjectur'd, that such Restraint on Civil Rights, should only have a Reference unto time. Many Occurrents happen in a Civil Transaction, to which we may allow an equal Priviledge, either in regard of the Indisposition of the Agent, the Impropriety of the Season, the Inaptitude of Materials, or the like: so that It may evidently appear, as necessary to the Establishment of our Common Wel∣fare, that every part of the Civil Body should, in their several Constitutions, hold the same Analogy with the whole, as the whole should with Her Parts. The Regulation of the Civil Mi∣nistry will otherwise prove but of little Moment to our common Security, if her Influence be retracted or obstructed from a per∣fect Distribution to the smallest and remotest Vessels of her Frame. No man in Civil Rules hath o're himself so absolute a Power, as to dispose of his own person to the Publick Prejudice. A man may under the distinction of our Law prove Felone de Soy, as well as d'antry. And to a like capacity pass in the Cen∣sure of an equal Penalty, much more may prove a Trespassor in

the infringement of his proper Interest, where those of his Ad∣herence collaterally are concern'd. The consequence may pos∣sibly meet an opposition, in that none, under the distinction of a Civil Capacity, can be conjectur'd of so little sence, intenti∣onally to prejudice, what visibly can only minister unto their support.

To which may be return'd, had every man the use of Rea∣son free, as well in Act, as in Distinction, Civil Prescripti∣ons were of little weight. But sundry passions so eclipse that Light, that we distinguish least in what concerns our selves, declining to insert the Allurements of the sense, as a Distemper subject to intermission and relax, but proper to the change and season of our Age. Other accidents, whose momentary Ac∣cess, nevertheless, doth often make such Breaches in our Civil Constitution, that time nor industry can scarce repair: What may we then impute to the effects of those continual Feavors of the minde, Avarice and Ambition; whose Objects finde not a Prescription, but are increast and multiplyed in Fruition: In which our Faculties not suffering Lascitude, because unsatisfied, move by continuance more impetuously to the subversion of all Rights, Civil, Natural, or Divine: and though they seem to take on a Pretence to the Improvement of our Civil Interests; yet the Progressions are too violent and irregular to meet a hap∣py issue, which frequently (on the necessity of Accidents) in∣volve us to attempt beyond our Faculty unto our proper Ruine: So that the Circumspection of the Civil Power in our Trans∣action, may prove as necessary to our proper safeguard, as the security of theirs depends on us. Nor can we properly pretend to a support from Institution of the Civil Ministry, on the mis∣carriage of our purposes, if her Authority extend not to preside the regulation: Which Procedure may possibly seem to tye up our Actions in too strict a rule, usefully to agitate thereinto our Advantages or others. To take away the Ground to such a scruple, we may imply, the Intention of such Institution we propound, is only form'd to regulate Extreams, and keep the Current of the Civil Faculty from such extravagant Deborde∣ments, might leave their Channel dry.

XLIV. Fire.

FIre, the most sudden and impetnous subvertor of a Civil Interest, being an Accident more susceptable of Preven∣tion, then Suppression, may justly claim the nicest Circumspe∣ction of the Civil Ministry, but since the Calamity may take original from divers Principles, we will reflect on the extent

of their Particulars. The most signal and terrible Devastations by Fire, take their extraction often from Etherial Causes, where either Sulpherous or Bittuminous Matter by exhalation rarified, becomes in Motion or Concurrance of Superior Bo∣dies suddenly enflam'd; such was the direful Termination of those Cities, whose high Impieties could find no Mediation. And though the event may be concluded to have been a Judgement sent from Heav'n; yet are the causes thereby no less manifest. His Providence that had so long restrain'd the effect, could have made void the Issue, under the like Di∣stinction, and probably from like materials, though of a Gro∣ser Quality, may be derived those Eruptions from the Entrails of the Earth, which undermine the Continent to the subver∣sion of those Structures are thereon erected. The Causes of such Accidents not falling in Capacity of a Civil Regulati∣on, more then in Removal of the Scituations, or Restraint of Licenciousness, we will not here insist upon. The object of our Purpose being more peculiarly to search into the Ground and Remedy of such Events, arising from our own immediate Acti∣ons▪ though possibly, some of the Nature of the Latter Inti∣mation may sometime wilfully or Casually proceed from hu∣mane Malice or Neglect, as may be instanc'd from those visible Effects take Issue in such Mines, as are composed of combusta∣ble Materials.

The most usual Causes and more proper to a Civil Regulati∣on, are those coincident to our General Affairs, which are ei∣ther Voluntary or Casual.

The Voluntary are either Hostile or Criminel. The Hostile may also meet a double Distinction, being either Foreign or In∣testine. The Foreign have more properly a Reference to the Exterior Object of our Ministry. And under the Intention of such Order, may meet a happier Discussion. Whether the Inte∣stine, may properly fall under the Rules of a Civil Prescrip∣tion, may meet some Ambiguity, extracted from the omission of Her Procedure. Yet nevertheless, though the Litigious Multitude break forth the Limits of a Civil Power; yet are they no less subject to her Ordinance, which take Restraint from Execution, when Reduc'd; in reference only to the publique Detrement, which might ensue a Legal Prosecution, not from the due Demerrit of the Offenders; concluding, where the Criminels are more numerous, then the Innocents; It far more safe is to Remit then Prosecute. As to voluntary Acts arising from the private malice only of Incendaries, they justly may be cast into the Ballance of a Criminal Delinquence; How slight a Consequence soever the Issue may encounter; In reference only to the Publique Damage threatned in the At∣tempt,

nor can in equity the rigor of the Punishment frustrate the Intention of a Civil Reparation to the Trespass, the Edict will else remain defective in the chief object of Her Institution Cuique proprium reddere. Casual Occurrents of this Nature meet a double Object in their Regulation: Praevenire & Suprimere. To Prevent and to Suppress. The intention of the Former undertaking tendeth to make void the Event. The Latter but to moderate the Issue.

The Prevention consisteth chiefly in Position of the Fabrick. The Materials of the structure. The Separation of Coincidents. Or vigilance of the Familists.

The Position of the Fabrique hath reference only to the Primi∣tive Erection of a Habitable Convention, whose structures be∣ing disposed at convenient Distance from each other the Da∣mage, on such Accidents doth frequently ensue their too nigh vicinnity might probably be avoided, not only in the preser∣vation of adjacent Parts, by the Advantage of a vacant inter∣position; but possibly in the timely suppression of the Errup∣tion, where first it took original, lending a freer Access to a∣bord the Place with a more speedy succour.

The Election of Materials proper to the Edifice conduceth much unto the safeguard of a structure from such Accidents. Nor was it without iust consideration, that Timber buildings were in our populous Receptacle lately inhibited by a special Order. In reference to their Aptitude more suddenly and more violently to minister to every slight occasion of this nature. Stone, is without doubt the most secure Defensive in a Fa∣brique. And in default thereof, next Brick; but why the in∣ward frame should be allowed of so little consequence, as to make no distinction of Materials: is not so clearly Evident, Since Furr, which falls most frequently in use compar'd to Oak is far more Subject to the Attainture of this Element.

Under the Separation of Coincidents may be imply'd, not only the sequestring of Receipts of Office are designed more peculiarly to the use of Fire from the Connexion or vi∣cinity of the more Principal Receptacles of Commerce or Community Publique or Domestique. But the removal also of Materials from the approach of Fire, which in their proper Natures, are more apt insensibly to catch at the encounter. As Powder, Flax, Straw and the like Commodities: nor can those dreadful Accidents have lately hapned from such cause in our capital seat be sensibly reflected on without astonishment, that yet the Civil Power, gives way to those Transactions were visibly the ground to those Events, having such proof•…•… to awake their Prevoyance, suff•…•…ing the sayle of Powder to be made even in the Center of the most eminent confluence of the People.

