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Acknowledgments

I11 writing this book I beneficed from the help of many friends and colleagues. Thanks go
co all of them. Terrye Conroy, the law librarian at the University of South Carolina, did a
fabulous job in co-writing Chapters 1 and 2. David Rogers and Elisabeth Lodge Rogers,
director of special services, intermediate district #287, Plymouth, MN, did great work in
Chapter 4. Thanks also co the reviewers of this text for their timely and helpful reviews: Iffac
Jabeen, University of Texas at San Antonio; Carl Lashley, UNC Greensboro; and Gretchen
Robinson, University of NC at Pembroke. This is a better textbook because of their efforts.
A hearty thank you goes co Joseph Cross of the University of South Carolina law library, who
was extremely helpful, and Delys Nast, who generously contribL1ted her considerable talents.
A special thank yoL1 goes to Ken Heinlein of the University of Wyoming for his insightft.11
editorial comments. Thanks also to Erik D rasgow and Bill Brown of the University of
Soutl1 Carolina for their helpfttl editorial feedback, and co Antonis Kacsiyannis of Clemson
University and the many readers who made useful suggestions for this edition. I would also
like to thank Kevin Davis, wl10 l1as guided me cl1roL1gh this endeavor with e11ormous skill,
patience, and soL1nd advice. Thanks also go co tl1e giants on whose shoulders I perched,
Frank Wood and the late Scan Deno of the University of Minnesota. Thank you co Barbara
Bateman, whose writing and work has been an inspiration co me. Finally, I wane co thank
my wife, Joy, and our three sons, Nick, Eric, and Alex, for their love and our lives together.

vii
 •
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

CHAPTER l Introduction to the American Legal System ............ l

CHAPTER 2 Legal Research ................................... 13
CHAPTER 3 The History of the Law and Children with Disabilities ..... 36
CHAPTER 4 The Individuals with Disabilities Education Act .......... 53
CHAPTER 5 Section 504 of the Rehabilitation Act of 1973 .......... 83
CHAPTER 6 The Americans with Disabilities Act .................. 120
CHAPTER 7 The Every Student Succeeds Act of 2015 ............. 136
CHAPTER 8 Free Appropriate Public Education .................. 158
CHAPTER 9 Identification, Assessment, and Evaluation ........... 195
CHAPTER lo The Individualized Education Program ............... 219
CHAPTER 11 Placing Students in the Least Restrictive
Environment .....................................256
CHAPTER 12 Procedural Safeguards ............................ 279
CHAPTER 13 Disciplining Students with Disabilities ................. 316
CHAPTER 14 Additional Issues: Bullying, Charter Schools,
Response to Intervention, Educational Records,
and Liability for Student Injury ...................... 350

Appendix A Major Changes of IDEA 2004 ...................... 383

Appendix B Relevant Sections of the U.S. Constitution ............ 391
Glossary of Key Terms and Acronyms .......................... 393

•••
VIII
"""""' on e n s

•
About the Author IV

Preface v
••
Acknowledgments VII

Chapter 1
Introduction to the American Legal System .............. 1
The American Legal System 1
Federalism 1
Sources of Law 2
Sources ofJ udicial Power 5
Court Structure 7
Precedent 9
Holding and Dicta 10
The Opinion 10
Interpretations of Federal Law 10
The Law and Special Education 11
Summary 11
For Further Information 12
References 12

Chapter 2
Leg a I Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Primary Sources 14
Federal Statutes 14
Finding Federal Statutes 16
Federal Regulations 17
Finding Federal Regulation 18
State Statutes and Regulations 19
Case Law 20
Finding Cases 22
Finding Cases by Subject 23
Using the Digest System 24
Secondary Sources 27

•
IX
x Contents

Legal Dictionaries and Encyclopedias 27

Books and Treatises 28
Law Review andJ ournal Articles 28
Indexes 29
Looseleaf or Topical Services 29
News and Current Awareness 30
Electronic Legal Research 31
The Internet and Legal Research 31
Internet Research Tools 33
Government Websites 33
Legal Directories and Search Engines 33
Legal Research Guides 33
Information and Advocacy 33
Legal Research Strategies 34
Step 1: Analyze the Problem 34
Step 2: Conduct the Research 34
Step 3: Evaluate the Results 35
Summary 35
For Further Information 35
References 35

Chapter 3
The History of the Law and Children with Disabilities ...... 36
Compulsory Attendance 37
The Exclusion of Students with Disabilities 37
Parental Advocacy 38
The White House Conference of 1910 38
Public School Programming 38
The Organization of Advocacy Groups 39
The Civil Rights Movement and Brown v. B oard of Education 40
Parental Advocacy in the Wake of Brown 41
The Equal Opportunity Cases 41
Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 1972 41
Mills v. Board of Education, 1972 42
Additional Cases 42
Federal Involvement 43
Early Federal Involvement 43
Recent Federal Involvement 47
State Education Statutes 50
The History of Special Education Law: From Access to Accountability 50
Summary 51
For Further Information 51
References 52
 •
Contents XI

Chapter 4
The Individuals with Disabilities Education Act ........... 53
The Development of the IDEA 54
Early Court Rulings and Legislation 54
The Passage of the IDEA 55
The Purpose and Structure of the IDEA 56
Purpose of the IDEA 56
Structure of the IDEA 59
The IDEA and the Reauthorization Process 69
Amendments to the IDEA 69
The IDEA Amendments of 1997 70
The Individuals with Disabilities Education Improvement Act of 2004 72
Funding of the IDEA 77
Monitoring and Enforcing the IDEA 78
Summary 81
For Further Information 81
References 82

Chapter 5
Section 504 of the Rehabilitation Act of 1973 ............. 83
The Development of Section 504 84
The Purpose and Structure of Section 504 85
The Purpose of Section 504 85
Who Is Protected? 86
The Structure of Section 504 92
Major Principles of Section 504 93
Protection from Discrimination 93
Free Appropriate Public Education 98
Evaluation and Placement Procedures 100
Procedural Safeguards 100
School District Responsibilities Under Section 504 101
Administrative Responsibilities 101
Educational Obligations 102
Enforcement of Section 504 111
Filing a Grievance 111
Filing a Complaint with the Office of Civil Rights 111
Filing for a Due Process Hearing 113
Filing a Suit in Federal Court 113
Fry v. Napoleon Community Schools (2017) 113
Remedies Under Section 504 115
Retaliation C /aims Under Section 5 04 115
Comparison of the IDEA and Section 504 116
xii Conten t s

Summary 11 7
For Further Information 118
References 118

Chapter 6
The Americans with Disabilities Act .................... 120
The D evelopment of the ADA 12 1
The Purpose and Structure of the ADA 122
Purpose of the A DA 122
Who Is Protected? 123
The U.S. Supreme Court and the A DA 124
The ADA Amendments of 2008 126
Structure of the ADA 127
Scl1ool District Responsibilities 133
ADA Compliance Coordinator 133
Self-Evaluation 134
Transition Plan 134
Prohibition Against Discrimination 134
Summary 134
For Further Information 13 5
References 13 5

Chapter 7
The Every Student Succeeds Act of 2015 ............... 136
The History of Federal Involvement in Ed11cation: From Assistance to
Accountability and Back Again 13 7
The Elementary and Secondary Education Act of 1965 13 7
A Nation at Risk 138
The National Education Summit and America 2000 139
The Improving America's Schools Act of 1994 139
The National Assessment of Educational Progress 139
The No Child Left Behind Act of 2001 140
The American Reinvestment and Recovery Act of 2009 140
Race to the Top 141
The Every Student Succeeds Act of 2015 141
Summary of the Federal Role in Ed11cation 142
The Reauthorization of the ESEA in NCLB 142
The Purpose of NCLB 143
The Goals ofNCLB 143
The M ajor Principles of N CLB 143
Statewide Standards 144
Statewide Assessments 144
 •••
Contents XIII

Accountability 146
Adequate Yearly Progress 146
Sanctions for Failing to Meet AYP 147
Scientifically-Based Instruction 147
Highly Qualified Teachers 148
Reading First 149
Summary of NCLB 149
The Reauthorization of the ESEA in the ESSA 15 0
The Purpose of the ESSA 150
The Goals of the ESSA 150
The Major Principles of the ESSA 151
Statewide Standards 151
Statewide Assessments 151
Accountability for Results 15 3
Evidence-Based Interventions 154
Highly Qualified Teacher Requirements 154
Additional Provisions of ESSA 15 5
Summary of ESSA 155
For Further Information on the ESSA 156
For Further Information on Evidence-Based Practices 156
References 15 6

