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„ 4 971 | _ | Ad- ate in the Preſidiall | . Court of CLERMON T in FRANCE: 1

And Tranſlated into ENGLISH by

T ELTA STRAHAN, II. ds. | Advocate in Doctors CoMMons. I IE. With Additional REMARKS on ſome Material Differences between the C IVI Law and the Law of Encrand. . 5 5 In TWO VOLUMES. 0 N Turpe eſſe atricto, & Nobili, & Cauſas oranti, Jus, in quo ver aretur, | | Azgnbrare. L. 2. F. 43. Dig. de Origine Juris. ; 5 | Ihe Szcond EDITION, with AppiTions. — Lo N DON: . TR A. BE TTESWORT it and C. Hirn, 9 G. an 1 ty. PEMBERTON, R. Wars, C.RivinGrox, = FN | F. Ctar, J. Bar LEV and J. Wood, A. Wan p, J. and = P. Knarrtox, T. LoNGMAN, and R. H ET 7. _ MDCCAXxvI _

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; 755 2 8 3 TOs 0 V ; 5 \ . \ A b A 1 \ SM 8 A LY N 8 "BK A A 3 \ 5 1 . Th A & | j | \ | . , e . { 4 a 7] 2 8 10 | Kr. Avi N undertaken the Tranſlation 2 of this Book with no other View but to render it of more general uſe here 4 gland, T thought I could not | introduce it more favourably into - : the World, than under the Protection of a truly Noble Patriot, who is an Encourager of all Li- beral Arts and Sciences, and who readily embra- ces all opportunities of promoting every thing that may be of real A. to his Country. 1 ITE #3 #1 . ** . 1 | on

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. © Polite Lear fing: For it contains, as it were, hs Whole Duty of Man, with reſpect to this Life; 2

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HEN the Bo ;ok was in the Ori. | ginal Language in which it is written, it was = : judged to be of ſo great conſequence to the Ad- | vancement of Learning, that the late French

King; one of whoſe d Men, |

eng a an Univerſat © in all Sciences, and of all Countries, was pleaſed | 3 co vouchſafe it his Royal Protection. Which, I L hope, may in ſome meaſure excuſe the Freedom 1 take in laying a Tranſlation of it at Your Gracrz's | Feet; who has given ſo many ſignal Inſtances of Your Favour and Good-will to Men of Letters,

| aud of YourZeal to promote Learning, ſo as to ex- | : tend Your Beneficence for the Encouragement. of I it, eyen to the remoteſt C orners of t t e Hand. i | r got 25 4 | | * Learning, th at? 15 BOO — "BK Hon, it lays claim to it likewiſe, ; and that is, as You are thePromo- 5 of Trade. For althoug it is yet as, it contains all t hg la- Rules Ju ice in matters of * and 11 | „„ Commerce,

DEDICATION

33 Gen de it may be reckoned as very uſeful and A ſubſervient to Trade; for eſtabliſhing it on a ſure and laſting Foundation: It not only deſcribes the

Nature and Obligation of all manner of private Contracts, and the reciprocal Duties of thoſe who

are Parties to them; but it likewiſe lays down many uſeful Rules for the Government of Publick

8 and for carrying on Trade and Com-

merce with Foreign Nations in the moſt benefi-

cial manner.

Tu E des le pains which Your GRACE has taken to retrieve one of the 'moft profitable Branches of the Trade of this Kingdom, which was in a manner totally loſt to the Nation, thro” the Negligence, or rather Treachery, of former Managers, as it is matter of wonder and admira- tion to thoſe who ſee it more nearly, ſo it has pro- cured You the univerſal Love and Eſteem of all Your Countrymen. For what an agreeable Pro- ſpect muſt it afford to a Nation, when they ſee Perſons of the firſt Rank and Quality among them, inſtead of indulging themſelves in Eaſe and Plea- ſure, ſpend all their time and thoughts in pro- moting the Good and Welfare of their Country? Such an Example cannot fail to have a happy in- fluence on Subjects of an inferior Rank, and make them reflect within themſelves, that Man is not created for himſelf alone, but to be an Inſtrument of doing Good to others, and more eſpecially to the Commonwealth of which he is a Member.

Mr Los, as I know it would not be agrecable to Your Grace's inclination, ſo it is not my in-

tention here to expatiate on the many engaging . Qualities

ad

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make t not be altogether a Stranger to it, but might be

tion with Fo: oreigners. And now You have ſent him into Foreign Countries, that he may there learn, not ſo much the Languages and Cuſtoms of other Nations, as their ſeveral Intereſts and Alli-

2 5 Are are ————— ͤ( vyv—v—v— 3 lean 2 a 6 „ . * -

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. e a You the Hear 8 and Affoct?

ons of all thoſe who have the Honour of Your A- 0. quaintarice. '

Tihalf only obſerye in general, that it is no ſmall degree of Happineſs to be"*thought

18 peculiarly happy, that every! body wiſhes Your r bc and no body envies Your Greatneſs" ft

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As Your 0140 x takes pleaſure in promoting the Good of Your Country in Your own Life- time, fo it is no leſs a ſhining part of Your Cha-

racter, the care You take to render thoſe of Your

Family who are to come after You, uſeful Mem-

bers of the Commonwealth, by giving them all Z

the advantages of Education that may qualify

them to ſerve their Prince and Country. -Your

GRACE is too ſenſible how much the future Pro- ſperity of a State depends on à right Education of the Youth, to neg -glect. a matter of that prove PETITE: es as, Phi e .

28 v have rte line nen care to be che

Marquis of Caz RNARVON, who is Heir apparent

to Your GRAcE's Honour and Eſtate, thoroughly

inſtructed in the Learning that is taught! in the Schools and Univerſities of this Kingdom. Hav-

ing finiſhed his Studies there, Vou directed him to e Tour of his own Country, that he might

able to give ſome account of it in his Converſa-

ances, together with their Maxims of Govern- : ment,

Kit by others. And ia this Yout Ca der

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eir Trade and Commerce abroad.

So that there is reaſon to hope, that a young No-

bleman endoved with ſo good Natural Talents as my Lord CARRNARVON is, having had all the advantages of a Home Edutation, and purſuing his Travels beyond Sea according to the Inftruc- tions which He has from Your GRACE, cannot fail to return to his Native Country duly qualified in all reſpects to be a Counſellor to his Prince in the weighty and arduous Affairs of State, to which he is intitled by his Birth. right.

Ap whileI am mentioning the laudable care which Your GR ac x takes to educate Y our Poſte- rity in ſuch a manner as to render them uſeful Patriots to their Country, and Ornaments of the antient Family from which they are deſcended, I cannot forbear taking notice of Your GRAcEs care to train them up in the Principles and Prac- tice of Religion, by obliging them to a conſtant Attendance on the Publick Worſhip of GOD in their Pariſh Church, where Your GR act takes care to have the Divine Service performed with that Religious Symphony, and that Order and Decency, that is ſtitable to the Divine Majeſty of the Object of our Worſhip; and where the grave and devout Attention of Your G Rac Es Family to all the parts of the Service gives a very edify- ing Example to others. And however light the Scepticks of our Age may make of Religion, and of all Religious Worſhip; yet there is nothing more certain, than that without a Principle of Religion there is no true ſolid Honour; and it is Religion alone that muſt be our only t

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HE Author's F/1 in compiling this Work 5 was not to make a new Abridgment of the whole Body of the Cuil Lau, which had been done | /ong before his time by many eminent hands. Bu his view was to give to the World fome- — hy new in us lind, and what had not been attempted by any other Lawyer before him ; to wit, a Collection

out. of abe Body. of be Ciuil Law of all the Natural, Rules of Justice and Equity, which are applicable to the moſi common | Tranſaflions berucen Man and Man, either in a private or publick Capacity, in a clear and eafy method, and aiſemangled from the Miceties and Forms of Law, with which they are mixed

and mterwoven in the Body of the Cui Ladd.

Ei It is maſt certain, bat it 1s in the Body of the Croil Law that

we have the moſt compleat, if not the only Collection of the Rules of Natural Reaſon and Equity, which are to govern the Actions

* y

of Mankind; and therefore it is, that it has been called Ratio Scripta, . Mruten Reaſon, as containing the moſt perfets Rules

of Reaſon for deciduig all differences that may ariſe among Men 0 | |

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f the whole Society.

e, appeared in publick, than it was fe-

mprovements of Learning

Editions thereof in France in a few years ; and it has been thought to be of ſ% great uſe in other Conmiries, that it has been

tranſlated into ſeveral other Lan guages. I thought that it might

not be of les ſervice here in I d than in other Countries,

au therefore was induced ib render it into Engliſh, that all the

Subjetts of this Kingdom in general might have the benefit of it. There are many perſons of great Learnm 5 in England, who have not had opportuninies of acquiring fuch a thorough know- ledge of the French Tongue, as to be able 10 — * per-

fettly the Books which are writ in that Language. And even

many of thoſe who are ſufficient tek ers of 2 French Lan- | guage, fo as lo umderſtand their Hiſtorians and Books of Movels, may not be fo well acquainted either with the French or Civil Law Terms, which frequently occur in this York, and which make a Tranſlation thereof the more nece ay for he Engliſh Reater. "And the ſubjett matter of this Book being of ſo gene-

. val uſe is all Mankind, I dare flatter my ſelf that a Trauſla-

mam of it, when the Book comes to be more unverfally known

here n England, will be allowed to be of real Service to the

ry, and be at leaff as well received as a Tranſlation of any French or Latin FHiftorran whatſoever.

Huce I pin read this Book, I have always been o f Opinion tax an Englifh Tranſlation if i it would be of the greateſt ſervice bere n England; and the rather, becauſe of late years the ſtu-

ah of the Crodl Law here in England has been ſo much urgleci

ed, and has mes with fo great difcouragement, that we are in a manner become flrangers to it; and, under a grondleſs ap-

prebenfron of its being an encroachment on the Law of the

Land, we ave hke to hfe all the real advantages which may be

reaped from it in ſubſerviency to our own Laws, and which all | other Nations, except our ſelves, do at this 17 enjoy.

io all other Conmries where the Sev A; the Coil Law is

e they have peculiar Eaws and Cuſtoms of their own,

off wheel they are as tenarions as we can poſſibly be of ours.

ons yer they are ſo far from baniſhing or d. 72 the 3 oL. I. 7

A x

ceived with wmiverſal Ap lanſe amo 's Men of Learning, and has rv 22 ec loneil one of the which we owe to. the laßt Cemury. There have been ſeveral

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| Profeſſors thereof all, o//eble encour ageh ent; they fludy it at a ' qualificatun for the better underſtanding of ein gun Laws, and male it ſillſerdiemt to them in all gel 5 by app * ing p 2 ff

* general Rules of Natural Reaſon and. Equity whi 2 h are Contains. \ fs ed therein, 10 clear up any difficulties or. obſouratres , and to _ ſupply any defects or omiſſions that may, occur in their own Mu- nicipal Laws. And this 4s the only. uſe that is made of the Cuil Law in moſt Countries at this duy; not that hes receive u by vertue of any Power or Authority "that the Roman Emperors | had t impoſe their Laws upon — Mations, which pretence now muſt be looled u an as very fr frevolous ever Jmce the declen- of fion of the Roman mpire ; but they recerve i only as contdin- ing the-maſt compleat, F not the Ä Collection of Rules of Ma-

tural Reaſon and Equity, which may come in did of their own

Municipal Laws, and ſerve as a Lale for deciding all (fs

wherem their own Laws and Cuſtoms are ſilent. -

And in this they do but imitate the Romans er, —2 |

were not 3 to tale all the helps and aſſiſtances they could

have from other Nattons, 10 render their own Body of Laws the more perfett and compleat. li was with this view that th

ent per/ons into Greece, there to colleci the beſt and moſt. uſe- ful Laus which they could pick . among the Commonuiealtbs ze

of that Country ; which were afterwards digeſt ed into Twebve

Tables, and were made the Ground- Mort of _ Body of the Groil

Law. It was likewiſe for the ſame purpoſe, that they borrow-

ed of the Rhodians their Laws relating io Maritime Afaars, as being the beſt Collection of Laws f that kind that were then

extant, and inſerted them in the Body of their own Laws, Aud at this day the Rhodian Laws, the Laws of Oleron, and other

Maritime Laws of other Nations, are recerved as the general

Law for deciding all Cauſes Civil and Maritime, in aid of the

| Municipal Law of each Country, and without any apprehenſion

that the ſaid Foreign Laws will be an infringement of their own Municipal 2 —9 becauſe they are received bi vertue of ther own Authority, and only to ſupply the defects and omiſſi- ons of their own Laws, for deciding Caſes for way their own Laws have made no proviſion.

