Beccaria, Blackstone, and Smith | Classics in Political Philosophy

BECCARIA, BLACKSTONE, SMITH

From Classics in Political Philosophy, by James Fieser

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CONTENTS

• Cesare Beccaria: The Limited Purpose of Punishment (from On Crimes and Punishments)

• William Blackstone: Origins of Laws and Rights (from Commentaries on the Laws of England)

• Adam Smith: Capitalism and Limited Government (from The Wealth of Nations)

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CESARE BECCARIA: THE LIMITED PURPOSE OF PUNISHMENT

Cesare Beccaria (1738–1794) was born in Milan, Italy, the eldest son in an aristocratic family. In his mid-twenties he associated with Pietro and Alessandro Verri, two brothers who formed an intellectual circle that focused on reforming the criminal justice system. At the encouragement of Pietro, Beccaria wrote On Crimes and Punishments (1764), which critiqued the ineffective and often brutal criminal justice system of his time. Beccaria recommends reforms based on current psychological theories of human motivation. His work was both an important contribution to political philosophy and a tool that brought about change in the justice systems of several European countries. Beccaria argues that there are only two acceptable justifications for punishment, namely, to prevent the criminal from repeating crimes and to deter others from breaking the law. To have the greatest deterrence value, punishment should immediately follow a crime. Drawing on associationist theories of psychology, such as that of David Hartley (1705-1757), he maintains that we can strengthen the association between the notions of crime and punishment when we know the rules by which the mind connects those two concepts together. Swiftness does just that, and any delay weakens the connection. Further, he argues, severity of punishment does nothing to enhance the connection between a crime and its punishment, and, thus, the most effective punishments should be mild, but swift. Beccaria offers one of the first sustained critiques of the death penalty. His principal argument is that capital punishment does not deter criminals, and, instead, long term imprisonment makes a more lasting impression on the minds of spectators. Further, the death penalty has harmful effects on society by reducing people's sensitivity to human suffering. Beccaria recognizes that capital punishment is in fact practiced everywhere and it may be hard to break that custom; nevertheless, he hopes that the collective voice of critics of the death penalty scattered around the world will influence political rulers.

12. THE INTENT OF PUNISHMENTS (from On Crimes and Punishments)

Prevention and Deterrence

From the foregoing considerations, it is evident that the intent of punishment is not to torment a sentient being, nor to undo a crime already committed. Is it possible that torment and useless cruelty, the instrument of furious fanaticism or of impotency of tyrants, can be authorized by a political body? Instead of being influenced by passion, such institutions should be the cool moderator of the passions of individuals. Can the groans of a tortured criminal bring back the time past, or reverse the crime he has committed?

The goal of punishment, therefore, is solely to prevent the criminal from doing further injury to society, and to prevent others from committing the same offense. Such punishments, therefore, and such a manner of inflicting them ought to be chosen in a way that will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

19. THE ADVANTAGES OF IMMEDIATE PUNISHMENT

Short Imprisonment before a Trial

The more immediately after the commission of a crime a punishment is inflicted, the more just and useful it will be. It will be more just because it spares the criminal the cruel and unnecessary torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of weakness. It will also be more just because the removal of liberty, being a punishment, should be inflicted before condemnation only for as short a time as possible. Imprisonment, then, is only the means of securing the accused person until he is tried, condemned, or acquitted, and should not only be of a short duration, but it should be accompanied with as little severity as possible. The time of imprisonment should be determined by the necessary preparation for the trial, along with the right of priority for the oldest prisoners. The confinement should not be stricter than is required to prevent his escape or his concealing the evidence of his crime, and the trial should be conducted with all possible speed. Can there be more a cruel contrast than the between the habitual idleness of a judge, and the painful anxiety of the accused, or, the comforts and pleasures of an insensible magistrate, and the filth and misery of prison? In general, as I have observed above, the degree of the punishment and the consequences of a crime should be designed so that it has the greatest possible effect on others, with the least possible pain to the delinquent. If there is any society in which this is not a fundamental principle, it is an unlawful society. For, humankind by their union, originally intended to subject themselves to the fewest evils possible.

Association of Ideas

An immediate punishment is more useful because, the smaller the interval or time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment. Accordingly, one is considered as the cause, and the other as the unavoidable and necessary effect. It is demonstrated that the association of ideas is the cement which unites the fabric of the human intellect, without which pleasure and pain would be insignificant mental sensations. The common people (that is, all people who have no general ideas or universal principles) act in view of the most immediate and familiar associations. However, our more remote and complex ideas present themselves only to the minds of people who are passionately attached to a single object. This is also so of people with greater intellects who have acquired a habit of quickly comparing together several objects and forming a conclusion. The result is that the action in consequence becomes less dangerous and uncertain by this means.

It is then of the greatest importance that the punishment should follow the crime as immediately as possible. This is so if we hope that, in the unrefined minds of the multitude, the seducing picture of the advantage arising from the crime should instantly awake the attendant idea of punishment. Delaying the punishment serves only to separate these two ideas, and thus affects the minds of spectator as being a terrible sight, rather than the necessary consequence of crime, the horror of which should contribute to heighten the idea of punishment.

There is another effective method of strengthening this important connection between the ideas of crime and punishment. This is to make the punishment as analogous as possible to the nature of the crime so that the punishment may lead the mind to consider the crime in a different point of view from that in which it was placed by the flattering idea of promised advantages.

Crimes of less importance are commonly punished either in the obscurity of a prison, or the criminal is transported and enslaved by a distant society which he never offended. This makes him an absolutely useless example considering how far he is from the place where the crime was committed. People do not, in general, commit great crimes deliberately, but rather in a sudden burst of passion. They commonly look on the punishment due to a great crime as remote and improbable. Therefore, the public punishment of small crimes will make a greater impression, and by deterring people from the smaller, we will effectively prevent the greater.

27. THE MILDNESS OF PUNISHMENTS

Certainty vs. Severity

The course of my ideas has carried me away from my subject, to the elucidation of which I now return. Crimes are more effectively prevented by the certainty of the punishment, rather than the severity. Hence, to become useful virtues, the necessary caution of a magistrate and the necessary inflexibility of a judge need to be joined with mild legislation. The certainty of a small punishment will make a stronger impression than will the fear of one more severe, if accompanied with the hopes of escaping. For it is human nature to be terrified at the approach of the smallest inevitable evil, while hope (the best gift of heaven) has the power of dispelling the apprehension of a greater. This is especially supported by examples of rescue, which weakness or avarice too frequently afford.

If punishments are very severe, people are naturally led to the perpetration of other crimes to avoid the punishment due to the first. The countries and times most notorious for severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed. For the hand of the legislator and the assassin were directed by the same spirit of ferocity. On the throne, this attitude dictated ironclad laws for slaves and savages. In private, it motivated people to sacrifice one tyrant to make room for another.

People Adjust to Increases of Severity

In proportion as punishments become crueler, the minds of people grow hardened and insensible; this is just as a fluid rises to the same height with that which surrounds it. Because of the continual force of the passions, in a period of a hundred years, the wheel terrifies no more than prison did before. For a punishment to be effective, all that is needed is that the evil it brings about should exceed the good expected from the crime. Included in the calculation should be the certainty of the punishment, and the loss of the expected advantage. All severity beyond this is unnecessary, and therefore tyrannical.

People regulate their conduct by the repeated impressions of evils they know, and not by those with which they are unacquainted. For example, let us suppose that there are two nations. In one the greatest punishment is perpetual slavery, and in the other it is the wheel. I say that both will inspire the same degree of terror. Further, there can be no reasons for increasing the punishments of the first, which are not equally valid for increasing those of the second, thus creating more lasting and more creative modes of tormenting, and so on to the most sophisticated refinements of a science too well known to tyrants.

