Fourteen papers

The ANATOMY of an EQUIVALENT.

I. THE World hath of late years never been without some extraordinary Word to fur∣nish the Coffee-houses and fill the Pamphlets. Sometimes it is a new one invented, and some∣times an old one revived. They are usually fit∣ted to some present Purpose, with Intentions as differing as the various Designs several Parties may have, either to delude the People, or to expose their Adversaries: They are not of long continuance, but after they have passed a little while, and that they are grown Nauseous by being so often repeated, they give place to something that is newer. Thus, after Whig, Tery, and Trimmer, have had their time, now they are dead and forgotten, being supplanted by the word Equivalent, which reigneth in their stead.

The Birth of it is in short this: After many repeated Essays to dispose Men to the Reperl of Oaths and Tests, made for the security of the Protestant Religion, the general aversion to comply in it was found to be so great, that it was thought adviseable to try another manner of attempting it, and to see whether by putting the •…•… thing into another Mould, and softening an •…•… Proposition by a plausible Term, they might not have better success.

To this end, instead of an absolute quitting of those Laws, without any Condition, which was the first Proposal; Now it is put into •…•… Language, and runneth thus; If yiu will take •…•… the Oaths and Tests, you shall have as good a thing for them. This put into the fashionable Word, is now called an Equivalent.

II. So much to the Word it self. I will now endeavour in short to examin and explain, in or∣der to the having it fully understood,

First, What is the nature of a true Equiva∣lent; and

In the next place, What things are not to be admired under that denomination.

I shall treat these as general Propositions; and •…•… I cannot undertake how far they may be convincing, I may safely do it, that they are •…•… of which there canbe no greater evi∣dence than that I make neither Inference, nor Application, but leave that part intirely to the Reader, according as his own Thoughts shall di∣rect and dispose him.

III. I will first take notice, that this Word, by the Application which hath been made of it in some modern instances, lieth under some Disad∣vantage, not to say some Scandal. It is trans∣mitted hither from France; and if as in most other things that we take from them, we carry them beyond the Pattern, it should prove so in this, we should get into a more partial Stile than the Principles of English Justice will I hope ever allow us to be guilty of.

The French King's Equivalents in Flanders, are very extraordinary Bargains; his manner of pro∣posing and obtaining them, is very differing from the usual methods of equal dealing. In a later Instance, Denmark, by the encourage∣ment as well as by the example of France, hath propos'd things to the Duke of Holstein, which are called Equivalents, but that they are so, the World is not yet sufficiently convinc'd, and pro∣bably the Parties concern'd do not think them to be so, and consequently do not appear to be at all disposed to accept them. Princes en∣joyn and prescribe such things when they have Strength and Power to supply the want of Argu∣ments; and according to practice in these Cases, the weaker are never thought to have an ill Bar∣gain, if they have any thing left them. So that the first Qualification of an Equivalent, must be, that the Appraisers be indifferent, else it is only a Sound, there can be nothing real in it: For, where the same party that proposeth a Bargain, claimeth a Right to set the Value; or which is worse, hath power too to make it good; the other may be forced to submit to the Conditions, but he can by no means ever be persuaded to treat upon them.

IV. The next thing to be consider'd is, that to make an Equivalent in reality an equal thing in the Proposer, it must be a better thing than that which is required by him; just as good is subject to the hazard of not being quite so good; It is not easie to have such an even hand as to make the Value exactly equal; besides, according

to the Maxim in Law, Melior coriditio pessidentis, the Offer is not fair, except the thing offered is better in value than the thing demanded. There must be allowance for removing what is fixed, and there must be something that may be a justification for changing. The value of things very often dependeth more upon other circum∣stances, than upon what is meerly intrinsick to them; therefore the calculation must be made upon that soot, perhaps in most cases; and particularly the want which one of the parties may have of the thing he requireth, maketh it more valuable to him than it is in it self. If the party proposing doth not want the thing he would have in Exchange, his requiring it is impertinent: If he doth, his want of it must go into the apprasement, and by consequence every Proposer of an Equivalent must offer a better thing, or else he must not take it un∣kindly to be refused, except the other party hath an equal want of the same thing, which is very improbable, since naturally he that want∣eth most, will speak first.

V. Another thing necessary to the making a fair Bargain is, that let the parties who trear, be they never so unequal in themselves, yet as to the particular thing proposed, there must be an exact-aquality, as far as it relateth to the full Liberty of taking or refusing, concurring or object∣ing, without any consequence of Revenge, or so much as Dissatisfaction; for it is impossible to treat where it is an Affront to differ; in that case there is no mean between the two ex∣treams, either an open Quarrel or an intire Submission; the way of Bargaining must be equal, else the Bargain it self cannot be so: For example, the Proposer is not only to use equal terms as to the matter, but fair ones in the manner too. There must be no intimations of Anger in case of refusal, much less any open Threatning. Such a Stile is so ill suited to the usual way of Treating, that it looketh more like a Breach of the Peace, than the making a Bargain. It would be yet more improper and less agreeing with the nature of an Equi∣valent, if whilst two men are chassering about the Price, one of them should actually take the thing in question at his own rate, and after∣wards desire to have his possession confirmed by a formal Agreement; such a proceeding would not only destroy that particular contract, but make it impossible to have any other, with the party that could be guilty of such a practice.