In former times, when the Civil Law was more 9 Inown and Pudied here in England than it is at preſent, the Judges and Profeſſors of the Common Law bad frequent re- courſe to it in . caſes where the Common Law was * zotally

1 Fenn

1 85 Rags 92 5 , | | e Ne ” . _ The}/Traxstaror's PREFACE. ILNE/FRANSEATORS FN 4 EF ACE. | | | 2 | | 9 4 | :

> lens or deſe ive. Thus, we ſee in the moſt ancient Books of

te Common Law, as BxacToNn, THokNnToN, and FLETA;. that tbe Authors thereof haue tranſcribed, one after another, in man places, the very Words of JusTiNI ans Inſtitutes. Aud ſometimes the Judges upon the Bench, in delivering their : 4 imions, habe quoted the Rules of the Cuil Low, as the founs c dation of ther Opinions; which Mr. Sti DEN, in his Diſſerta+ tin on F LE TA, has clearly demonſtrated from the Annals of thoſe times. Sb that the Sages of the Law in thoſe days were ſenſible of the good uſe that might be made of the Reaſin of the Cuil Law, in aid and fubſerviency to the Common Law of the Land, as other Nations make uſe of it at this day. And beſides this general advantage that is to be reaped from the Study of the Cuil Law, we arè not to look upon it altoge- ther as. a Foreign Commodity, with reſpect to this Iſland; ſome of the particular Laws thereof having been enacted for deciding Controverſies which aroſe here in England, and bearing date from this Gountry. The greateſt part of this I/land was go- werned wholly by the Cruidd Lau, for the ſpace of about three hundred and ſixty years; to wit, from the Reign of the Em- peror CLaupivs, 10 that of HoNORIUS; during which time forme of the moſs eminent among the Roman Lawyers, as Pa- PINIAN, PaULUs and ULPIAN, whoſe Opinions and Deci- frons are collected in the Bod of the Civil Law, ſat in the ſeat of Judgment here in England, and diſtributed Juſtice to the Inhabitants. But after the declenſun of the Roman Empire, zhe. Saxon, Daniſh, and Norman Cuſtoms took place in the | Hland, according as the ſaid Natious became Maſters of us, every one being fond of introducing their own Cuſtoms, . There are ſome particular Matters in which the Cuil Law hath always been, and ſtill is allowed to. be, the only Law in England, hereby they are to be decided. And the Courts of Juſlice which have Cognizance of the ſaid Matters, ds proceed therem according to the Rules and Forms of the Cruil Law. Thus, in the High Court of Admiralty, all Cauſes Croil and Maritime are there to be decided according to the Croil Lau, and the Maritime Cuſtoms. Thus, in the Court of Honour or Chwalry, the Lord High Conſtable, and Karl Marſhal, who are the Judges thercof, are to pages according to the Croil Law, as being the moſ} proper Law for deciding all Controver- fees ariſing upon Contratls made in Foreign Countries, deeds of Arms and of War out of the Realm, and things that pertain to War within the Realm, and other matters whereof that Vol. I. 4-3 Court

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| Ott hath the proper Copnizance."- Jus, in the "TOE pies," 155 the Courts which are there held for determining Sus"to which \ the Scholars, or Members of the Univerſity are PINOY 178880

ceed according #0 the Rules of the Ci Lau-. |

And in all the Ectlefraſtical Courts of this K ngdom, OY the Canon Law is the Foundation of their Proceedmgs, yet the Canon Law being in a great meaſure founded upon the Col

Lau, and fo mterwoven with it in many, branches thereof, that-

there is no underflanding the Canon Law aright without being very well verſed in the Croul Law; the Knowledge thereof is

therefore abſolutely neceſſary for the d patch of all Cauſes: of

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Eccleſiaſtical Cognizance. nd the Knowledge of the vil Law not only ſerves to explam the Canon Les + but, by the practice of all Eccleſiaſtical Courts, it is allowed 'to tome in did aud io ſupply the Canon Law, in caſes which are there omitted.”

And how neceſſary and uſeful the C vil Law is in this reſpeci, does plainly appear from the Commentaries of the ae Dr. LIND WOOD on the Provincial Conſtitutions of Canterbury, and of Jo HN of Athon on the Legatine Conſtitutions, made | 11 the Government and Diſcipline of the Church of England. Having mentioned the ſeveral Courts where the Civil Laub is allowed to be not only of uſe, but of Force and Authority here

in England, by vertue of the Santtion which it has, not. from the Roman Emperors, "the firſt Authors thereof, but from our. own Kings, who have ſince received it as Law in certain mat- ters; I muſt beg leave to conſider how far the Reaſon and E- 5 quity thereof may be of ſervice in other Courts where it has not the Force and Authority of Law. And I cannot but think that

in all Courts of rie , where the Rigour of the Common Law is 10 be mitigated by the Rules of Equity, the Kumvledge of the Cuil Law muſt be of great ſervice. For, as I have already. obſerved, it is there, and no where elſe, that we have the ful. left and mo „ perfect Collection of the general Rules of Natural Reaſon and 22 applied to all the various Tranſattions and Imercounſes between Man and Man. If therefore one were to Judge what is juſt and equitable in a Cauſe depending between Parties, would it not be a great help towards forming a right Judgement therein, to enquire into the general Rules of Equity touching the ſaid matter, which have been laid down and efta- bhiſhed by the moſt eminent Lawyers that ever lived in any Age, and to ſee how they have apphed them in the bike. caſes? Can 1 be imagined, that the Reaſonings of thoſe great Men upon Caſes of the like nature, will not groe great hight, and contri- _ bute

II Tiindiaron's PREPACE.

bat very much towards forming an equitable Deciſion in matters | ' which are to be determmed upon the Principles of Equity, and not according to the Rigour of the La? How far therefore theſe | Rules of Equity, which. are collected in the Body of the Cruil Law, may be afeful 3 in the High Court of Canter, and 528 y . Bae whoſe Proceedings are 1 to Equity, 7 what I humbly ſubmit to the great Wiſdom and 3 f the learned ꝓudges, and others who are beſi acquamied with the Prattice of thoſe Courts, And if this Knowledge of the Rules of Reaſon and Equity can be of ſeroice in the inferior Courts of Equity, it cann' he leſs uſeful and neceſſary m the Supreme Court of Equity of the Kingdom, which is that of the Lords aſſembled in Parliament. It is to that high Tribunal that the Subjects have recourſe, in order to — an equitable Redreſs 0 F the Grievances which. they pretend to have had done them by the inferior Courts, And the Lords who compoſe that Auguſt Aſſembly, and who are the Supreme Judges of the Property of the Fulject, can- not be ſuppoſed, by reaſon of their high Rank and Onahty, and. their frequent Avocations upon account of the werghtrer | matters of Government, to ap ply themſelves to that minute Stu- ay of the Law which: is erpelled from other Judges : And therefare ſeemg they have frequent occaſions to aft in a Judi cial Capacity, it is the more neceſſary that they ſhould be ac- quainted,. at leaſt with the general Rules of Reaſon and Equity, whioh may help to guide them in the Judgments which they give in matters of private Property that come before them. All if we conſider the ſaid Body in their Legiſlative Capacity, as having under their direction the arduous Matters of State, and eſpecially ſuch as regard the Intercourſe deen us add onber Na- Hons; the knowledge of the La of Nations, which is built up- on the Croll Law, is abſolutely neceſſary in Deliberatious of this kind; that no Reſolutions may be taken in ſuch matters but wo are agreeable to the Principles of the Law of all Mati- And. it was upon this account, that, according to the au- Sa ut Cuſtom. and Uſage of Parliament, the Maſters of Chan- cery, who formerly were Ctuiliaus, were ſummoned, with the Judges of the Realm, to give their aſſiſtance and attendance 5 in the Upper Houſe 0 f- Parliamem. For as the Judges of the Realm were 10 groe their counſel and advice, when required, m matters which depended on the Laws of the Land; fo the Maſters of Chancery, who were ſkalled in the Civil Law, and the Law of Nations, were often conſulted in matters which de-

pended on thoſe * Bad | There

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10 determine ſome" matters of private Property; as

in which-the Appeal lien from the Hi g Court of .

the King in Council. And theſe C 2265 are to be judged by no other Law but the Civil and Maritime Law. The Privy Coun-

te e g's the Cat Law: may. be of fot A 8 . mining matters that come: before ii; and that ir, ibe King's

= Council'; which 4s" @ Court" of ptr are in as it is in athert a Council. with which | 7 pleaſed. 20 adviſe and conſult. in matters Ta 70 the Pubbck. It is a Court of Juſtice, wherem lis Majeſty is | Pleaſed — ticular in time of HW, <Y Admiralty to

; 2 e

all matters of Prizes taken from an Hnemy

il is lileuiſe a Court of - Juſtice, © for the final determination of all Appeals that come from the Engliſh Plantations in America,

from the Iſles of Jerley and Guernſey, and other places. I all which Cauſes the Rules of Equity: , the vil Law, muſt be of ſervice to judge of the Equi 0 "the

collected in the B

Sentences which are complamed of ;\ but more eſpecially in the Cauſes which come from the Iſles of Jerſey and Guernſey, where

the Proceedings in their Courts of udicuture have a great con-

formity with the Croil Law. And the Cuſtoms of Normandy, which are the Law by which thoſe Iſlands are governed, are not only illuſtrated and explained by the Civil Lam; but many zimes the aid of the Civil Law is there invocuted as u Rule for deciding Caſes whith are not expreſly regulated by their own Cuſtoms as appears from the Commentaries of R OVIELE, TERRIEN,. and others, on the ſaid Cuftoms. +

Having ſeen in what caſes the Ci Law may > bo of fol. , not neceſſary, for determining ſome matters his: come before the Provy- Council as a Court of Juſtice; I muſt beg lead 1b conſider hew' far it may be uſeful in the other matters that come under the deliberation of that Auguſt Aſſembly, as a Council to His Majeſty for the Affairs of State. It is by their counſe] and advice that His Majeſty ſteers the Helm of the Government. It 7s there that all Treaties of Peace and Commerce with Foreign States and Potemates are examined and conſidered. As 10 what regards the internal Policy of the Kate, for maintaining

. peace 1 quiet in the Soctety, for procuring plenty of all things

neceſſary io Human Life, for encouraging Manufattures within our ſelves, . and promoting a beneficial Trade with our Neigh- ours; altho all theſe things depend in a great meaſure on the Frame and Conſtuution of our own Government, on the Soil and G -limate of the C ountry, on its Situation for Trade, and. on

33 the

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e

* ! ",

that it may be. of ſervice to know what L.aws the Romans, the _ greateſt ana moſt flouriſhing Commonwealth that ever was,

; 0 8 > * FI 6. i" ” 77 bo H T Y . C 4 *

thought. fit ta-enatt for promoting Trade and Manufactures within

themſelves, and for the Government of their Colonies in Foreign

Parts, % As ng them in a due ſubjettion; and to make them

uſeful and fſubſervient to the ſeat of the Empire from which they derrved their Origin, and to which they owed their Protection;

all which Laws are collected in the Body of the Cuil Law; and

"7 be uſefully applied by us on many occaſions.

But as to what concerns the outward Polity of the State, that 10, the Intercourſe which. it muſt have with other States and Princes, I humbly concerve that the knowledge of the Civil Lau

muſt be of ſingular uſe in all Tranſactions of that kind. For the

Cruil Law being in ſo great efteem and veneration among all other Mations, that they make it the Rule and Standard of . Equity in all Caſes which are not expreſly provided for by their

own particular Laws and Cuſtoms, what more effeftual Argu-

ments can be uſed to obtain Juſtice from them in an amicable

way, than thoſe which are founded on the P rmciples and Maxims of the Civil Law? It is arguing with them _ their

own Principles, from Maxims of their own Law, and the Law

of all Nations, which is the moſt effeftual way to convince them

by Reaſon: Aad it was in conſideration of this, that our Anceſ=.

tors, in their great Wiſdom, thought proper to imploy generally in all Negotiations with Foreign Courts, and mTreaties of Peace and Commerce, Perſons who were well ſkilled in the Civil Law,

and Law of Natins. And although it was neceſſary on ſome

_ occaſuons, and more particularly at ſolemn Congreſſes for treating

of Peace, for the greater luſtre and ſplendor of the Embaſſy, to

imploy perſons of the firſt Rank and Quality; yet, to eaſe them

of the great werght of Affairs, they were always accompanied by ſome perſon of an inferior Rank, who being verſed in the Study

concerned. And this we ſee is the conſtant practice of all other

of the Civil Law, and Law of Nations, might be aiding and aſſiſtmg in the Conferences which were to be held for ſetthug and adjuſting the reſpectiue intereſis of the ſeveral Princes and States

Nations at this day, who in their Embaſſies for Treaties of Peace

1mploy. always at leaſt one perſon who has been bred to the Law;

*

although this is the leſs neceſſary in Foreign Countries, where all

the Nobility, in their Studtes at the Univerſity go through a re-

gular Courſe of the Study of the Cuil Law, and Law of Nations; en e's _ by

A Y * TP 1 1 „ 7 a 2 , : Z | ö | | temper and uliſpoſition of the Inhabitants ; yet in order to improue theſe to the beſt advantage, 1 cannot but think

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"Natons as the c that to under, ö 1 be able 70 comprehend the treat thereof, is is abſolmely nece/- ye of Phe Cuil Law, as one may eaſily „ PUFPFENDORF, andother

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Wu ard jo thei own Government within Wee, 17

—_ av ſupphes us with many Pre, —== | by the Roman Emperors, for ſecuring the Tubabitants \ of their 5 h s and Extortions of ibeir Gover- Jonres with reſpect to their Set- are obhged 10 e urig 5 by the Princy les of th tout Law, and p La of Nations, that they mn affert and maintain their Rights and Privileges. een "OO on) : F muſt obſerve. here in relation to the Engliſh Colonies 2 the Continent of America, that there is a very great affs- ati between them and vhe Colonies of the Spaniards, and other 75 Marions, ao have made Seitlements among the Indians in thoſe | 1¹5 For the Grants made by our Kings of Trafts of Land 1 in thas Country, for the planting of Colontes, and making Set- . tlemeuts therem, appear 10 have been . amitation the Grams made by the Rings of Spain, 1 the Proprietors of

. in the Spaniſh Colomes, upon the ſame conditions, and in «HS conſideration

= dn noi rae ant nn *

— — — — 2 — —

* [7

*

= * =

Lands in our Engliſh Colonies. i | I have made theſe few Remarks, ouly to ſhew in what particulars the C Law is, and may be, of uſe here in

L

8 ö ! 5 . , e 1 ba . a 4 ' The I RANSLATORS P R E FAC E.

conſfatrarion of the ſame Services to be performed by the Gramees.. So that the Government of the Spaniſh Colontes andthe Rights 'of the Proprietors of Lands therein, depending chiefly on the Rules of the Croil and Feudal Law ; as may be ſeen by the learned” Treatiſe of SoL ORT ANUSs, De In- diarum jure, the Knowledge of the ſaid Laws muſt be of

: .

fervice hkewiſe for determin 75 any Controverſies that may

ariſe touching the Duties, or Forfentures, of the Proprietors of

England, and how we may reap the ſame advantages front

it which other Nations do, without any danger to our own

Municipal Laws. Our Anceſtors were ſo ſenſible of the

great importance thereof, both in private and publick Affairs,

that, beſides the publick Profeſſors eſtabliſbed in the Univer-

fties for teaching this Science, and who have Salaries allot-

ted them by the beneficence of our Princes, many of the pri vate Founders of Colleges have m their Endowments ſet apart

83 Fellowſhips, as an Encouragement to perſons ro fiu-

H. aving thus ſhewn the neceſſity and uſefulneſs of the S indy of the Croil Law in this Kingdom, I ſhall in the next place

groe au account of the chief motive which induced me to un-

dertake the Tranſlation of this Work, thereby to render it more

familiar to every Engliſh Reader. I was ſurprized 10 find,

in a Country where all Aris and Sciences do flouriſh and meet

_ with the greateſt encouragement, that one of the nobleſt of the human Sciences, and which contributes the moſt to cultroate

the Mad, and yes the Reaſon of Man, as that of the

Cuil Law does, ſhould lie ſo much diſregarded, and meet with ſo lutle encouragement. Aud I obſerved, that the little regard which has of late years been ſhewn m this Kingdom zo the Study thereof, has been in a great meaſure owmg to the want of a due knowledge of it, and to the being altogether unacquainted with the 1 and excellencies thereof; which are only known to a few Gentlemen who have devoted them-

ſelves to that Profeſſion ; others who are perfect Strangers to that Law being under a falſe perſuaſion, that it contains no-

thing but what is foreign to our Laws and Cuſtoms. Where-

as when they come 10 know, that the Body of the Civil Law,

beſides the Laus peculiar to the Commonwealth of Rome

_ which are there collected, contains Iikewiſe the general Prin-

Vor. I. 74 ciples

——

ciples. of Natural Reaſon and E

Treaſure... . Dye exce | a Moik is, JC Huhar has, with a: great deal of labour and pains, reduced into 4 narrower compaſs all thoſe general Principles of f N. atural Rea.