Chapter 8
Free Appropriate Public Education .... . .... . .... . .... 158
The FAPE Mandate of the IDEA 159
Components of a FAPE 159
Free Education 160
Public Education 160
Appropriate Education 161
State Standards 161
Special Education 162
Parent Participation 162
Litigation and FAPE 163
Board of Education of the Hendrick Hudson School District v. Rowley, 1982 164
The Higher Educational Benefit Standard 167
The Lower Educational Benefit Standard 168
Endrew F. v. Douglas County School District, 2017 169
The Endrew Decision on Remand 171
The U.S Department of Education and the Endrew Decision 171
Methodology and FAPE 172
Peer-Reviewed Research and FAPE 174
Related Services and FAPE 177
The U.S. Supreme Court and Related Services 180
 •
XIV Contents

Extended School Year and FAPE 182

Placement and FAPE 183
Determining Placement 183
Placement Factors 184
Graduation and FAPE 185
IEP Implementation and FAPE 185
Is There a New FAPE Standard? 187
Lessons from Litigation and Legislation 189
Summary 190
For Further Information 191
References 191

Chapter 9
Identification, Assessment, and Evaluation ............. 195
Definition of Assessment 196
Prereferral Decisions 196
Entitlement Decisions 197
Programming Decisions 198
Accountability/Outcome Decisions 199
The Assessment/Evaluation Process 199
Procedural Requirements 200
Substantive Requirements 201
Protection in Evaluation Procedures 203
Child Find 203
Parental Consent 204
Prereferral Evaluation 204
Preplacement Evaluation 205
Comprehensiveness of the Evaluation 205
Qualifications of Evaluators 206
Evaluation Materials and Procedures 206
Special Rules for Eligibility Determination 207
Nondiscriminatory Evaluation 208
Interpreting Evaluation Data 209
Medical Diagnosis and Eligibility Determination 210
Reevaluation 210
Independent Educational Evaluations 211
Accountability Efforts and Students with Disabilities 213
Including Students with Disabilities in Accountability Efforts 214
Lessons From Litigation and Legislation 214
Summary 216
For Further Information 216
References 216
Contents xv

Chapter 10
The Individualized Education Program ................ 219
Purposes of the IEP 221
Communication and Collaboration 221
Management 221
Accountability 222
Compliance and Monitoring 222
Evaluation 222
The IEP Mandate 223
IBP Development: Procedural Requirements 223
The IBP Planning Process 223
The IBP Team 227
Content of the IBP 232
IEP Development: Substantive Requirements 243
Parental Participation 243
Reviewing and Revising the IEP 245
Communicating the Requirements of the IBP and Implementing the IBP 245
Placement in Private Schools 246
Standards-Based IEPs 24 7
Section 504 and the IEP 248
Lessons From Litigation and Legislation 248
Summary 252
For Further Information 2 52
References 2 52

Chapter 11
Placing Students in the Least Restrictive Environment ..... 256
LRE, Mainstreaming, and Inclusion 258
The LRE Mandate 258
Continuum of Alternative Placements 259
Considerations in Educational Placements 261
D etermining a Student 1s Placement 261
Placement in the Neighborhood School 261
Nonacademic Programming 262
The Interests of Peers Without D isabilities 263
Judicial Standards of Review 263
The R oncker Test (Sixth and Eighth Circuits) 263
The D aniel Test (Second, Third, Fifth, Tenth, and Eleventh Circuits) 265
The Rachel H. Test (Ninth Circuit) 266
The DeVries Test (Fourth Circuit) 269
Summary ofJ udicial Standards of R eview 270
Factors in Determining the LRE 271
 •
XVI Contents

Individualization 2 71
Benefits to the Student 273
Effect on Peers 27 3
Appropriateness 2 73
Integration 27 4
The Use of Supplementary Aids and Services 274
A Model for Determining LRE 275
Lessons from Litigation and Legislation 27 6
Summary 276
For Further Information 277
References 277

Chapter 12
Procedural Safeguards • • • • • . . . . . . . . . . . . . . . . . . . . . . . . 2 79
Procedural Rights of Parents 280
Identification of Parents 280
Surrogate Parents 282
General Procedural Requirements 282
Notice Requirements 283
Consent Requirements 2 84
Opportunity to Examine Records 285
Independent Educational Evaluation 286
Dispute Resolution 287
State Complaint Procedures 287
Mediation 288
The D ue Process System 290
Resolution Session 290
The D ue Process H earing 290
School D istrict Responsibilities in the H earing 296
The Burden of Persuasion in an Administrative Hearing 296
Alternatives to the Due Process H earing 298
Remedies 299
Attorney's Fees 299
Injunctive R elief 3 03
Tuition Reimbursement 3 04
Compensatory Education 307
Compensatory Awards Under the IDEA 308
Punitive D amages 3 08
Lessons from Legislation and Litigation 3 12
Summary 312
For Further Information 313
References 313
 ••
Contents XVII

Chapter 13
Disciplining Students with Disabilities .................. 316
Discipline in the Schools 3 17
Procedural Due Process: The Right to Fair Procedures 318
D eveloping Schoo/wide D iscipline Policies 318
Extending Due Process Protections to Students 319
Ensuring That D iscipline Practices Are Nondiscriminatory 321
Substantive Due Process: The Right to Reasonableness 32 1
The IDEA and Discipline 322
Addressing Problem Behavior in the IBP Process 324
Disciplinary Procedures 32 7
The Manifestation D etermination 332
Interim Alternative Educational Settings 334
The Stay-Put Provision 335
Disciplining Students Not Yet Elig ible for Special Education 335
Referral to Law Enforcement and Courts 336
Honig Injunctions 336
The Legal Status of Disciplinary Procedures 33 7
Permitted Procedures 337
Controlled Procedures 33 7
Prohibited Procedures 340
Weapons 342
Lessons from Litigation and Legislation 343
Summary 347
For Further Information 347
References 347

Chapter 14
Additional Issues: Bullying, Charter Schools, Response
to Intervention, Educational Records, and Liability
for Student Injury ................................ 350
Bullying and Harassment of Students with Disabilities 3 51
Bullying as a Violation of the Civil R ights of Students with D isabilities 352
Bullying as a Violation of a Free Appropriate Public Education 355
Lessons from Litigation and Legislation 3 57
Summary of Bullying and H arassment of Students with Disabilities 359
Students with Disabilities in Charter Schools 360
IDEA and Charter Schools 361
Section 504 and Charter Schools 3 63
Lessons from Litigation and Legislation 364
Summary of Students with Disabilities and Charter Schools 365
xviii Conten t s

Response to Intervention 365

RT I and the IDEA: A dministrative Guidance and Litigation 366
Lessons from Litigation and Legislation 369
Sumrnary of Response to Intervention 3 70
Student Records 3 70
Family Educational Rights and Privacy A ct 3 71
Lessons from Litigation and Legislation 373
Summary of Student Records 3 73
Liability for Student Injury 374
Tort Laws 3 74
Monetary Darnages in Personal Injury Suits 377
Teachers' Defenses Against Liability 3 78
Lessons from Litigation and Legislation 3 79
Sumrnary of Liability for Student Injury 380
For Further Information 380
References 380

APPENDICES

Appendix A Major Changes of IDEA 2004 383

Appendix B Relevant Sections of the U.S. Constitution 391

Glossary of Key Terms and Acronyms 393

Case Index 395
Author Index 399
Subject Index 402
 Chapter
Introduction to the
American Legal System

Mitc hell L. Yell, Ph.D., and Te rrye Conroy, J.D., M.L.I.S.

(Laws are) rules of civil c onduct prescribed by the state ... commanding what is
right and prohibiting what is wrong.
BLACKSTONE ( 1748)

Learner Objectives
At the end of t he chapter, students will be able ro
1.1 Describe federalism and how it 1.4 Describe the hierarchy of the fed-
underlies our system of laws. eral court system.
1.2 D escribe rhe four sources of law: 1.5 Describe p recedence and its impor-
constitutional law, statutory law, tance in the court system .
regulatory law, and case law. 1.6 D escribe t he parts of a jud icial
1.3 Describe how law is created in the op1n1on.
federal system. 1.7 D escribe t he evolution of special
education law.

Laws ens11ring the provision of special ed11carion to sr11denrs with disabilities are based on
consrit11rional principles, written and enacted by legislatures, enforced by administrative
agencies, and interpreted by the co11rrs. Ir is through the interaction of the various compo-
ne11ts of the legal system, legislative and j11dicial, that special education law evolves. The
purpose of this chapter is to examine the workings of tl1e American legal system.