There are still two other consequences of cruel punishments, which counteract the purpose of their institution (which was to prevent crimes). The first arises from the impossibility of establishing an exact proportion between the crime and punishment. For though creative cruelty has greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, regardless of how great the initial crime was. The second consequence is exemption from penalty. Human nature is limited no less in evil than in good. Excessive cruelty can only be temporary since it is impossible for it to be supported by a permanent system of legislation. For if the laws are too cruel, they must be altered otherwise anarchy will follow.

Who would not shudder with horror when reading in history about the barbarous and useless torments that were coolly invented and executed by people who were called sages? Who does not tremble at the thought of thousands of criminals forced desperately to return to a state of nature because of what the laws caused or tolerated (insofar as the laws favor the few and outrage the many). Or at people accused of impossible crimes, fabricated from ignorance and superstition. Or at people guilty only of having been faithful to their own principles. Who, I say, can without horror, think of them being torn to pieces with slow and studied barbarity, by people endowed with the same passions and the same feelings? What a delightful spectacle to a fanatic multitude!

28. THE PUNISHMENT OF DEATH

We Don't Give Up our Right to Life

The useless profusion of punishments, which has never made people better, makes me to inquire whether punishment by death is really just or useful in a well-governed state. What right, I ask, do people have to cut the throats of their fellow-creatures? Certainly not the right upon which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will which is the aggregate of that of each individual. Did anyone ever give to others the right of taking away his life? Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion contains the greatest good of all, namely, that person's life? If this were so, how can it be reconciled with the principle which tells us that a person has no right to kill himself? Certainly he must have this if he could give it away to another.

Only One Justification of Capital Punishment

But the punishment of death is not authorized by any right, for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.

The death of a citizen cannot be necessary except in one case. This is when he is deprived of his liberty and yet still has enough power and connections to endanger the security of the nation, that is, when his existence may produce a dangerous revolution in the established form of government. But even in this case, it is only necessary when a nation is on the verge of recovering or losing its liberty, or, in times of absolute anarchy, when the disorders themselves hold the place of laws. But this is not so in a reign of peace, or in a form of government approved by the united wishes of the nation, or in a state well fortified from enemies without, and supported by strength within (and, even more effectively, by popular opinion), or where all power is lodged in the hands of the true sovereign, or where riches can purchase pleasures and not authority. In these there can be no necessity for taking away the life of a subject.

Capital Punishment Does Not Deter

Consider whether the experience of all ages is not sufficient to prove that the punishment of death has never prevented determined people from injuring society. Consider the example of the Romans; or the twenty years reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more memorable than many conquests bought with blood. If, I say, all this is not sufficient to persuade people, who always suspect the voice of reason and who chose rather to be led by authority, then let us consult human nature in proof of my assertion.

It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. For our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent, but momentary, impulse. The power of habit is universal over every sentient being. It is by habit that we learn to speak, to walk, and to satisfy our necessities. So too the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less effective method of deterring others, than the continued example of a person deprived of his liberty and condemned (as a beast of burden) to repair by his labor the injury he has done to society. "If I commit such a crime," says the spectator to himself, "I will be reduced to that miserable condition for the rest of my life." This is a much more powerful preventive than the fear of death, which people always see in distant obscurity.

The terrors of death make so slight an impression that it does not have enough force to withstand our natural human forgetfulness, even in the most essential things and when assisted by the passions. Violent impressions surprise us, but their effect is momentary. They are fit to produce those upheavals which instantly transform a common person into a Lacedemonian or a Persian. But in a free and quiet government, such impressions should be frequent rather than strong.

To the masses, the execution of a criminal is entertainment, and in some it excites compassion mixed with indignation. Both sentiments fill the mind with a greater terror than the needed terror which the laws try to inspire. But in the contemplation of continued suffering, terror is the only (or at least the predominant) sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.

Advantages of Perpetual Slavery

For a punishment to be just, it should have only that degree of severity that is sufficient to deter others. Now, there is no person, with the least reflection, who would jeopardize the total and continual loss of his liberty for the sake of the greatest advantages he could possibly obtain resulting from a crime. Consequently, perpetual slavery contains all that is necessary to deter the most hardened and determined, as much as the punishment of death. In fact, I say it has more. There are many who can look upon death with courage and steadfastness. Some approach it through fanaticism, and others through vanity that attends us even to the grave. Others approach it from a desperate resolution either to get rid of their misery, or cease to live. But fanaticism and vanity abandon the criminal in slavery, in chains and shackles, in an iron cage. Despair seems rather the beginning than the end of their misery. By collecting itself and uniting all its force, the mind can momentarily repel the attack of grief. But its strongest efforts are insufficient to resist perpetual misery.

In all nations where death is used as a punishment, every example assumes that a new crime has been committed. However, in perpetual slavery, every criminal provides a frequent and lasting example. If it is necessary for people to regularly be witnesses of the power of the laws, then criminals should frequently be put to death. But this supposes a frequency of crimes, and for that reason this punishment will cease to have its effect, and thus it becomes useful and useless at the same time.

Suppose you say that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer that if all the miserable moments in the life of a slave were collected into one point, it would be a crueler punishment than any other. But these are scattered through his whole life, whereas the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is that it is more terrible to the spectator than to the sufferer himself. For the spectator considers the sum of all his miserable moments, whereas the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations, of which the spectators are ignorant (judge by their own sensibility of what passes in a mind, by habit grown callous to misfortune).

Perpetual Slavery combats Religious Repentance

Let us, for a moment, note the reasoning of a thief or assassin, who is deterred from violating the laws [because of execution] by the gibbet or the wheel. (I am aware that developing the feelings of one's own heart is an art which education only can teach; nevertheless, although a criminal may not be able to give a clear account of his principles, they still influence his conduct.) He reasons as follows: "What are these laws that I am obligated to respect which make so great a difference between me and a rich man? He refuses me the pocket change I ask of him, and excuses himself by instructing me to get a job, with which he is unacquainted. Who made these laws? The rich and the great, who never stooped to visit the miserable huts of the poor, who have never seen a poor person dividing a piece of moldy bread, surrounded by the cries of his starving children and the tears of his wife. Let us break those ties that are fatal to the greatest part of humankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I will live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short. For an hour of grief, I will enjoy years of pleasure and liberty. As king of a small number of people who are as determined as myself, I will correct the mistakes of fortune, and I will see those tyrants grow pale and tremble at the sight of him, whom with insulting pride, they would not even rank with their dogs and horses."

Religion then presents itself to the mind of this lawless criminal by promising him almost a certainty of eternal happiness upon the easy terms of repentance. This contributes much to lessen the horror of the final scene of his tragedy.

Consider now the criminal who foresees that he will pass many years, even his whole life, in pain and slavery. He will be a slave to those laws by which he was protected, in sight of his fellow citizens with whom he lives in freedom and society. He thus makes a useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he will enjoy the fruits of his crime. The example of those criminals continually before his eyes makes a much greater impression on him than a punishment, which instead of correcting, makes him more hardened.

Harmful Effects of the Death Penalty

The punishment of death is harmful to society from the example of cruelty that it presents. While the passions, or the necessity of war, have taught people to shed the blood of their fellow-creatures, the laws, which are intended to moderate the savagery of humankind, should not increase it by examples of cruelty, which is even more horrible since punishment is usually attended with formal ceremony. Is it not absurd that the laws, which detest and punish homicide, should, to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural feelings of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will. In this light, the executioner is a good citizen, who contributes to the advantage of society and is the instrument of the general security within, just as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of humankind permanent, even though contrary to reason? It is that in a secret corner of the mind in which the original impressions of nature are still preserved, people discover a sentiment which tells them that their lives are not lawfully in the power of anyone, except only that necessity which with its iron scepter rules the universe.