10 be à good Canoniſt.

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"between. Man and Man," and. which are to be found ud where

A

elſe in ſuch a. large extent as in the Body of the Civil Law,

they will ſoon be ſenſible. of the. infinite value of ſo, great &

PIES * TITS EY {3433 A & 1

cellency therefore of this Mort is, ibat ibe Authar'

ſon and Equity, and opphed them to the particular matters to which they. belong, digeſting them mio a proper method aud order for the. cafe of the: Reader. Ho that perſons who have neither opportunity, nor leiſure, to read over; the hole Body

W Font er fn bart dean en keg 4 it, which. will be ſufficient for the generality of Readers. Hut as

fer thoſe who intend to make the Cruil and Canon

Law their Profeſſion, although the reading of this. Book will

be a great help and eaſe: to them in the. proſecution \ of

their Studies ; het I would by no means adviſe them to reſt. ſatisfied with this Collection of Rules out of the Crit Law,

but to read over diligently and carefully in the Original, all the Books nf the Body of . the Cuil Law, the. Inſtitutes, the Pandects, the Code, and the Novels; without. which, no man can attain to a perfett knowledge enher of the Croil or Canon Law. For, as bade already memioned,

the Civil Law is the ground-work upon which the Canon Law

is built, and without the knowledge of it no man can pretend

. 1 muſt here caution the Engliſh Reader, that he is not to expe to find barely in this Collection thoſe general Rules and Maxims of Natural Reafon and Equity which I have before mentioned, and which are received as Law in all Countries. He will beſides meet with many particular

Rules of the Civil Law, which are received as Law in F rance, and which are different from the Law and Uſage of England.

For the Author of this Collection having 1 gſed to himſelf 10 extrac out of the Body of the Civil Law all the Rules thereof which were agreeable to the Law of France, or which might any way ſerve to illuſtrate the ſame ; and my inten- rion being to give the Reader a true and perſect Tranſlation of zhe whole Work, I did not think my ſelf at liberty, either to alter, or to leave out any part thereof. And even as to thoſe

Rules of the Croil Law which do not exactly tally with the | Laws

I Reaſon and Equity, whith, are the Fanda- mental Rules, of Juſtice, in all Engagements and Tranſafltons

Ie „Tu ANsLAToR=s P REF A ny Laus and Uſage of this Country; alibo they are, not 10 bn Tooked upon as Law, with .us, yet it may b ef \ ſervice” 10 #s 20 know what weie the ſentiments of the greateſt Lawyers that flouriſhed under the, Roman Bmpire in ſuch maiters „ fro them ; becauſe. it 1s chiefly from the knowledge af the Laws of other States that we can learn to ſupply what is wanting, or reform what is amiſs in ous OWN. „ F 0 Neither is it to be expected, that in this Tranſlation I Should make fo large a dlgreſſion, as to point out all the mi- nute differences between the Rules of the Civil Law collected in this Book, and the Laws and Uſage in England ; which would be to exceed too far the bounds of a Tranſlation, and ſwell the Work into too great a Bulk, I have therefore thought i moſt adviſable, to confine the Remarks which I have added, to the moſt material differences that occur between the Cuvil Law and ours, and more particularly, in the matters which rome under the Cognizance of our Courts in England, which have the Civil and Canon Law for their Rul: and Guide. Theſe Remarks I have inſerted under the reſpective Titles and Seftions to which they belong; and in order to preſerve the Original intire, I have aiſtmngutſhed them from the Remarks made by the Author, by mſertmg them between two Crotchets, I have hkewiſe thought proper, in the ſeveral Remarks which I have added, to quote the Authorities on which they are found- ed; which will add the greater weight to the Remarks them- ſelves, and ſerve as a guide to the Reader where to find the ſeveral matters there mentioned, more fully explained in our Engliſh Law Books. . | In this Tranſlation ] have ſet down at the end of each Ar. zicle the Latin Texts of Law, in the very words as they. are tranſcribed out of the Books of the Cidil Law; it being no ways neceſſary to put them into Engliſh, becauſe the ſubſtance of them is contained in the Engliſh Article, to which the Latin Texts are ſubjoined, as the Authorities in Law upon which the Engliſh Article is grounded. And beſides, the preſerving the Latin Texts of Law in their Original, will have this ad- vantage, that it will give the Reader who has not had an op- portuntty of looking into the Body of the Civil Law, a taſte of the beauty and elegance of the Siyle of the Roman Lawyers; who expreſs themſelves with that clearneſs and perſpicuity, and yet with that brevity and conciſeneſs, that zbe Reader is ſurprized to find ſo much matter couched in

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„I ſeems very ſtrange that the Roman Laws, the Uſe of which s ſo nccefſary, ſhould be fo little known, and that they being P--: n all of them nothing elſe bur Rules of Equity, the Know- ts <1 ledge of which is ſo natural to us, the Study of them, | which ought to be eaſy and agreeable, ſhould' be fo hard and Nevertheleſs it muſt be owned, that conſidering the man- | ner in which the ſaid Laws have been collected in the Books h N {7 FT 4-1 of | the Roman Law, which is the only Place where they are { depoſited, it is not ſo eaſy to attain to a thorough Knowledge of them. And this is the reaſon why even among thoſe who are obliged by their Profeſſion to ow them, many are e ignorant of them, and no body can make himſelf thoroughly Maſter of them, but by a long and laborious Study. Þ hg Me are not, however, to draw from this Truth any Conſequence that may lefſen the Eſteem and Reſpect that is due to the ſaid Books; fince on one part we ought to admire in them the Light and Knowledge which God was pleaſed to communicate to Infidels, whom he thought fit to employ as his Inſtruments in com a Science of the Law of Nature; and on the other, we muſt confeſs that this Science could not well be formed in any other manner than ſuch as

would create Difficulties for the right underſtanding of it. And in order to Judge aright of this matter, we muſt in the firſt place conſider in what manner the Authors of thoſe Laws did compoſe them, and afterwards ſee how they are collected in the Body of the Reman Law: And then we ſhall explain the Deſign we ary propoſed in this Work, to render the Study of the Civil Law eaſy and

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rovide for them by other Laws. Thus, for Example, the Law of

Nane 5 wi have thoſe. who Have not ſufficient Age and Experience, to be inca-

pable of entring into Engagements which m 7 Nog reel to them but becauſe in the ſame time, and that it was impoſſible to make a parti +1 e for every one, a comm on Rule Was made for all; which marks ont for News one Moment of Age, at which/eyery one is capable of En "ge cements. Thus, they were obliged to regulate the Time for 5 the Formalities of Teſtaments, and other the like Difficulties which 5 . And this is what was done by Laws which are called Arbitrary, epend on the Prudence of thoſe he have à right to-eftablith,

ERF ( Mis, ht en Abe he rh.

ſubject to 4 and alterations, But theſe Arbitrary Rules are inn ſmall — in the Body of the Romi Laws: and all the Rules of the Roman are received with us, conſiſt almoſt. AE o the 2 vt Nature, ar

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well known in what manner the Roman borrowed from other Nations, and cul-

tivated among themſelves the Science of the Law, and that it was only by the means of an infinite number of Eyents for many Ages, and in the Extent of the. greateſt Empire that ever was, that the Application of 1 eat number of in nious Perſons, was able to collect the Facts which gave riſe to the Diſputes, to remark the Principles which were made uſe of ſor deci n io form 5 upon the ſaid Principle, to diverſify them according as the different Facts make it 1 to diſtinguiſh them, to apply thoſe Rules to 7 1 Matter, and geen toe together the n and their ea _

which hath for its Object every thing that paſſes 4 Socier of Mankind, which may „ 3 — 1 27

It is ealy.. 055 apprehend by this account of the manner in whieh i it 8 e Roman Laws, that it was not poſſible for ſo many Works of

ſa many Perſons, made at divers times, with different View 0 8 and by an. inſenſible Progreſſion of particular Remarks en B al nd 78 to form à Body of Laws in the Order which they really have —— eee, and ſuch as Truths, which are the Rules of Civil * ty, ought — to havc. The Emperor Juſtinian had it in his View to pos one Body of Law out of ſeveral Pieces of that en — of Works, of which he * his Digeſts, and colle&ed in them diyers. F ragmen * then 8 Authority and Force of Gd in the ſame manner as by ont colle&e: a great Number of Laws, tutions and Reſcripts of the . that, — gone befort him. Bur it is caly to be perceived in theſe, two Collections, that they were principally intended for preſerving the Laws and Rules which are therein collectell, and that the Na- = Order which links them together, was not what the IEP; them bad

then in view. in

We fee in theſe two Collections, chat the ſame Matters are edllefted ebe wüy in the Dige ler and another quite different way in the Code: That both in the one and the other of theſe two 0s many Matters are out of their proper

place,

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The AuTHON PREFACE

place, being joined with others to which they have no manner of relation, and ſome of them are diſperſed up and down in ſeveral places. 9 5

That in the detail of each particular Matter, we do not find in any one of them an exact Order of its Definitions, its Principles, and its Rules, according to the dependance which they have one upon another, or according as they are linked together by the relation which they have one to another; but we ſee there only a Collection of a great many Rules, the greateſt part without any Coherence.

That many Rules which are general and common to ſeveral Matters, are inſert- | ed there under Titles of particular Matters: and that many particular Rules be- longing to one Matter, haye been placed under Titles of Matters wholly dif- = That among all theſe Rules, there are few of them ſet out in their proper light ; but the greater part of them are wrapped up in Deciſions of particular Facts, without being laid open there as Rules; but are to be gathered from thence, by conſidering under different Reflections, the Reaſons for doubting, in order to find out the Grounds upon which the Deciſion is founded, and which are to form the Rules. 5 Fa |

That many of theſe Rules do not give a view of their full ſenſe and meaning; bur there is frequently occaſion to collect from ſeveral places the different parts of one and the ſame Rule. And that on the contrary, in ſome places, two Rules which ought to be ſeparated, are joined together in one and the ſame text, which does not take notice of the diſtinction that is between them.