THE AMERICAN LEGAL SYSTEM

Federalism
Tl1e American system is a federal system. Tl1ar is, the government of the United Scares is
composed of a 11nion of scares joined 11nder a central federal government. Federalism repre-
sents the linkage of the American people and tl1e comm11nities in which they live through
a unique political arrangement. T he federal government protects the people's rights and
liberties and acts to achieve certain ends for the common good while sim11ltaneously sharing
authority and power with the states (Elazar, 1984). T he U.S. Constitution delineates the
nature of this arrangement in the 10th Amendment (see Appendix B for selected provisions
of the U .S. Constitution) by limiting excessive concentration of power in the national gov-
ernment while sim11ltaneo11sly limiting f11ll dispersal of power to the states. The national
government, therefore, has specific powers granted to it in the Constitution; chose powers
not granted to the national government are the province of the states.

l
2 Chapter 1 Introduction to the American Legal System

The Constitution does not contain any provisions regarding education. According to
Alexander and Alexander (2012), this is not because the nation's founders had no strong
beliefs regarding education. Rather, they believed the states should be sovereign in matters
as important as education. Education, therefore, is governed by the laws of the 50 states.
Nevertheless, federal involvement has been an important factor in the progress and
growth of education. The government's role provided under the authority given Congress
by the Constitution's general welfare clause (Article I, Section 8) has, however, been indirect.
In the earliest method of indirect federal involvement in education, the federal government
made grants of land to the states for the purpose of creating and aiding the development of
public schools. In addition to the federal land grants creating public schools, Congress in
the Morrill Act of 1862 provided grants of land to each state to be used for colleges. In the
land grants, the federal government had no direct control of education in the public schools
or colleges.
The federal government has continued to indirectly assist states with education through
categorical grants. The purposes of the categorical grants have been to provide supplemen-
tary assistance to the state systems of education and to shape educational policy in the states.
States have the option of accepting or rejecting the categorical grants offered by the federal
government. If states accept the categorical grants, they must abide by the federal guidelines
for the use of these funds. Examples of categorical grants include the National Defense Edu-
cation Act of 1958, the Higher Education Facilities Act of 1963, the Vocational Education
Act of 1963, the Elementary and Secondary Education Act of 1965, and the Education for
All Handicapped Children Act of 197 5 (now the Individuals with Disabilities Education
Act). The role of the federal government in guiding educational policy has increased greatly
through the categorical grants (Alexander & Alexander, 2012).

Sources of Law
There are four sources of law: constitutional law, statutory law, regulatory law, and case law.
These sources exist on both the federal and state level. The supreme laws are contained in
federal and state constitutions (i.e., constitutional law), and these constitutions empower
legislatures to create law (i.e., statutory law). Legislatures in turn delegate lawmaking author-
ity to regulatory agencies to create regulations that implement the law (i.e., regulatory law).
Finally, courts interpret laws through cases, and these interpretations of law accumulate to
form case law. Figure 1.1 illustrates the sources of law.

Constitutional Law The U.S . Constitution is the basic source of law in our legal
system. The Constitution (a) defines the fundamental rules by which the American system
functions, (b) sets the parameters for governmental action, and (c) allocates power and respon-
sibility among the legislative, executive, and judicial branches of government (Berring &
Edinger, 2005 ). The Constitution further defines the separation of powers between the leg-
islative, executive, and judicial branches. Figure 1.2 illustrates the branches of government
and their powers as created by the Constitution.

FIGURE 1. 1 • The Sources of Law

Sources of Law

Constitution
•

''
/

Statutes Regulations

'

Cases
Discovering Diverse Content Through
Random Scribd Documents
Aquinas, Cajetan, Soto, Turrecremata, Vasquius, Isidore, Vincent of
Beauvais or Alensis, not to mention the canonists and fathers, which
Suarez employs to prove or disprove every proposition. The
syllogistic forms are unsparingly introduced. Such writers as Soto or
Suarez held all sort of ornament not less unfit for philosophical
argument than it would be for geometry. Nor do they ever appeal to
experience or history for the rules of determination. Their materials
are nevertheless abundant, consisting of texts of Scripture, sayings
of the fathers and schoolmen, established theorems in natural
theology and metaphysics, from which they did not find it hard to
select premises which, duly arranged, gave them conclusions.
His definition20. Suarez, after a prolix discussion, comes to the
of eternal law.
conclusion, that “eternal law is the free determination of
the will of God, ordaining a rule to be observed, either, first,
generally by all parts of the universe as a means of common good,
whether immediately belonging to it in respect of the entire universe
or at least in respect of the singular parts thereof; or, secondly, to be
specially observed by intellectual creatures in respect of their free
operations.”[324] This is not instantly perspicuous; but definitions of a
complex nature cannot be rendered such, and I do not know that it
perplexes more at first sight than the enunciation of the last
proposition in the fifth book of Simson’s Euclid, or many others in
the conic sections and other parts of geometry. It is, however, what
the reader may think curious, that this crabbed piece of
scholasticism is nothing else, in substance, than the celebrated
sentence on law, which concludes the first book of Hooker’s
Ecclesiastical Polity. Whoever takes the pains to understand Suarez,
will perceive that he asserts exactly that which is unrolled in the
majestic eloquence of our countryman.
[324] Legem æternam esse decretum liberum voluntatis Dei statuentis
ordinem servandum, aut generaliter ab omnibus partibus universi in
ordine ad commune bonum, vel immediatè illi conveniens ratione totius
universi, vel saltem ratione singularum specierum ejus, aut specialiter
servandum a creaturis intellectualibus quoad liberas operationes
 earum, c. 3, § 6. Compare with Hooker: Of Law no less can be said
than that her throne is the bosom of God, &c.

21. By this eternal law God is not necessarily bound. But this seems
to be said rather for the sake of avoiding phrases which were
conventionally rejected by the scholastic theologians, since, in effect,
his theory requires the affirmative, as we shall soon perceive; and he
here says that the law is God himself (Deus ipse), and is immutable.
This eternal law is not immediately known to man in this life, but
either “in other laws, or through them,” which he thus explains.
“Men, while pilgrims here, (viatores homines), cannot learn the
divine will in itself, but only as much as by certain signs or effects is
proposed to them; and hence, it is peculiar to the blessed in heaven
that, contemplating the divine will, they are ruled by it as by a direct
law. The former know the eternal law, because they partake of it by
other laws, temporal and positive; for, as second causes display the
first, and creatures the Creator, so temporal laws (by which he
means laws respective of man on earth), being streams from that
eternal law, manifest the fountain whence they spring. Yet all do not
arrive even at this degree of knowledge, for all are not able to infer
the cause from the effect. And thus, though all men necessarily
perceive some participation of the eternal laws in themselves, since
there is no one endowed with reason who does not in some manner
acknowledge that what is morally good ought to be chosen, and
what is evil rejected, so that in this sense men have all some notion
of the eternal law, as St. Thomas, and Hales, and Augustin say; yet
nevertheless they do not all know it formally, nor are aware of their
participation of it, so that it may be said the eternal law is not
universally known in a direct manner. But some attain that
knowledge, either by natural reasoning, or more properly by
revelation of faith; and hence we have said that it is known by some
only in the inferior laws, but by others through the means of those
laws.”[325]
[325] Lib. ii., c. 4, § 9.
Whether God 22. In every chapter Suarez propounds the arguments of
is a legislator?
doctors on either side of the problem, ending with his
own determination, which is frequently a middle course. On the
question, Whether natural law is of itself preceptive, or merely
indicative of what is intrinsically right or wrong, or, in other words,
whether God, as to this law, is a legislator, he holds this line with
Aquinas and most theologians (as he says), contending that natural
law does not merely indicate right and wrong, but commands the
one and prohibits the other; though this will of God is not the whole
ground of the moral good and evil which belongs to the observance
or transgression of natural law, inasmuch as it presupposes a certain
intrinsic right and wrong in the actions themselves, to which it
superadds the special obligation of a divine law. God, therefore, may
be truly called a legislator in respect of natural law.[326]
[326] Hæc Dei voluntas, prohibitio aut præceptio non est tota ratio bonitatis
et malitiæ quæ est in observatione vel transgressione legis naturalis,
sed supponit in ipsis actubus necessariam quandam honestatem vel
turpitudinem, et illis adjungit specialem legis divinæ obligationem, c. 6,
§ 11.