What must people [i.e., potential criminals] think when they see wise magistrates and somber ministers of justice, with indifference and tranquility, dragging a criminal to death? Or consider, while a criminal trembles with agony expecting the fatal stroke, the judge who has condemned him leaves his tribunal to enjoy the comforts and pleasures of life, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority? They will say, "Ah! Those cruel formalities of justice are a cloak to tyranny. They are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us as a horrible crime, we see practiced by them without revulsion, or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him, who not expecting it, escapes almost all the pain." Such is the fatal, though absurd reasoning of people who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.

Overcoming the Tradition of the Death Penalty

If it is objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples disappears when opposed to truth, against which it is pointless to offer further recommendation. The history of humanity is an immense sea of errors in which a few obscure truths may here and there be found.

Consider that human sacrifices have also been common in almost all nations. That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is in fact favorable to my argument. For such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived when truth will be the share of the majority (as falsehood was previously).

I am aware that the voice of one philosopher is too weak to be heard when surrounded by the uproar of a multitude, blindly influenced by custom. But there are a small number of sages, scattered around the earth, who will echo my views from the bottom of their hearts. If these truths should happily force their way to the thrones of princes, let it be known to them that they come attended with the secret wishes of all humankind. Tell the sovereign who patronizes them with a gracious reception that his name will outshine the glory of conquerors, and that equal fame will elevate his peaceful trophies above those of a Titus, an Antoninus or a Trajan.

How happy humankind would be if laws were now first formed, especially since we see benevolent monarchs on the thrones of Europe. They are friends to the virtues of peace and to the arts and sciences. They are fathers of their people and, though crowned, remain citizens. The increase of their authority extends the happiness of their subjects by destroying that transitional despotism which intercepts the prayers of the people to the throne. If these humane princes have allowed the old laws to continue, it is undoubtedly because they are deterred by the numberless obstacles, which oppose the subversion of errors established by the sanction of many ages. Accordingly, every wise citizen will wish for the increase of their authority.

Source: Cesare Beccaria, On Crimes and Punishments (1764), tr. Edward D. Ingraham.

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WILLIAM BLACKSTONE: ORIGINS OF LAWS AND RIGHTS

Born in London into a middle-class family, William Blackstone (1723-1780) was an English attorney, law professor at Oxford University, judge, and author of the Commentaries on the Laws of England (1765-1769). Whereas continental European legal tradition is based on Roman Law, that of England rests on common law, that is, a history of court cases and legal precedents established by judges beginning around the twelfth-century. Common law is often contrasted with statutory law that is enacted by a legislatures rather than judges. Based on his university lectures, Blackstone's four-volume Commentaries was the first attempt to organize the English common law into a unified and rational system. With literary skill, he blended enlightenment political theory with the major topics of common law, and, for the first time, made the subject understandable to non-lawyers. He attempted to systematize notions of ancient and medieval natural law, the concept of eternal moral truths, the Epicurean view that happiness is the end of law, and modern notions of natural rights. His purpose was to ground common law in something higher than the history of the gut feelings of judges, and show how, by following reason in their judgment, they were following natural law. He was perhaps the last major thinker to attempt a unified account of law, morality, rights, and political authority before the natural law tradition unraveled. His work influenced America's founding fathers, and provided a convenient summary of law for nineteenth-century American attorneys. The selections below are from the introduction and first book of his work.

The Introduction to the Commentaries discusses types of laws and their origin. Blackstone argues here that laws that pertain to human action are of five types. First, natural laws are the eternal and immutable law of morality that God himself follows. He imprints these upon humans through our instinctive drive for self-love where individual happiness and eternal justice are interwoven. Second, since in our corrupt human state we cannot grasp the full implications of natural law, God thus reveals a portion of natural law through scripture, which is called divine law. Third, human laws, then, are founded on natural and divine laws. Fourth, laws of nations regulate the interaction of countries and depend upon both natural law and human-created treaties. Fifth, municipal laws are human created (positive) laws that concern people as citizens and our subsistence in society. Blackstone argues that there was no historical original contract that created society, and, instead, the foundation of society is a sense of weakness that necessitates a union among people. Book 1 of the Commentaries deals with the rights of persons, and there are two general sorts of rights: absolute and relative. The absolute ones belong to everyone in the state of nature, and the principal aim of human law is to protect these rights. The relative ones emerge within society based on the various relationships that people have with each other. The absolute rights are our natural liberties. When we enter into society, we give up part of our natural liberty, but only those that are necessary for the general advantage of the public. There are three types of absolute rights, namely, security, liberty, property. The right to security, in turn, entails the rights to life, limb, body, health and reputation. Corporations are "artificial persons, which may maintain a perpetual succession, and enjoy a kind of legal immortality" and are created for the advancement of religion, learning, and commerce.

OF THE NATURE OF LAWS IN GENERAL (Commentaries on the Laws of England, Introduction, sect. 2)

Law as a Rule of Action Dictated by some Superior Being

Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

Thus, when the supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,—as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of vital economy; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behavior.

Laws of Nature as God Willing Immutable Laws of Good and Evil

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.

This will of his Maker is called the law of nature. For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created man, and endued him with free-will to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to His creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to everyone his due; to which three general precepts Justinian has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted [i.e., lacked] some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, ''that man should pursue his own true and substantial happiness.'' This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.

But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

Divine Law as Revealed Parts of Natural Law

This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law; because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Human Laws founded on Natural Law and Divine Law

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or superadd any fresh obligation, "in the court of conscience," to abstain from its perpetration. Nay, if any human law should allow or enjoin [i.e., encourage] us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws,—such, for instance, as exporting of wool into foreign countries,— here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

Law of Nations dependent on Natural Law and Treaties

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations," which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject; and therefore the civil law very justly observes, that "that rule which natural reason has dictated to all men is called the law of nations."

Municipal (Positive) Law as Duties of Citizens for the Peace of Society

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." . . . .

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbor, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbor than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. . . . Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner, not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. . . .

Original Contract as a Sense of Weakness that Necessitates a Union

The only true and natural foundations of society are the wants [i.e., lacks] and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any. . . .

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperil, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

Types of Government: Democracy, Aristocracy, Monarchy, Mixed

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three. . . .

Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry these means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero declares himself of opinion, "That the best constituted republic, is that which is duly compounded of these three estates, the monarchical, aristocratical, and democratical." Yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.

But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. . . . For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united [i.e., through the King, House of Lords, and House of Commons]. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the problems of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS (1.1)

Four Divisions of the Laws: Rights of Persons, of Things, Private Wrongs, Public Wrongs

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero, and after him our Bracton, have expressed it, sanctio justa, jubens honesta et prohibens contraria [i.e., a just decree, commanding what is honorable and forbidding the contrary], it follows that the primary and principal object of the law are rights and wrongs. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring or losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors, with the means of prevention and punishment.

Absolute Rights of Nature vs. Relative Rights of Societies

We are now first to consider the rights of persons, with the means of acquiring and losing them.

Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behavior of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like,) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And, therefore, the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple: and then such rights as are relative, which, arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to—though in reality they are not—than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

Natural Liberty

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural [liberty], increases the civil liberty of mankind, but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state of society, which alone can secure our independence. Thus the statute of king Edward IV., which forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II., which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woolen,) is a law consistent with public liberty; for it encourages the staple trade [i.e., the purchase and sale of goods in bulk], on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather introductive, of liberty; for, as Mr. Locke has well observed where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. . . .

Three Types of Rights: Security, Liberty, Property

Thus much for the declaration of our rights and liberties. The rights themselves . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property. . . .

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb [i.e., quickening]. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. . . .

2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.

Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo [i.e., in self-defense], or in order to preserve them.. . .

This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments. . . .

3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.

4. The preservation of a man's health from such practices as may prejudice or annoy it; and

5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come,) it will suffice to have barely mentioned among the rights of persons: referring the more minute discussion of their several branches to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.

II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. . . .

Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any the highest magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject.

III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. . . .