The vigilance of the Familists may possibly meet a greater difficulty in Regulation of their Ministry, in reference to this Casualty. In regard the Trust thereof is frequently so remov'd from the Principel, that the Injunction cannot take effect, un∣less the suffring Innocent become responsable for anothers Fault subordinate to his Rule. In which respect, whither exacted by Publique Imposition or Civil Caution; It will be highly neces∣sary, that the owners eye preside the Circumspection, remo∣ving from the Hands of his Domestiques every use of Fire on proper seasons for Retreats of Rest. Or in their Incapacity or Absence, to transact the Charge on such a Substitute, as may considerably be concerned in the miscarriage of his Trust, not to remit the care thereof to servile Mercinaries, which Pra∣ctice may yet probably meet other advantagious uses in a pri∣vate Family preventing such Disorders, as under nights ob∣scurity and silence tend to purloin and dissipate their Masters Goods.

The First and most considerable means that may suppress these Accidents commenc'd, is timely to provide for their Discove∣ry, which making usually more dangerous Incursions on the Retreats of night; Our Wards and Bellmen, if diligent in their Search, and more frequent in their Rounds, might herein meet a happy Institution.

The Second Remedy to stop the Fury of this Evil consist∣eth in the readiness of Materials to extinguish or demolish. In reference to the Former use, our conceal'd currants pass many Streets in Pipes, if yet more generally design'd, might reach a high Propriety. As to other Instruments or Engines fit for ei∣ther Purposes. All publique places of Receit in every Ward might with variety and store be furnisht at the common charge. For the Assistants to the work they usually on the outcry are too numerous to be truly useful; some flock to view the Spectacle, some for Booty, few for Action; so that in such confusion, the intended succour seldom is successful, in which respect it will be highly useful, that the Civil Power do consti∣tute a general Regulator to the undertaking, with such Officiates have Judgement and Experience to manage the Direction.

XLV. Inundation.

UNder the Distinction of this Subject may be compris'd not only such Incursions of the Ocean as make encroach∣ments on the Continent. But such Debordeurs also of the In∣land Flouds, as meet not proper Channels to their Excursions Thither; and though some of this Nature frequently conduce

to the fertility of the Soil; yet where they swell beyond the due capacity of their Currant insensibly or unseasonably; or where they lodge beyond a competent extent of Time; The weight of such Advantage will hardly countervail the Detre∣ment; either in their sudden Destruction of Chattle surprised, in the Overflow. The loss of the Crop, or perversion of the true Nature of the Soil, rendring it less proper for encrease; by chilling of the Earth, or else unapt, deceitful, or unsound for Graysing. Nor can the Air be thereby free from some cor∣ruption becoming often less Salubrious to the Borderers.

To avoid the Inconvenients, Damage or Disorder may a∣rise from the irregular course of either Floud, falls not within Capacity of Particulars. The Aid must be more General to meet a happy Remedy, which ought not only to extend to Those in present are concern'd therein; but those in future also may be so. And since the exigence of the work exacts more diligence then common Rights do usually encounter, which always are but tooremissly prosecuted. The Civil Power must lend Authority and weight thereto by her Prescription.

To the expulsion of the Maritine Incursions. The Industry of our Neighborhood abroad may in their penible persuit lend us a happy Pattern to the undertaking. As they to us at home have to their own Advantage and to our Reproach, lent us a Proof to the Restriction of the Inland Floods. Nor is it only Practice or Necessity have made them happy in the Mistery; but their intire Conjunction of their Common Faculties to an assiduous perseverance in the work. For whether the Possessi∣on be already lost, or only yet in danger to become so. The Common-wealth is euqally concerned with the Private Own∣ers. So that every Purse and Hand, as to a common Preju∣dice, ought to be ready to the Enterprize, directed to Reco∣ver or Secure; which finished, the Restitution of the Charge might pass on the Account of the Proprietors. Particulars are usually not able, or not well intentioned to mannage with suc∣cess the undertaking, persueing only their Advantage, not the Common good; so that the work thereby becoming or Protracted, or Imperfect, the Charge is oftentimes redoubled, e're the exact fruition is attain'd. The necessity and perfection of the work, is therefore proper only to the due Regulation of the Ci∣vil Power. It will be requisite Her Substitutes (of due capacity to Judge, and full Authority to Execute) make frequent vi∣sitations on such Parts, as are already damnified, or may be incident to the Casualty; whose censure thereof signified to the Proprietors, with Legal summons to consult with them theron. The urgency of the work and the extent of the Ex∣pence (is with Integrity) to be duly ballanced with their Ca∣pacity

to the undertaking, which not extending their Ability. The work proportionably impos'd, may be remitted to their Industry, under such Rules of Direction and Limits of time, as may be held expedient to the Perfection and Advantage of the Enterprize. But where the Faculty of the Owners cannot reach the due Intention of the work; the Aid, whither of Men, Money or Materials, may be exacted by a Legal Or∣dinance from the next Associates, extending to such Bounds, as may without much Inconvenience to the Adjutants, time∣ly and exactly consumate the undertaking; which charge with due consideration may be reimburst from the Anual Revenue of the Secured or Recover'd Property in such Pro∣portion, as may not much incumber the Proprietors in the Re∣stitution. And though the expence of the work may some∣time possibly exceed the value of the Land in question; yet is the undertaking for such Cause not to be abandoned; Not only, in that the Common-wealth becomes thereby deprived of a useful part unto Her Common Ministry. But in Respect the extent to future Damage, may thereby ensue, not clear∣ly is distinguishable; either in the Expansion of the Flood be∣yond Her vsual Bounds, in the recourse of other Streams not timely find their Issue. Or otherwise diverting Them unto a new Erruption on some other Place, was free from any such Incursion. Nor in Recovery of Possessions Lost, at such exces∣five charge, as may extend their value, ought Alienation thereof to be made from the Proprietors, as an authentique Purchase to the Undertakers. But such advantage may in e∣quity be granted Them therein, as Time may make a Repara∣tion to the Accident. Whereas the work left totally (without Prescription) to the Owners Rule, though ne're so Able, Nu∣merous or Unanimous, is generally so leasurely and so sparing∣ly persu'd, that both their Cost and Industry tend only in Por∣tracting, but to multiply their Damage, and transfer their misery to others. Designes of this Nature require Validity and Diligence to render them successful, who herein gripple are of their Expence and Time, do but betray their proper Interest.

XLVI. Excess.

THE Expulsion of this Principle, in Reference to the se∣curity of our Civil Property, may on the first Inspection rather seem a Subject proper to the Regulation of a private Oeconomy, then of a Civil Ministry. And in the Order of posi∣tion, more proper to improve then to secure our Civil Interest: Yet since we, through the Infirmity of our Nature, are become

improper Guides to our affections, which frequently so far trans∣port us to the Indulgence of the Sense, that no Extravagance can finde a Limit to Her Ministry, that, under flattery of our own esteem, prompt every one unequally to assume unto them∣selves a higher Eminence in the Civil Order, then properly to them belong. Envy, Vanity, and Ambition fomenting still an Emulation in Excess to attract new Homagers to the exhausting of our Civil Faculty in an Impertinent, Ridiculous, and Profuse Expence: We justly may submit to the Prescription of the Civil Rule, to lend us more essential Ornaments to our Distin∣ction, then what conduce but to Reproach and Ruine in their Improprieties. Nor is the Intention of our Order here infringed to reduce our Subject to one use, might more effectually pretend unto Another, since Both have their Reception under one Capa∣city. Nor This but the Progression to the other.