Whether God 23. He next comes to a profound but important inquiry,

could permit Whether God could have permitted by his own law
or commend
actions against natural reason? Ockham and Gerson had
wrong actions.
resolved this in the affirmative, Aquinas the contrary
way. Suarez assents to the latter, and thus determines that the law is
strictly immutable. It must follow of course that the pope cannot
alter or dispense with the law of nature, and he might have spared
the fourteenth chapter, wherein he controverts the doctrine of
Sanchez and some casuists who had maintained so extraordinary a
prerogative.[327] This, however, is rather episodical. In the fifteenth
chapter he treats more at length the question, Whether God can
dispense with the law of nature? which is not, perhaps, at least
according to the notions of many, decided in denying his power to
repeal it. He begins by distinguishing three classes of moral laws.
The first are the most general, such as that good is to be done
rather than evil; and with these it is agreed that God cannot
dispense. The second is of such as the precepts of the decalogue,
where the chief difficulty had arisen. Ockham, Peter d’Ailly, Gerson,
and others, incline to say that he can dispense with all these,
inasmuch as they are only prohibitions which he has himself
imposed. These were the heads of the nominalist party; and their
opinion might be connected, though not necessarily, with the denial
of the reality of mixed modes. This tenet, Suarez observes, is
rejected by all other theologians as false and absurd. He decidedly
holds that there is an intrinsic goodness or malignity in actions
independent of the command of God. Scotus had been of opinion
that God might dispense with the commandments of the second
table, but not those of the first. Durand seems to have thought the
fifth commandment (our sixth) more dispensable than the rest,
probably on account of the case of Abraham. But Aquinas, Cajetan,
Soto, with many more, deny absolutely the dispensability of the
decalogue in any part. The Gordian knot about the sacrifice of Isaac
is cut by a distinction, that God did not act here as a legislator, but in
another capacity, as lord of life and death, so that he only used
Abraham as an instrument for that which he might have done
himself. The third class of moral precepts is of those not contained in
the decalogue, as to which he decides also that God cannot dispense
with them, though he may change the circumstances upon which
their obligation rests, as when he releases a vow.
[327] Nulla potestas humana, etiamsi pontificia sit, potest proprium aliquod
præceptum legis naturalis abrogare, nec illud proprie et in se minuere,
neque in ipso dispensare, § 8.

English 24. The Protestant churches were not generally attentive

Casuists— to casuistical divinity, which smelt too much of the
Perkins, Hall.
opposite system. Eichhorn observes that the first book of
that class, published among the Lutherans, was by a certain Baldwin
of Wittenberg, in 1628.[328] A few books of casuistry were published
in England during this period, though nothing, as well as I
remember, that can be reckoned a system or even a treatise of
moral philosophy. Perkins, an eminent Calvinistic divine of the reign
of Elizabeth, is the first of these in point of time. His Cases of
Conscience appeared in 1606. Of this book I can say nothing from
personal knowledge. In the works of Bishop Hall several particular
questions of this kind are treated, but not with much ability. His
distinctions are more than usually feeble. Thus, usury is a deadly sin,
but it is very difficult to commit it unless we love the sin for its own
sake; for almost every possible case of lending money will be found
by his limitations of the rule to justify the taking a profit for the loan.
[329] His casuistry about selling goods is of the same description: a

man must take no advantage of the scarcity of the commodity,

unless there should be just reason to raise the price, which he
admits to be often the case in a scarcity. He concludes by observing
that, in this, as in other well ordered nations, it would be a happy
thing to have a regulation of prices. He decides, as all the old
casuists did, that a promise extorted by a robber is binding.
Sanderson was the most celebrated of the English casuists. His
treatise, De Juramenti Obligatione, appeared in 1647.
[328] Vol. vi., part i., p. 346.
[329] Hall’s Works (edit. Pratt), vol. viii., p. 375.

Selden, De 25. Though no proper treatise of moral philosophy came

Jure Naturali
from any English writer in this period, we have one
juxta
Hebræos. which must be placed in this class, strangely as the
subject has been handled by its distinguished author.
Selden published in 1640 his learned work, De Jure Naturali et
Gentium juxta Disciplinam Ebræorum.[330] The object of the author
was to trace the opinions of the Jews on the law of nature and
nations, or of moral obligation, as distinct from the Mosaic law; the
former being a law to which they held all mankind to be bound. This
theme had been of course untouched by the Greek and Roman
philosophers, nor was much to be found upon it in modern writers.
His purpose is therefore rather historical than argumentative; but he
seems so generally to adopt the Jewish theory of natural law that we
may consider him the disciple of the rabbis as much as their
historian.
 [330] Juxta for secundum, we need hardly say, is bad Latin: it was, however,
very common, and is even used by Joseph Scaliger, as Vossius
mentions in his treatise, De Vitiis Sermonis.

26. The origin of natural law was not drawn by the Jews,
Jewish theory
of natural law.
as some of the jurists imagined it ought to be, from the
habits and instincts of all animated beings, quod natura omnia
animalia docuit, according to the definition of the Pandects. Nor did
they deem, as many have done, the consent of mankind and
common customs of nations to be a sufficient basis for so
permanent and invariable a standard. Upon the discrepancy of moral
sentiments and practices among mankind Selden enlarges in the
tone which Sextus Empiricus had taught scholars, and which the
world had learned from Montaigne. Nor did unassisted reason seem
equal to determine moral questions, both from its natural
feebleness, and because reason alone does not create an obligation,
which depends wholly on the command of a superior.[331] But God, as
the ruler of the universe, has partly implanted in our minds, partly
made known to us by exterior revelation, his own will, which is our
law. These positions he illustrates with a superb display of erudition,
especially oriental, and certainly with more prolixity, and less regard
to opposite reasonings, than we should desire.
[331] Selden says, in his Table Talk, that he can understand no law of nature
but a law of God. He might mean this in the sense of Suarez, without
denying an intrinsic distinction of right and wrong.

Seven 27. The Jewish writers concur in maintaining that certain

precepts of short precepts of moral duty were orally enjoined by God
the sons of
Noah. on the parent of mankind, and afterwards on the sons of
Noah. Whether these were simply preserved by
tradition, or whether, by an innate moral faculty, mankind had the
power of constantly discerning them, seems to have been an
unsettled point. The principal of these divine rules are called, for
distinction, The Seven Precepts of the Sons of Noah. There appears,
however, to be some variance in the lists, as Selden has given them
from the ancient writers. That most received consists of seven
prohibitions—namely, of idolatry, blasphemy, murder, adultery, theft,
rebellion, and cutting a limb from a living animal. The last of these,
the sense of which, however, is controverted, as well as the third,
but no other, are indicated in the ninth chapter of Genesis.
Character of 28. Selden pours forth his unparalleled stores of
Selden’s work.
erudition on all these subjects, and upon those which
are suggested in the course of his explanations. These digressions
are by no means the least useful part of his long treatise. They
elucidate some obscure passages of Scripture. But the whole works
belongs far more to theological than to philosophical investigation;
and I have placed it here chiefly out of conformity to usage; for
undoubtedly Selden, though a man of very strong reasoning
faculties, had not greatly turned them to the principles of natural
law. His reliance on the testimony of Jewish writers, many of them
by no means ancient, for those primæval traditions as to the sons of
Noah, was in the character of his times, but it will scarcely suit the
more rigid criticism of our own. His book, however, is excellent for its
proper purpose, that of representing Jewish opinion, and is among
the greatest achievements in erudition that any English writer has
performed.
Grotius and 29. The moral theories of Grotius and Hobbes are so
Hobbes. much interwoven with other parts of their philosophy, in
the treatise De Jure Belli and in the Leviathan, that it would be
dissecting those works too much, were we to separate what is
merely ethical from what falls within the provinces of politics and
jurisprudence. The whole must therefore be deferred to the ensuing
sections of this chapter. Nor is there much in the writings of Bacon
or of Descartes which falls, in the sense we have hitherto been
considering it, under the class of moral philosophy. We may
therefore proceed to another description of books, relative to the
passions and manners of mankind, rather than, in a strict sense, to
their duties, though of course there will frequently be some
intermixture of subjects so intimately allied.
Charron on 30. In the year 1601, Peter Charron, a French
Wisdom. ecclesiastic, published his Treatise on Wisdom. The
reputation of this work has been considerable; his countrymen are
apt to name him with Montaigne; and Pope has given him the
epithet of “more wise” than his predecessor, on account, as
Warburton expresses it, of his “moderating everywhere the
extravagant Pyrrhonism of his friend.” It is admitted that he has
copied freely from the Essays of Montaigne, in fact, a very large
portion of the Treatise on Wisdom, not less, I should conjecture,
than one fourth, is extracted from them with scarce any verbal
alteration. It is not the case that he moderates the sceptical tone
which he found there; on the contrary, the most remarkable
passages of that kind have been transcribed; but we must do
Charron the justice to say that he has retrenched the indecencies,
the egotism, and the superfluities. Charron does not dissemble his
debts. “This,” he says in his preface, “is the collection of a part of my
studies; the form and method are my own. What I have taken from
others, I have put in their words, not being able to say it better than
they have done.” In the political part he has borrowed copiously
from Lipsius and Bodin, and he is said to have obligations to Duvair.
[332] The ancients also must have contributed their share. It becomes

therefore difficult to estimate the place of Charron as a philosopher,

because we feel a good deal of uncertainty whether any passage
may be his own. He appears to have been a man formed in the
school of Montaigne, not much less bold in pursuing the novel
opinions of others, but less fertile in original thoughts, so that he
often falls into the common-places of ethics; with more reading than
his model, with more disciplined habits as well of arranging and
distributing his subject, as of observing the sequence of an
argument; but, on the other hand, with far less of ingenuity in
thinking and of sprightliness of language.
[332] Biogr. Universelle.