VI. Violence preceding destroyeth all Contract, and even tho the party that offereth it should have a right to the thing he so taketh, yet it is to be obtained by legal means, else it may be forfeited by his irregularity in the pursuit of it: The Law is such an Enemy to Violence, and so little to be reconciled to it, that in the case of a Rape, the Punishment is not taken off, tho the party injured afterwards consenteth. The Justice of the Law hath its eye upon the first act, and the Maxim of Volenti non fit injuria, doth not in this case help the Offender, it being a plea subsequent to the Crime, which maketh it to be rejected as a thing wrong dated and out of time.

In taking away Goods or Money it is the same thing. The party robbed, by giving them afterwards to the taker, does not exempt him from the Punishment of the Violence: Quite contrary, the Man from whom they were taken is punishable, if he doth not prosecute. If the case should be, that a Man thus taking away a thing without price, claimeth a right to take it, then whether it is well or ill founded is not the Question; but sure, the party from whom it is so taken, whilst he is treating to Sell or Ex∣change it, can never make a Bargain with so ar∣bitrary a Chapman, there being no room left after that to talk of the Value.

VII. To make an equal Bargain there must be a liberty of differing, not only in every thing that is really essential, but in every thing that is thought so by either party, and most especially by him who is in possession of the thing demand∣ed: His Opinion must be a Rule to him, and even his Mistake in the Value, tho it may not con∣vince the Man he hath to deal with, yet he will be justified for not accepting what is offered till that Mistake is fairly rectified and over∣ruled.

When a Security is desired to be changed, that side which desireth it must not pretend to im∣pose upon the other, so as to dictate to them and tell them without debate, that they are safe in what is proposed, since of that the Coun∣sel on the other side must certainly be the most competent Judges. The hand it cometh from is a great Circumstance, either to invite or discou∣rage in all matters of Contract; the Qualifica∣tions of the Party offering, must suit with the Proposition it self, else let it be never so fair there is ground for Suspicion.

VIII. Whan Men are of a tempet, that they think they have wrong done them, if they have not always the better side of a Bargain: If they happen to be such as by experience have been found to have an ill Memory for their Word. If the Character they bear, doth not recommend their Justice, where ever their Interest is concern'd. In these cases, thinking Men will avoid dealing, not only to prevent surprize, but to cut off the occasions of difficulty or dispute.

It is yet more discouraging, when there are, ei∣ther a precedhnt Practice, or standing Maxims of gross Partiality, in assuming a priviledg of exem∣ption from the usual methods of equal dea∣ling.

To illustrate this by an Instance. Suppose that in any case, the Church of Rome should have an Interest to promote a Bargain; let her way of dealing be a little examin'd, which will direct those with whom she treateth, how far they are to rely upon what she proposeth to them. We may begin with the Quality in the World, the least consisting with equal dealing, viz. An incurable Partiality to herself; which, that it may arrive to its full perfection, is crowned with Infallibility. At the first setting out, she maketh her self un∣capable of dealing upon terms of Equality, by the Power she claimeth of binding and loosing, which hath been so often applied to Treatics, as well as to Sins.

If the definition of Justice is to deal equally, she cannot be guilty of it without betraying her Pre∣rogative, and according to her Principles, she giveth up the Superiority derived to her by Apo∣postolical Succession, if she degradeth her self so as to be judged by the Rules of common Right, espe∣cially if the Bargain should be with Hereticks, who in her Opinion have forfeited the claim they might otherwise have had to it.

IX. Besides, her Taste hath been so spoiled by unreasonable Bargains, that she can never bring down her Palate to any thing that is fair or equal. She hath not only judg'd it an Equivalent, but a great Bargain for the other side, to give them Absolutions and Indulgences for the real Payment of great Sums, for which she hath drawn Bills to have them repayed with Interest in Purgatory.

This Spiritual Bank hath carried on such a Trade upon these advantageous Tirms, that it can never submit to the small Prosits an ordinary Bargain would produce.

The several Popes have in exchange for the Peter-Pence, and all their other Rents and Fines out of England, sent sanctified Roses, Reliques, and other such Wonder-working Trifles. And by virtue of their Character of Holy Fathers, have used Princes like Children, by sending them such Rattles to play with, which they made them buy at extravagant Rates; besides which, they were to be thankful too, into the bargain.

A Chip of the Cross, a piece of St. Lau∣rence's Gridiron, a Hair of St. Peter, have been thought Equivalents for much more substantial things. The Popes being Masters of the Jewel-House, have set the Rates upon them, and they have passed; though the whole Shop would not take up the value of a Bodkin in Lombardstreet upon the credit of them.

They are unconscionable Purchasers, for they get all the Money from the living by praying for them when they are dead. And it is observa∣ble, that the Northern part of Christendom, which best understandeth Trade, were the first that re∣fused to make any more Bargains with them; so that it looketh as if the chief quarrel, to the Hercticks was not as they were ill Christi∣ans, but as they were unkind Merchants, in so discourteously rejecting the Commodities of the growth of Rome.

To conclude this Head, There is no barter∣ing with Infallibility, it being so much above Equality, that it cannot bear the Indignity of a true Equivalent.