That even the Rules which are placed under a laſt Title of the Rules of Law, as if it were to reduce within a ſmall compaſs all the Rules that are moſt neceſſary | to be remembred, are placed there with ſo little order, that we ſhall hardly find two relating to the ſame Matter that follow ſucceſhyely one after the other; and that many Rules appear there as being General, and common to ſeveral Matters, which are proper only to one z which expoſes the Readers to the danger of ap- plying them wrong. | . ET AD EG |

That almoſt in all the Matters, we find mixed with what is uſeful and neceſ- ſary, a great deal that is uſeleſs and ſuperfluous, and many repetitions: and we ſee there allo in ſeveral places ſome of thoſe Niceties of the Roman Law which are neither natural, nor in uſe with us; which increaſes the Labour of the Study, ſeeing in order to make it uſeful, we muſt not only read the ſame Laws over and over, but muſt read them with great application and diſcernment, in order to be able to ſeparate the Principles and the Rules from thoſe Niceties and Subtilties which inviron them, and to form to ourſelves juſt Ideas of them. |

That in conſequence of this want of Order, many Rules are obſcure, becauſe they are remote from the Frinciptes on which they depend: that others being ſe- parated from the Exceptions which are neceſſary for limiting their Senſe that is too large and undetermined, may be eaſily mifapplied to the Caſes which are ex- cepted: that ſome of them appear to be contrary. to one another, whether it be that in reality there is ſome contrariety, or becauſe they are not clearly and fully expreſſed, there appears to be a contradiftion to thoſe who are not learned enough to regoncile them : and in fine, that there are many Rules which, by rea- ſon they are not in their proper place, nor in their true light, nor in their full extent, may be miſunderſtood and miſapplied. e It is upon account of theſe difficulties in the Study of the Laws in the Books

of Juſtinian, that people have ſo little obſerved the Prohibitions which he made againſt commenting upon them, upon pain of Forgery, and Confiſcation of the Books b; and we might likewiſe add other Remarks beſides thoſe which have been juſt now made. But the few Remarks which have been made may ſuffice to ſhew, that in the reading of theſe Books, the Memory being burdened, and the Judgment perplexed with this vaſt Detail in confuſion, ir 1s difficult for one to form to himſelf a clear and certain Syſtem of each Matter, and to rank in Order in his own Mind what is placed out of Order in the Books where it muſt belearnt. And it is becauſe of this that many conceive a diſguſt at the Study, that few ſuc- ceed in it, and that ſome make a bad uſe of the Laws, by reaſon of the opportu- _ nity of miſapplying them, which this manner in which the Laws are collected af- fords to thoſe who want the neceſſary Light and Knowledge, and to thoſe who want Sincerity. And ſeeing there is no Human Science in which the conſequence

> De confirm. Digef. ad Senat. & n pop. §. 21. de confirm, Digeſt, ad meg. Senat. F. 21. VVA T T | of

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of Milakes is of greater importanee than in that of che Law, and that the Inte

which depends on the manner of applying them, engages the Heart therein, yl turns the Views of the Mind into cho 3 Selb. idtereft: we ſee what Abuſe? are made of the Laws by thoſe who engage in the defence or protection of bad All that has been hitherto ſaid, ſhews plain ly | | Books of the Roman Law, which are the Repoſitory of the Natural Rules of

Equity, and on the other, the Inconvenietices which ariſe from the want of Or-

der in the ſaid Books. And this diſcoyers to us at the ſame time the cauſes why theſe Books of the Roman Law are conſidered in France in two manners ſo diffe- rent, and even CY Opp to one another. For on one fide, as they contain the Law of Nature, and written Reaſon, they are quoted in the Tribunals, they are taught publickly in the Schools, and it is upon the Study of the faid Books

which have been obſerved, and the Contrariety there is in ſome things between

the Roman Law and the Laws and Cuſtoms of France, are juſt cauſes why the R-

man Law hath not in France a fixed and abſolute Authority, except in the Pro- vinces where it ſerves as a Cuſtom, in ſo far as they receive the Diſpoſitions thereof. So that becauſe of the Uſefulneſs of the ſaid Books, many perſons dip into them without judgment, and take for Principles, either Subtilties which are not in uſe with us, or Rules not rightly underſtood: and others making light of the fiid Books, be Cuſto!

nances have, do often reject the beſt Rules, and do not ſo much as diſcern in them the Authority of the Law of Nature, becauſe they confider nothing as Law, bur what is promulged, and entred upon Record. 1

We may add as a laſt Reflection upon the Law, that the want of Order in the n

Collections made by Juſtinian, having hindred people from ſeeing clearly and ſuc- ceſlively the whole Detail of each Matter, has occaſioned ſeveral void Spaces, where 1s wanting many Rules for certam general Queſtions which often happen, and which occaſion many Law-ſuits which fixed Rules might have prevented. And as in compiling the Code, they inſerted into it fome Deciſions mat by that Emperor of ſome of thele ſorts of Difficulties, ' which were not regulated in the

Id Law, and about which the Lawyers themſelves were divided; fo they left

there likewiſe many empty Spaces, which have given occaſion to that other

Branch of the Law, which conſiſts of Decrees and Judgments. But the Decrees being pronounced oy upon particular Differences, and they not being made in _ pretext that the Decrees may have been founded upon particular circumſtances.

*

*

„ —T ones, 5 We make here this Remark only occaſionally, as being a conſequence of the

other Remarks which have been made, and that only to ſhew, that theſe ſorts of

<

& * *

Difficulties mee ſo man made for them by Hxed and ſtated Rule. NE

We have been obliged to make all theſe Reflections on the Uſefulneſs of the Books of the Reman Law, and on the Difficulties. of attaining to a thorough Knowledge of the Laws in the ſaid Books, that we might be able to give an ac-

.count of the Motives which induced us to undertake the Digeſting of the Roman

Laws into their true and Natural Order, hop ng thereby to chem more caly, more uſeful, and more agreeable. © .._ Every body knows of what great uſe Order is in all Things, and that if in Things which are only the Obje& of our Senſes, the right difpoſition of the Parts which make 70 the Whole, is neceſſary for expoſing them fully to ſight, Order is much more neceſſary for diſpoſing the Mind to apprehend ally the ifi Bite Variety of Truths which compoſe a Science. For it is their nature, to have Relations and Ties with one another, which is the reaſon why they enter into the Mind only the one by the other: that ſome Truths which ate tö be underſtood by themſelves, and which are the Sources of others, ought to go before them: .that the others ought to follow, according as they depend on the firſt, and are linked with one another: and that therefore ſince the Mind is to be guided from the one to the other it ought to ſee them in Order; and this Order conſiſts in the right placing of the Definitions, the Principles, and the Particulars. From

I k whence

dk

ly on one part, the Uſefulneſs of the

that Degrees are conferred, and Perſons examined as to their Qualifications for the Exerciſe of Offices of Judicatiire. But on the other hand, the Difficulties

cauſe they have not the Authority which the Cuſtoms and Ordi-

Law, the fame Queſtions are often ſtarted anew, under And. we fee like wiſe that ſome Queſtions are differently decided in different Par-

A it were to be wiſhed that Proviſion were

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whence it is eaſy to judge, how great a difference there is between ſeeing the De- tail of the Truths 2 55 compole a Science placed in Confuſion, and ſeeing the ſame Detail ranked in its proper Order; ſince it may be ſaid, that there is no leſs

difference than between the ſight of a confuſed Heap of Materials deſtined for a Building, and ; | | Belign therefore propoſed in this Book, is to ſet the Roman Laws in their The Deſign true Order: to diſtinguiſh the Matters of the Law, and to place them according hir Bo.

the ſight of the Edifice raiſed in its due Symetry. The

to the Rank which they have in the Body which they naturally compoſe: to di- vide each Matter according to its Parts; and to rank in each Part the Detail of its Definitions, its Principles, and its Rules, advancing nothing but what is either clear in it ſelf, or preceded by every thing that may be neceſſary for the right un-

derſtanding of it. So that it is not an Abridgment of the Roman Law, or bare Inſtitutes, that we propoſed to our ſelves to make; but we have endeavoured to

comprehend in this Work the whole Detail of the Matters which we are here to

treat of.

Me propoſed to our ſelves two principal Effects of this Order; Brevity, by re- trenching all that is uſeleſs and ſuperfluous; and Perſpicuity, by the bare ranking of Matters in their proper places. And we hoped, that by the means of this Brevity and Perſpicuity, it would be eaſy to learn the Laws thoroughly, and in a ſhort time; and that even the Study of them Teng by this means rendred eaſy, it would become agreeable. For as Truth is the Natural Object of the Mind of Man, ſo it is the View of Truth that makes his Delight; and this Delight is the eater, according as the Truths are more Natural to our Reaſon, and that we ce them in their true Light without pain. Oe - We ſhall not take up any time in explaining at length the Advantages which may accrue from the facility of learning the Laws, the Knowledge of which is ſo

neceſſary to many perſons. For the uſefulneſs of them is not barely confined to

the Miniſtry of Juſtice in Lay Tribunals: the Eccleſiaſtical Judges, the Paſtors and Doctors of the Church, and the Directors of the Conſciences of the People, are obliged to have recourſe to the Civil Law, whether it be to judge, or to give advice, and to decide Caſes of Conſcience, which depend on the ſaid Law, which the Imployments of the ſaid perſons do not allow them time to ſtudy thoroughly in the Books of the Roman Law. And even perſons in a private capacity may find benefit by ſtudying theſe Laws for their own private Affairs, and by conlulting them in order to make a right judgment of their own Pretenſions, and to prevent their imbarking in ill- grounded Law-Suits. | 0 t It was upon theſe Views that we engaged in this Deſign, of digeſting the Civil Law into its Natural Order. But the infinite difficultics of | this Undertaking make us fear, and that with reaſon, leſt the Work ſhould not anſwer our Deſign ſo much as we could wiſh ; and it is not ſo much to ſer off its worth, that we have remarked the Uſefulneſs and Advantages which we propoſed by it, as to ex- cuſe by the Uſefulneſs of the Deſign, the Faults and Imperfections of the Work.

It may be neceſſary, in order to N prong perſons, to give ſome account of the reaſons which . us to put the Laws into the French Language. All the

Laws, and eſpecially thoſe which are only Natural Rules of Equity, are pro- per for all Nations, and for all Men, and conſequently are proper for all Lan-

| gages Tuff nan ſuffered the Digeſts and the Code to be tranſlated into reeke, for the

Uſe of the Provinces of his Empire, where the Greek Language was in uſe. And the French Language being at preſent arrived to a perfection which equals, and even ſurpaſſes in many things the antient Languages, it is for this reaſon become univerſal in moſt Nations; and it has particularly the clearneſs, the juſtneſs, the exactneſs, and dignity, which are the Characters that are eſſen- tial to the Expreſſions of Laws, ſo that there is no Language which is more adapted to them; and the defects of Expreſſion which may be found in this Book, the Author deſires they may be rather imputed to himſclf, than to the Language.

© De confirm. Digeſt. ad Senat. & onn. pop. 5 · 2 1. de confirm, Digeſt. ad mag. Senat. f. 2 1.

Some perſons who read this Book, may perhaps be ſurprized to find in many places of it Truths which are ſo common and fo eaſy, that it will ſeem to them to have been ſuperfluous to put them down, ſeeing no oy can be igno- rant of them. But they may learn from thoſe who are acquainted with the Or- der of Sciences, that it is by the, hdp of theſe ſorts of Truths, which are fo plain

and ſo evident, that Men attain to the Kr of thoſe which are leſs evident 3 | e [a1 $2062 79 Þ | ED an

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the uſe of which is neceſſary for gt, Clear, and many of them fo abſtruſe, that all Minds arc ehen If any one ſhould find fault that there is no Table of the Matters, it is enough to acquaint the Reader, that the Table of the Titles, and of their Sections, which is at the be r ot the Book; is ſufficient to direct the Reader how to find in its proper place w 155

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acquaint thoſe who have a mind to read this Trea

e Au Ho PRE FAC. The AUT HoT PREFACE

and that for tlie detail of à Science, it is neceſſary to 1 5 all the Truths, and to form the hole Body, which is to be compoſed of the ſeveral Truths collected together. Thus, in Geometry, it is neceffary to begin by learning that the Whole is greater than anz of its Parts; that two Things equal in Greatneſs to a third, are equal bet Veen themſelyes, and other Truths which Children know, but | into other Truths which are not ſo Minds are not capable of them.

ce whatever he may have occaſion to ſearch for. It remains only that we give an account of the manner in which we. have „ IO WET TH 8 4 r 5 4 | 'T > | quoted on each Article the Texts of the Laws. It is eaſy to judge by the Re- marks which have been made on the manner in which the Laws are collected in the Body of the Roman Law, that it ,was not oſſible to quote on every Arti-

cle one Text alone that ſhould anſwer to it, and that it was neceſſary. in many places to aſſemble ſeveral T marr in order to form the ſenſe of a Rule; as on the

contritty, it was neceſſary in other places to give to the Rule a larger extent than the Text has, in order to make it intelligible. But nevertheleſs an exact Fidelity

Ras been obſerved” all throughout, that no Text might be wreſted from its true meanitg, and that nothing might be advanced without Authority; becauſe that although the Rules which have been drawn from the Texts of the Laws, bear the Charafter of Truth, by reaſon of the Natural Equity which is the Spirit of

4 :

them it is neceſſary to fortify them by the Authority of the Texts taken out of at reſt, by perceiving firſt the Truth by it ſelf, and having this farther. Aſſurance, that his Ju ent 15. ſupported by that of ſo many learned and judicious perſons

Who were the Authors of theſe Laws, and by the univerſal Approbation which

they have had every where for ſo many Ages paſt.

RE SEE CE EK:

« ” iJ A * « * \ t ww Ped k 3 * .

LEI PC CIPCOUDIINITY 7108 ede d

ME Deſign of digeſting the Civil Law into its Natural Order, hath engaged f the Author to compoſe a FTreatiſe of Laws, which he judged to be fully as neceſſary for the right underſtanding of the Civil Law, as it is neceſſary for learn-

World, ſuch as we have in Coſ an 2.5 255 FR

All Laws derive their Origin from the firſt Principles, which are the Founda- tions of the Order of the Society of Mankind; abt we cannot ' well underſtand the Nature and Uſe of the different kinds of Laws, but by a View'of their Con- nection with. thoſe Principles, and of their Relation to the Order of that Society, of which they are the Rules. It is therefore in the Syſtem and Plan of this Uni- verſal Order, that we muſt find out the Situation and Extent of the Roman Laws, what they have in common with the other kinds of Laws, what it is that diſtin- guiſhes them from the others, and many Truths which arc eſſential for the right underſtanding of them, and me juſt application of them in the Matters to which they have Relation. It is likewiſe in the fame Plan that we diſcern what theſe Matters are, and what:theirOrder is; and all theſe Views both of the Laws, and of their Matters, ſhall be the Subject of this Treatiſe of Laws.

Some perſons — pag to think, that this Treatiſe was not neceſſary for the Study of the Civil Law, and that the greateſt part of perſons learn it without the help of any ſuch general Diſſertation; and for this reaſon the Author was in doubt, whether he ſhould join to this Work this Treatiſe of Laws. But perſons whoſe Rank and Capacity rendred them fit Judges of the matter, were of opi- nion, that this Treatiſe ought not to be ſeparated from the Body of 'this Work,

ing Geography, to have at leaft a general Knowledge of the whole Syltem of the orld i hiv rg Io eB. Fort A

and that its Uſcfulneſs makes it neceſſary that it ſhould be joined With it. | Ibis is not the proper place to explain what it is wherein its Uſefulneſs does conſiſt; for it is only. by reading it that we can judge thereof: and it may ſuffice to cquaint A that cher end 880) bo look? over the Table of the Chapters, and the Contents of each Chapter, to judge of the benefit they may reap by reading it. | * AD VE R

an Law, which adds this Effect to their Certainty, that it ſets the Mind

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TOUCHING

The Second, Third and Fourth BOOKS of the FIRST Parr of The CI LIL LAW in its Natural Order.