How far the Nature of our Subject may extend it self in a clear and Rational Distinction, to lend a Rule to this our Agi∣tation, may be extracted from the Inference, we formerly have inserted in the Discussion of a Civil Existence, which is not properly implyed by the bare support of Nature in a Savage manner. But in the Allowance unto every Part, a Regular and Decent Constitution, agreeing to the proper use, and true Ca∣pacity of each Particular. Nor is It our Intention here to weigh the Nature of our Subject, as a vitious Habit in our Practises, which we have formerly remitted to the Regulation of the Mo∣ral Censor. But as an Impropriety in the Civil Order destructive to our proper Interests.

What this Order should require in the Composure and Transaction of each Part to form a Civil Harmony, may clearly be collected from the Distinction of the use, to which they are design'd. Those Ornaments and Investures, which are proper to the Head, or Hand, transferred to the feet, but prejudice or In∣cumber their peculiar Action. Nor doth the Impropriety con∣sist alone in Transposition of Dependencies; but in the Regu∣lar Application of their own Inherencies, proportion'd to the due Capacity of every Individual in the kinde, their Function else will but encounter an Imperfect Ministry.

Whether so strict a Position directed to confine the usage of our Civil Faculty within the proper and peculiar Bounds of every Currant, be really consistant with the common Benefit, is not so clearly obvious, in that our frail Condition is patcht up with so many Imperfections in Composure, that not only our Infirmi∣ties, but our very Vices are become useful, if not necessary to the consistence of our Common Union: Lux and Riot being the hopeful Springs whence Commerce draws her daily Affluence, which procedure to render more Authentick, some will extract

a Priviledge from the vicissitude of Natures Institution, alledg∣ing, that Corruptio unius est Generatio alterius: Although the Parallel be but unequally apply'd. The Intention of Her Work therein is only to preserve Her own Production in every Indivi∣dual. Ours tendeth to destroy both our selves and our own. Nor can the common consequence of such profuse Expences, well examined, tend otherwise to the Advantage of the Civil Frame, then as improper Aliments may sometime in their habitual fre∣quency of use, become necessary to a depraved Constitution. Most occupations now established depending but on their Su∣perfluous Ministry. Or as the present Constitution of our Com∣merce is compos'd, doth alwayes the Excrescence flow to the Receits of this our Civil Continent. But greedy Forreigners with useless Trifles, Knacks, and Toyes, more frequently fleece us of other much more Considerable Commodities, in Mini∣string unto such Giddy and distempered Fantasies.

The propriety and extent of our Subject, in Reference to the Intention of our work, together with the weight and Con∣sequence of the Effects may thence ensue, thus generally dis∣covered, we will insist on such Particulars, as may lend light to their Suppression; whether the ostentacious Tumor may consist in Habit, Habitation, Entertainment, or Domestick Equipage.

As to the Fashion of the Garment, most Commonwealths have in all Ages held their several Distinctions proper and pecu∣liar to the order of their Ministry in the Civil Frame. The Ro∣mans had their Plaebean and their Noble Vesture: which Institu∣tion was elsewhere essentially in use, till Wealth had justled Vertue out of Action. Now generally regarded but as a trivial Formality: under which License probably the Vulgar have with us assum'd their Insolence.

Their Difference in Materials is not in usage of so great a Moment, especially in such Climates, where they take their primitive extraction: yet hath the Garniture met often such Extravagance (ev'n where assected Vanity had won Her highest Priviledge) that the Civil Power, (not only in Refe∣rence to the Dammage of Particulars, but in security to the Publick Interest) hath oftentimes been forced to restrain the Prodigality, in a general Inhibition of the use of Cut-Works, Embroydery, and Clinkant under Imposition of a Penal Law.

The Ornaments of our Habitation may in their Structure justly claim a higher Priviledge in Expence, in that they are with Ours directed to a Publick use, contributing effectually unto the Lustre and Dignity of the Place or City, and bear the last∣ing Marks of Honour to a Private Family: yet with such Li∣mitation, that the Fabrick not extend either the use or Capa∣city of the Founder. Nor that the Interior Ornaments surpass in value their Dependancies.

Special Entertainments have a prodigious Latitude in expence, not seldom prejudicial to a Common Interest, and usually are ten∣dered, either as the Rites of Ceremony, The Pledges of Amity, The Proofs of Hospitality, or else The Masks of Furbery. The first Transaction is exacted, as a National Association in Hu∣manity, to Gratulate, or to Consolate, to Mourn, or to Rejoyce together; as in Funeral or Nuptial Solemnities: which, rarely falling in a Civil Practise, may be allowed greater Liberty. The Second improperly o'reshadowed with such ostentive Proofs, may justly be excluded such a Procedure, whose nature rather is expressed in the mutual Freedom of a voluntary Congression, then of a sumptuous and singular Invitation. The Third worn out of use, had yet their Improprieties, Inconvenients, and In∣cumbrances, not only to the Practiser, but to the common In∣terest of the Civil Frame; in that the order of Munificence did never reach the object of so specious a pretence. The true Na∣ture of Hospitality consisting in the Relief of the Indigent, not in the Indulgence of the Slothful: Or in Recourse of Jollity, forming rather a Harbour to Necessity, then a Receipt to Sen∣suality, or a Shelter to Neglect. The Lustre of so high an At∣tribute must bear a more distinct Appropriation to the use, sepa∣rated from the very appearance of any other Collateral Inhe∣rence whatever. The source must not only be free from Ostenta∣tion, but the Materials from Indecency. Not the Refuse of Riot, but the choice of Fertility: Nor can the Dispensation meet Excess, where all may be requir'd.

The Latter Object of Entertainment is most frequently but the secret Train to the Advancement of a private Interest. A Courtly kinde of Commerce, where the engaged Guest becomes designed to defray the expences of the Feast. But singularity and experience have made so nigh discoveries on the Ambush, that usually the Adventure must be ensured in a plainer Style, delivered in more visible and currant Characters; so that in such enlargements, the casualty of success may possibly in time, re∣move the urgency of the Publick Regulation to a Private Caution.

Our Domestick Equipage may be implyed either in Quanti∣ty, or Quality of Servants, or in Appendents to our Service, whether for Use or Pleasure. The number of Servants hath generally been reduced to a smaller Retinue with us, since Va∣nity had changed her Position. Few well affected to the Burden of a Multitude, or where they do exceed therein, it is but in the Quantity of Those, which are designed more for shew then use.

The Appendents to our Service or Divertisements do often reach to a more considerable Superfluity, either in Plate,

Horse, or other Appropriates to Field Divertisements.

The use of Plate, in latter Times hath been extended to a high extravagance almost in every Family, even to those Uten∣sils designed to the vildest Offices: which Impropriety must, under Suffrage, questionless, produce a visible Obstruction in a Civil Interest, where the Principle Material, that should lend life to Commerce, in a perpetual Revolution, lies dead, in an improper Ministry.

Horses are, under several Distinctions, of so general an use, that their Appropriation, but in number, hardly meets Excep∣tion. Yet is the Courser of so little Moment, and so high a Charge, both in their Breed, their Keeping, and their use, that the Intention of their Exercise may oftentimes require a Civil Regulation, in that they frequently involve the Owners in De∣bates to a Prodigious Issue of Expence, wherein the most ad∣vised often are exposed to the fraud of Mercinary Combinators.