X. In all Bargains there is a necessity of look∣ing back, and reflecting how far a present propo∣sal is reconcileable with a former practice; For Example, if at any time a thing is offered, quite differing from the Arguments used by the Proposer, and inconsistent with the Maxims held out by him at other times. Or in a Pub∣lick case, if the same men who promote and press a thing with the utmost violence, do in a little time after with as much violence press the contrary, and profess a detestation of the very thing, for which they had before imployed all their Interest and Authority. Or if in the case of a Law already made, there should be a privi∣lege claimed to exempt those from the obligati∣on of observing it, who yet should afterwards desire and press to have a new Law made in ex∣change for the old one, by which they would not be bound; and that they should propose a security by a thing of the very same nature as that which they did not allow to be any be∣fore. These Incoherences must naturally have the effect of raising suspition; or rather they

are a certain proof, that in such circumstances it is irrational for men to expect an effectual Equivalent.

XI. If whatsoever is more than ordinary is suspicious, every thing that is unnatural is more so: It is not only unnecessary but unnatural too to per∣swade with violence what it is folly to refuse; to push men with eagerness into a good Bargain for themselves, is a stile very much unsuitable to the nature of the thing. But it goeth further and is yet more absurd, to grow angry with men for not receiving a Proposal that is for their advantage; Men ought to be content with the Generosity of offering good Bargains, and should give their compassion to those who do not under∣stand them: but by carrying their good nature so far as to be Cholerick in such a case, they would follow the example of the Church of Rome, where the definition of Charity is very extraordinary. In her Language, the Writ de Hæretico Comburtedo is a Love-Letter, and burning men for differing with them in Opinion, how∣soever miscalled Cruelty, is as they understand it, the perfection of flaming Charity.

When Anger in these cases lasteth long, it is most probable that it is for our own sakes; Good nature for others is one of those Diseases that is cured by time, and especially where it is offered and rejected; but for our selves it never faileth, and cannot be extinguished but with our life. It is fair if men can believe that their friends love them next to themselves, to love them better is too much; the Expression is so unnatural that it is cloying, and men must have no sense, who in this case have no suspition.

XII. Another Circumstance necessary to a fair Bargain is, That there must be openness and free∣dom allowed, as the effect of that equality which is the foundation of Contracting. There must be full liberty of objecting, and making doubts and scruples: If they are such as can be answered, the party convinced is so much the more con∣formed and incouraged to deal, instead of being hindred by them; but if instead of an answer to satisfie, there is nothing but anger for a re∣ply, it is impossible not to conclude that there is never a good one to give; so that the objecti∣on remaining without being fully •…•…, there is an absolute bur put to any further Treaty.

There can be no dealing where one side assumeth a privilege to impose, so as to make an offer and not bear the examination of it; this is giving judgment, not making a bargain. Where is called unmannerly to object, or criminal to re∣fuse, the surest way is for men to stay when they are, rather than treat upon such disad∣vantages.

If it should happen to be in any Country where the governing power should allow me Liberty of Conscience in the choice of their Religion it would be strange to deny them liberty of •…•… in making a bargain. Such a contradiction would be so discouraging, that they must be unreasona∣bly sanguine, who in that case can entertain the hopes of a fair Equivalent.

XIII. An equal Bargain must not be a Mystery nor a Secret, The purchaser or proposer is to tell directly and plainly, what it is he intendeth to give in Exchange for that which he requireth. It must be viewed and considered by the other party that he may judg of the value; for without knowing what it is, he cannot determine whe∣ther he shall take or leave it. An assertion in ge∣neral, that it shall be as good or a better thing, not in this a sufficient excuse for the mistake of dealing upon such uncertain terms. In all things that are dark and not enough explained, suspition naturally followeth: A secret generally implied a defect or a deceit; and if a false light is an obje∣ction, no light at all is yet a greater. To pretend to give a better thing, and to refuse to shew it, very near saying, it is not so good, a one; at least so it will be taken in common construction. A Mystery is yet a more discouraging thing to Protestant; especially if the Proposition should come from a Papist; it being one of his great Objections to that Church, that there are so ma∣ny of them Invisible and Impossible, which are violently thrust upon their understandings; that they are overlaid with them. They think that rational creatures are to be convinced only •…•… reason and that reason must be visible and •…•…, else they will think themselves used with •…•… instead of equality, and will never allow such a suspected secrecy to be a fit Preface •…•… •…•… Equivalent.

XIV. In matters of Contract not only the pre∣sent value, but the contingencies and consequences, far as they can be fairly supposed, are to be con∣sidered. For Example, if there should be a possi∣bility, that one of the parties may be ruined by accepting, and the other only disappointed by •…•… refusing; the consequences are so extremely une∣qual, that it is not imaginable, a man should

take that for an Equivalent, which hath such a fatal possibility at the heels of it.