CORPORATIONS AS ARTIFICIAL PERSONS WITH LEGAL IMMORTALITY (1.18)

We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

These artificial persons are called bodies politic, bodies corporate, (corpora torporata,) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To show the advantages of these incorporations, let us consider the case of a college in either of our universities, founded "for study and prayer," for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be forever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant. . . .

Source: William Blackstone, Commentaries on the Laws of England (1765-1769), Introduction, Section 2; Book 1, Chapters 1 and 18.

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ADAM SMITH: CAPITALISM AND LIMITED GOVERNMENT

Born in Kirkcaldy, Scotland, Adam Smith (1723–1790) was a professor of moral philosophy at the University of Glasgow, and is best remembered for his defense of free-market economics and his notion of the invisible hand. The selections below are from two of his works. First, in The Theory of Moral Sentiments (1759), he describes how the selfish desire for luxury motivates the poor man to better his conditions, and this, in turn, drives economic development. As the rich accumulate their wealth, though, the poor indirectly benefit by being brought into an economic system that produces the luxury goods that the rich people desire. In An Inquiry into the Nature and Causes of the Wealth of Nations (1776), Smith discusses the benefits of free trade and the limited but necessary role that governments must play in society. He begins with the often-stated view that humans cannot survive on their own, and, instead, require cooperation from others for their necessities. That cooperation, he argues, does not stem from any natural benevolence that we have towards each other, but rather through other people's self-love: "by treaty, by barter, and by purchase" others find it to their own advantage to give us what we need to survive. Smith championed the view that governments should intervene as little as possible in a country's economic affairs, and this is particularly evident in his views on domestic and foreign industry. The dominant economic theory of international trade in Smith's time was a type of protectionism called mercantilism, according to which each country attempts to accumulate more capital than rival countries. Two principal components of mercantilism were, (1) the use of tariffs and monopolies to discourage imports, which keep money within one's country's borders, and, (2) increasing exports, which brings in money from outside countries. Smith recognizes that we naturally want to support our domestic industries, but he rejects mercantilist restrictions by governments. By simply following our own self-interest, the economy of one's country will automatically be directed for the better by an "invisible hand." For example, a series of mercantilist British laws called "corn laws" heavily taxed imports on foreign grains as a way of supporting Britain's own grain industry. Smith criticizes these for doing more harm than good, and he suggests that Britain's domestic prosperity resulted from the freedom of its citizens to enjoy the fruits of their labor, and not from its government's protectionist economic policies.

However, Smith argues, the government does need to be directly in charge of some social institutions. A first area is with the military which protects "society from the violence and invasion of other independent societies." A second area is with the justice system which protects every member of society from injustice or oppression by every other member. A third area is with public works and institutions that are advantageous to society, but would be too expensive for private people or businesses to pay for by themselves. There are three types of public works of this sort. The first concerns those relating to commerce, such as the creation of good roads, bridges, navigable canals, and harbors, which facilitate commerce in general. There are also governmental institutions to help protect domestic businesses in foreign countries, which may require the presence of the military and governmental ambassadors. The costs of all of these public works, though, should be placed upon the businesses that benefit from them through a tax or user fee. Second, the government must see to the education of the youth through public schools. The third type of government involvement concerns religion, and Smith discusses the pros and cons of state-sponsored religion. On the pro side, he presents the view of David Hume, who argued that religions will be less fanatical when ministers receive their salary from the government, and thus will not need to put on a show to compete with other ministers for church members. On the con side, Smith argues against Hume that state religions result in brutal religious persecutions. Also, he argues, there will be less fanaticism in a truly free market of religious institutions. For, open competition for membership would result in a large number of religious denominations, none of which would dominate the others. And, to get along with all the other denominations, each small denomination would have to tone down its fanaticism.

SELFISHNESS AND ECONOMIC DEVELOPMENT (from The Theory of Moral Sentiments, 4.1)

The Complex Motivation to Increase Wealth

The poor man's son, whom heaven in its anger has visited with ambition, when he begins to look around him, admires the condition of the rich. He finds the cottage of his father too small for his accommodation, and fancies he should be lodged more at his ease in a palace. He is displeased with being obliged to walk a-foot, or to endure the fatigue of riding on horseback. He sees his superiors carried about in machines, and imagines that in one of these he could travel with less inconveniency. He feels himself naturally indolent [i.e., lazy], and willing to serve himself with his own hands as little as possible; and judges, that a numerous retinue of servants would save him from a great deal of trouble. He thinks if he had attained all these, he could sit still contentedly, and be quiet, enjoying himself in the thought of the happiness and tranquillity of his situation. He is enchanted with the distant idea of this felicity. It appears in his fancy like the life of some superior rank of beings, and, in order to arrive at it, he devotes himself for ever to the pursuit of wealth and greatness. To obtain the conveniencies which these afford he submits in the first year, nay in the first month of his application, to more fatigue of body and more uneasiness of mind than he could have suffered through the whole of his life from the want [i.e., lack] of them. He studies to distinguish himself in some laborious profession. With the most unrelenting industry he labours night and day to acquire talents superior to all his competitors. He endeavours next to bring those talents into public view, and with equal assiduity solicits every opportunity of employment. For this purpose he makes his court to all mankind; he serves those whom he hates, and is obsequious to those whom he despises. Through the whole of his life he pursues the idea of a certain artificial and elegant repose which he may never arrive at, for which he sacrifices a real tranquillity that is at all times in his power, and which, if in the extremity of old age he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it. It is then, in the last dregs of life, his body wasted with toil and diseases, his mind galled and ruffled by the memory of a thousand injuries and disappointments which he imagines he has met with from the injustice of his enemies, or from the perfidy and ingratitude of his friends, that he begins at last to find that wealth and greatness are mere trinkets of frivolous utility, no more adapted for procuring ease of body or tranquillity of mind than the tweezer-cases of the lover of toys [i.e., luxury knick‑knacks]; and like them too more troublesome to the person who carries them about with him than all the advantages they can afford him are commodious. . . .

But in the languor of disease, and the weariness of old age, the pleasures of the vain and empty distinctions of greatness disappear. To one in this situation they are no longer capable of recommending those toilsome pursuits in which they had formerly engaged him. In his heart he curses ambition, and vainly regrets the ease and the indolence of youth, pleasures which are fled forever, and which he has foolishly sacrificed for what, when he has got it, can afford him no real satisfaction. . . .

But though this splenetic [i.e., spiteful] philosophy, which in time of sickness or low spirits is familiar to every man, thus entirely depreciates those great objects of human desire, when in better health and in better humour, we never fail to regard them under a more agreeable aspect. Our imagination, which in pain and sorrow seems to be confined and cooped up within our own persons, in times of ease and prosperity expands itself to everything around us. We are then charmed with the beauty of that accommodation which reigns in the palaces and economy of the great; and admire how everything is adapted to promote their ease, to prevent their wants, to gratify their wishes, and to amuse and entertain their most frivolous desires. If we consider the real satisfaction which all these things are capable of affording, by itself and separated from the beauty of that arrangement which is fitted to promote it, it will always appear in the highest degree contemptible and trifling. But we rarely view it in this abstract and philosophical light. We naturally confound it in our imagination with the order, the regular and harmonious movement of the system, the machine or economy by means of which it is produced. The pleasures of wealth and greatness, when considered in this complex view, strike the imagination as something grand and beautiful and noble, of which the attainment is well worth all the toil and anxiety which we are so apt to bestow upon it.