I bas been thought neceſſary to acquaint the Reader in this place, Foe 1 with the Rank which is aſſigned in the Book of The Civil Law in It VR 7ts Natural Order, to the Matters which compole the ſecond, third and fourth Books of the Firſt Part, of Engagements, &c. For altho' it be eaſy to judge of it by the Plan of all the Matters, which

"_ i

A

is in the fourteenth Chapter of The Treatiſe of Laws, and that the bare reading of the General Table which follows the faid Treatiſe, at the beginning of this Work, gives an Idea of it which it is not difficult to conceive and to retain: Yet it may happen that ſome Readers may neglect to read this Plan, and that reading the 3 Table of the Matters treated of in the Second, Third, and Fourt

Book, without reflecting on the General Order that has been given to all the Matters, they may not right apprehend what place the Titles of the ſaid Books have in the whole Work. Thus, the Reader who ſhall happen not to have this Idea preſent to his Mind, is deſired to read the fourteenth Chapter of the 7 4 8 of Laws, and the General Table of Matters which follows it, and there to ob- {erve that a General Diviſion has been made of all the Matters into Two Parts: One, of Engagements; and the other, of Succeſſions. That the Firſt Part, of Engagements, has been divided into five Books: One intituled the Preliminary Book, becauſe it contains three Matters which are common to all the others, and which ought to go before them. The Firſt of the other four, wherein is con- ſidered the firſt kind of Engagements, which are thoſe into which people enter by Covenant: The Second, which contains the ſecond kind of 2 4 er. which are thoſe into which people enter without Covenant: The Third, of the Conſequences of theſe two ſorts of Engagements which add to them, or corro- borate them. And the Fourth, of the Conſequences of the ſame Engagements which annul them, or diminiſh them. Purſuant to this Plan, we have ſet down next to the Treatiſe of Laws, the Preliminary Book, and the Firſt of the four others which treat of Covenants: And the Sequel takes in the three other Books. Thus, we have in theſe Five Books of the Firk Part, every thing that relates to Engagements; that is to ſay, the Firſt Part of the Matters treated of in this Book of the Civil Law in its Natural Order. 1855

As to the Second Part, it contains the Matter of Succeſſions. Thus, we ſhall

have in theſe Two Parts, every thing that the Author intended to treat of in this

Book of The Civil Law in its Natural Order; purſuant to the Project explained in the thirteenth and fourteenth Chapters of the Treatiſe of Laws. That is to fay, all the Matters which any way concern the Tranſactions between Man and Man, and the Rules of which are almoſt all of them of the Law of Nature, and 7 Equity, and which we find collected no where elſe but in the Body of the omas Law. | | 5 > EE

ADVER-

Tbe AuTHONT PREF ACE.

addi SLALASGIIIIIAKDIP IAG tf C | 68 8 0 2 A f 455 D. | 7 2 4e r #5; al | del LL LL ⁰ . III IENY

ADVERTISEMENT,

CONCERNING |

The SzconD PART of The CIVIL LAW in its Natural Order. Wo

p os

E ſuppoſe that thoſe who have a mind to read this Second Part of the Civil Law, which treats of Succeſſions, have already ſeen by the fore- oing Matters, which make the Firſt Part, what is the Deſign and rder of this Book. And therefore they need only to be acquainted, * as to what concerns this Second Part, that whereas in the Firſt, the Remarks which are there made on the Rules, are all of them very ſhort, and in a few lines; the Author has been obliged to make in this Second Part many Re- marks of a large extent. So that it behoveth at preſent to give an account of

the difference een the Remarks of this Second Part, and thoſe of the

Firſt. i f a 1 | LINES | | This difference has been a neceſſary conſequence of the Deſign propoſed by the Author in this Book, to explain all the Principles, and all the Detail of the Mat- ters of the Civil Law, and to ſet them in ſuch a clear Light as to make them

eaſy to all Readers. For the Author having this View, the infinite number of

Difficulties in the Matters of Succeſſions have obliged him in many places to make

different Reflections, either to explain what is obſcure in the Laws relating

this Matter, or to unrayel what is confuſed and 2 or to diſcover Natu-

ral Principles which do not appear in the Laws themſelves, and which may help to clear up the difficulties of them, and give Views for the right Uſe of them, or to examine Queſtions which have divided the Interpreters, or to oppoſe in ſe- veral places the Principles of Equity, which are received in our Uſage, to the Subtilties and Niceties of the Roman Law which they reject. And the Author has thought it neceſſary to ſtart in ſeveral places, Difficulties and Queſtions which ariſe ſo naturally from the Rules, that altho* the texts of the Law make no men- tion of them, yet they ought not to be ſuppreſſed. It would be eaſy to give here Examples of all theſe ſeveral Cauſes, and ſo of ſome others which have induced

the Author to make all theſe Remarks or Reflections: but ſuch a long diſcuſſion

would exceed the bounds of an Advertiſement ; and the Readers may be able to diſcern them in each Remark, and to judge of the uſefulneſs which the Author ri by them. | STE; . ome may N wonder that there are no ſuch Reflections made upon oy Matters of the Firſt Part; and it is but reaſonable to give them Satisfaction therein. 4 | whe n 2 There is this difference between the Matters of Succeſſions and all the others, chat thoſe other Matters which have been explained in the Firſt Part, have al- moſt no other Rules beſides thoſe of the Law of Nature, and we ſee there but few Arbitrary Laws; whereas in the Matters of Succeſſions, there are a great many more Arbitrary Laws in proportion; ſuch as, for example, thoſe which have regulated the Quota of the Filial Portions, the Formalities of Teſtaments, the Codicillary Clauſes, the Right of Accretion, the Right of Tranſmiſſion, the Subſtitutions of ſeyeral ſorts, the Falcidian Portion, the Trebellianick Portion, and many others. And altho' in all theſe particular Matters, the greateſt number

of

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2 | 3 | | The Avtrhor's PREFACE.

of their Principles, and even of rhe Detail of their Rules, are of the Law of Nature, and of Equity; yet the Arbitrary Laws that are mixed with them, con- tain two Sources of Difficulties _ =p 3 N The firſt ariſes from the different Changes that have been made of ſome of theſe 2 Laws at divers times, and becauſe. theſe Changes have not only per- plexed rhat Law by their multitude, but have rendred it in ſome of thoſe Matters, obſcure, difficalt, and uncertain. For ſeeing thoſe who made the ſaid Changes in the preceding Laws, had their Views confined: to certain Heads, they made Proviſion only tor what they had. a mind to alter, or repeal, and leaving the: reſt which. had a coherence with what theydidalrer, or repeal, without W the preciſe Bound which their new Diſpolitions were. to ſer to the preceding Laws, they have. by that means left it uncertain. what Effect theſe Changes ought to have, and what Hounds or Extent. muſt be given to them, in order to reconcile them with what they had a mind to retain of the Laws which they did alter. The other Source of Difficulties which ariſe from the Arbitrary Laws, and

which is Natural to all the Laws that have this Character, proceeds from this, that theſe ſorts of Laws can provide but imperfectly againſt Events; which being unforeſeen. do often make it neceſſary to make * to the ſaid Laws: whereas no Event eſcapes the Law of Nature, nor can it be unforeſeen by it. More might be ſaid on this Subject; but the little that is ſaid may ſuffice with- in the Bounds of an Advertiſement. * Me muſt not comprehend in the number of the Difficulties whick have been juſt now mentioned, thoſe which ariſe from the Diſpoſitions of Teſtators, either obſcure or imperfect, or ill laid together, or which have other ſorts of defects; for theſe ſorts of Difficulties are of a nature altogether different, and have their peculiar Rules, which determine the Effect that is to be given to ſuch Diſpoſitions,

and which ſhall be explained in their proper places.

A TABLE

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ES HA P TE RS

ERAAT ISS & LAWS.

fr Princi- IX. Of the State of Society after the Fall 1 ples of all Laws, 5 1 and bow God makes it WT Page 3 i X. Of Religion, and Policy : and of the

II. 4 Plan if Society's on 185 Foundation © Powers, xxiii of the two firſt Laws by two Hinds of XI. Of the Nature and Spirit of Laws, Engagements, and their different Kinds, xxvii

III. Of the firſt kind of Engagements, vir XII. Reflections on ſome Remarks in the

IV. Of the ſecond kind of Engagements, ix preceding Chapter, which are a Foun-

V. Of ſome General Rules, which ariſe dation of ſeveral Rules touching the from the Engagements that have been e and Interpretation of Laws, xlyv mentioned in the preceding Chapter, and Xl I. 4. General Idea of the Subject which are ſo many Principles of the. e of all the Laws: Reaſons for Civil Law, xii making choice of theſe, which ſhall be

VI. Of the Nature of Friendſbips, and treated of in this Boot, I their Uſe in Society, xv XIV. 4 Plan of the Matters contained

VII. Of Succeſſions, xvii in this Book of the Civil Law in its

VIII. Of three ſorts of Trouble, which Natural Order. lit

difturb the Order of Society, XyLil

* # * ITG AT . 52 x s >

A TREA-

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Lam, were | 4%

CHAPTER 1 5

of the Firſt Principles 45 all Ties.

The CONTENTS.

1. The firſt Principles of Laws were un- Fm" to Pa . The Certainty of the Principles of .

*

3. The knowledge of the fir Principles of Laws, is attained to by * knowledge of. Man.

4. The Nature of Man.

7. The Religion of Man.

6. The firſt Law of Man.

7 The ſecond Law of Man. : 8. The foundation of the Society of Man. Lind on e's two Laws.

I. |

NE would think, that

nothing ought to be better known by M

1. The frfl {SD

ples of the Laws, o which regulate both the Conduct of every one in particular, and the Order of the Sony 22 _ compoſe together: : Volt.. IJ.

And that even theſe perſons * hath not the advantages of Religion, by which we learn what thoſe. rinciples are, ought ar leaft to diſcover them in their _—_ Breaſts, ſeeing they are en- grave on all our Hearts by Nature. ertheleſs we ſee that the moſt learn-

ed of thoſe who were ignorant of what Religion teaches us concerning them, knew ſo little of them, that oy have eſtabliſhed Rules which violate and de- ſtroy them. | Thus, the Romans, who have eg led all other Nations in cultivating ble Civil Laws, and who have made fo a number of very juſt Wo, too che ſame Licenſe as other People did, to take away the Lives of their Slaves, and of their'own Children*. As if the Power

than the firſt Princi-,, which the quality of Father, and that

of Maſter, gave them, could diſpenſe with the Laws of Humanity.

. I. alt. C. de patr. t. & 2. a . e, vel alieni juris 25 Wy

* A TREATISE f LAWS. Caaz.l.

This extreme Oppoſition between the firſt Principles of them, and that every Principle; of

Equity which ſhines. AE 50 Laws. fp A len n _ .by 7, and the Inkutfia-- |

4 f't pd rr bew plainh t Light as may beſt iſcover their Fruth

the; Souroes ef an their Shane, that the ey lay ſerve

5 Which abe e6 depend tha it is it 6f of importance "ee. fe are the 4 ineiples of Laus, in order to know | FS r the Nature and Firmneſs of the Rules

* - which depend on them. And we may

judge of rhe certainty of theſe Prinei- Si es, by the double Impreſſio on which 7 5 Truths o 1 to make upon our

Minds, which God reveals to us by Re-

ion, and makes us to apprehend by

our Reaſon. So that we may ſay, that

the firſt Pri of Laws have a Cha-

racer of Truth, which touches and

ole than that of the Pririei- * * . XX other human Sciences. And how they ought to form the Union of That whereas the Principles of other Men, that they . that Men liv: Sciences, and the 1 Truths ed at firſt as wild Beaſts in the Fields, Oben wo end upon them, are only the | = * Mind, and not of the a e 184 e they do not Eyen enter into the Minds of all Perſorisz the firſt 3 of Laws, and the particular at Rules efential to theſe Prinefples, have ; a Character Arn Truth which every bod I E. . 42. fedds the Mind and che Heart alike.

We ſhall not ſtop herd to enduire ito! 7 the whole-Man is more penetra- the Cauſes of chis e BED hey 3 . e ſtrongly con-

of Light and re Ae Fre of then than of the Truths of were the moſt tearne K a0 all x ca- 4 mo other qr. ay >;

thens; and how they could know ſo There is no 1 but

many Rules of Julhcound Equity, wich- whoſe Heart and Mind tell him, chat it

ou ere erin, in 5 them A og rinciples . is not lawfal to kill him, or to rob him, on whicl Bey, o N. "Beth Bet nor to kill, or rob others; and who 1 18

fements he Cha there that is not more fully perſuaded

eq R a i che of theſe Truths than of any Theorem | 85 of Man, diſce-- of Geometry? Nevertheleſs thefe Wy. he Sx of this Blindnes, Truths, that Murder and Rob 1 time what are umlawful, however clear and a! Fade rinciples which God has elta they are, have not a degree of Cer- aun of the Or- tainty equal to that of the firſt Prin- der, o 5 55 jety of Mankind, and cCiples on which Gas hu = ; for where- which are the 0 806 of all che Rules theſe Princi * which ad» of Juſtice,and, B Pity... mit of no Diſpenſation, or Exception, But. bo! the hel Principles are Lone. theſe Truths are liable to Exceptions to us only by the Light of Religion, and Diſpenſations. As for inſtance, A. et it 1000 out to us in our very _ brabam might lawfully kill his Son, Trl. with 1 much clearnels,,. - when the Lord of Life and Death com- vh Tec _ plainly t hat Man i is ignorant. of manded him to do ite: And the He- only becauſe he does not know brews took, without any Crime, the bi en Tt ba wht that nothi Riches of the Egyptians, by order of more alt han the Blindneßst wy the Maſter of oy Jaiverſe, ho gave wie bin be ſeeing tbem. "| them to them r - Gen, Xxli, 2. p 84 fl. 2, hb 36. 5 2. The Cey- Since therefore there is Woch more We cannot take a more ſimple and, | The rainty of the neceſſary in n than to poſſeſs the ſurer way for redn the firſt Dri age © ciples of rhe fr

Fa de a em ogrhe eifllize them Þr t

— — . ̃ ̃ . Rant FL a ARE FE} —.. PE TT ge ee IPEITIN , — —— ————— ͤ— — — — — ſw—— — =

Cc arent Rania ot oc — „ ee —— — —— — — ont) -

.