La Mothe le31. A writer of rather less extensive celebrity than

Vayer—His Charron belongs full as much to the school of
dialogues.
Montaigne, though he does not so much pillage his
Essays. This was La Mothe le Vayer, a man distinguished by his
literary character in the court of Louis XIII., and ultimately preceptor
both to the Duke of Orleans and the young king (Louis XIV.) himself.
La Mothe was habitually and universally a sceptic. Among several
smaller works we may chiefly instance his Dialogues published many
years after his death under the name of Horatius Tubero. They must
have been written in the reign of Louis XIII., and belong therefore to
the present period. In attacking every established doctrine,
especially in religion, he goes much farther than Montaigne, and
seems to have taken much of his metaphysical system immediately
from Sextus Empiricus. He is profuse of quotation, especially in a
dialogue entitled Le Banquet Sceptique, the aim of which is to show
that there is no uniform taste of mankind as to their choice of food.
His mode of arguing against the moral sense is entirely that of
Montaigne, or, if there be any difference, is more full of the two
fallacies by which that lively writer deceives himself—namely, the
accumulating examples of things arbitrary and fanciful, such as
modes of dress and conventional usages, with respect to which no
one pretends that any natural law can be found, and, when he
comes to subjects more truly moral, the turning our attention solely
to the external action, and not to the motive or principle, which
under different circumstances may prompt men to opposite courses.
32. These dialogues are not unpleasing to read, and exhibit a polite
though rather pedantic style not uncommon in the seventeenth
century. They are, however, very diffuse, and the sceptical paradoxes
become merely common-place by repetition. One of them is more
grossly indecent than any part of Montaigne. La Mothe le Vayer is
not, on the whole, much to be admired as a philosopher; little
appears to be his own and still less is really good. He contributed, no
question, as much as anyone to the irreligion and contempt for
morality prevailing in that court where he was in high reputation.
Some other works of this author may be classed under the same
description.
Bacon’s 33. We can hardly refer Lord Bacon’s Essays to the
Essays. school of Montaigne, though their title may lead us to
suspect that they were in some measure suggested by that most
popular writer. The first edition, containing ten essays only, and
those much shorter than as we now possess them, appeared, as has
been already mentioned, in 1597. They were reprinted with very
little variation in 1606. But the enlarged work was published in 1612,
and dedicated to Prince Henry. He calls them, in this dedication,
“certain brief notes, set down rather significantly than curiously,
which I have called Essays. The word is late, but the thing is
ancient; for Seneca’s Epistles to Lucilius, if you mark them well, are
but Essays, that is, dispersed meditations, though conveyed in the
form of epistles.” The resemblance, at all events, to Montaigne is not
greater than might be expected in two men equally original in
genius, and entirely opposite in their characters and circumstances.
One, by an instinctive felicity, catches some of the characteristics of
human nature; the other, by profound reflection, scrutinizes and
dissects it. One is too negligent for the inquiring reader, the other
too formal and sententious for one who seeks to be amused. We
delight in one, we admire the other; but this admiration has also its
own delight. In one we find more of the sweet temper and tranquil
contemplation of Plutarch, in the other more of the practical wisdom
and somewhat ambitious prospects of Seneca. It is characteristic of
Bacon’s philosophical writings, that they have in them a spirit of
movement, a perpetual reference to what man is to do in order to
an end, rather than to his mere speculation upon what is. In his
Essays, this is naturally still more prominent. They are, as quaintly
described in the title page of the first edition, “places (loci) of
persuasion and dissuasion;” counsels for those who would be great
as well as wise. They are such as sprang from a mind ardent in two
kinds of ambition, and hesitating whether to found a new
philosophy, or to direct the vessel of the state. We perceive,
however, that the immediate reward attending greatness, as is
almost always the case, gave it a preponderance in his mind; and
hence, his Essays are more often political than moral; they deal with
mankind, not in their general faculties or habits, but in their mutual
strife, their endeavours to rule others, or to avoid their rule. He is
more cautious and more comprehensive, though not more acute
than Machiavel, who often becomes too dogmatic through the habit
of referring everything to a particular aspect of political societies.
Nothing in the Prince or the Discourses on Livy is superior to the
Essays on Seditions, on Empire, on Innovations, or generally those
which bear on the dexterous management of a people by their
rulers. Both these writers have what to our more liberal age appears
a counselling of governors for their own rather than their subjects’
advantage; but, as this is generally represented to be the best
means, though not, as it truly is, the real end, their advice tends on
the whole to advance the substantial benefits of government.
Their 34. The transcendent strength of Bacon’s mind is visible
excellence. in the whole tenor of these Essays, unequal as they
must be from the very nature of such compositions. They are deeper
and more discriminating than any earlier, or almost any later work in
the English language, full of recondite observation long matured and
carefully sifted. It is true that we might wish for more vivacity and
ease; Bacon, who had much wit, had little gaiety; his Essays are
consequently stiff and grave, where the subject might have been
touched with a lively hand; thus it is in those on Gardens and on
Building. The sentences have sometimes too apophthegmatic a form
and want coherence; the historical instances, though far less
frequent than with Montaigne, have a little the look of pedantry to
our eyes. But it is from this condensation, from this gravity, that the
work derives its peculiar impressiveness. Few books are more
quoted, and, what is not always the case with such books, we may
add that few are more generally read. In this respect they lead the
van of our prose literature; for no gentleman is ashamed of owning
that he has not read the Elizabethan writers; but it would be
somewhat derogatory to a man of the slightest claim to polite
letters, were he unacquainted with the Essays of Bacon. It is indeed
little worth while to read this or any other book for reputation sake;
but very few in our language so well repay the pains, or afford more
nourishment to the thoughts. They might be judiciously introduced,
with a small number more, into a sound method of education, one
that should make wisdom, rather than mere knowledge, its object,
and might become a textbook of examination in our schools.
Feltham’s 35. It is rather difficult to fix upon the fittest place for
Resolves. bringing forward some books, which, though moral in
their subject, belong to the general literature of the age, and we
might strip the province of polite letters of what have been reckoned
its chief ornaments. I shall therefore select here such only, as are
more worthy of consideration for their matter than for the style in
which it is delivered. Several that might range, more or less, under
the denomination of moral essays, were published both in English
and in other languages. But few of them are now read, or even
much known by name. One, which has made a better fortune than
the rest, demands mention, the Resolves of Owen Feltham. Of this
book, the first part of which was published in 1627, the second not
till after the middle of the century, it is not uncommon to meet with
high praises in those modern writers, who profess a faithful
allegiance to our older literature. For myself, I can only say that
Feltham appears not only a laboured and artificial, but a shallow
writer. Among his many faults none strikes me more than a want of
depth, which his pointed and sententious manner renders more
ridiculous. Sallust, among the ancients, is a great dealer in such
oracular truisms, a style of writing that soon becomes disagreeable.
There are certainly exceptions to this vacuity of original meaning in
Feltham; it would be possible to fill a few pages with extracts not
undeserving of being read, with thoughts just and judicious, though
never deriving much lustre from his diction. He is one of our worst
writers in point of style; with little vigour, he has less elegance; his
English is impure to an excessive degree, and full of words
unauthorised by any usage. Pedantry, and the novel phrases which
Greek and Latin etymology was supposed to warrant, appear in most
productions of this period; but Feltham attempted to bend the
English idiom to his own affectations. The moral reflections of a
serious and thoughtful mind are generally pleasing, and to this
perhaps is partly owing the kind of popularity which the Resolves of
Feltham have obtained; but they may be had more agreeably and
profitably in other books.[333]
[333] This is a random sample of Feltham’s style: “Of all objects of sorrow a
distressed king is the most pitiful, because it presents us most the
frailty of humanity, and cannot but most midnight the soul of him that
is fallen. The sorrows of a deposed king are like the distorquements of
a darted conscience which none can know but he that hath lost a
crown.” Cent. i. 61. We find not long after the following precious
phrase: “The nature that is arted with the subtleties of time and
practice.” I. 63. In one page we have obnubilate, nested, parallel (as a
verb), fails (failings) uncurtain, depraving (calumniating). I. 50. And we
are to be disgusted with such vile English, or properly no English, for
the sake of the sleepy saws of a trivial morality. Such defects are not
compensated by the better and more striking thoughts we may
occasionally light upon. In reading Feltham, nevertheless, I seemed to
perceive some resemblance to the tone and way of thinking of the
Turkish Spy, which is a great compliment to the former; for the Turkish
Spy is neither disagreeable nor superficial. The resemblance must lie in
a certain contemplative melancholy, rather serious than severe, in
respect to the world and its ways; and as Feltham’s Resolves seem to
have a charm, by the editions they have gone through, and the good
name they have gained, I can only look for it in this.