The Poor Benefit from the Rich through an Invisible Hand

And it is well that nature imposes upon us in this manner. It is this deception which rouses and keeps in continual motion the industry of mankind. It is this which first prompted them to cultivate the ground, to build houses, to found cities and commonwealths, and to invent and improve all the sciences and arts, which ennoble and embellish human life; which have entirely changed the whole face of the globe, have turned the rude forests of nature into agreeable and fertile plains, and made the trackless and barren ocean a new fund of subsistence, and the great high road of communication to the different nations of the earth. The earth by these labours of mankind has been obliged to redouble her natural fertility, and to maintain a greater multitude of inhabitants. It is to no purpose, that the proud and unfeeling landlord views his extensive fields, and without a thought for the wants of his brethren, in imagination consumes himself the whole harvest that grows upon them. The homely and vulgar proverb, that the eye is larger than the belly, never was more fully verified than with regard to him. The capacity of his stomach bears no proportion to the immensity of his desires, and will receive no more than that of the meanest peasant. The rest he is obliged to distribute among those, who prepare, in the nicest manner, that little which he himself makes use of, among those who sit up the palace in which this little is to be consumed, among those who provide and keep in order all the different baubles and trinkets, which are employed in the economy of greatness; all of whom thus derive from his luxury and caprice, that share of the necessaries of life, which they would in vain have expected from his humanity or his justice. The produce of the soil maintains at all times nearly that number of inhabitants, which it is capable of maintaining. The rich only select from the heap what is most precious and agreeable. They consume little more than the poor, and in spite of their natural selfishness and rapacity, though they mean only their own conveniency, though the sole end which they propose from the labours of all the thousands whom they employ, be the gratification of their own vain and insatiable desires, they divide with the poor the produce of all their improvements. They are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species. When providence divided the earth among a few lordly masters, it neither forgot nor abandoned those who seemed to have been left out in the partition. These last too enjoy their share of all that it produces. In what constitutes the real happiness of human life, they are in no respect inferior to those who would seem so much above them. In ease of body and peace of mind, all the different ranks of life are nearly upon a level, and the beggar, who suns himself by the side of the highway, possesses that security which kings are fighting for.

BENEFITS OF FREE TRADE (from The Wealth of Nations)

1.2. Help from Others is Best Obtained by Appealing to their Self-Interest and Bartering for Necessities

In civilized society he [i.e., a human being] stands at all times in need of the cooperation and assistance of great multitudes, while his whole life is scarce sufficient to gain the friendship of a few persons. In almost every other race of animals, each individual, when it is grown up to maturity, is entirely independent, and in its natural state has occasion for the assistance of no other living creature. But man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favor, and show them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind proposes to do this. Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of. It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens. Even a beggar does not depend upon it entirely. The charity of well-disposed people, indeed, supplies him with the whole fund of his subsistence. But though this principle ultimately provides him with all the necessaries of life which he has occasion for, it neither does nor can provide him with them as he has occasion for them. The greater part of his occasional wants are supplied in the same manner as those of other people, by treaty, by barter, and by purchase. With the money which one man gives him he purchases food. The old clothes which another bestows upon him he exchanges for other old clothes which suit him better, or for lodging, or for food, or for money, with which he can buy either food, clothes, or lodging, as he has occasion.

4.2. Domestic Industries promoted through an Invisible Hand

As every individual, therefore, endeavors as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labors to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.

What is the species of domestic industry which his capital can employ, and of which the produce is likely to be of the greatest value, every individual, it is evident, can, in his local situation, judge much better than any statesman or lawgiver can do for him. The statesman who should attempt to direct private people in what manner they ought to employ their capitals would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.

To give the monopoly of the home-market to the produce of domestic industry, in any particular art or manufacture, is in some measure to direct private people in what manner they ought to employ their capitals, and must, in almost all cases, be either a useless or a hurtful regulation. If the produce of domestic can be brought there as cheap as that of foreign industry, the regulation is evidently useless. If it cannot, it must generally be hurtful. It is the maxim of every prudent master of a family never to attempt to make at home what it will cost him more to make than to buy. The tailor does not attempt to make his own shoes, but buys them of the shoemaker. The shoemaker does not attempt to make his own clothes, but employs a tailor. The farmer attempts to make neither the one nor the other, but employs those different artificers. All of them find it for their interest to employ their whole industry in a way in which they have some advantage over their neighbors, and to purchase with a part of its produce, or what is the same thing, with the price of a part of it, whatever else they have occasion for.

4.5. Against the Corn Laws: Foreign Free Trade promotes Domestic Prosperity

The trade of the merchant carrier [i.e., international freight service], or of the importer of foreign corn [and other grains] in order to export it again, contributes to the plentiful supply of the home market. It is not indeed the direct purpose of his trade to sell his corn there [in his home market]. But he will generally be willing to do so, and even for a good deal less money than he might expect in a foreign market, because he saves in this manner the expense of loading and unloading, of freight and insurance. The inhabitants of the [home] country which, by means of the carrying trade, becomes the magazine and storehouse for the supply of other countries can very seldom be in want themselves. Though the carrying trade might thus contribute to reduce the average money price of corn in the home market, it would not thereby lower its real value. It would only raise somewhat the real value of silver [since cheaper prices would give money more purchasing power].

The carrying trade was in effect prohibited in Great Britain, upon all ordinary occasions, by the high duties upon the importation of foreign corn, of the greater part of which there was no drawback; and upon extraordinary occasions, when a scarcity made it necessary to suspend those duties by temporary statutes, exportation was always prohibited. By this [mercantilist] system of laws, therefore, the carrying trade was in effect prohibited upon all occasions.

That system of laws [such as the corn laws], therefore, which is connected with the establishment of the bounty, seems to deserve no part of the praise which has been bestowed upon it. The improvement and prosperity of Great Britain, which has been so often ascribed to those laws, may very easily be accounted for by other causes. That security which the laws in Great Britain give to every man that he shall enjoy the fruits of his own labor is alone sufficient to make any country flourish, notwithstanding these and twenty other absurd regulations of commerce; and this security was perfected by the revolution much about the same time that the bounty was established. The natural effort of every individual to better his own condition, when suffered to exert itself with freedom and security is so powerful a principle that it is alone, and without any assistance, not only capable of carrying on the society to wealth and prosperity, but of surmounting a hundred impertinent obstructions with which the folly of human laws too often encumbers its operations; though the effect of these obstructions is always more or less either to encroach upon its freedom, or to diminish its security. In Great Britain industry is perfectly secure; and though it is far from being perfectly free, it is as free or freer than in any other part of Europe.

5.1.1. FIRST GOVERNMENTAL DUTY: DEFENSE

The first duty of the sovereign, that of protecting the society from the violence and invasion of other independent societies, can be performed only by means of a military force. But the expense both of preparing this military force in time of peace, and of employing it in time of war, is very different in the different states of society, in the different periods of improvement. . . .

The first duty of the sovereign, therefore, that of defending the society from the violence and injustice of other independent societies, grows gradually more and more expensive as the society advances in civilization. The military force of the society, which originally cost the sovereign no expense either in time of peace or in time of war, must, in the progress of improvement, first be maintained by him in time of war, and afterwards even in time of peace.

The great change introduced into the art of war by the invention of fire-arms has enhanced still further both the expense of exercising and disciplining any particular number of soldiers in time of peace, and that of employing them in time of war. Both their arms and their ammunition are become more expensive. A musket is a more expensive machine than a javelin or a bow and arrows; a cannon or a mortar than a balista or a catapulta. The powder which is spent in a modern review is lost irrecoverably, and occasions a very considerable expense. The javelins and arrows which were thrown or shot in an ancient one, could easily be picked up again, and were besides of very little value. The cannon and the mortar are not only much dearer, but much heavier machines than the balista or catapulta, and require a greater expense, not only to prepare them for the field, but to carry them to it. As the superiority of the modern artillery too over that of the ancients is very great, it has become much more difficult, and consequently much more expensive, to fortify a town so as to resist even for a few weeks the attack of that superior artillery. In modern times many different causes contribute to render the defense of the society more expensive. The unavoidable effects of the natural progress of improvement have, in this respect, been a good deal enhanced by a great revolution in the art of war, to which a mere accident, the invention of gunpowder, seems to have given occasion.