— — . 15. Eee - 2 = - —— <— — — — 6 . 4 943» A EI IPA le On

8

Laws, is at- 2

the Kno

a2 Soul which animates a Body: chat in this Soul there are two Powers or Faculties, an Underſtanding, which is capable of knowing pable of loving. Thus we ee that it

ledge of " Man are-nothin Man.

OP of than by ſuppoſii — n ee de Finmions. One is, thar the Laws of elſe but the Rules of his Conduct: the other, that the fart Conduct is N. but the Steps which Mun es towards his End.

In eder where wür to Mbp the firſt

Foundariots of the Laws of Man, it is neceſſary to know bat is the End of Man; becauſe his deſtination to that End, will be the firſt Rule of the Way, and Steps that lead him to it, and con- fequently his firſt Law, and the Foun- dation of all the others.

To know the End of a Thing, i only to know why it. is made. Aud we know why a Thing is made, if by obſerving how it is made, we diſcover what its Structure may have relation 3 Becauſe it is certain, that God has. portioned the Nature of every T — to the End for which he has deſigned it.

We all know and feel, that Man —

z and a Will ca-

is to know, and to love, that God has made Man, and conſcquently' thar it is to unite himſelf to ſome Objett, in the Knowledge and Love of Which his Quiet and Happineſs does confiſt;z and chat it is towards this Object chat he ought to direct all his Steps. From whence: it follows, chat the firſt Law of Man, is his deſtination to the Know- edge and Love of that ought to be His End, —_ in which he is to find his Happineſs : And that it is 2 whic — e of Fre is: Abtions, kt to rin E of all his: Lacks 7: - 15 To know- therefore et is this firſt Law, What is the Spirit of it, and in

what manner it is the Foundation of all

others; we muſt ſee for Nn it is that the {aid Lawy defigns ns.

Among all the Objects which offer

themſelves to Man in the whole World,

even including Man himfelf,, there will be none of them found that i is worthy of being his End. - For in Hine, n= will be ſo far from Hnging his Hap neſs there; that he will feenothi but the Seeds of Miſery and "0 And round about him, if wi go over — vying Univerſe, wWi mall find no- — there that is capable of Nang pre pow a un End either to His Mind, or

=—_ the firſt Priveiplerſ ll "RIG N

, which

know — 1 that he has

to his 4 * And chat the 'T

ing conſid that we are theirs: And that i it Ten for us chat God” has made them: For all that is

contained = the Earth and in the Hes.

vens, is o 9 Proviſion made of Things

neceſſary all dur Wants, whic will periſh when they. ceaſe, / And we ec plainly; /that ever) thing there is'is

which Fee fe there chete 12 f fb it koch be.

little warthy both of our Mind, and

dur Heart; that as for the Mind, Ged has hidden from it all other Knowled

of the Creatures, beſides what concerns the ways of uſing them well: And that

the Sciences Which apply themſelves to

the Knowledge of cr Nature, diſco- ver nothing in them beſides what may be of uſe to us; and grow darker. and more unintelligible, the more they at- tempt to penetrate into that which is of no uſe to usf. And as for the Heart

every body knows that the whole Wor 1d is not capable of filling it: And that it

was never able to make any of thoſe

perſons happy who have ſet their Af- tections moſt upon it, and have enjoy- ed the greateſt ſhare of it. Eyery body is fo fully, convinced of this Truth, that there is no occaſion te perſuade a- ny one of it. And in fine, we muſt learn from him who has formed Man, that it is he alone, Who as he is his Principle, is alſo" Vis End : And that it is only God. alone, who is able to fill the infinite vacuity of that Mind, and of that Heart which he has made for himElE>.... . ..-.

* And left thou lift op thing eyes unto le and when thou ſeeſt the ſun, and the moon, and the ſtars, even all the hoſt of heaven, ſhouldeſt be

driven to worſhip them and ſerve them, which the Lord * Ho hath divided unto all Nations under the whole heaven, Deut. iv. 19.

f But what is commanded thee, think thereupon with reverence; for it is not needful for thee to ſee with thine eyes the” age that are in kecret,

Elis. ll. 22. £ I am Alp ha and 5 the beginning » and

the end, the firſt and . Rev. xxii. 13. ai

xli. 4 |

* 1 mall be atisficd, when I rite, with th

ne Hal. xvii. 19.

It is therefore for God himſelf, 1 God has made Man i. It is that he may given him an

Underftanding : him, that he has given him a Will; and it is by the Ties. of / this Knowledge,

and of this Love, that he would bave

Men to unite themſelves to him, that they may find in him their true Life,

and their only Happiness.

3 The Lord hath made all things for Rim. Prov. xvi. 4. And to make thee high above all na- 4 tions

It is chat he ma love Vill,

* * — — ER” » * + £44 mY < + þ . OLA 4 - a i 1 4 WT \ ; , * r e n

It is this coriſtruction of Man, who is formed to know and to love God, which makes him to be like God *. For ſince God alone is the fovereign

Good, it is his Nature to know him-

ſelf and to love himſelf; and it is in this Knowledge, and in this Love, that his Happi "does conſiſt. So that it is to be like him, to be of a Nature that is capable of knowing him, and of loving him: And it is to partake of e 1,4 neſs,” to attain to the perfection of t Knowledge, and this Loves. ⸗Letus make man in our own image, after our likeneſs, * Gen, i. 26. Wiſdom of Solomon ii. 23. Ec- db. weil," 1. G Hi, 1. - ® But we know, that when he ſhall appear, we ſhall be like him, for we. ſhall ſee. him as he is.

*

»

4. The Na- Thus we diſcover by this Reſemblance

ture of which Man has to God, what it is his

Man. Nature conſiſts in, his Religion, and his firſt Law. For his Nature is 9 5 elſe but that Being which is created a ter the Image of God, and capable of poſſeſſing that Sovereign Good, which is to be his Life and his Bleſſedneſs.

+ OO e 5. The Re- His Religion, which is the Collection im of of all his Laws, is nothing elſe beſides Aen. the Light, and the Way which lead him to that Life e. ered * For the commandment is a lamp, and the law is light, Prov. vi. 23. 133 6. The foes And his firſt Law, which is the Spi- Law of rit of his Religion, is that which en- Men. joins him to ſearch after, and to love that Sovereign Good; to which he ought to raiſe himſelf. with all the force of his Mind, and of his Heart, which are made on purpoſe to poſſeſs ĩit P). This is the firſt and great commandment. Matt, xxii. 38, And love is the keeping of her laws. Wiſd. of Solomon vi. 18. pl e ae VII. 7. The /e- It is this firſt Law, which is the 024 Law Foundation and firſt Principle of all the f Man. others. For this Law, which com- mands Man to ſearch after and to love the Sovereign Good, being common to

CA. I.

Up

, pd f 4 Y > . *; A , m 1 ; all Mankind, 1 implies a ſecond Law, W . # i 7 *

X | A, - 5 " 4 4 : | , 8 0 >. . 1 T\ * ] ne which obliges them to Unity among

another; becauſe being deſtined to be

n Good, which is to make their common Happineſs, ; and to be united in it ſo

ſtraitly, that it is ſaid that they ſhall be but One a; they cannot be worthy of that Union in the poſſeſſion of their com- mon end, if they do not begin their Union, by linking themſelves together by the tie of mutual Love in the way leads them to it. And there is no other Law which commands every one to love himſelf, becauſe: no one can love himſelf better than hy keeping the firſt Law, and by ſteering the courſe of his Life towards the Fruition of that Good to which it calls u. 2 That they all may be one, 'as thou, Father, art in me, and I in thee; that they alſo may be one in us. Folm xvii, 21. Fd 33

eee e, 1 It is by the Spirit of theſe two Laws 8. The that a7 -

deſigning to unite Mankind 7. ror

in the Poſſeſſion of their common end oy of Mans

hath begun to form among them a pri- td an or Union, in the uſe of the means whichzhe/e :wo uide them to that other Union. And l. 4 20 made this 5 in which their Happineſs is to conſiſt, to depend on the good uſe of that firſt Union, which is to form their Society. x. It is in order to unite them in this Society, that he hath made it eſſential to their Nature. And as we ſee in the Nature of Man his deſtination to the ſovereign Good, we ſhall alſo diſcover in it his deſtination to Society, and the ſeyeral Ties which engage him to it from all parts; and that theſe Ties, which are Conſequences of the Deſti- nation of Man to the exerciſe of the firſt two Laws, are at the ſame time the Foundation of the particular Rules of all his Duties, and the Fountain of r ors 3 But before we proceed any farther, to ſhew the Connexion which links all the Laws with theſe two firſt, it is ne- ceſſary to obviate the Reflection which it is natural to make on the ſtate of this Society; which, altho' it ought to be founded on the two firſt Laws, does nevertheleſs ſubſiſt, notwithſtanding the Spirit of theſe Laws has hut very little Influence in it; ſo that it ſeems as if it maintained it ſelf by other Principles. However, although Men have violated theſe Fundamental Laws, and although Society be in a ſtate ſtrangely different | L from

ba.

on theſe Foundations, and cements) by

K 8 .

| 2 4 1 * Pla I

from chat Which ought to be raiſed

this Union; it is ſtill true, that

Divine Laws, which are eſſential to the

Nature of remain immutable, and have never ceaſed. to oblige Men to the Obſervance of them: and it is likewiſe certain, as will. hereafter appear, that all the Laws which govern Society, even in the condition in which it is at pre- ſent, ate no other than Conſequences of theſe firſt Laws. Thus, it was neceſſa-

e lin rheſe firſt Principles: and

| knowing the Natural

ſides, it is not poſſible to compre- hend aright the manner in which 'we ſee Society ſubſiſt at preſent, without bite in which it

ought to be; and conſidering in it the

Union, which the Diviſions of Man- kind have broken, and the Order which

1. The Re- lation which the State of Man in thu

ey have inverted. . | In order to judge therefore of the Spirit and Uſe of the Laws, which maintain Society in the condition in which it is at preſent, it is neceſſary to draw a Plan of this Society on the foun- dation of the two primary Laws, to the intent that we may diſcover in it the Order of all the other Laws, and the Connexion which they have with theſe two firſt. And then we ſhall ſee what method God hath taken to make So- ciety ſubſiſt in the ſtate in which we ſee it at preſent, and among thoſe Perſons, who not governing themſelves in it ac- cording to the Spirit of the Fundamental Laws, ruine the Foundations which he had laid for it.

Sn A Plan of Society, on the Founda- tion of the two firſt Laws, by two kinds of Engagements.

The CONTENTS.

1. The Relation which the State of Man in this Life, has to the Exerciſe of the firſt Law. RE 2. The relation which the ſame ſtate of Man has to the exerciſe of the ſe- cond Law. 3. Deſtination of Man to Society, by two kinds of Engagements. I. Ltho' Man was made to know, and to love the Sovereign Good yet God did not put him 1 7 0 in um

Life, has to poſſeſſion of that end, but placed

they ſhall be as frontlets

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*

firſt in this life, as the way ta attain · to the Keel

it. And ſeeing Man cannot move to- wards any objects by other ſteps than

of the fe

the Light of his Underſtanding, and the

Motions of his Will; God hath made the clear Knowledge, and the unchangeable Love of the Sovereign Good, in Which the Happineſs of the Mind and Heart of Man does conſiſt, to depend on Man's Obedience to the Law, which com-

mands him to meditate on, and to love

that only Good, as much as he is able

in this Life; which he gives him for no other end, but that he may imploy it wholly in the purſuit of this object; the only one that is worth

to employ all his Thoughts, and to ſatisfy. all 72 Deſires or | _ 5 | ;

We do not pretend to explain here

the Truths which Religion teaches. us, concerni

the manner in which God directs and trains up Man to this Purſuit. It ſufficeth for giving an Idea of the

Plan of Society, to ſuppoſe them, and

to obſerve, that it is ſo much for im- ploying Man in the exerciſe of the firſt an

ſecond Law, that God has given

him the uſe of Life in this world, that. every 7 in it that preſents it ſelf to his view, both in himſelf and in all the reſt of the Creatures, are ſo many ob- jects given him to engage him to it. For as to the firſt Law, he ought to per- ceive by the ſight and uſe of all theſe objects, that they are ſo many Linea- ments and Images of that which God would have them to know, and to love

* Hear, O1ſrael, the Lord our God is one Lord,

And thou ſhalt love the Lord thy God with all thine heart, and with all thy foul, and with all thy

might. And theſe words which I command thee

this day, ſhall be in thine heart, And thou ſhalt teach them diligently unto thy children, and ſhalt talk of them w fitteſt in thine houſe, and when thou walkeſt by the way, and when thou

lieſt down, and when thou riſeſt up. And thou

ſhalt bind them for a ſign upon thine hand, and tween thine eyes.

thou ſhalt write them upon the poſts of thy houſe, and on thy gates. Dent. vi. 4, Ge. Lid. xi. 18.

II.

And as to the ſecond Law, God hath 2. Tie f,

ſo ſorted and matched Men among them-

tian he ſame

ſelves, and adapted the Univerſe to all al of Mankind, that the ſame objects which Man has ro ought to excite in them the Love of the . Exerciſe

Sovereign Good, engages them likewiſe to Society, and to a murual Loye of one

another. For we ſee nothing, and we

know nothing, either, without Man, or within him, but what points our

4 , ”

his deſtination to Society. | — Thus

of the ſe- cond Law,

ae ade

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7 Ht Mari, the Have

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and the Witers ber of Brit rt likewiſe of common uſe; But in fuch 4 mantel, that not any dle of them pal ſeß to our ſe; but by the Labour thafly perſöns: feiders Men neceifiry one ro another, and forms a- thong ther the differen Ties for the uſes ö Agriculture, Commerce, Arts, Sciences; And for all the other Sommu⸗ mention Which the ſeveral Watts of Life tay demand.