Browne’s 36. A superior genius to that of Feltham is exhibited in

Religo Medici.the Religio Medici of Sir Thomas Browne. This little book
made a remarkable impression; it was soon translated into several
languages, and is highly extolled by Conringius and others, who
could only judge through these versions. Patin, though he rather
slights it himself, tells us in one of his letters that it was very popular
at Paris. The character which Johnson has given of the Regligio
Medici is well known; and, though perhaps rather too favourable,
appears in general just.[334] The mind of Browne was fertile, and,
according to the current use of the word, ingenious: his analogies
are original and sometimes brilliant; and as his learning is also of
things out of the beaten path, this gives a peculiar and uncommon
air to all his writings, and especially to the Regligio Medici. He was,
however, far removed from real philosophy, both by his turn of mind
and by the nature of his erudition; he seldom reasons, his thoughts
are desultory, sometimes he appears sceptical or paradoxical, but
credulity and deference to authority prevail. He belonged to the
class, numerous at that time in our church, who halted between
popery and protestantism; and this gives him, on all such topics, an
appearance of vacillation and irresoluteness which probably
represents the real state of his mind. His paradoxes do not seem
very original, nor does he arrive at them by any process of
argument; they are more like traces of his reading casually
suggesting themselves, and supported by his own ingenuity. His
style is not flowing, but vigorous; his choice of words not elegant,
and even approaching to barbarism as English phrase; yet there is
an impressiveness, an air of reflection and sincerity in Browne’s
writings, which redeem many of their faults. His egotism is equal to
that of Montaigne, but with this difference, that it is the egotism of a
melancholy mind, which generally becomes unpleasing. This
melancholy temperament is characteristic of Browne. “Let’s talk of
graves and worms and epitaphs” seems his motto. His best written
work, the Hydriotaphia, is expressly an essay on sepulchral urns; but
the same taste for the circumstances of mortality leavens also the
Religio Medici.
[334] “The Regligio Medici was no sooner published that it excited the
attention of the public by the novelty of paradoxes, the dignity of
sentiment, the quick succession of images, the multitude of abstruse
allusions, the subtlety of disquisition, and the strength of language.”
Life of Browne (in Johnson’s Works, xii. 275).

37. The thoughts of Sir Walter Raleigh on moral

Selden’s Table
Talk. prudence are few but precious. And some of the bright
sallies of Selden recorded in his Table Talk are of the same
description, though the book is too miscellaneous to fall under any
single head of classification. The editor of this very short and small
volume, which gives, perhaps, a more exalted notion of Selden’s
natural talents than any of his learned writings, requests the reader
to distinguish times, and “in his fancy to carry along with him the
when and the why many of these things were spoken.” This
intimation accounts for the different spirit in which he may seem to
combat the follies of the prelates at one time, and of the
presbyterians or fanatics at another. These sayings are not always,
apparently, well reported; some seem to have been misunderstood,
and in others the limiting clauses to have been forgotten. But on the
whole they are full of vigour, raciness, and a kind of scorn of the
half-learned, far less rude, but more cutting than that of Scaliger. It
has been said that the Table Talk of Selden is worth all the Ana of
the continent. In this I should be disposed to concur; but they are
not exactly works of the same class.
Osborn’s 38. We must now descend much lower, and could find
Advice to his
little worth remembering. Osborn’s Advice to his Son
Son.
may be reckoned among the moral and political writings
of this period. It is not very far above mediocrity, and contains a
good deal that is common-place, yet with a considerable sprinkling
of sound sense and observation. The style is rather apophthegmatic,
though by no means more so than was then usual.
39. A few books, English as well as foreign, are
John Valentine
Andreæ. purposely deferred for the present; I am rather
apprehensive that I shall be found to have overlooked some not
unworthy of notice. One written in Latin by a German writer has
struck me as displaying a spirit which may claim for it a place among
the livelier and lighter class, though with serious intent, of moral
essays. John Valentine Andreæ was a man above his age, and a
singular contrast to the narrow and pedantic herd of German
scholars and theologians. He regarded all things around him with a
sarcastic but benevolent philosophy, keen in exposing the errors of
mankind, yet only for the sake of amending them. It has been
supposed by many that he invented the existence of the famous
Rosicrucian society, not so much, probably, for the sake of
mystification, as to suggest an institution so praiseworthy and
philanthropic as he delineated for the imitation of mankind. This,
however, is still a debated problem in Germany.[335] But among his
numerous writings, that alone of which I know anything is entitled in
the original Latin, Mythologiæ Christianæ, sive Virtutum et Vitiorum
Vitæ Humanæ Imaginum Libri Tres. (Strasburg, 1618.) Herder has
translated a part of this book in the fifth volume of his Zerstreute
Blätter; and it is here that I have met with it. Andreæ wrote, I
believe, solely in Latin, and his works appear to be scarce, at least in
England. These short apologues, which Herder has called Parables,
are written with uncommon terseness of language, a happy and
original vein of invention, and a philosophy looking down on
common life without ostentation and without passion. He came too
before Bacon, but he had learned to scorn the disputes of the
schools, and had sought for truth with an entire love, even at the
hands of Cardan and Campanella. I will give a specimen, in a note,
of the peculiar manner of Andreæ, but my translation does not,
perhaps, justice to that of Herder. The idea, it may be observed, is
now become more trite.[336]
[335] Brucker, iv. 735. Biogr. Univ. art. Andreæ, et alibi.
[336] “The Pen and the Sword strove with each other for superiority, and the
voices of the judges were divided. The men of learning talked much
and persuaded many; the men of arms were fierce and compelled
many to join their side. Thus nothing could be determined; it followed
that both were left to fight it out, and settle their dispute in single
combat.
“On one side books rustled in the libraries, on the other arms rattled in
the arsenals; men looked on in hope and fear, and waited the end.
“The Pen, consecrated to truth, was notorious for much falsehood; the
Sword, a servant of God, was stained with innocent blood: both hoped
for the aid of heaven, both found its wrath.
“The State, which had need of both, and disliked the manners of both,
would put on the appearance of caring for the weal and woe of neither.
The Pen was weak, but quick, glib, well exercised, and very bold, when
one provoked it. The Sword was stern, implacable, but less compact
and subtle, so that on both sides the victory remained uncertain. At
length for the security of both, the common weal pronounced that both
in turn should stand by her side and bear with each other. For that only
is a happy country where the Pen and the Sword are faithful servants,
not where either governs by its arbitrary will and passion.”
If the touches in this little piece are not always clearly laid on, it may
be ascribed as much, perhaps, to their having passed through two
 translations, as to the fault of the excellent writer. But in this early age
we seldom find the entire neatness and felicity which later times
attained.

Sect. II.
ON POLITICAL PHILOSOPHY.
Change in the Character of political Writings—Bellenden and others
—Patriarchal Theory refuted by Suarez—Allhusius—Political
Economy of Serra—Hobbes—and Analysis of his political Treatises.
40. The recluse philosopher, who, like Descartes in his country-house
near Utrecht, investigates the properties of quantity, or the
operations of the human mind, while nations are striving for
conquest and factions for ascendancy, hears that tumultuous uproar
but as the dash of the ocean waves at a distance, and it may even
serve, like music that falls upon the poet’s ear, to wake in him some
new train of high thought, or at the least to confirm his love of the
absolute and the eternal, by comparison with the imperfection and
error that besets the world. Such is the serene temple of philosophy,
which the Roman poet has contrasted with the storm and the battle,
with the passions of the great and the many, the perpetual struggle
of man against his fellows. But if he who might dwell on this
vantage-ground descends into the plain, and takes so near a view of
the world’s strife, that he sees it as a whole very imperfectly, while
the parts to which he approaches are magnified beyond their
proportion, if, especially, he mingles with the combat, and shares its
hopes and its perils, though in many respects he may know more
than those who keep aloof, he will lose something of that faculty of
equal and comprehensive vision, in which the philosophical temper
consists. Such has very frequently, or more or less, perhaps, in
almost every instance, been the fate of the writer on general
politics; if his pen has not been solely employed with a view to the
questions that engage attention in his own age, it has generally
been guided in a certain degree by regard to them.
Abandonment 41. In the sixteenth century, we have seen that notions
of anti- of popular rights, and of the amissibility of sovereign
monarchical
theories. power for misconduct, were alternately broached by the
two great religious parties of Europe, according to the
necessity in which they stood for such weapons against their
adversaries. Passive obedience was preached as a duty by the
victorious, rebellion was claimed as a right by the vanquished. The
history of France and England, and partly of other countries, was the
clue to these politics. But in the following period, a more tranquil
state of public opinion, and a firmer hand upon the reigns of power,
put an end to such books as those of Languet, Buchanan, Rose, and
Mariana. The last of these, by the vindication of tyrannicide in his
treatise De Rege, contributed to bring about a reaction in political
literature. The Jesuits in France, whom Henry IV. was inclined to
favour, publicly condemned the doctrine of Mariana in 1606. A book
by Becanus, and another by Suarez, justifying regicide, were
condemned by the parliament of Paris, in 1612.[337] The
assassination indeed of Henry IV., committed by one, not perhaps
metaphysically speaking sane, but whose aberration of intellect had
evidently been either brought on or nourished by the pernicious
theories of that school, created such an abhorrence of the doctrine,
that neither the Jesuits nor others ventured afterwards to teach it.
Those also who magnified, as far as circumstances would permit, the
alleged supremacy of the See of Rome over temporal princes, were
little inclined to set up, like Mariana, a popular sovereignty, a right of
the multitude not emanating from the Church, and to which the
Church itself might one day be under the necessity of submitting.
This became therefore a period favourable to the theories of
absolute power; not so much shown by means of their positive
assertion through the press as by the silence of the press,
comparatively speaking, on all political theories whatever.
[337] Mezeray, Hist. de la Mère et du Fils.