Field Exercises may in their frequent Practice meet a plau∣sible Intention in the Times of Peace, rendring the Body apt, vigorous, and hardy to more useful and more generous Encoun∣ters, on urgency of Martial Expeditions: Yet where the Bur∣den of the Chase lies only on a single Manager, the common Consequents are usually too weighty for a Private undertaker. Nor can the Liberty of Parks so generally in use, pass without Prejudice to the Publick Interest, when as so many and such vast Extents of Land are only but design'd to Pleasure. The Privi∣ledge, rightly weigh'd, seems only proper to a Princes usage: And though the Soyl may sometime plead a License, in sterillity; or in a farther use thereof for Pasturage to Horse or Chattel: yet is the Advantage therein but of little Moment in Compensati∣on to the Dammages.

Nor are these Ostentatious Habits only in their Nature pre∣judicial to our Civil Faculty; but also in a necessity of perseve∣rance, not leaving place to the Relucting will to make Retracti∣on from the Error; In apprehension to anticipate the evil, we in Protraction do but aggravate: which Imposition of Engage∣ment, too frequently, though oftentimes too late, becomes re∣sented by unadvis'd Commerciants, insisting in their Vanity but to support their Credit.

In persuit of our Agitation on this Subject, order would exact we should imply a course whereby the Civil Power might visibly distinguish, or yet exactly rectifie the Consequence of this Di∣stemper. In Reference to the Procedure, we may infer a due Restriction in the usage of our Civil Property, proportion'd to the Nature and Distinction of our Civil Function; which pas∣sing the Prescription of a decent Rule, might bear the Imposi∣tion of a Penalty: Or otherwise, not reaching the Intention of

the Ordinance (as often is observ'd among Licentious Livers) the Interdiction passing generally; exception (as a Priviledge) might be cast only on the Infamous, which not prevailing, might plausibly ensue, Suspensio ab usu Facultatis, ex Infor∣matione Proximi Possessioni. A Suspension from the usage of our Civil Faculty, on Information of the next Inherent to the Property,

XLVII. The Principle Subjects fall under Circum∣spection of the Civil Power, In Reference to the Im∣provement of our Civil Property.

HAving thus briefly pursu'd those general Objects, whereby our Common Interest distinctly is secur'd, under Tuition of the Civil Power. Order requires, we next assume those Prin∣ciples whereby our Civil Faculty should likewise be improved, under Circumspection of the Civil Rule: Insomuch as the per∣fect Constitution of the Civil Parts can no otherwayes suffer Cessation, Remission, or Obstruction of encrease, without a Detriment, then the Natural. Casualty or Propagation, frequent∣ly exhausting more then possibly might support the visible and present exigence: So that we may conclude in Civil Rules as well as Natural, where motion findes no Station in vicissitude, That Non Progredere est Retrogradere, Not to Advance is to De∣cline. Our Interests cast on the Conduct of the Civil Rule, as the peculiar welfare of those simple Parts, whose joynt Com∣posure forms one Common Good. What she exacts of us in Re∣ference to Her Rights, that she may properly require of us, in order to our own. Expedit Reipublicae, ne sua Re quis male uta∣tur. The Publick Welfare holding still the same Analogy with the Parts, as the Parts doth with the whole: What falleth un∣der the distinction of our Private usage is our Property; what under Regulation of the Publick, Hers. So that in the miscarriage of the meanest Part, the Dammage is resented of the whole; though possibly that Affluence which lent It due support, might be diverted to another Member, under the Constitution of the self-same Frame: Since to a due concinnety, every part must be endued with a faculty proportion'd to his Ministry; to which Excess may often meet Impediment, as well as a Defect. The proper use therefore to which the Parts are more peculiarly de∣sign'd, will not only lend us a Direction to the Improvement of their Faculties to the Enlargement of the Common Welfare. But the specifick use of every Property inherent to those Parts will guide us also to the Improvement of their Ministry, to the

Advantage of a Private Interest. In Reference to whose di∣stinct Appropriation, we therefore will reduce their Regulati∣on to these Principles. 1. Oeconomical Order. 2. Civil In∣stitution and Introduction. 3. Serviceable Imployment. 4. Ci∣vil Function. 5. Structure. 6. Manure. Private Commerce.

XLVIII. Oeconomical Order.

TO preside the Domestique Mannage is a Priviledge in∣herent to the Practice of a Conjugal Relation; though Custom hath, with us ('mongst those are most materially therein concern'd) lent It too mean an Estimate to own the Ministry, casting the Trust thereof on Fraudulent, Negligent, and Licencious Servants, to no small Prejudice in a Private Oeconomy. On what ground the usage took Original, is not so easie to discover, whether Delicacy, State or Indulgency to Plea∣sure; the two Former Pretences can hardly find Admission, since Age and Eminence afford us in our Neighbouring Nations, most authentique Patterns. Nor are the most extravagant in Feminine Affeteries much less assiduous in their Circumspecion, though thereto but enduced by irregular Motives, as a neces∣sary Dispensitory to their Vanity and Riot. The Consequence of either Practice may visibly be disclosed in the unequal Du∣rance of that welfare, is inherent to those Families with whom this Order finds a due Reception, compared unto Theirs have quite abandon'd It.

How the Nature of this Charge should be distinguished, or to what Objects visibly design'd, we will endeavour to dis∣cover. The Nature of the undertaking falls (without question) under the Distinction of a Trust, though the Trustee seem e∣qually interessed in the mannaging. But usually the Privi∣ledge is assumed only under colour of Purloining for supply to some sinister Purposes, unequal Inclinations, Secret, frivulous or superfluous expences, which Practice is fomented under shelter of an Interest, or under shelter of the Law.

The Nature of the Interest, rightly understood, is but a Potential or collatereal Adherence, under the Distinction of our Rules. The Civil Law admits the same Relation to an equal Partage in the Acquisition with the Principle, in what Nature soever transacted; which Priviledge may possibly be the Cause, why the Institution meets a happy Issue, under so favourable a Prescription; though the engagement hath a No∣bler Object, where the Act is free from any such Advan∣tages.

The Law extendeth not her Influence to the Miscarriage of

This Trust, in Respect the Consequence is involved in a joynt Commission, under One present Interest; though possibly the Trustee may totally in Future be secluded from the Benefit. Or in that, the Authority not passeth under a necessary Im∣position, but under a voluntary plausible and endearing Con∣cession.

The Object of the Exercise, plac'd under Circumscription of the Family, seems totally inherent to That use, whither im∣plyed in a timely Provision or a prudent Dispensation. Acqui∣sition derives her Affluence from too many and too remote sources to exact Her vigilance, whose Action only is so firm∣ly seated onely in the Center of Receipt. The First Inference of Devoyr may seem to approach the Nature of the Excep∣tion. In that, to make Provision, is properly but to acquire for store, but the Intention confined to the use, can really not extend to so general a Distinction.