If it should happen in a publick; case, that such •…•… proposal should come from the minor part of an Assembly or Nation, to the greater; It is very must, that the hazard of such a possibility should more or less likely fall upon the lesser part, ra∣ther than upon the greater; for whose sake and ad∣vantage things are and must be calculated in all publiok Constitutions. Suppose in any mixed Go∣vernment, the chief Magistrate should propose upon a condition, in the Senate, Diet, or other Supreme Assembly, either to Enact or Abrogate one or more Laws, by which a possibility might be let in of destroying their Religion and Property, which in other language signifieth no less than Soul and Body; where could be the Equivalent in the case, not only for the real loss, but even for the fear of losing them? Men can fall no lower than to lose all, and if losing all destroyeth them, the venturing all must fright them.

In an instance when Men are secure, that how far soever they may be over-run by Violence, yet they can never be undone by Law, except they give their assistance to make it possible; though it should neither be likely nor intended, still the Consequence which may happen is too big for any paesent thing to make amends for it. Whilst the word Possible remaineth, it must forhid the Bar∣gain. Where ever it falleth out therefore, that in an Example of a publick nature, the Chan∣ging, Enacting, or Repealing a Law, may natū∣rally tend to the misplacing the Legislative power in the hands of those who have a separate interest from the body of a People, there can be no trea∣ting, till it is demonstrably made out, that such a consequence shall be absolutely impossible; for if that shall be denied by those who make the proposal, if it is because they cannot do it, the motion at first was very unfair. If they can and will not, it would be yet less reasonable to expect that such partial dealers would ever give an Equivalent fit to be accepted.

XV. It is necessary in all dealing to be as∣sured in the first place, that the party proposing is in a condition to make good his Offer; that he is neither under any former Obligations or pretended claims, which may render him uncapable of performing it; else he is so far in the condition of a Minor, that whatever he disposeth by sale or exchange may be afterwards resumed, and an Contract becometh void, being originally de∣fective, for want of a suffistent legal power in him that made it.

In the case of a strict Settlement, where the party is only Tenant for life, there is no possibi∣lity of treating with one under such fetters; no purchase or exchange of Lands, or any thing else can be good, where there is such an incapa∣city of making out a Title; the interest vested in him being so limited, that he can do little more than pronounce the words of a Contract, he can by no means perform the effect of it.

In more publick instances, the impossibility is yet more express; as suppose in any Kingdom, where the people have so much liberty left them, as that they may make Contracts with the Crown, there should be some peculiar rights claimed to be so fixed to the Royal Function, that no King for the time being could have power to part with them, being so fundamentally tied to the Office, that they can never be separated. Such Rights can upon no occasion be received in exchange for any thing the Crown may desire from the Peo∣ple: That can never be taken in payment, which cannot lawfully be given, so that if they should part with that which is required up∣on those terms; it must be a gift, it cannot be a bargain.

There is not in the whole Dictionary a more untractable word than inherent, and less to be re∣conciled to the word Equivalent.

The party that will Contract in spight of such a Claim, is content to take what is impossi∣ble to grant, and if he complaineth of his Dis∣appointment, he neither can have Remedy, nor deserveth it.

If a Right so claimed hapneth to be of so com∣prehensive a nature, as that by a clear inference it may extend to every thing else, as well as to the particular matter in question, as often as the Su∣pream Magistrate shall be so disposed, there can in that case be no treating with a Prerogative that swalloweth all the Right the People can pretend to; and if they have no right to any thing of which they are possessed, it is a Jest and not a Bargain, to observe any Formality in par∣ting with it.

A Claim may be so stated, that by the power and advantage of interpreting, it shall have such a murthering eye, that if it looketh upon a Law, like a Basilisk, it shall strike it dead: Where is the possibility of Treating, where such a Right is assumed? Nay, let it be supposed,

that such a Claim is not well founded in Law, and that upon a free disquisition it could not be made out; yet even in this case, none that are well advised will conclude a Bargain, till it is fully stated and cleared, or indeed, so much as engage in a treaty, till by way of preliminary all possi∣bility shall be remov'd of any trouble or dispute.

XVI. There is a collateral circumstance in making a Contract, which yet deserveth to be considered, as much as any thing that belongeth to it; and that is the character and figure of the parties contracting; if they treat only by them∣selves, and if by others, the Qualifications of the Instruments they employ.

The Proposer especially, must not be so low as to want credit, nor so raised as to carry him above the reach of ordinary dealing. In the first, There is scandal, in the other danger. There is no Rule without some Exception, but generally speaking, the means should be suited to the end; and since all Men who treat, pretend an equal bargain, it is desirable that there may be equality in the persons, as well as in the thing.

The manner of doing, things hath such an in∣fluence upon the matter, that Men may guess at the end by the insteuments that are used to obtain it, who are a very good direction how far to rely upon or suspect the sincerity of that which is pro∣posed. An Absurdity in the way of carrying on a Treaty in any one Circumstance, if it is very gross, is enough to perswade a thinking Man to break off, and take warning from such, an ill ap∣pearance. Some things are so glaring that it is impossible not to see, and consequently not to suspect them; as suppose in a private case there should be a Treaty of Marriage between two Honourable Families, and the proposing side shöuld think sit to send a Woman that had been Carted to perswade the young, Lady to an appro∣bation and consent; the unsitness of the Messen∣ger must naturally dispose the other party to distrust the Message, and to resist the temptation of the best Match that could be offered, when conveyed by that hand, and ushered in by such a discouraging preliminary.