In modern war the great expense of fire-arms gives an evident advantage to the nation which can best afford that expense, and consequently to an opulent and civilized over a poor and barbarous nation. In ancient times the opulent and civilized found it difficult to defend themselves against the poor and barbarous nations. In modern times the poor and barbarous find it difficult to defend themselves against the opulent and civilized. The invention of fire-arms, an invention which at first sight appears to be so pernicious, is certainly favorable both to the permanency and to the extension of civilization.

5.1.2. SECOND GOVERNMENTAL DUTY: JUDICIAL SYSTEM

The second duty of the sovereign, that of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice, requires, too, very different degrees of expense in the different periods of society.

Among nations of hunters, as there is scarce any property, or at least none that exceeds the value of two or three days labor, so there is seldom any established magistrate or any regular administration of justice. Men who have no property can injure one another only in their persons or reputations. . . . Wherever there is great property there is great inequality. For one very rich man there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. The affluence of the rich excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions. It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labor of many years, or perhaps of many successive generations, can sleep a single night in security. He is at all times surrounded by unknown enemies, whom, though he never provoked, he can never appease, and from whose injustice he can be protected only by the powerful arm of the civil magistrate continually held up to chastise it. The acquisition of valuable and extensive property, therefore, necessarily requires the establishment of civil government. Where there is no property, or at least none that exceeds the value of two or three days labor, civil government is not so necessary.

Civil government supposes a certain subordination. But as the necessity of civil government gradually grows up with the acquisition of valuable property, so the principal causes which naturally introduce subordination gradually grow up with the growth of that valuable property. . . .

The office of judge is in itself so very honorable that men are willing to accept of it, though accompanied with very small emoluments. The inferior office of justice of peace, though attended with a good deal of trouble, and in most cases with no emoluments at all, is an object of ambition to the greater part of our country gentlemen. The salaries of all the different judges, high and low, together with the whole expense of the administration and execution of justice, even where it is not managed with very good economy, makes, in any civilized country, but a very inconsiderable part of the whole expense of government.

The whole expense of justice, too, might easily be defrayed by the fees of court; and, without exposing the administration of justice to any real hazard of corruption, the public revenue might thus be discharged from a certain, though, perhaps, but a small encumbrance. . . .

When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called polities. The persons entrusted with the great interests of the state may, even without any corrupt views, sometimes imagine it necessary to sacrifice to those interests the rights of a private man. But upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security. In order to make every individual feel himself perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. The judge should not be liable to be removed from his office according to the caprice of that power. The regular the good-will or even upon the good economy payment of his salary should not depend upon of that power.

5.1.3. THIRD GOVERNMENTAL DUTY: PUBLIC WORKS AND INSTITUTIONS

The third and last duty of the sovereign or commonwealth is that of erecting and maintaining those public institutions and those public works, which, though they may be in the highest degree advantageous to a great society, are, however, of such a nature that the profit could never repay the expense to any individual or small number of individuals, and which it therefore cannot be expected that any individual or small number of individuals should erect or maintain. The performance of this duty requires, too, very different degrees of expense in the different periods of society.

After the public institutions and public works necessary for the defense of the society, and for the administration of justice, both of which have already been mentioned, the other works and institutions of this kind are chiefly those for facilitating the commerce of the society, and those for promoting the instruction of the people. The institutions for instruction are of two kinds: those for the education of youth, and those for the instruction of people of all ages. The consideration of the manner in which the expense of those different sorts of public works and institutions may be most properly defrayed will divide this third part of the present chapter into three different articles.

Article 1: Of the public Works and Institutions for facilitating the Commerce of the Society

And, first, of those which are necessary for facilitating Commerce in general [e.g., roads, bridges].

That the erection and maintenance of the public works which facilitate the commerce of any country, such as good roads, bridges, navigable canals, harbors, etc. must require very different degrees of expense in the different periods of society is evident without any proof. The expense of making and maintaining the public roads of any country must evidently increase with the annual produce of the land and labor of that country, or with the quantity and weight of the goods which it becomes necessary to fetch and carry upon those roads. The strength of a bridge must be suited to the number and weight of the carriages which are likely to pass over it. The depth and the supply of water for a navigable canal must be proportioned to the number and tonnage of the lighters which are likely to carry goods upon it; the extent of a harbor to the number of the shipping which are likely to take shelter in it.

It does not seem necessary that the expense of those public works should be defrayed from that public revenue, as it is commonly called, of which the collection and application are in most countries assigned to the executive power. The greater part of such public works may easily be so managed as to afford a particular revenue sufficient for defraying their own expense, without bringing any burden upon the general revenue of the society.

A highway, a bridge, a navigable canal, for example, may in most cases be both made and maintained by a small toll upon the carriages which make use of them: a harbor, by a moderate port-duty upon the tonnage of the shipping which load or unload in it. The coinage, another institution for facilitating commerce, in many countries, not only defrays its own expense, but affords a small revenue or seignorage to the sovereign. The post-office, another institution for the same purpose, over and above defraying its own expense, affords in almost all countries a very considerable revenue to the sovereign.

When the carriages which pass over a highway or a bridge, and the lighters which sail upon a navigable canal, pay toll in proportion to their weight or their tonnage, they pay for the maintenance of those public works exactly in proportion to the wear and tear which they occasion of them. It seems scarce possible to invent a more equitable way of maintaining such works. This tax or toll too, though it is advanced by the carrier, is finally paid by the consumer, to whom it must always be charged in the price of the goods. As the expense of carriage, however, is very much reduced by means of such public works, the goods, notwithstanding the toll come cheaper to the consumer than they could otherwise have done; their price not being so much raised by the toll as it is lowered by the cheapness of the carriage. . . .

Of the Public Works and Institutions which are necessary for facilitating particular Branches of Commerce [e.g., ambassadors, trade fortifications]

The object of the public works and institutions above mentioned is to facilitate commerce in general. But in order to facilitate some particular branches of it, particular institutions are necessary, which again require a particular and extraordinary expense.

Some particular branches of commerce, which are carried on with barbarous and uncivilized nations, require extraordinary protection. An ordinary store or counting-house could give little security to the goods of the merchants who trade to the western coast of Africa. To defend them from the barbarous natives, it is necessary that the place where they are deposited should be, in some measure, fortified. The disorders in the government of Indostan have been supposed to render a like precaution necessary even among that mild and gentle people; and it was under pretence of securing their persons and property from violence that both the English and French East India Companies were allowed to erect the first forts which they possessed in that country. Among other nations, whose vigorous government will suffer no strangers to possess any fortified place within their territory, it may be necessary to maintain some ambassador, minister, or counsel, who may both decide, according to their own customs, the differences arising among his own countrymen, and, in their disputes with the natives, may, by means of his public character, interfere with more authority, and afford them a more powerful protection, than they could expect from any private man. The interests of commerce have frequently made it necessary to maintain ministers in foreign countries where the purposes, either of war or alliance, would not have required any. The commerce of the Turkey Company first occasioned the establishment of an ordinary ambassador at Constantinople. The first English embassies to Russia arose altogether from commercial interests. The constant interference which those interests necessarily occasioned between the subjects of the different states of Europe, has probably introduced the custom of keeping, in all neighboring countries, ambassadors or ministers constantly resident even in the time of peace. This custom, unknown to ancient times, seems not to be older than the end of the fifteenth or beginning of the sixteenth century; that is, than the time when commerce first began to extend itself to the greater part of the nations of Europe, and when they first began to attend to its interests.

It seems not unreasonable that the extraordinary expense which the protection of any particular branch of commerce may occasion should be defrayed by a moderate tax upon that particular branch; by a moderate fine, for example, to be paid by the traders when they first enter into it, or, what is more equal, by a particular duty of so much percent upon the goods which they either import into, or export out of, the particular countries with which it is carried on. The protection of trade in general, from pirates and free-booters, is said to have given occasion to the first institution of the duties of customs. But, if it was thought reasonable to lay a general tax upon trade, in order to defray the expense of protecting trade in general, it should seem equally reasonable to lay a particular tax upon a particular branch of trade, in order to defray the extraordinary expense of protecting that branch. . . .