The Objects thus designed to their distinct Ballances, we have to Either here annexed a Dependent might lend them equal Counterpoise; in that they held a mutual Reference to One Another. The Provision must be Timely to attain the use to which it was directed; when Plenty crowns the Season with Success, and sets a lower Rate on the Materials, while yet occasion presseth not. Not when Necessity shall urge sup∣ply on any Terms. Prevoyance often reaps the fruit of others Industry. Nor can their force united be but requisite. In that, the Latitude of a Civil existence falls totally not under sup∣port of a Private Frame. Civility and Hospitality will challenge a supply in Rights of Decency; so that where Either is de∣fective, the Consequence must of Necessity, be prejudicial to a Civil Fadulty. The Counter-Ballance must to This be fram'd equivalent, to lend Them an agreeing Motion. The Dispensa∣tion must prudential be to form a timely Providence materially successful. Excess meets no Prescription where Riot tends to Dissipation; nor Penury attains the Honour of Frugality; where gripple hands becomes the Mannagers. Sobriety and Order crown Nature with Delight, while Lux but hastens to extinguish It. The scatter'd fragments had their due Reserve in his Prescrip∣tion lent them Affluence by a Miracle.

But how the Civil Power should lend an Influence to this Circumspection, where Love and Duty are not prevalent, is yet a Mistery. Honour may attract, and Infamy deterr, in Minds that are thereof susceptable; but where the Inclination hath attain'd that Sense; Both needless are to guide the Will to what is Regular. Or if They might, the Rule is yet too singu∣lar to be extended to a General usage, when Vice finds no Re∣straint in Punishment. The happiest Motive, therefore can be

issued from a Civil Institution, is to lend the Agitators equal In∣terests in their Ministry.

XLIX. Civil Institution and Introduction.

UNder the Intimation of this Subject, may be imply'd not only general Formes of Exercise, should render Youth susceptable of Civil Action, prefigured in our Primi∣tive Education: but the specifique Matter should lend That aptitude both Use and Practise to a mutual Benefit the Parts have with the whole. No one dispensed from a common Mini∣stry to form the Civil Frame exactly flourishing. But how this wild Propension should in every one become directed to a pro∣per Object, might lend perfection to the Enterprise, were not of little Moment to discover, since every Person hath an innate Faculty peculiar to their Genius, no Habit can pretend to.

In Persuit of the Intention the Spartans, who had rais'd their Glory on the Propriety of Natures use, left the Distinction thereof only to Her yet pure and unaffected Motive, disco∣vered in the Amusement of their Infancy; to whom they had exposed every Forme, might be inherent to a Civil usage. Nor was this Inquisition yet remitted to the Circumspection of Indulgent Parentage; or the Appropriation thereof to their Order. The Civil Power seems yet more nighly Interessed in the Consequence, to lend the Partiality and Endearment of a Parent soly such a Priviledge, the weight hereof they visibly expressed in their Caution, when as the insulting Foe, would have exacted an engagement of their Youth for Hostages. Nor was the progress of their Industry visited, directed or encou∣raged by a Private Institution. The Aged and Experienc'd were publiquely the Supervisors to their sports and exer∣cises; who both Instructed and Design'd the Price, where Emulation was inflam'd with Glory, and Neglect or Remisness checkt with Infamy. Private and Mercinary Institu∣tors spin out their undertaking but under slight and superficial Forms of Practice to the Advantage only of their abject Lu∣cre. Indifference in the First Promotor will hardly animate re∣mote Adherents to a perfect Action. How far the prosecution of our Purpose may advance a Private Interest, is clearly evi∣dent in the Consequence, since early Habits in an useful Fun∣ction will lay a sure foundation to the enlargement of our future Fortunes. Or forme a fair Retrait to the Miscarriage of that in present is established. Practice will entertain the Fancy with Delight; Delight win Assiduity; Assiduity removes in∣sensibly that vacance might solicite facile Inclinations to licen∣cious

Practices, or lewd Society. Affords the minde a plausible Divertisement. And frustrates both the Snares of Sloth and So∣litude; on which consideration possibly this Institution became successively digested into Practice, among most Princes of the highest Eminence: So that we may conclude the Suffrage of affected Vacancy, under what shelter of Civil Affluence soever, endued with Capacity to act, forms no small Discord in a Civil Consort.

To visit yet more nighly the general Nature of this Instituti∣on, we clearly may distinguish by the Object we propound, the means that should conduct us thither is not meerly Specular. Science may lend a vast Inspection into Natures Mysteries, Ci∣vil Occurrents, o•…•… the mindes composure, yet reach to no pecu∣liar Ministry in a Civil usage, till practice shall educe such Fa∣culties into Act. Knowledge must attain a proper Subject to be wrought upon before it can attain or Illustration, or use. The Civil Harmony consisteth in Agreement of Parts to a mutual Correspondence of their Action: Not in the Amusement of a mistick, wandring, and undigested Speculation. To descend to a more peculiar Distinction, were but to trace upon a Subject we al∣ready have elsewhere enlarg'd upon, so far as might be conso∣nant to the due Structure of our Treatise.

The Institution framed on a proper Subject, the Introduction also must be timely and authentick, to reach a perfect Ministry; not that the season thereto falleth so precisely under the Pre∣scription of their Age, as under the maturity of Endowment in a Civil Capacity; though we may properly suspend them from the managing of Publick Interests, so long as Civil Rules se∣clude them from disposing of their own. In other Respects, the Nature of the Action will lend a more visible Propriety to the season in the use. Adolescence and Virility more properly are apply'd to Execution, and Invention. Age more secure for Iudg∣ment and Advice: Nor can the extreams of either meet a happy Issue in their Ministry. Youths Ardour often may precipitate his Force. and Age out-live his own Sufficience. The Inherence al∣so to the Action must Authentick be to Crown a happy Industry, not only in Reference to Probation, but to Admission. Volunta∣ry Officiates will in their forward Emulation, or Licentious Pro∣cedure, produce but a promiscuous Ministry, Commission only can lend weight to Civil Action.

L. Serviceable Employment.

THe next Inherent to a Civil Interest is the Serviceable, where the Advantage of Anothers Industry redoundeth

to the Benefit of the Proprietor, that lends them entertainment. To which Distinction Adherents for Parade have no Relation, Appropriates only to Vanity and Ostentation, really designed to no Civil Ornament, or Use. And though the Iournal Mer∣cenary might seem included in such Ministry, yet not reduced properly to the true Nature of a Familist, we will dismiss him here from our Discussion.

In Reference therefore only to such Limitation we will insist upon the Nature of our Principle, under the Distinction of Do∣mestick, Functionary, or Emissive Adherents.

Though the two Latter Differences seem properly included in the Former, in Reference to one Receptacle, as common to them all. Yet in Relation only to their distinct use, we may appro∣priate their Ministry to several Attributes. The Domestick have a more peculiar Reference only to the Order of our Residence. The Functionary are intentive on their Faculty; and the Emis∣sive wait for all Essayes may tend to Action The Industry of the Domestick hath more peculiarly for Object but his Trust. The Vigilance of the Functionary but his Art. And the Dili∣gence of the Emissive but his Lucre, though generally under one common Affiance, all mutually endeavour to advance a distinct Interest divided from their Own. To improve the Inten∣tion of their Office in an useful Ministry. We therefore must lend Honour or Advantage to their Enterprise. Punishment or Infa∣my are passive Motives to a Reackless or a stubborn Temper, while Chearfulness and Hope lend vigour to their Motion.