In a publick instance the suspicion arising from unfit Mediators, still groweth more reasonable in proportion, as the consequence is much greater of being deceived. If a Jew should be employ∣ed to sollicit all sorts of Christians to unite and agree; the contrariety of his profession, would not allow men to stay till they heard his Arguments, they would conclude from his Religion, that o∣ther the Man himself was mad, or that he •…•… those to be so, whom he had the Impudence endeavour to perswade.

Or suppose an Adamite should be very solli∣citous and active, in all places, and with all sort of Persons, to settle the Church of England in par∣ticular, and a fair Liberty of Conscience for •…•… Dissenters; though nothing in the World •…•… more to be said for it than Naked Truth, yet such a Man should run up and down without Cloaths, let his Arguments be never so good, of his Commission never so Authentick, his Figure would be such a contradiction to his business, that how serious soever that might be in it self, but interposition would make a Jest of it.

Though it should not go so far as this, yet •…•… Men have contrarieties in their way of living •…•… to be reconciled; as if they should pretend infi∣nite •…•… for liberty, and at that time be in great savour, and employed by those who will not en∣dure it.

If they are affectedly singular, and conform to the generality of the World in no one thing, but in playing the knave.

If demonstration is a familiar word with them most especially where the thing is impossible.

If they quote Authority to supply their want of sense, and justifie the value of their Argu∣ments, not by reason, but by their being paid for them, (in which, by the way, those who pay them have probably a very melancholly Equivalent.) If they brandish a Prince's Word like a Sword in a Crowd, to make way for their own impertinence •…•… and in dispute, as Criminals formerly sled to the Statue of the Prince for Sanctuary; if they should now, when baffled, creep under the pro∣tection of a Kings Name, where out of respect they are no farther to be pursued.

In these cases, Though the propositions should be really good, they will be corrupted by passing through such Conduits, and it would be a suffi∣cient Mistake to enter into a Treaty; but it would be little less than Madness from such hands to expect an Equivalent.

XVII. Having touched upon these particu∣lars as necessary in order to the stating the nature of an equal Bargain, and the Circumstances be∣longing to it, let it now be examined in two or three instances, what things are not to be admit∣ted by way of Contract, to pass under the Name of an Equivalent.

First, Though it will be allowed, that in the general corruption of mankind, which will not •…•… Justice alone to be a sufficient tie to make •…•… a Contract, that a Punishment added for •…•… breach of it, is a fitting or rather a necessary circumstance; yet it does not follow, that in •…•… cases, a great Penalty upon the party offending •…•… absolute and an entire Security. It must be considered in every particular case, how far the circumstances may rationally lead a Man to rely more or less upon it.

In a private instance, the Penalty inflicted up∣on the breach of Contract must be, First, such a •…•… as the party injured can enforce, and Second∣ly, such a one as he will enforce, when it is in his answer.

If the Offending Party is in a capacity of hin∣dering the other from bringing the Vengeance of the Law upon him. If he hath strength or •…•… sufficient to over-rule the Letter of the Con∣tract; in that case a Penalty is but a Word, there •…•… no consequence belonging to it. Secondly, •…•… forfeiture or punishment must be such as the •…•… aggrieved will take; for Example, if upon •…•… Bargain, one of the Parties shall stipulate to object himself, in case of his failure to have his •…•… cut, or his Nose stir by the other, with secu∣rity given, that he shall not be prosecuted for executing this part of the Agreement, the Pe∣nalty is heavy enough to discourage a Man from breaking his Contract: but on the other side it is of such a kind, that the other how much soever •…•… may be provoked, will not in cold blood •…•… to inflict it. Such an extravagant Clause would seem to be made only for shew and sound, and no man would think himself safer by a thing which one way or other is sure to prove inef∣fectual.

In a publick Case, Suppose a Government so constituted that a Law may be made in the nature of a Bargain, it is in it self no more than a dead •…•…, the life is given to it by the execution of what it containeth; so that let it in it self be never so perfect, it dependeth upon those who are intrusted with seeing it observed.

If it is in any Countrey where the chief Magi∣strate chuseth the Judges, and the Judges interpret the Laws; a Penalty in any one particular Law can have no effect but what is precarious. It may have a loud voice to threaten, but it has not an hand to give a blow; for as long as the Govern∣ing Power is in possession of this Prerogative, but who will chuse the Meat, if they chuse the Cooks, it is they that will give the taste to it. So that it is clear that the rigour of a Penalty will not in all cases fix a Bárgain, neither is it Univer∣sally a true Position, that the increase of punish∣ment for the breach of a new Law, is an Equivalent for the consent to part with an old one.

XVIII. In most Bargains there is a reference to the time to come, which is therefore to be consi∣dered as well as that which cometh within the compass of the present valuation.

Where the Party Contracting hath not a full power to dispose what belongeth on him or them in Reversion, who shall succeed after bim in his Right; he cannot make any part of what is so limited to be the condition of the Contract. Fur∣ther, he cannot enjoyn the Heir or Successor to forbear the exercise of any Right, that is inhe∣rent to him, as he is a Man: neither can he re∣strain him without his own consent, from doing any act which in it self is lawful, and liable to no objection. For Example, A Father cannot stipulate with any other Man, that in Cousideration of such a thing done, or to be done, his Son shall never Marry; because Marriage is an Institution Established by the Laws of God and Man, and therefore no body can be so re∣strained by any power from doing such an act, when he thinketh fit, being warranted by an Au∣thority that is not to be controuled.