Article 2: Of the Expense of the Institutions for the Education of Youth

The institutions for the education of the youth may, in the same manner, furnish a revenue sufficient for defraying their own expense. The fee or honorary which the scholar pays to the master naturally constitutes a revenue of this kind.

Even where the reward of the master does not arise altogether from this natural revenue, it still is not necessary that it should be derived from that general revenue of the society, of which the collection and application are, in most countries, assigned to the executive power. Through the greater part of Europe, accordingly, the endowment of schools and colleges makes either no charge upon that general revenue, or but a very small one. It everywhere arises chiefly from some local or provincial revenue, from the rent of some landed estate, or from the interest of some sum of money allotted and put under the management of trustees for this particular purpose, sometimes by the sovereign himself, and sometimes by some private donor. . . .

A man without the proper use of the intellectual faculties of a man, is, if possible, more contemptible than even a coward, and seems to be mutilated and deformed in a still more essential part of the character of human nature. Though the state was to derive no advantage from the instruction of the inferior ranks of people, it would still deserve its attention that they should not be altogether uninstructed. The state, however, derives no inconsiderable advantage from their instruction. The more they are instructed, the less liable they are to the delusions of enthusiasm and superstition, which, among ignorant nations, frequently occasion the most dreadful disorders. An instructed and intelligent people, besides, are always more decent and orderly than an ignorant and stupid one. They feel themselves, each individually, more respectable and more likely to obtain the respect of their lawful superiors, and they are therefore more disposed to respect those superiors. They are more disposed to examine, and more capable of seeing through, the interested complaints of faction and sedition, and they are, upon that account, less apt to be misled into any wanton or unnecessary opposition to the measures of government. In free countries, where the safety of government depends very much upon the favorable judgment which the people may form of its conduct, it must surely be of the highest importance that they should not be disposed to judge rashly or capriciously concerning it.

Article 3: Of the Expense of the Institutions for the Instruction of People of all Ages [i.e., religion]

The institutions for the instruction of people of all ages are chiefly those for religious instruction. This is a species of instruction of which the object is not so much to render the people good citizens in this world, as to prepare them for another and a better world in a life to come. The teachers of the doctrine which contains this instruction, in the same manner as other teachers, may either depend altogether for their subsistence upon the voluntary contributions of their hearers, or they may derive it from some other fund to which the law of their country may entitle them; such as a landed estate, a tithe or land-tax, an established salary or stipend. Their exertion, their zeal and industry, are likely to be much greater in the former situation [i.e., in privately-funded religion] than in the latter [i.e., publicly-funded religion]. In this respect the teachers of new religions have always had a considerable advantage in attacking those ancient and established systems of which the clergy, reposing themselves upon their benefices, had neglected to keep up the fervor of faith and devotion in the great body of the people, and having given themselves up to indolence, were become altogether incapable of making any vigorous exertion in defense even of their own establishment. . . . Such a clergy, upon such an emergency, have commonly no other resource than to call upon the civil magistrate to persecute, destroy or drive out their adversaries, as disturbers of the public peace. It was thus that the Roman catholic clergy called upon the civil magistrates to persecute the protestants, and the church of England to persecute the dissenters; and that in general every religious sect, when it has once enjoyed for a century or two the security of a legal establishment, has found itself incapable of making any vigorous defense against any new sect which chose to attack its doctrine or discipline. . . .

Hume's View: State Religion Reduces Fanaticism

[David Hume writes the following in support of state religion:]

It may naturally be thought, at first sight, that the ecclesiastics belong to the first class [of professions that bring advantage and pleasure to society], and that their encouragement, as well as that of lawyers and physicians, may safely be entrusted to the liberality of individuals [i.e., privately-funded sources], who are attached to their doctrines, and who find benefit or consolation from their spiritual ministry and assistance. Their industry and vigilance will, no doubt, be whetted by such an additional motive; and their skill in the profession, as well as their address in governing the minds of the people, must receive daily increase from their increasing practice, study, and attention.

But if we consider the matter more closely, we shall find that this interested diligence of the clergy is what every wise legislator will study to prevent; because in every religion except the true it is highly pernicious, and it has even a natural tendency to pervert the true, by infusing into it a strong mixture of superstition, folly, and delusion. Each ghostly practitioner, in order to render himself more precious and sacred in the eyes of his retainers, will inspire them with the most violent abhorrence of all other sects, and continually endeavor, by some novelty, to excite the languid devotion of his audience. No regard will be paid to truth, morals, or decency in the doctrines inculcated. Every tenet will be adopted that best suits the disorderly affections of the human frame. Customers will be drawn to each conventicle by new industry and address in practicing on the passions and credulity of the populace. And in the end, the civil magistrate will find that he has dearly paid for his pretended frugality in saving a fixed establishment for the priests. And that in reality the most decent and advantageous composition which he can make with the spiritual guides, is to bribe their indolence by assigning stated salaries to their profession, and rendering it superfluous for them to be farther active than merely to prevent their flock from straying in quest of new pastures. And in this manner ecclesiastical establishments, though commonly they arose at first from religious views, prove in the end advantageous to the political interests of society.

Smith's View: Independent Churches reduce Fanaticism

. . . But [contrary to Hume] if politics had never called in the aid of religion, had the conquering party never adopted the tenets of one sect more than those of another when it had gained the victory, it would probably have dealt equally and impartially with all the different sects, and have allowed every man to choose his own priest and his own religion as he thought proper. There would in this case, no doubt, have been a great multitude of religious sects. Almost every different congregation might probably have made a little sect by itself, or have entertained some peculiar tenets of its own. Each teacher would no doubt have felt himself under the necessity of making the utmost exertion and of using every art both to preserve and to increase the number of his disciples. But as every other teacher would have felt himself under the same necessity, the success of no one teacher, or sect of teachers, could have been very great. The interested and active zeal of religious teachers can be dangerous and troublesome only where there is either but one sect tolerated in the society, or where the whole of a large society is divided into two or three great sects; the teachers of each acting by concert, and under a regular discipline and subordination. But that zeal must be altogether innocent where the society is divided into two or three hundred, or perhaps into as many thousand small sects, of which no one could be considerable enough to disturb the public tranquility. The teachers of each sect, seeing themselves surrounded on all sides with more adversaries than friends, would be obliged to learn that candor and moderation which is so seldom to be found among the teachers of those great sects whose tenets, being supported by the civil magistrate, are held in veneration by almost all the inhabitants of extensive kingdoms and empires, and who therefore see nothing round them but followers, disciples, and humble admirers. The teachers of each little sect, finding themselves almost alone, would be obliged to respect those of almost every other sect, and the concessions which they would mutually find it both convenient and agreeable to make to one another, might in time probably reduce the doctrine of the greater part of them to that pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism, such as wise men have in all ages of the world wished to see established; but such as positive law has perhaps never yet established, and probably never will establish, in any country: because, with regard to religion, positive law always has been, and probably always will be, more or less influenced by popular superstition and enthusiasm. . . .

Governmental Remedies to Religious Fanaticism

But though this equality of treatment should not be productive of this good temper and moderation in all, or even in the greater part of the religious sects of a particular country, yet provided those sects were sufficiently numerous, and each of them consequently too small to disturb the public tranquility, the excessive zeal of each for its particular tenets could not well be productive of any very harmful effects, but, on the contrary, of several good ones: and if the government was perfectly decided both to let them all alone, and to oblige them all to let alone one another, there is little danger that they would not of their own accord subdivide themselves fast enough so as soon to become sufficiently numerous. . . .

There are two very easy and effectual remedies, however, by whose joint operation the state might, without violence, correct whatever was unsocial or disagreeably rigorous in the morals of all the little [religious] sects into which the country was divided.