To yield distinctly to each one their proper and peculiar In∣fluence, we severally must reflect upon the object of their Action. Trust Crowns the undertaking of Domestick Props; so Ioseph had attain'd possession of his Masters Goods: and Eliazar was entitled to the Succession of the Patriarchs Wealth. Trust is not only a Civil Engagement, but a Religious Tye. And in Transaction prov'd, justly deserves the highest Dignity. The exact Proof whereof appears not barely in the ready Execution of the Masters Charge: But in the constant opposition of Ad∣vantages, that might corrupt, or yet intice him to retard, or otherwayes decline his Masters Interest. The Reason why our Observ•…•…tion rarely can disclose so evident a Test, is probably, Domesticks, that Officiate only a Discretion; and under the Re∣ward alone of petty Salaries, make slight account of their Sup∣porters Interest, and agitate therein, as if they would betray their Masters purposes: So that in opposition to the Cause, we must infer the Remedy. The Adherence therefore must be more Material, and the Condition not so exactly Mercinary. Early Relations hold the strongest Tyes, and a voluntary compensati∣on more acceptable. As Habit from Puerility should form the

initiation of a Trust, so the perseverance Therein should frame a safe Retreat to Age and Impotence: An authentick Probat of the One, on any change, is but the slightest Recompence of Fi∣delity, and the Advantage of the Others Civilly Justiciable.

2. Functionary Adherents pursue but the Advantage of their Art, and seem improperly admitted to the sole Practice of their Faculty, under Prescription of a certain Tearm. Insomuch, as Neglect or Stupidity may render them incapable of such a Pri∣viledge, not only to their Masters Dammage, but to the Pub∣lick Detriment, since ignorant and unadvis'd Commerciants rarely can disclose the Imperfection of the work, without a frequent prejudice: nor yet their Masters reap the Benefit of their Industry, where Time and Cost unequally are ballanced in value to the Execution. The perfect'st Rule to rectifie the Ca∣sualty to such Occurrences, will be to exact a visible and Publick Attestation to their Progression in the Mystery, or to suspend them from the Practice of their Faculty.

Emissive undertakers have a general use, under the various Direction of their Momentary Entertainers. A form of Servi∣tude not now in usage among Christian Practisers, where the en∣thral'd Adherents daily are sent forth to search occasion to im∣prove their Industry to the Advantage of their Masters Benefit, and their own Existence; though possibly the Institution might meet a happy Ministry, under due Regulation, among Forreign Planters. The Eastern people frequently attract no small Accu∣mulation from their Assiduous Industry; and more would pro∣bably attain, might the enlargement of a regular Imposition, remotely but proceed to their Enfranchisement, by Publick Order.

L. Civil Function.

ALthough the Nature of our Subject might properly be ex∣tended to Publick Ministry; yet in respect the Dignity of such a Faculty can warrantably not pretend to the Advan∣tage of a private Interest, whose regular Improvement we pursue as a collateral to the Publick Welfare. Our present Agitation only shall insist on such Particulars, as thereto only have Rela∣tion. The Object of a Civil Function must, questionless, fall under the Distinction of a Commerce; since thence alone must issue those Advantages, that animate her Course: What there∣fore may lend Affluence to Receipt, must visibly promote the Action. The most essential Sources are extracted from the Per∣fection, and Expedition of the Work, The Reduction of the Charge, and the Frequence in Return.

The Perfection of the Work becometh visibly advanced in a timely Initiation, and a singular Adherence to the Faculty.

A timely Initiation, In that Ars Longa, Vita Brevis. Art hath a large extent, Life hath but narrow Bounds: As also, that the Addresses of our Infancy insensibly contract a Habit, more easily to sustain the Burden of their Industry, and with more readiness to execute our Ministry.

The Adherence to the Faculty must of Necessity be singular to reach that Excellence should Crown an Enterprise with Af∣fluence, where the Spirit is generally intentive on variety of Ob∣jects, our Faculties form no Production: where but alternately imploy'd, the vigor thereof weakened in Diversion, can rarely form but an imperfect Issue. Those Nations, who had rais'd their Glory and Advantage on their Civil Faculty, (in reference to our Proposition) were generally enjoyn'd by Publick Ordi∣nance, to adhere soly to their Predecessors Ministry. That trained, from their Childehood under Faithful and Industrious Guides, they might begin their undertaking in the Perfection of anothers Industry; who so successively but adding little unto what was formerly acquired to their Usage and Instruction, they might in time attain the highest Execution and Inspection into Arts and Sciences, that humane Nature could pretend to reach to.

The Expedition of the Work dependeth on the Assiduity in Practice, and the Facility is acquired in the frequency of the Exercise, whereto the supple Limbs, and active Spirits, actually applyed from the Infancy, become more prompt and ready to their Ministry; whence issueth that delight which should invite and entertain the Fancy to persevere in their Industry.

The two latter Subsequents that should conduce to the Ad∣vantage of a private Interest in a Civil Function, may seem al∣ternately adjutive to each others Efficacy. The Reduction of the Charge constituting a lower estimate upon the undertaking, must quicken the Return, And the Frequency in Return must like∣wise form a visible Reduction of the Charge; in that the advan∣tage of the price attracteth greater Affluence of Contractors to a speedy Issue of the Property. And the P•…•…otraction of the Issue must of necessity enlarge the Burden of the Charge in an un∣equal Retention of a dead Commodity.

The Reduction of the Charge is, questionless a Subject more properly Inherent to a Manual Operation, then to an Intellectual Ministry. In that Materials are but the peculiar Subject of an Art. No Consequents to the Faculty of Science. The weight of our Discussion therefore only tends to shew, how the Ex∣pence inherent to such Arts, may plausibly be reduced under Re∣gulation of the Civil Power. The most obvious course may

possibly succeed to our Intention. Is the Congestion of a Pub∣lick store, authentickly inherent to such distinct Societies, as shall be needful to a Civil usage: to the provision of whose Af∣fluence, each particular Associate, daily contributing from the Profits of their Industry, supplies might equally be issued thence to every ones Capacity in Action.

Nor less expedient Hereto were the Execution of such Semi∣naries as might imploy the Vacant, Indigent, and Useless Mul∣titude, under distinction of what Sex, or Age soever, in any small Capacity to Act: which Receptacles for common use might finde their proper scituation in such Parts, as might afford the highest affluence, and yield to all Adherents their peculiar Maintenance at the easiest Rate.

Returns may finde their frequent Revolution, either in the Agitators Regulation of his Profits, or the Concurrence of their joynt Associates, in a publick entercourse of Trade; from whose common Receipt might issue their Commodities to all Commerciants of Retail. The Surplus form a Staple to a For∣reign Traffick, under adventure of one common Interest.

The first Method to Improvement may probably advance a private Interest, in that no Motive sooner can invite Recourse of Custom, then an Abatement of a Common Price, be the advantage scarce considerable: but such a procedure will scarce consist with the joynt Benefit of all Associates, whose mutual Interest is the Object of a Common Welfare: In that the whole Society must thereby be enforced to decline from such Advan∣tages, as properly are requisite to the due support of a general Trade, or make a fruitless stop in their Proceedings. The lat∣ter course can rarely meet exception, in regard no agitator can supply Materials to their publick Stock, so frequently to be o're∣charged with the Consequence. where Trade is Inwardly, and Outwardly still kept alive in a perpetual Issue.

LI. Structure.

STtructure hath a plausible Intention in a Civil usage, not only as a shelter to our Frailty, but as an Ornament and Ad∣vantage to a Civil Society, in that the Order, Beauty, and Pro priety of a Habitation inviteth a more numerous Affluence of People. From the concourse of Association springeth the En∣largement of Commerce. From the Receipt of Commerce issueth a Common welfare. But how the undertaking should con∣tribute to the Improvement of a private Interest, is clearly not Distinguishable: Insomuch as the Transaction is impos'd on faithless Ministers, under advantage of their secret Lucre, and

passeth only under Circumspection of unskilful Managers; So that the Edifice erected, will frequently in value not extend to half the Expence of the undertaking, which usually for such Consideration only hath really for Object but Necessity or Plea∣sure; though the allowance of our slight Materials hath late∣ly muco encouraged Adventurers to frame the Practice on a Publique Commerce.