XIX. Now as there are Rights inherent in Mens persons in their single capacities, there are Rights as much fixed to the Body Politick, which is a Creature that never dieth. For instance, There can be no Government without a Supreme Power, that Power is not always in the same hands, it is in different shapes and dresses, but still whereever it is lodged, it must be unlimited: It hath a jurisdiction over every thing else, but it cannot have it above it self. Supreme Power can no more be limited than Infinity can be measured; because it ceaseth to be the thing, its very being is dissolved, when any bounds can be put to it.

Where this Supreme Power is mixed, or di∣vided, the shape only differeth, the Argument is still the same.

The present State of Venice cannot restrain those who succeed them in the same prower, from having an entire and unlimited Sovereign∣ty; they may indeed make present Laws which shall retrench their present Power, if they are

so disposed, and those Laws if not repealed by the same Authority that enacted them, are to be observed by the succeeding Senate till they think fit eto abrogate them, and no longer; for if the Supreme Power shall still reside in the Senate, perhaps composed of other Men, or of other minds (which will be sufficient) the necessary consequence is, that one Senate must have as much right to alter such a Law, as another could have to make it.

XX. Suppose the Supreme Power in any State should make a Law, to enjoyn all subsequent Law-makers to take an Oath never to alter it, it would produce these following Absurdities.

First, All Supreme Power being instituted to promote the safety and benefit, and to prevent the prejudice and danger which may fall upon those who live under the protection of it; the consequence of such an Oath would be, that all Men who are so trusted, shall take God to wit∣ness, that such a Law once made, being judged at the time to be advantageous for the publick, though afterwards by the vicissitude of times, or the variety of accidents or interests, it should plainly appear to them to be destructive, they will suffer it to have its course, and will never repeal it.

Secondly, If there could in any Nation he found a set of Men, who having a part in the Su∣preme legislative Power, should as much as in them lieth, betray their Country by such a cri∣minal engagement, so directly opposite to the na∣ture of their Power, and to the Trust reposed in them. If these Men have their power only for life, when they are dead such an Oath can ope∣rate no farther; and though that would be too long a Lease for the life of such a Monster as an Oath so composed, yet it must then certainly give up the ghost. It could bind none but the first makers of it, another generation would never be tied up by it.

Thirdly, In those Countries where the Su∣preme Assemblies are not constant standing Courts, but called together upon occasions, and compo∣sed of such as the People chuse for that time only, with a Trust and Character that remain∣eth no longer with them than that Assembly is regularly dissolved; such an Oath taken by the Members of a Senate, Diet, or other Assembly so chosen, can have very little effect, because at the next meeting there may be quite another set of Men who will be under no Obligation of that kind. The eternity intended to that Law by those that made it, will be cut off by new Men who shall succeed them in their power, if they have a differing Taste, or another Interest.

XXI. To put it yet farther, Suppose a Clause in such a Law, that it shall be criminal in the last degree for any Man chosen in a subsequent Assembly, to propose the repealing it; and since nothing can be Enacted which is not first proposed, by this means it seemeth as if a Law might be created which should never die. But let this be Examined.

First, such a clause would be so destructive to the being of such a Constitution, as that it would be as reasonable to say, that a King had right to give or sell his Kingdom to a foreign Prince, as that any number of Men who are intrusted with the Supreme Power, or any part of it, should have a right to impose such shackles upon the Liberty of those who are to succeed them in the same Trust. The ground of that Trust is, that every Man who is chosen into such an Assembly, is to do all that in him lieth for the good of those who chose him. The English of such a Clause would be, that he is not to do his best for those that chose him, because though he should be convinc'd that it might be very fatal to con∣tinue that Law, and therefore very necessary to repeal it, yet he must not repeal it, because it is made a Crime, and attended with a Penalty.

But secondly, to shew the emptiness as well as injustice of such a Clause, it is clear, that al∣though such an Invasion of Right should be im∣posed, it will never be obeyed: There will on∣ly be Deformity in the Monster, it will neither sting nor bite. Such Lawgivers would only have the honour of attempting a contradiction which can never have any success; for as such a Law in it self would be a madness, so the Penalty would be a Jest; which may be thus made out.

XXII. A Law that carrieth in it self Reason enough to support it, is so far from wanting the protection of such a Clause, or from needing to take such an extraordinary receipt for long Life, that the admitting it must certainly be the like∣liest and the shortest way to destroy it; such a Clause in a Law must imply an opinion that the greatest part of mankind is against it, since it is impossible such an exorbitance should be done for its own sake; the end of it must be to force Men by a Penalty, to that which they could not be perswaded to, whilst their Reason is left at liberty. This Position being granted, which I think can hardly be denied, put the case that a

Law should be made with this imaginary Clause of Immortality, after which another Assembly is chosen, and if the majority of the Electors shall be against this Law, the greater part of the Ele∣cted must be so too, if the choice is fair and re∣gular; which must be presumed, since the sup∣position of the contrary is not to come within this Argument. When these Men shall meet, the Majority will be visible before-hand of those who are against such a Law, so that there will be no hazard to any single Man in proposing the Repeal of it, when he cannot be punished but by the Majority, and he hath such a kind of assu∣rance as cometh near a Demonstration, that the greater Number will be of his mind, and con∣sequently, that for their own sakes they will secure him from any danger.