Thus within * we ſee thit God |

hath förmed him by an iticoticeivable

conjunction of Spirit and Matter to 6

ches Arid that be hath created him, the union bf 4 Soul and a Body, in of- der to make of the ſaid Body united to the Soul, and of the ſaid Divine Struc- ture of Senles and Metnbers, the Inſtru- ment of two Uſes eſſential to Sdeiety. The fitſt of theſe two uſes is, that of uniting the Minds and Hearts of Men among themſelves; Which is effected by a natüral conſequence of the union of the Soul and the Body. For it is b the uſt of the Senſes united to the Mind; and 10 the imp reſſions of the Mind up-

ol t . Sctiſes, and of the Senſes upon

that Men communicate to * 17 7 70 their Thoughts and their Sentiments. Thus, the Body is at the

fame time the Inſtrument and the Image of that Mind and of that Heart, which

ſelf; _ deſtined by Nature for Labour, that he of

are the Image of God. The 5 Uſe of the Body "A that of applying Men to. all the different nts By h God hath rendred neceſ- ry for ſupplying all their Wants; for | For Labour that God hath given us

_ Members. And although it

— chat the Labours whic ok lop Man ar 8 t are a Puniſhment

iets on him, and that God hath I 3 unto Man a Body fit for La- bour, to puniſh him by the Labour it yer 4t is certain, that Man is fo far

was commanded” to work even in the

Skate of Innocence b. But one of the

Gifferences between the Labours of that

first State of Man, and theſe of the pre-

ſent, conſiſts in this, that the Labour of Man in his State of Innocence, was an

agretable Oecu — — to him, 9 — = Without |, without Weari- nels; whereas — 806 8 impoſed on us as a Puniſhment e. Thu, 5 the Law

+

A TREATISB Ln, *Cnap. II.

Hoh hath the enkire Ute. Aud the © itigs Which the Tak ad

of the different Labours, the real 1

| it. | ca 49. 5

having gelbe; 3. Deſius- hath formed the n of Map 0 to 1 And ſte- er 2 ing t N general Ties which he makes 2,

among all Meri by theit Natute, and by ts. their tin ion to one and the fame

whick' EHI Labour is' equi both co rn Naturo of Mari; and to hs

4 Stats te wüten his Fall ha reduced Hin. "Ad this Law ill 4 fafurd! cons

e e ee,

hich by þ Ws are gige hi Rr Which is the — — of it; and appoint to evety At et;

„ in order to age ployinents, and the dilferbht Conde

17 d the Loyd God took the » as; er to del

nd it, DPS

The hy the thou er de.

e 11 is klug that God, Mankind for Society, Ties which engage

Eid, under the ſame Laws, are com- mon to all Mankind, and that they do not form in every one any ſingulat Re- lation which en him ro ſome mote than to others; he adds to thoſe general and common Ties, other particular Ties and Eugagements of ſeveral ſorts, whieh he unites Men among them. more cloſely, and determines every dens to exeftife effe Qual! towards ſortre par- tieular Perſons, the Duties of ha toy Which no one can exerciſe towards

Mankind in general. So that theſe En-

e . are to every one as it were is particular Laws, which point out to him what it is that the ſecond Law de- mands of hit, and which conſe uently are the Rule of his Duties. For the Duties of Men towards ohe another, are nothing elſe but the Effects

| of the ſincere Love Which every Man owes to

another, xii to the Engagements

under Which he happens to be.

Theſe articular ngagements are of two kinds, The firft is, -of thoſe which ate formed by the Natura Ties of Mar- riage, ere Huſband and Wife; and irth, between Parents and Children: ; And this kind comprizes likewiſe the Engagements of Kindred and Affinity, which are the Cotiſequenees of Birth and Marriage.

The ſecond kind takes in all the other

ſorts of Engagements, which draw all Parſons nearer to one no-

pris of

ther, and We 9 Hoh formed differently, 2207 Communications en of their Labour, of |

either. by, which p. 1 —

©»

2 e * Is e 3 22 In at i en » e 3 Ss CO SEE ˙ <s op Pre;

Ee ld ON 1 * „ . r n Eo rhe 3 8 3 Bs ® RSS; NT 5 N

* r

1. Natural I E Engagement which Marriage 1 4 produces betwixt the Huſband none, 7 and the Wife, and that which Birth and of makes between them and their Children, forms a particular Society in every Fa-

Birth.

Things

.

| | Ch 3 4 ; : 5 @ F x E l md * of 4.305; of * \ als: g 1

of Life; whether by free and gratuitous Communications, or by Commerce. It is by all theſe E theſe two kinds, that God forms the Order of the Society of Mankind, to link them together in the Exerciſe of the ſecond Law. And ſeeing he marks in every Engagement what it is that he enjoins to th it; one perceives in the Characters of the different ſorts of Engagements, the Foundations of the ſeveral Rules of that

which Juſtice and Equity demand of

cyery perſon, according to the Con- jun

tures in which his particular En- gagements place him.

a. & * EY 4

TR Wy" FT II. av "WT =

C.H A P. III.

ren

. 933

Of the firſt Kind of Engagements.

The CONTENTS.

1. Natural Engagements of Marriage, and of Birth. ee

2. Divine Inſtitution of Marriage, aud the ſeveral Principles of the Laws

_ which depend on it.

3. The Tie of Birth, and the Principles

of the Laws which are the conſe- quences of it, |

4. The Ties of K. indred and Affinity, and

their Principles. A

mily, in which God links the ſaid Per- ſons more cloſely together, in order to engage them to a continual Practice of the ſeveral Duties of mutual Love. It is with this view that he has not cre-

that he hath made them to be born of

the Union which he has formed be- tween the two Sexes in Marriage, and to be ꝑut into the wor Id in a ſtate ſub- je& to a thquſand Wants, where che help of bath Sexes 1s neceſſary. to them for a long time. And it is from the

Wanner 10.which God hath formed theſe

; r rer ENdAGEMEN TS. oſ their Induſtry, and of all forts of Of- fliices, Services, and other Aſſiſtances: or by. thole which relate to the uſe of 19s. And this comprehends all the different uſes of Arts, of Imployments, and of Profeſſions of all kinds, and eve - ry thing elſe that may link Perſons to- gether, according to the different Wants

Ingagements of

ole whom he puts under

Marriage, which are t

two Ties of Marriage and Birth, that we muſt diſcover the Foundations ot the Laws which relate to them.

4 * ; oy * a . 1

vii

-

In order to form the Union between . Prin Man and Woman, and to inſtitute Mar- 1firurion riage, which was to be the Source of H Mari

N

the Multiplication and Union of Man- 7 4

kind: And to

; IY .. the ſeveral IVE tO the ſaid Union . oe

Foundations proportionable to the Cha- the Laws racters of the Love which was to be the which de- Bond of it; God created in the firſt" .

place only Man alone, and then took out of him a ſecond Sex, and formed Woman of one of the Ribs of Man b, to ſhew from the Unity of their Origin, that they make only one Being; where

up to him by the hand of God as a

=

-ompanion, and as a Help meet for

him d, and formed out of him e. It was

in this manner, that he linked them to-

gether by this Union, which is ſo ſtrict,

and fo holy, and of which it is ſaid,

that it is God himſelf who has joined them together f, and who has made them two to be one Fleſhs. He made Man the Head of this intire Be-

ing®; and he eſtabliſhed their Union, by forbidding them to ſeparate what he himſelf had joined it. ep; 5 And the Lord God formed Man of the duſt of the ground. Gen. ii. 7, „„ And he took one of his ribs, and cloſed up the fleſn inſtead thereof. And the rib which the Lord God had taken from Man, made he a Wo- n 5 And brought her unto the Man. Gen. ii. 22. 4 It is not good that the man ſhould be alone: 1 will make him a help meet for him. Gen. ii. 18. * This is now bone of my bones, and fleſh of my fleſh: ſhe ſhall be called Woman, becauſe ſhe was taken out of Man. Gen. ii. : 2 Wbat therefore God hath joined together, let

not Man put aſunder. Matt. xix. 6.

& And they ſhall be one fleſh. Gen, ii. 24. Where fore they are no more twain, but one fleſh. Marr. „„ oo 0 PR » t% Sd

b The head of the woman is the Man. 1 Coy. xi. 3. Wives ſubmit your ſelves unto your own Husbands, as unto the Lord. For the Husband is the Head of the Wite, even as Chrift is the Head of the Church. Eph. v.22, 23. Thy deſire ſhall be to thy Husband, and he ſhall rule over thee. Gen. iii. 16. 1 Cor. Xiv. 34. |

i What therefore God hath joined together, let not Man put aſunder. Matt. xix. 6.

It js theſe myſterious ways by which God hath formed the Eng ngagement of he Foundations

not on of the Laws which regulate all the Duties of the Huſband, and of the Wife, but alſo of the Laws of the Church, and of 'the Civil Laws which concern Marriage, and of the Matters which

the Woman is taken out of Man, and

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any relation to it. 11.9%

Thus Marriage being a Tie formed

by the hand of God, it ought to be ce- lebrated in a manner becoming the Ho- lineſs of the Divine Inſtitution which

hath eſtabliſhed it. 1 And it 18 Aa natural 6

* 8 4 1 f * wavy . abs * - * ; ; OT! * # a : x y 4 * : . , * q 0 2 ?

which depend on it, or which have

ſhould continue in it a

uf Mp. A A. % 4s.” | 7 ih The 4 | 2. GA P. II J. —

/ de ta ˙· . tͥ˙ 1. | dnn de an Mother's that bis Birth/r ow ſhould be the Fruit: of the Pains and lich are

Labour of the ſaid Mother; that he e

ſhould be born incapable of l preſerv ing 3

this Life into which he enters; that he long time in a ſtare of Wenkneſs, and ſtand in need of

Conſequence of łhis Divine Order, that the help of His Parents, in order to his the Marriage be preceded and accom-

panied by Decency, by the reciprocal

Choice of the Perſons who engage in it, the mutu: WI by the Conſent of Parents, who are in ſo ſtrictly him who by begetting his many reſpects in the 8 of God: and 1

Union of the

that ĩt be celebrated by the Miniſtry of the Church, where this Union ought to

Thus the Huſband and Wife ef given the one to the other by the hand of God, who unites them in one com- pleat Being, that cannot be ſeparated. A Marriage which has been once law- fully contracted, can never be diſſol-

: 1' Whoſoever ſhall: put away his Wife, except it

be for Fornication. Matt. xix. 9. Thus this Union of. Perſons in Mar- riage is the Foundation of Civil Society, which unites them in the Uſe of their Goods, and of all other TOs 8 Thus the Huſband being, by Divine Appointment, the Head of the Wife, he bas over her a Power proportionable to the rank he has in their Union: and this Power is the Foundation of the Au- thority which the Civil Laws give to the Haſband, and of the Effects of this Authority in the matters where it hath its uſe. | | Thus Marriage being inſtituted for the multiplying of Mankind, by the Huſband and Wife, link- ed together. in the manner in which God unites them; all manner of Con- junction beſides that of Marriage, is un- 5 5 and cannot give other than an Illegitimate Birth. And this Truth is the Foundation of the Laws of Reli- gion, and of Civil Government, _— unlawful Conjunctions; and of the Laws which regulate the State of Children which iſſue from ſuch unlawful Con- junctions. | | The Tie of Marriage which unites the two Sexes, is followed by that of Birth, which unites to the Huſband and Wife the Children which are born of their Marriage. | | III.

3. he Ie It is in order to form this Tie, that

of Birth, and the

God hath eſtabliſhed, that Man ſhould

Principles of receive his Lite from his Parents, in the

14

receive the Divine Benedictioͤn.

ſubſiſting, and being educated in it. And as it is by this Birth that God

forms the mutual Love, Which unites

5 gives = Life, with him Who TECelves it; lo he gives to the Love of Parents a Chand ſuited vi the condition of Children in their Birth. and to all the Wants Which are che Conſequences of this Life which they have given them; that he may engage them, by the ſaid Love, to the Duties of Education, Inſtruction, and all the other Paternal Duties. And he gives to the Love of Children a Character ſuited to the Duties of Dependance, Obedi- ence, Gratitude, and all the other Filial Duties, to which they are engaged by the Benefit of Life, which they hold in ſuch a manner of their Parents, of whom God makes them to be born, that he teaches us, that without them they would not have that Life n. And this obliges them to render to their Parents all manner of Aſſiſtance, and all manner of Service in their Wants; and eſpecially in thoſe of old Age, and other Weak- neſſes, Infirmities, and Neceſſities, which afford Children an occaſion of paying to their Parents Duties which anſwer the firſt Benefits which they received from Honour thy father with thy whole heart, and forget not the ſorrows of thy mother. Remem- : - mk done for = Ecclus. vii. - %: pF Hao

It is this Order of Birth, which, by forming the Engagements between Pa- rents and Children, 'is the Foundation of all their Duties, the Extent whereof it is eaſy to diſcover by the Characters of theſe different Engagements. And on theſe very Principles depends all that the Civil Laws haye regulated touchin the Effects of the Paternal Power, 3 of the mutual Duties of Parents towards Children, and of Children towards Pa- rents; according as they are Matters that are ſubject ro the Regulation of Policy; ſuch as the Rights which the Laws and Cuſtoms give to Fathers for

the Government of their Children, for

the Celebration of their Marriages, for the Adminiſtration and Enjoyment of

I | their

3 3

ma . 14,58 Wy

+. 2

"© theirEſtits, the Undutifulgeſs and DiC- | | obodienee'of Ohiiren to their Papen,

the Thjuſfice of Patents, or of Children, to one another, |

who refuſe Alimon and other Mat ters It is Hkewi

the like nature. n this Order, which God has made ue ef for ving Life to Children by their Parents, that the Laws are founded. which convey to Children the Eſtates of their Parents 8

_ their death * 45 tal Goot

yen to Mien | the diff

Yeceffities of Life T bein only a a Gn ene of chat Benefit; greeable to the Order of Nature, that

after the death of the Patents, the Chil- neſſt

dren ſhould inherit their Goods, as an

Acceſſory to che Life whieh they have

of thats

=

that it is the oppofiti

received from them. The Tie of Birth, which unites Fa-

thers and Mothers to their Children,

unites them likewiſe to thoſe who are born and deſcended of their Children.