The first of those remedies is the study of science and philosophy, which the state might render almost universal among all people of middling or more than middling rank and fortune; not by giving salaries to teachers in order to make them negligent and idle, but by instituting some sort of probation, even in the higher and more difficult sciences, to be undergone by every person before he was permitted to exercise any liberal profession, or before he could be received as a candidate for any honorable office of trust or profit. If the state imposed upon this order of men the necessity of learning, it would have no occasion to give itself any trouble about providing them with proper teachers. They would soon find better teachers for themselves than any whom the state could provide for them. Science is the great antidote to the poison of enthusiasm and superstition; and where all the superior ranks of people were secured from it, the inferior ranks could not be much exposed to it.

The second of those remedies is the frequency and gaiety of public diversions. The state, by encouraging, that is by giving entire liberty to all those who for their own interest would attempt without scandal or indecency, to amuse and divert the people by painting, poetry, music, dancing; by all sorts of dramatic representations and exhibitions, would easily dissipate, in the greater part of them, that melancholy and gloomy humor which is almost always the nurse of popular superstition and enthusiasm. Public diversions have always been the objects of dread and hatred to all the fanatical promoters of those popular frenzies. The gaiety and good humor which those diversions inspire were altogether inconsistent with that temper of mind which was fittest for their purpose, or which they could best work upon. Dramatic representations, besides, frequently exposing their artifices to public ridicule, and sometimes even to public execration, were upon that account, more than all other diversions, the objects of their peculiar abhorrence.

STUDY QUESTIONS

Please answer all of the following questions.

[Beccaria]

1. In the section on "prevention and deterrence", what are the main points of Beccaria's discussion?

2. According to Beccaria in the section on "association of ideas," what are all the ways that he suggests for strengthening the link between crime and punishment?

3. Beccaria defends the view that punishments should be mild. What is his specific argument in the section "people adjust to increases of severity"?

4. According to Beccaria in the section on "the punishment of death", what are his views regarding the social contract, rights forfeiture, and deterrence?

5. According to Beccaria, what are all the advantages of perpetual slavery, and how does it combat religious repentance?

6. According to Beccaria in the section on the "harmful effects of the death penalty," what are all the harmful effects that he mentions?

[Blackstone]

7. According to Blackstone, describe how natural law is connected to God's will and wisdom.

8. According to Blackstone, explain the five types of law, namely natural, divine, human, laws of nations, and municipal.

9. Explain Blackstone's view of the original contract.

10. Describe Blackstone's distinction between absolute and relative rights.

11. According to Blackstone, describe the components of the right to security.

12. In the section on "natural liberty", what are the main points of Blackstone's discussion?

13. According to Blackstone, what is the purpose of the formation of corporations?

[Smith]

14. According to Smith in the section "the poor benefit through an invisible hand" explain how the greed of the rich brings economic benefit to the poor.

15. According to Smith in the section "self-interest and bartering for necessities," what is Smith's explanation for how individuals survive through the cooperation of others?

16. According to Smith in the section "domestic industry promoted through an invisible hand" Smith argues that favoring particular domestic industries over foreign ones will "in almost all cases, be either a useless or a hurtful regulation." How would it be either be useless or hurtful?

17. According to Smith in the section on "the public works and institutions for facilitating the commerce of the society," what are the specific ways that Smith suggests for covering the costs of public works that he mentions?

18. According to Smith in the section on "the expense of the institutions for the education of youth," what are the benefits that society receives from educating the "inferior ranks of people"?

19. What are Smith's arguments against state-sponsored religion (i.e., his arguments against Hume's view)?

20. Smith notes two ways that the government can help reduce religious fanaticism. What are they?

21. Short essay: please select one of the following and answer it in a minimum of 100 words.

[Beccaria]

a. Beccaria argues that the two sole justifications of punishment are to prevent the criminal from repeating crimes and to deter others from breaking the law. Critics would argue that Beccaria has left out another important justification of punishment, namely, retribution: people are punished for their crimes since that is what they deserve, and, as such, punishment balances the scales of justice. How might Beccaria respond to this criticism?

b. Discuss Beccaria's argument for the mildness of punishment and whether you agree.

c. According to Beccaria in the section "only one justification of capital punishment," explain that justification and whether you agree.

d. Explain Beccaria's argument in "perpetual slavery combats religious repentance," and whether you agree.

e. In the concluding section, Beccaria considers an argument for the death penalty from common consent: it is justified since nearly all countries practice it. Explain his criticism of this argument and say whether you agree. 3. In the section 2.5 of The Social Contract, Rousseau argues that, through the social contract, citizens transfer their rights to life over to the general will, and may be executed for the good of the state. But in section 28 of On Crimes and Punishments, Beccaria argues that in the social contract we do not transfer our right to live to the general will. Explain their respective views and discuss who is right.

[Blackstone]

f. Blackstone argues that self-love is the foundation of natural law: God "has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter." Thus, the main precept of natural law is ''that man should pursue his own true and substantial happiness.'' Are public and private interests really united as inseparably as Blackstone claims? Explain.

g. Blackstone states that "it is the sense of their weakness and imperfection that keeps mankind together. . . . And this is what we mean by the original contract of society." In his critique of the original contract, Hume argued that "A small degree of experience and observation suffices to teach us that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt where exact obedience is not paid to it. The observation of these general and obvious interests is the source of all allegiance, and of that moral obligation which we attribute to it." Are they saying essentially the same thing? Explain.

h. According to Blackstone, there are five parts to the right of security. Is he pushing things too far by maintaining that all five of these components are absolute and natural rights? Explain.

i. Blackstone looks at two laws enacted by Edward IV and Charles II respectively, where the former was oppressive but the latter was not. Explain Blackstone's reasoning and discuss whether you agree.

j. Explain Blackstone's position on a fetus's right to life, and discus whether you agree with his view of punishment for killing a fetus.

k. Blackstone argues that corporations are artificial persons. Is there anything in his analysis that would foreshadow the current controversy surrounding the contention that corporations are people?

[Smith]

l. In his first discussion of the invisible hand, Smith argues that the conditions of poor people will be improved through the economic development brought on by rich people's desire for luxury. Is he right? Explain.

m. Smith is against mercantilist policies of protectionism, and believes that they are ultimately a bad thing for one's domestic economy. In contemporary terms, Smith would be in favor of free trade agreements and might even support the World Trade Organization. Is Smith correct that free trade will not hurt one's domestic economy?

n. While Smith's second discussion of the "invisible hand" is in the context of free trade, he notes that "in many other cases" when we pursue our private financial interests the economy also benefits as an unintended consequence. Have contemporary defenders of the "invisible hand" pushed Smith's principle too far?

o. The most extreme libertarians today argue that governments should not be involved in any public works projects, including those that Smith mentions. Instead, libertarians maintain, they should all be owned and run by private business and cooperatives. Is Smith right that some public works are so large and expensive that only the government is suited to take on those tasks? Explain.

p. Throughout the above selections, Smith suggests ways in which government costs for various projects can be defrayed by user fees and special taxes on businesses, rather than having the costs paid from the government's general revenue. Yet Smith also notes that the costs of special taxes on businesses will be passed on to consumers. Has Smith gone too far in his advocacy of user fees and special taxes on businesses? That is, in the situations that he describes, are there greater advantages to having costs paid through the government's general revenue?

q. Smith's debate with Hume over state-sponsored religion rests on the question of whether religious fanaticism would increase or decrease in a free market place of religious ideas. Hume argues that a free market of religion will increase fanaticism, and thus Hume favors state-sponsored religion. Smith argues that a free market of religion will tone down religious fanaticism, and, thus, Smith opposes state-sponsored religion. Pick one of these views and defend it against the attacks by the other.

r. In his criticism of Hume, Smith argues that a free market place of religion might eventually lead to "pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism." Describe the type of religion that he has in mind, and discuss whether this is likely to come about in a truly free market place of religion.