For these Reasons, where-ever in order to the making a Bargain, a Proposition is advanc'd to make a new Law, which is to tye up those who neither can nor will be bound by it, it may be a good Jest, but it will never be a good Equivalent.

XXIII. In the last place, let it be examined how far a Promise ought to be taken for a Secu∣rity in a Bargain.

There is a great variety of Methods for the Security of those that deal, according to their Dispositions and Interests; some are binding, others inducing circumstances, and are to be so distin∣guished.

First, Ready Payment is without exception, so of that there can be no dispute; in default of that, the good Opinion Men may have of one ano∣ther, is a great ingredient to supply the want of immediate Performances. Where the Trust is grounded upon Inclination only, the Generosity is not always return'd; but where it springeth from a long Experience it is a better foundation, and yet that is not always secure. In ordinary dealing, one Promise may be an Equivalent to ano∣ther, but it is not so for a thing actually granted or conveyed; especially if the thing required in exchange for it, is of great value, either in it self or in its consequences. A bare Promise as a single Security in such a case is not an equal pro∣posal; if it is offered by way of addition, it generally giveth cause to doubt the Title is crazy, where so slender a thing is brought in to be a suppliment.

XXIV. The Eearnest of making good a Pro∣mise, must be such a behaviour preceding as may encourage the party to whom it is made to de∣pend upon it: Where instead of that, there hath been want of Kindness, and which is worse, an Invasion of Right, a Promise hath no perswa∣ding force; and till the Objection to such a Pro∣ceeding is forgotten (which can only be the work of time) and the skin is a little grown over the tender part, the wound must not be touch'd. There must be some Intermission at least to abare the smart of unkind usage, or else a Promise in the eye of the party injur'd is so far from stren∣thening a Security, that it raiseth more doubts, and giveth more justifiable cause to suspect it.

A Word is not like a Bone, that being broken and well set again, is said to be sometimes stron∣ger in that very part: It is far from being so in a Word given and not made good. Every single Act either weakeneth or improveth our Credit with other men; and as an habit of being just to our Word will confirm, so an habit of too freely dispensing with it must necessarily destroy it. A Promise hath its effect to perswade a man to lay some weight upon it, where the Promiser hath not only the power, but may reasonably be supposed to have the will of performing it; and further, that there be no visible Interest of the party promising to excuse himself from it, or to evade it.

All Obligations are comparative, and wher they seem to be opposite, or between the grea∣ter and the lesser, which of them ought to have precedence in all respects every man is apt to be his own Judge.

XXV. If it should fall out that the Promiser with full intent at the time to perform, might by the interposition of new Arguments, or differing Advice think himself oblig'd to turn the mat∣ter of Conscience on the other side, and should look upon it to be much a greater fault to keep his word than to break it; such a Belief will un∣tye the strictest Promise that can be made, and though the Party thus absolving himself should do it without the mixture or temptation of pri∣vate Interest, being moved to it meerly by his Conscience, as then informed; yet how far soe∣ver that might diminish the Fault in him, it would in no degree lessen the inconveniences to the party who is disappointed, by the breach of an engagement upon which he relyed.

XXVI. A Promise is to be understood in the plain and natural sense of the words, and to be sure not in his who made it, if it was given as part of a Bargain. That would be like giving a Man power to raise the value of his Money in the payment of his Debt, by which, though he paid but half or less, he might pretend according to the letter to have made good the contract. The

The power of interpreting a Promise intirely taketh away the virtue of it. A Merchant who should once assume that priviledge, would save himself the trouble of making any more Bargains.

It is still worse if this Jurisdiction over a Man's Promise, should be lodg'd in hands that have Power to support such an extraordinary Claim; and if in other Cases, forbearing to deal upon those terms is advisable, in this it beco∣meth absolutely necessary.

XXVII. There must in all respects be a full liberty to claim a Promise, to make it reaso∣nable to take it in any part of payment; else it would be like agreeing for a Rent, and at the same time making it Criminal to demand it.

A superiority of Dignity or Power in the Party promising, maketh it a more tender thing for the other party to treat upon that security. The first maketh it a nice thing to claim, the latter maketh it a difficult thing to obtain.

In some cases, a Promise is in the nature of a Covenant, and then between equal parties the breach of it will bear a Suit; but where the greatness of the Promiser is very much raised a∣bove the Level of equality, there is no Forsei∣ture to be taken. It is so far from the party grieved his being able to sue or recover Damages, that he will not be allow'd to explain or expo∣stulate, and instead of his being relieved against the breach of Promise, he will run the hazard of being punished for breach of Good Manners. Such a difficulty is putting all or part of the Payment in the Fire, where Men must burn their Fingers before they can come at it.

That cannot properly be called good payment, which the party to whom it is due, may not re∣ceive with ease and safety. It was a King's Bro∣ther of England who refused to lend the Pope mony, for this reason, That he would never take the Bond of one, upon whom he could not distrain.