In Opposition therefore to the Impediments, that might de∣tain a Private undertaker to persue so material an inherent to a common Interest; It were requisite the Civil Power should pro∣mote the undertaking; Secure the Trust, or regulate the Circum∣spection of such Fabriques, might visibly conduce to the Advan∣tage of the Civil welfare; not that every structure can pretend to such a priviledge; though possibly erected on those parts are most con siderable. Since each Receipt of Commerce must have his due Proportion with the whole. As the whole should with the Parts to forme a true Agreement in a Civil Harmony.

The undertaking may plausibly be promoted in such Im∣munities as the Civil Power shall hold, or proper or expedi∣ent to the Place; whether by Institution of Markets, Marts, or Fairs, or other Publique Convention of Commerce. Al∣lowance of Materials; Abatements of Impost or Taxes; Grants of Association; Priviledge of Iudicature, Rights of Commu∣nage; Remission of Penalties, and the like.

The Trust may be usefully secured in a general Inhibition of Improper and Imperfect Materials. Tasks imposed, and Rates established, under Restriction os a Penal Ordinance.

The Circumspection may effectually be also regulated, under Direction and Allowance of Authentique Architects transign∣ed to a Common Ministry, with such Rights of Salary, and Reparation of Defaults, as may be needful to engage Them to an equal Procedure in reference to their Charge.

LII. Manure.

THe sources of our natural Existence being immediately derived from the Production of the Earth; and on the Natural the Civil Frame erected, whose Order soly is com∣pos'd but to communicate that Affluence in a mutual Com∣merce to the due support of the General union, will lead us to collect from the conclusion, how necessary the Civil Cir∣cumspection may be held to the Advancement of the Soils Fertility, Not only in Interdicting useless and Improper Man∣aging; but in exacting of each one a competent Improvement of his Property to a Common Benefit.

Defects of Manage taken generally, may either be consider∣ed, as Voluntary or Casual.

The Voluntary, intimating a stupid, slothful, or extravagant Neglect, may possibly be corrected in a due Remonstrance or Advertisement; which reaching not effectually the Intention of the Procedure, may properly extend unto Amercement, Fine, or publique Mulct. That not succeeding also, may proceed to the suspension of the Property to Anothers use, under the same Advantage to the Owner, as he had formerly contracted from his Industry. Such were the happy Constitutions of those pri∣mitive Societies, who placed their Felicity within the Limits of their proper bosome, without Dependence on a Foreign Ministry.

From the Two former Distinctions may also be derived those Defects which issue from the Impotence or Avarice of the Managers; since they may sometime meet a complication in their Nature. An Impotence may possibly proceed from a vo∣luntary Transaction; where the unadvised undertaker shall pre∣tend to manage more then his Capacity can reach; or other∣wise may issue from a casual Adventure, where the Impropriety of the Season, or other Accident deprives him of the Faculty to make a due Improvement of his Industry. The Presumption of the Former Intimation may justly counterpoise a Penalty e∣qual to his Folly; The miscarriage of the Latter will proper∣ly exact a more Indulgent Ministry.

Defects arise from Avarice must of Necessity encounter a voluntary Motive in the undertaker, though the Proceding of∣ten meet a Casual Impropriety to the Intention, either in the Frequency or Omission of Culture. Or in Conversion of the Soil to wastful and destructive uses.

The Frequency of Culture may without Colour of Objecti∣on, not only exhaust the Pregnance of the Soil, but change the very Nature of her Faculty, forming it unapt for her spe∣cifique Seed. And rendring it far more susceptable to harmful and superfluous Excrescences. Nor can it be allowable in a Civil Practice, that Avarice or Malice should so far oppress the Na∣tural Frame to satisfie, in Present an inordinate Desire, to leave Her Bosom sterile in the future, to a common Prejudice; in which respect, 'tis probable, the Earth held formerly her Sab∣baths by the Injunction of a Sacred Ordinance.

Omission of Culture may sometime possibly extend to other Inconvenients, where the Exterior superfice of the Earth, in such Default, becometh, Crusty, Mossie or unapt for Pasturage Impediments, not seldom incident to the wood-land Soils.

Conversion of Soyl hath met a more licencious Practice, in our Latter Age, under the Favor of a Private Interest, where

the Advantage of a Petty-Royalty shall claim a Priviledge to enclose his Arrable to render it more proper for Pasturage or Meadow, to the Extrusion of the greater Part of the Inhabi∣tants for want of Subject to improve their Industry, or yet sup∣port their Families. How far the general suffrage may be held agreeing to a Common welfare, may clearly be discovered in Reflection of the unequal Numbers are sustained by ei∣thers Ministry.

The usage of the Soil may also farther be converted to a Common Prejudice, and yet retain the former Nature of her Culture, where the Plan•…•…ation in Persuit of gain, becomes forth∣with impair'd for many years, as may appear in the Recult of Rape, Oad, &c.

Under a farther Notion of Default in our Manure may also be inserted Rights of Communage, where under Publique suf∣frage incompetent extents of Land lie wasted in a general Neg∣lect, shadowed with no other visible Pretence, then but the As∣sistance of the Indigent, who have not a Capacity to make Ad∣vantage of the Priviledge; either in Provision of Stock or Pro∣vision for Stock. Whose Winters Sustenance doth usually sur∣pass the Summer Benefit, which is nigh spent e're Cattle can recruit their Winters Poverty. If they escape those Casualties too frequently are incident to the condition of neglected Soils, procuring oftentimes a general Rott, which sooner is advanced by the flattery of a forward Spring, if urged by a high ne∣cessity to a more hasty entry on the use. Nor can the Opulent endued with Capacity to shun These Inconvenients reap the true benefit of such Precincts, to the tenth part of what the value Thereof might extend unto, in a more regular Appropriation.

LIII. Private Commerce.

THe Nature of our present Subject taken generally might probably exact a vaster Latitude in Discussion, then properly can agree with the due Structure of our Treatise. Since every Property that is communicable, may possibly fall under such Distinction. But general Inherents to a Civil usage more usually resigned to a Publick Transaction, we only will direct our course to one peculiar Object, may Universally, though Privately lend Life and Motion to the Rest in a perpetual Cir∣culation.

The Quality of the Object thus set forth, will easily con∣duct us to a clear Distinction of Her Nature, without enlarge∣ment on Particulars. No other Species of Materials reaching so high an Attribute; but Money, the common Aliment to a Ci∣vil

Commerce. How this peculiar Faculty should be distributed from the Original to the remotest vessels, without Obstructi∣on or Privation, shall reach the Intention of our present Agita∣tion. In the Privation of the Faculty, the Parts must Languish or Consume away. In the Obstruction, the whole Frame must suffer a Distemper to a general Grievance; so that in Reference either to the Interest of Particulars, or the Advantage of a ge∣neral use. It will be necessary This Civil Aliment should be dispersed universally, without Impediment, in a perpetual con∣flux by an alternate vicisitude of a mutual Agitation.