Political 42. The political writings of this part of the seventeenth

literature century assumed in consequence more of an historical,
becomes or, as we might say, a statistical character. Learning was
historical.
employed in systematic analyses of ancient or modern
forms of government, in dissertations explanatory of institutions, in
copious and exact statements of the true, rather than arguments
upon the right or the expedient. Some of the very numerous works
of Herman Conringius, a professor at Helmstadt, seem to fall within
this description. But none are better known than a collection, made
by the Elzevirs, at different times near the middle of this century,
containing accounts, chiefly published before, of the political
constitutions of European commonwealths. This collection, which is
in volumes of the smallest size, may be called for distinction the
Elzevir Republics. It is very useful in respect of the knowledge of
facts it imparts, but rarely contains anything of a philosophical
nature. Statistical descriptions of countries are much allied to these
last; some indeed are included in the Elzevir series. They were as yet
not frequent; but I might have mentioned in the last volume one of
the earliest, the Description of the Low Countries by Ludovico
Guicciardini, brother of the historian.
Bellenden de 43. Those, however, were not entirely wanting who took
Statu. a more philosophical view of the social relations of
mankind. Among these a very respectable place should be assigned
to a Scotsman, by name Bellenden, whose treatise De Statu, in three
books, is dedicated to Prince Charles in 1615. The first of these
books is entitled De Statu prisci orbis in religione, re politica et
literis; the second, Ciceronis Princeps, sive de statu principis et
imperii; the third, Ciceronis Consul, Senator, Senatusque Romanus,
sive de statu reipublicæ et urbis imperantis orbi. The first two books
are, in a general sense, political; the last relates entirely to the
Roman polity, but builds much political precept on this. Bellenden
seems to have taken a more comprehensive view of history in his
first book, and to have reflected more philosophically on it, than
perhaps anyone had done before; at least I do not remember any
work of so early an age which reminds me so much of Vico and the
Grandeur et Decadence of Montesquieu. We can hardly make an
exception for Bodin, because the Scot is so much more regularly
historical, and so much more concise. The first book contains little
more than forty pages. Bellenden’s learning is considerable and
without that pedantry of quotation which makes most books of the
age intolerable. The latter parts have less originality and reach of
thought. This book was reprinted, as is well known, in 1787; but the
celebrated preface of the editor has had the effect of eclipsing the
original author; Parr was constantly read and talked of, Bellenden
never.
Campanella’s 44. The Politics of Campanella are warped by a desire to
Politics. please the court of Rome, which he recommends as fit
to enjoy an universal monarchy, at least by supreme control, and
observes with some acuteness, that no prince had been able to
obtain an universal ascendant over Christendom, because the
presiding vigilance of the Holy See has regulated their mutual
contentions, exalting one and depressing another, as seemed
expedient for the good of religion.[338] This book is pregnant with
deep reflection on history, it is enriched, perhaps, by the study of
La Mothe le Bodin, but is much more concise. In one of the
Vayer. Dialogues of La Mothe le Vayer, we find the fallacy of
some general maxims in politics drawn from a partial induction well
exposed, by showing the instances where they have wholly failed.
Though he pays high compliments to Louis XIII. and to Richelieu, he
speaks freely enough, in his sceptical way, of the general advantages
of monarchy.
[338] Nullus hactenus Christianus princeps monarchiam super cunctos
Christianos populos sibi conservare potuit. Quoniam papa præ est illis,
et dissipat erigitque illorum conatus prout religioni expedit. C. 8.

Naudé’s Coups45. Gabriel Naudé, a man of extensive learning, acute

d’Etat understanding, and many good qualities, but rather lax
in religious and moral principle, excited some attention by a very
small volume, entitled Considerations sur les coups d’état, which he
wrote while young, at Rome, in the service of the Cardinal de Bagne.
In this he maintains the bold contempt of justice and humanity in
political emergencies which had brought disgrace on the Prince of
Machiavel, blaming those who, in his own country, had abandoned
the defence of the St. Bartholomew massacre. The book is in
general heavy and not well written, but coming from a man of cool
head, clear judgment and considerable historical knowledge, it
contains some remarks not unworthy of notice.
Patriarchal 46. The ancient philosophers, the civil lawyers, and by
theory of far the majority of later writers had derived the origin of
government.
government from some agreement, or tacit consent, of
the community. Bodin, explicitly rejecting this hypothesis, referred it
to violent usurpation. But, in England, about the beginning of the
reign of James, a different theory gained ground with the church; it
was assumed, for it did not admit of proof, that a patriarchal
authority had been transferred by primogeniture to the heir-general
of the human race; so that kingdoms were but enlarged families,
and an indefeasible right of monarchy was attached to their natural
chief, which, in consequence of the impossibility of discovering him,
developed upon the representative of the first sovereign who could
be historically proved to have reigned over any nation. This had not
perhaps hitherto been maintained at length in any published book,
but will be found to have been taken for granted in more than one.
It was of course in favour with James I., who had a very strong
hereditary title; and it might seem to be countenanced by the fact of
Highland and Irish clanship, which does really affect to rest on a
patriarchal basis.
Refuted by 47. This theory as to the origin of political society, or one
Suarez. akin to it, appears to have been espoused by some on
the Continent. Suarez, in the second book of his great work on law,
observes in a remarkable passage, that certain canonists hold civil
magistracy to have been conferred by God on some prince, and to
remain always in his heirs by succession; but “that such an opinion
has neither authority nor foundation. For this power, by its very
nature, belongs to no one man, but to a multitude of men. This is a
certain conclusion, being common to all our authorities as we find by
St. Thomas, by the civil laws, and by the great canonists and
casuists; all of whom agree that the prince has that power of
lawgiving which the people have given him. And the reason is
evident, since all men are born equal, and consequently no one has
a political jurisdiction over another, nor any dominion; nor can we
give any reason from the nature of the thing, why one man should
govern another rather than the contrary. It is true that one might
alledge the primacy which Adam at his creation necessarily
possessed, and hence deduce his government over all men, and
suppose that to be derived by some one, either through
primogenitary descent, or through the special appointment of Adam
himself. Thus Chrysostom has said that the descent of all men from
Adam signifies their subordination to one sovereign. But in fact we
could only infer from the creation and natural origin of mankind that
Adam possessed a domestic or patriarchal (œconomicam), not a
political authority; for he had power over his wife, and afterwards a
paternal power over his sons till they were emancipated; and he
might even in course of time have servants and a complete family,
and that power in respect of them which is called patriarchal. But
after families began to be multiplied, and single men who were
heads of families to be separated, they had each the same power
with respect to their own families. Nor did political power begin to
exist till many families began to be collected into one entire
community. Hence, as that community did not begin by Adam’s
creation, nor by any will of his, but by that of all who formed it, we
cannot properly say, that Adam had naturally a political headship in
such a society; for there are no principles of reason from which this
could be inferred, since by the law of nature it is no right of the
progenitor to be even king of his own posterity. And if this cannot be
proved by the principles of natural law, we have no ground for
asserting that God has given such a power by the special gift of
providence, inasmuch as we have no revelation or scripture
testimony to the purpose.[339] So clear, brief, and dispassionate a
refutation might have caused our English divines, who became very
fond of this patriarchal theory, to blush before the Jesuit of Granada.
[339] Lib. ii., c. 2, § 3.
 48. Suarez maintains it to be of the essence of a law
His opinion of
law. that it be exacted for the public good. An unjust law is
no law, and does not bind the conscience.[340] In this he breathes the
spirit of Mariana. But he shuns some of his bolder assertions. He
denies the right of rising in arms against a tyrant, unless he is an
usurper; and though he is strongly for preserving the concession
made by the kings of Spain to their people, that no taxes shall be
levied without the consent of the Cortes, does not agree with those
who lay it down as a general rule, that no prince can impose taxes
on his people by his own will.[341] Suarez asserts the direct power of
the church over heretical princes, but denies it as to infidels.[342] In
this last point, as has been seen, he follows the most respectable
authorities of his nation.
[340] Lib. i., c. 7, and lib. iii., c. 22.
[341] Lib. iii., c. 10.
[342] Lib. v., c. 17.