The Argument is still stronger against the Va∣lidity of a Promise, when the Contract is made between a Prince and a Subject. The very offe∣ring a King's Word in Mortgage, is rather a threat∣ning in case of Refusal, than an inducing Argu∣ment to accept it; it is unfair at first, and by that giveth greater cause to be cautious, especial∣ly if a thing of that value and dignity as a King's Word ought to be, should be put into the hands of State-brokers to strike up a Bargain with it.

XXVIII. When God Almighty maketh Cove∣nants with Mankind, His Promise is a sufficient Se∣curity, notwithstanding his Superiority and his Power; because first, he can neither err nor do in∣justice. It is the only Exception to his Omnipo∣tence, that by the Perfection of his being he is in∣capacitated to do wrong. Secondly, at the instant of His Promise, by the extent of his Foresight, which cannot fail, there is no room left for the possibility of any thing to intervene, which might change his mind. Lastly, he is above the receiving either Benefit or Inconvenience, and therefore can have no Interest or Temptation to vary from his Word, when once he hath granted it.

Now though Princes are God's Vicegerents, yet their Commission not being so large, as that these Qualifications are devolved to them, it is quite another case, and since the offering a Secu∣rity implyeth it to be examined by the party to whom it is proposed, it must not be taken ill that Objections are made to it, even though the Prince himself should be the immediate Proposer.

Let a familiar Case be put; Suppose a Prince, tempted by a Passion too strong for him to resist, should descend, so as to promise Marriage to one of his Subjects, and as Men are naturally in great haste upon such occasions, should press to take pos∣session before the necessary Forms could be com∣plyed with; would the poor Ladies Scruples be called Criminal for not taking the Security of the Royal Word? Or would her Allegiance be tainted by her resisting the sacred Person of her Sove∣raign, because he was impatient of delay? Cour∣tesie in this case might perswade her to accept it, if she was so disposed, but sure the just exer∣cise of Power can never claim it.

XXIX. There is one Case where it is more particularly a Duty to use very great occasion in accepting the security of a Promise; and that is, when Men are authorized and trusted by others to act for them. This putteth them under much grea∣ter restraints, than those who are at liberty to treat for themselves. It is lawful, though it is not prudent for any man to make an ill Bargain for himself, but it is neither the one nor the other where the party contracting treateth on behalf of another, by whom he is intrrsted. Men who will unwarily accept an ill security, if it is for themselves, forfeit their own discretion, and un∣dergo the Penalty, but they are not responsible to any body else. They lie under the Mortifica∣tion and the loss of committing the error, by which though they may expose their Judgment to some censure, yet their Morality suffers •…•… reproach by it.

But those who are deputed by others to treat for

them, upon terms of best advantage, though the Confidence placed in them should prevent the putting any limits to their Power in their Com∣mission, yet the Condition implied if not expressed, is, that the Persons so trusted shall neither make an ill Bargain, nor accept a slight Security.

The Obligation is yet more binding when the Trust is of a Publick Nature. The aggravation of disappointing a Body of Men that rely upon them, carrieth the Fault as high as it can go, and per∣haps no Crime of any kind can outdo such a deli∣berate breach of Trust, or would more justly make Men forfeit the protection of humane Society.

XXX. I will add one thing more upon this Head, which is, that it is not always a true Pro∣position, that 'tis safe to rely upon a Promise, if at the time of making it, it is the Interest of the Promiser to make it good. This, though many times it is a good Inducement, yet it hath these Exceptions to it. First, if the Proposer hath at other times gone plainly against his Visible Interest, the Argument will turn the other way, and his former Mistakes are so many Warnings to others, not to come within the danger any more: let the Inducements to those Mistakes be never so great and generous, that does not alter the Na∣ture, they are Mistakes still.

Interest is an uncertain thing, It goeth and com∣eth, and varieth according to times and circum∣stances; as good build upon a Quicksand, as up∣on a presumption that Interest shall not alter. Where are the Men so distinguished from the rest of Mankind, that it is impossible for them to mi∣stake their Interest? Who are they that have such an exemption from human Frailty, as that it can never happen to them not to see their Interest for want of Understanding, or not to leap over it by excess of Zeal.

Above all, Princes are most liable to Mistake; not out of any defect in their Nature, which might put them under such an unfortunate di∣stinction; quite contrary, the blood they derive from wise and great Ancestors, does rather di∣stinguish them on the better side; besides that their great Character and Office of Governing giveth a noble Exercise to their Reason, which can very hardly fail to raise and improve it. But there is one Circumstance annexed to their Glo∣rious Calling, which, in this respect is sufficient to outweigh all those advantages; it is that Man∣kind, divided in most things else, agree in this, to conspire in their endeavours to deceive and mislead them; which maketh it above the pow∣er of human understanding, to be so exactly guar∣ded as never to admit a surprize, and the high∣est applause that could ever yet be given to the greatest Men that ever wore a Crown, is that they were no oftner deceived.

Thus I have ventur'd to lay down my thoughts of the Nature of a Bargain, and the due Circum∣stances belonging to an Equivalent, and will now conclude with this short word.

Where Distrust∣ing may be the cause of provoking Anger, and Trusting may be the cause of bringing Ruin, the Choice is too easie to need the being explained.