And this Tie makes all the Deſcendants confidered as Children, and all

to be the Aſcendants as being in the rank of * or Mothers.

arackers Gf the Love which u- nites the Huſband and the Wife, and of that which unites Parents and Children, ton of theſe diffe. rent Characters, which is the Founda- tion of the Laws which prohibit Mar- riage between Aſcendants and Deſeen- dants in all degrees, 72 between Colla- terals in ſome and it is caſy to deive the reaſons of ſuch Prohibition, barely reflecting on what has been 100 now — in reference to theſe Characters, on which it is not "neceſfary to enlarge here. | TV. | Marriage and Birth, which unite ſo the Holband and Wife, Patents ildren, form alſo two other forts _of Natural Ties, which are conſequen- ces of thetn. The firſt is, that of Col- lateral Relations, which is called Kin- dred; and the ſecond i is, that of Allies by M larriage, which is called Alliance, or Affinity.

Kindred unites the Collateral Rela- tions, who are thoſe Perſons whoſe Birth hath its Origine from one and the fame common Aſcendant. They are called Collaterals, becaufe whereas the Aſcen- dants and Deſcendants are in a direct Line from Father to Son; the Collate- rals have every one their own Line, which terininates in that of the com- a Aſeendart. Thus they are at the

OL. I.

_ thoſe: which (forbid Marria

IS a-

be remarked on mY Aftereret Huf

Kindred of her

are allied

% of EBA ZW.

Ide of ohe another; und the oundatien of their Tie and Kindred is, their com- won Union te the fame from whom they deride their Birth.

This is not che * 0 do eX- plain the Degrees 3 by is a

matter bien ant a of that of Succeflions. And it fufficerh to remarł here, that this Union of Kindred is the Foundation of Teveral Laws; | ſuch: as between . who are near of Kin; thoſe which call them to Succeflions, and to Guardianſhipsz thoſe * bey Challenges of Jud agen and Except Sz W

o are Relations to the Parties,

— bed of the like nature. . | s the Tie and Relation which

Affinity i is made between the Huſband and all the Kindred of the Wife; and between the Wife and all the Kindred of the Huſband. The Foundation of this Tic is Nog ſtrict 7 between 54 years the V 121 which makes t * tie 181 8 to one of he 5 are of co

ther of his Wi as P in Ta 1 of Father and Mother to himſelf: an her Brothers, her Siſters, and her other ations, as being to him in the ſtead $ F Brothers, De. and, Elations : and je Wie looks. upon in the ſame man- No the Father a e and all the as having the

ſame Relation to Hop If

This Relation of Affinity is theFoun- dation of thoſe Laws which forbid Mar- ria between ie that are allied i in

a ct e& Line of Aſoendants and Deſcen- . in all Degrees; and between Col- lateral Allies, within the ce of cer- tain Degrees: and! ewiſe of the Law Which call Allies to Tutorfhips, of he which reject Judges and W itnefles who

to the Parties, and of gehe

df the like nature. |

CHA . 1. abe ferond tind of Rngugement. The CONTENTS.

1. What theſe Engagements are, and how Coil puis tory one under whoſe that art peuuſtar to him.” 2. 'Theſe Engugameuts ave of t ore;

1 rh ate vblumary, aui We

ich do not 4: ">, ook he Will. 3. Voluntary Enga ;

4. Engagements

lee on the WAN. 7. The

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under which God puts him without his 4 we 4- |

5. Me Spirit of the ſecond Law in all Eu- 6. The Order of Government for keeping men within their Engagements. | 7. The Engagements are the Foundations of - the ene which relate to em.

t. Wha: ( MEeing the Enquire of Marriage wee En- O and Birth, of Rindred and Affinity, abe, an! Are limited to certain Perſons, and that how God God hath placed Mankind in Society, purs every there to unite them by mutual Love, in = 4 ſuch a manner that every perſon may be diſpoſed to produce towards others the s of this Love, according as occa- ſion may oblige him to it; he hath made neceſſary in — a ſecond kind of Engagements, which approach and link Aiferent! together all manner of Per- ſons, and frequently even thoſe who are the greateſt Strangers to one another. It is to form this ſecond ſort of Engage- ments, that God multiplies the Wants of

Men; and that he makes them neceſl: to one another for Serring all r > Wants ſupplied. And he makes uſe of two Ways to place every one in the Order of the Engagements for which J FITS The firſt of theſe two Ways is the ranging of Perſons in Society, where he aſſigns to every one his place, that he may point out to him by the ſituation of it, the Relations which tie him to others, and the Duties that are peculiar to the Rank which he holds; and he places every one in his proper Rank, by tis Birth, by his Education, by his In- clinations, and by the other Effects of his Conduct, which range and diſpoſe Men in their Places. It is this firſt Way, which produces to all Men the eneral Engagements ariſing from their nditions, their Profeſſions, their Im- ployments, and which places every Per- Pon in a certain condition of Lit, of which his particular Engagements are to

be the Conſequences... The ſecond Way, is the ordering of the Events and Conjunctures, which de- termine every one to particular Engage- ments, according to the Occaſions and

_ Circumſtances in which he happens to be.

2. Theſe All theſe ſorts of Bay 7 of thi Engage- ſecond kind, are either Voluntary, or In- For ſeeing Man is a free ef rmoſorts; Agent, there are Engagements into thoſe which Pr 2 2 are Polun- Which he enters willingly : and ſeeing zary, and he has a dependance on the Divine Pro- "hoſe which yidence, there are ſome Engagements

>

ments are voluntary.

* * 1 . ; . 3 C H A 4 5 * \ 1 / #1 N r Fo 43 4 ö \ 8 * 2 * * 0 „

*

own free choice. But whether gagements depend on the Will, or be

altogether. independent on it · as to their

the En- y_ on the

one and the other; and his whole Con- duct implies always. theſe two Charac- ters; one of his Dependance upon God, whoſe Order he ought always to obey; and the other of his Liberty, which ought to move him to it. So that all theſe ſorts of Engagements are propor- tioned both to 1 of Man, anc to his Condition ER ſtate of Life. Voluntary Engagements are of two 3- Yolun- ſorts. Some are formed mutually. be- =»

tween two or more Perſons, who bind gagements,

and engage themſelves reciprocally to one another by their free Will: and o- thers are formed by the Will of one of the Parties alone, who engages himſelf to other Perſons, when the ad Perſons do not treat with: him ĩ It will be eaſy to diſtinguiſn theſe two ſorts of Engagements, by ſome Ex- _ Thus for Volun and Mu- tual Engagements, we ſee that becauſe

of the ſeveral Occaſions which Men

have to communicate to one another

their Induſtry and their Labour, and for carrying on the different Commerces of all Things, they enter into Partnerſhip, they let and hire, they buyand ſell, the

barter, / and make with one another a

. of 5 | Thus, as to the Engagements which e. formed by the Will of one Party alone, we ſee that he who becomes Heir or Executor, obliges himſelf to the

. Creditors of the Succeſſion : That he

who takes upon himſelf the Manage- ment of the Affair of an abſent perſon without his knowledge, obliges himſelf for the Conſequences of the Affair which he has begun: And in general, that all thoſe who voluntarily enter upon Im- ployments, oblige themſelves to the En- gagements which are the Conſequences of them. 1 3 IV.

The Involuntary Engagements, are 4. Engage-

thoſe under which God puts Men with- s inde-

Jah, C. pendent on out their own choice. Thus, thoſe 2% l,

who are named to the Offices which are called Municipal, ſuch as thoſe of May- or, Sheriff, Conſul, and others of the like nature, and thoſe who are engag- ed in ſome Commiſſions of Juſtice, are obliged to execute them, and cannot a- void doing it, unleſs they have reaſona- ble Excuſes. Thus, he who is aſſigned Guardian to an Infant, is obliged inde-

| pendently

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O ibe ſecond bind of EN, MEN Ts

pendemly of his Will a, to be inſtead of

a Father to the Orphan who is committed to his Charge. Thus, he whoſe Affair hath been managed in his abſence, and with- out his knowledge, by a Friend, who hath taken care of it, is under an Obli- gation to that Friend, to reimburſe him of what he has reaſonably expended, and to ratify what he has well tranſacted. Thus he whoſe Goods have been fayed in a Shipwrack by lightening the Vel-

_ fel, and rhrowing other Goods over

board, is obliged to bear his Share of

the Loſs of the Goods thrown into the

Sea, in proportion. to the Value of what has been ſaved for his uſe. Thus, the condition of thoſe who are Members of the Society, who are deſtitute of the Means of Subſiſtence, and unable to

work for their Livelihood, lays an Ob-

ligation on all their Fellow Members to exerciſe towards them mutual Love, by imparting to them a Share of 8 which they have a right

to. For every Man being a Member of

the Society has a right to live in it: and that which is neceſſary to thoſe who have Nothing, and who are _ able to

in their Livrlihood, is by conſequence D dhe hands. of the other Members;

them. And it is becauſe of this Engage-

ment, that in Publick Neceſſities pri-

vate Perſons are obliged, even by Con- ſtraint, to aſſiſt the Poor according to their Wants. Thus the Condition of choſe who ſuffer any Injuſtice, and who are under Oppreſſion, is an Engagement to thoſe = have in their hands the Miniſtry and Authority of Juſtice, to imploy it for their Protection.

* By the Roman Law the neareſt Relations were obliged ro aucefe the Office 8 aſſgned rate. the LAWS of * — * 22 ro = 4 Office upan him,

Inſtit. lib. 1. tit. 25. Cowel's Inſtit. lib. 1. tit. 25.

*

5. Lbe Sh. We ſee in all theſe ſorts of Engage- rt of che ments, and in all the others which we ſecond Law can imagine, that God forms them, and is all E. puts Me under th ro im.

puts Men under them, meerly to im

ploy them in the exerciſe of mutual

preſcribed by Engagements, are nothing elſe but the ſeveral Effects which this

Love ought to produce, according to

the Conjanctures and the Circumſtances.

Thus in general, the Rules which com- mand us to fender to every man what is his due, do wrong no man, to be always faithful and ſincere, and others of the

Vo I. I.

from whence it follows, that they can- not without Injuſtice detain it from

like nature, enjoin only Effects of mu- tual Love. For to love, is to wiſh well, and to do good; and no man loves thoſe whom he injures, nor thoſe to whom he is unfaithful and unſincere. Thus in particular, the Rules which or- dain the Tutor to take care of the Per- ſon and Eſtate of the Minor who is committed to his Charge, command him only the Effects of that Love which he ought to have for this Orphan. Thus

the Rules of the Dutics of thoſe who

are in Offices, and in all other ſorts of Engagements, general or particular, pre- {cnbe unto them nothing but what the ſecond Law demands, as it is caſy to perceive in all the particular Engage- ments. And it is ſo true, that it is the Commandment of Loving, which is the Principle of all the Rules of Engage- ments, and that the Spirit of theſe Rules is nothing elſe but the Order of that Love which we owe reciprocally to one another; that if it happens chat

one cannot, for example, reſtore to ano-

ther what he has of his, withour break- ing in 1 this Order; this Duty is ſulpended until it may be performed ac-

cording to this Spirit. Thus he who has

the Sword of a Mad-man, or of an

other Perſon, who demands it in a aid port of Paſſion, ought not to reſtore it to him, until he hè in a condition not

to make a bad uſe of ir; for it would

not be love to him, to give him his Sword in theſe circumſtances, _

It is after this manner, that the ſe- cond Law commands men to love one another. For. the intent of this Law is not to oblige every one to have for all other perſons that inclination which is produced by the qualities which ren- der an Object amiable ; but the Love which it commands, conſiſts in wiſhing to othets their true Good, and in pro- cuting it to them, as much as is in our

ower. And it is for this reaſon, that ceing this Command is independent on

the Merit of thoſe whom we ought to

love, and that it excepts no body; it obliges us to Love thofe who are the

leaſt amiable, and even thoſe who hate

us. For the Law which they tranſ- greſs is nevertheleſs binding on us, and

we ought to with their true Good, and

to procure it®, as much out of hopes

of reclaiming them to their Duty, as

out of fear of tranſgreſſing our own.

> Thou ſhalt not hate thy brother in thine

heart. Levie. Xix. 17. Thou ſhalt not avenge, nor bear any againſt the children of th

people, bid. 18. If thou meet thine enemy's ox,

or his aſs, going rey: thou ſhalt ſurely "og - 2 | c

xi

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back to him again. If thou ſee the aſs of him that hateth thee, lying under his burden, and wouldeſt forbear to help him, thou ſhalt ſurely help with him. Exod, xxiii. 4, 5. If I have rewarded evil unto him that was at uo with me. Palm vii. 4. If thine enemy be hungry, give him bread to cat; and if he be thirſty, give him water to drink. Prov. xxv. 21. Rom. Xil. 20. Matt. v. 24.

Ve have made here theſe Reflections, to ſhew that ſeeing it is the ſecond Law which is the Principle and Spirit of all thoſe Laws relating to Engagements, it is not enough to know, as the moſt bar- barous People do, that we ought to render to every one their due, that we

- ought to wrong no man, that we ought to * ſincere and faithful, and the other Rules of the like nature; but it is ne- ceſſary moreover to conſider the