The Extent of our Proposition thus enlightned, will require a different opposition in Reference to distinct Impediments. Obstru∣ction meets a proper Remedy in a timely Issue. Privation in a com∣petent supply. Not that in Reference to the former Subject eve∣ry reserve of store lies useless in a Private Custody, may reach to such Distinction. Private Receipts may without Publique Preju∣dice be licens'd a Provision against sundry Accidents, beyond a due supply to an apparent Charge, provided, neither do in quantity extend a certain revolution of Returns. Or that in Reference to the Latter, every Indigence in a Civil Faculty, may properly exact so high an Inference, falls under Regulation of our present Subject, without Dependence on a Civil Commerce. To reach a regular Institution therefore proper to each use; we must e∣rect equivalent Receipts, through which, the common Affluence continually debording, may seas'nably return to their Origi∣nal, with Surety and Advantage; as also such Dispensitories, as timely may recruit exhausted Faculties.

Receipts directed to a General use, must (in Reference to security) equivalently be Ballanc'd with a General Capacity. Particulars will prove no competent undertakers to support so high an Enterprize, either as Adventurers to the proper Inte∣rest, or Agitators to Anothers collateral to their own; a proof Hereof may visibly be collected from the undertaking of Socie∣ties, in Commerce, admit of General Associates in adventure to a Common Traffique. Where the Supream and Subtle Managers, on whose Direction, Skill and Circumspection the work is car∣ried on, contract the Real Benefit to Themselves, casting the Charge and Casualty on the account of unadvised, Igno∣rant and borrowed Contributors, to the Consumption of the Principle deposed to their Trust; Whereas the Adventure and Advantages thereby acquired, engrafted only on a Publick stock. Particular Adherents but relying on the Profits of a Private Loan, might without Casualty or Trouble keep their Accu∣mulations in a constant Agitation to the Improvement of their Civil Faculties, and the Consistence of a Publique Treasury or Bank, for the supply of Publique exigents.

In Opposition to the Institution may possibly be alledg'd a common Prejudice, might probably thence arise to the Obstru∣ction of a Publick Trade, consisting in Transaction but of pri∣vate Mannagers, since few or none, under what Relation soever, will stand the hazzard of their property, in Reference to a private Interest, who may with equal Benefit run no Casualty, to the Advantage of the Publick Welfare: So that particulars must thereby of necessity be reduced to confine the enlargement of their Commerce within the limits of their single property, which otherwayes improved by employment of Anothers, might an∣swer others Interest, and congest a more considerable Affluence to the publick Good.

In answer to the Objection, we reply, the Advantage of the Procedure, too frequently proves fatal to all the foresaid Inte∣rests united, or divided; since, universally the insatiate thirst of Lucre prompts inconsiderately the Avid will to grasp at more then it can regulate, to become sudden Wealthy, engaging un∣advised undertaker to oppose one Difficulty and danger to an∣other, in support of that Credit, lent affluence to their Agita∣tion, beyond their proper Faculty, to a prodigious expence in the mannaging; which over-ballancing all Possibility of Hope, inevitably o're-whelm the Principles, on whom the private In∣terest, and the publick, both pretended an Establishment: whereas the Agitation gently sliding in the Limits only of their proper currant, produce more certainly a General Fertility.

Dispensatories directed to the Advancement of a Private Com∣merce, having peculiarly for Object, a Relief, require a more Indulgent Ministry to their Institution, It is not consonant to the order of a Civil Inherence to exact of the Indigent the ut∣termost of what the Law permits; much more improper in a Civil Rule to leave the Exigents of the necessitous a common prey to Avarice, beyond the tenor of Her Ordinance. In which Respect we will reflect upon the quality of such Commerciants, whose languishing condition may require a support from this In∣stitution. The Nature of their Attribute may properly imply such Persons as extract the means of their existence from an In∣tercourse of Trade. To which Distinction; though Publick Transaction more properly may agree, a Subject not in∣herent to our present Agitation, extending only to a Private Commerce: Yet taken only with a Reference to their prefigured Incapacity, which lends them to a Publick Commerce, but a subordinate Ministry: We may insist thereon without Conjecture of an Impropriety.

Of this sort of obscure Subordinates in Commerce, a vast Di∣versity might possibly be instanced; which we, in order to our proposition, will reduce to these Distinctions, Associates and Independents.

Associates imply such, as for Object of their Industry, have a specifique matter to insist upon, inherent to the Ministry of some distinct Society, on which they do depend.

Independents have no distinct Adherence to Community, in Function, nor yet peculiar Object of Return, but generally pur∣sue all Subjects that are vendible to the Advantage of their Pri∣vate Interest: so that their differing Agitation may properly re∣quire a distinct succour to their undertakings.

Associates having in their Function a Relation to a Commulty, may properly repair to their Provision, to entertain their Facul∣ties in their specifique Ministry: Either deputing Money or Ma∣terials to their Trust; and taking weekly the return of their peculiar Industry in such Commodities, as are inherent to their Occupation, at such a rate, as might in time endue them with Capacity to become single Mannagers of their proper Function.

The Nature of the Institution may probably meet some Dif∣ficulty, either in Reference to the Facility of the Remedy, without such Appropriation, since no one can so suddenly fall from the Practice of his Faculty, as not to lend so small an entertainment to his Industry. Or in Relation to the Incum∣brance of a General Trade, since the Society might thereby po∣sibly attract more on their Hands▪ then they could without Da∣mage issue.

To take away the scruple of the first Assertion, we may imply the urgency of a quick return, to those have not Capacity to wait the season proper to Advantages, who forced to put off their Goods at any rate, both for the support of their present livelihood, and the supply of such Materials, should lend new Affluence to their Commerce, fall by degrees to a Cessation in their Faculty, and totally become a prey to those can first en∣gross their Properties, or otherways prevail on their Necessities.

To shun the inconvenient of the Latter Intimation, may be inferr'd the order of our Institution; which reaching either to a general Distribution of the Property to every part of the Society, in full Capacity to agitate alone, equivalent to the Transacti∣on of each Particular; the Issue thereof would be burdensome to none: or otherwise, received on a general account, might be reserved for a common store to issue in a Foreign Traffique.

Independents pursuing not so material a Ministry in the Civil Texture, can properly not require so singular a Priviledge of succour, in that they cannot be reduced by distinct Authority to make a mutual Retribution of the common Benefit received, when they fall under a Capacity to make an equal Reparation to anothers Indigence; in which Respect, we must remit their aid to a more common Ministry, which cannot be more plausibly ef∣fected to a general use, then under the allowance of a Common

Lumbard so Constituted under Regulation of the Civil Power, that the Return of Profit not extend the due Propor∣tion of a Legal Interest, more then some small Allowance for subscription. In opposition to so strict Restraint of Benefit, may possibly be alledg'd the Casualty of Goods. And Charge of the Attendants on Receipt.

To ballance the full consequence of the former Objection, we may infer a due proportion in the Loan, in Reference to such Casualty.

In compensation to the Latter, the weight of the subscripti∣on, and the advantage of an unredemption; which rightly or∣dered by Authentick Consultation, will silence any scruple may be incident to the Propriety of the Institution. Which, conclu∣ding our present Subject, puts a closure to the First Part of our General Treatise, enfolding all those Principles which properly are inherent to the National or Interior Object of our Minister. The Latter Part designed to disclose the Forreign or Exterior Object of our Minister, we must remit to treat on, till the Serenity of a milder Fate shall calm the Agitation of a troubled minde; and the Indulgence of the Hand, to which This is directed, shall lend That Influence.

Notes

• * 1.1

  Coriolanus.
• * 1.2

  Horacius Cocles.
• * 1.3

  M. Curius.
• * 1.4

  Laced
• * 1.5

  Sen.
• * 1.6

  Censor.
• * 1.7

  Venet.