49. Bayle has taken notice of a systematic treatise on Politics, by

John Althusius, a native of Germany. Of this I have only seen an
edition published at Groningen in 1615, and dedicated to the states
of West Friesland. It seems, however, from the article in Bayle, that
there was one printed at Herborn in 1603. Several German writers
inveigh against this work as full of seditious principles, inimical to
every government. It is a political system, taken chiefly from
preceding authors, and very freely from Bodin; with great learning,
but not very profitable to read. The ephori, as he calls them, by
which he means the estates of a kingdom, have the right to resist a
tyrant. But this right he denies to the private citizen. His chapter on
this subject is written more in the tone of the sixteenth than of the
seventeenth century, which indeed had scarcely commenced.[343] He
answers in it Albericus Gentilis, Barclay and others who had
contended for passive obedience, not failing to draw support from
the canonists and civilians whom he quotes. But the strongest
passage is in his dedication to the States of Friesland. Here he
declares his principle, that the supreme power or sovereignty (jus
majestatis) does not reside in the chief magistrate, but in the people
themselves, and that no other is proprietor or usufructuary of it, the
magistrate being the administrator of this supreme power, but not its
owner, nor entitled to use it for his benefit. And these rights of
sovereignty are so much confined to the whole community, that they
can no more alienate them to another, whether they will or not, than
a man can transfer his own life.[344]
[343] Cap. 38. De tyrannide et ejus remediis.
[344] Administratorem, procuratorem, gubernatorem jurium majestatis,
principem agnosco. Proprietarium vero et usufructuarium majestatis
nullum alium quam populum universum in corpus unum symbioticum
ex pluribus minoribus consociationibus consociatum, &c.

50. Few, even among the Calvinists, whose form of government was
in some cases republican, would in the seventeenth century have
approved this strong language of Althusius. But one of their noted
theologians, Paræus, incurred the censure of the university of Oxford
in 1623, for some passages in his commentary on the Epistle to the
Romans which seemed to impugn their orthodox tenet of unlimited
submission. He merely holds that subjects, when not private men
but inferior magistrates, may defend themselves and the state and
the true religion even by arms against the sovereign under certain
conditions; because, these superior magistrates are themselves
responsible to the laws of God and of the state.[345] It was, in truth,
impossible to deny the right of resistance in such cases without
“branding the unsmirched brow” of protestantism itself; for by what
other means had the reformed religion been made to flourish in
Holland and Geneva, or in Scotland? But in England, where it had
been planted under a more auspicious star, there was little occasion
to seek this vindication of the protestant church, which had not, in
the legal phrase, come in by disseizin of the state, but had united
with the state to turn out of doors its predecessor. That the Anglican
refugees under Mary were ripe enough for resistance, or even
regicide, has been seen in the last volume by an extract from one of
their most distinguished prelates.
 [345] Subditi non privati, sed in magistratu inferiori constituti adversus
superiorem magistratum se et rempublicam et ecclesiam seu veram
religionem etiam armis defendere jure possunt, his positis
conditionibus: 1. Cum superior magistratus degenerat in tyrannum;
2. Aut ad manifestam idololatriam atque blasphemias ipsos vel subditos
alios vult cogere; 3. Cum ipsis atrox infertur injuria; 4. Si aliter
incolumes fortunis vita et conscientia esse non possint; 5. Ne prætextu
religionis aut justitiæ sua quærant; 6. Servata semper επιεικειᾳ et
moderamine inculpatæ tutelæ juxta leges. Paræus in Epist. ad Roman,
col. 1350.

Bacon. 51. Bacon ought to appear as a prominent name in

political philosophy, if we had never met with it in any other. But we
have anticipated much of his praise on this score; and it is sufficient
to repeat generally that on such subjects he is among the most
sagacious of mankind. It would be almost ridiculous to descend from
Bacon, even when his giant shadow does but pass over our scene,
to the feebler class of political moralists, such as Saavedra, author of
Idea di un principe politico, a wretched effort of Spain in her
degeneracy; but an Italian writer must not be neglected, from the
remarkable circumstance that he is esteemed one of the first who
Political have treated the science of political œconomy. It must,
œconomy. however, be understood that, besides what may be
found on the subject in the ancients, many valuable observations
which must be referred to political œconomy occur in Bodin, that the
Italians had, in the sixteenth century, a few tracts on coinage, that
Botero touches some points of the science, and that in English there
were, during the same age, pamphlets on public wealth, especially
one entitled, A Brief Conceit of English Policy.[346]
[346] This bears the initials of W. S., which some have idiotically taken for
William Shakspeare. I have some reason to believe, that there was an
edition considerably earlier than that of 1584, but, from circumstances
unnecessary to mention, cannot produce the manuscript authority on
which this opinion is founded. It has been reprinted more than once, if
I mistake not, in modern times.

Serra on the 52. The author to whom we allude is Antonio Serra, a

means of native of Cosenza, whose short treatise on the causes
obtaining
money which may render gold and silver abundant in countries
without
mines. that have no mines, is dedicated to the Count de Lemos,
“from the prison of Vicaria this tenth day of July, 1613.”
It has hence been inferred, but without a shadow of proof, that
Serra had been engaged in the conspiracy of his fellow citizen
Campanella fourteen years before. The dedication is in a tone of
great flattery, but has no allusion to the cause of his imprisonment,
which might have been any other. He proposes, in his preface, not to
discuss political government in general, of which he thinks that the
ancients have treated sufficiently, if we well understood their works,
and still less to speak of justice and injustice, the civil law being
enough for this, but merely of what are the causes that render a
country destitute of mines abundant in gold and silver, which no one
has ever considered, though some have taken narrow views, and
fancied that a low rate of exchange is the sole means of enriching a
country.
His causes of 53. In the first part of this treatise, Serra divides the
wealth. causes of wealth, that is, of abundance of money, into
general and particular accidents (accidenti communi e proprj),
meaning by the former circumstances which may exist in any
country, by the latter such as are peculiar to some. The common
accidents are four: abundance of manufactures, character of the
inhabitants, extent of commerce, and wisdom of government. The
peculiar are, chiefly, the fertility of the soil, and convenience of
geographical position. Serra prefers manufacture to agriculture; one
of his reasons is their indefinite capacity of multiplication; for no
man whose land is fully cultivated by sowing a hundred bushels of
wheat, can sow with profit a hundred and fifty; but in manufactures
he may not only double the produce, but do this a hundred times
over, and that with less proportion of expense. Though this is now
evident, it is perhaps what had not been much remarked before.
54. Venice, according to Serra, held the first place as a
His praise of
Venice. commercial city, not only in Italy, but Europe; “for
experience demonstrates that all the merchandizes which come from
Asia to Europe pass through Venice and thence are distributed to
other parts.” But as this must evidently exclude all the traffic by the
Cape of Good Hope, we can only understand Serra to mean the
trade with the Levant. It is, however, worthy of observation, that we
are apt to fall into a vulgar error in supposing that Venice was
crushed, or even materially affected, as a commercial city, by the
discoveries of the Portuguese. She was in fact more opulent, as her
buildings of themselves may prove, in the sixteenth century than in
any preceding age. The French trade from Marseilles to the Levant,
which began later to flourish, was what impoverished Venice, rather
than that of Portugal with the East Indies. This republic was the
perpetual theme of admiration with the Italians. Serra compares
Naples with Venice; one, he says, exports grain to a vast amount,
the other imports its whole subsistence; money is valued higher at
Naples, so that there is a profit in bringing it in, its export is
forbidden; at Venice it is free; at Naples the public revenues are
expended in the kingdom; at Venice they are principally hoarded. Yet
Naples is poor and Venice rich. Such is the effect of her commerce
and of the wisdom of her government, which is always uniform,
while in kingdoms, and far more in vice-royalties, the system
changes with the persons. In Venice the method of choosing
magistrates is in such perfection, that no one can come in by
corruption or favour, nor can any one rise to high offices who has
not been tried in the lower.
Low rate of 55. All causes of wealth, except those he has
exchange notenumerated, Serra holds to be subaltern or temporary;
essential to
wealth. thus the low rate of exchange is subject to the common
accidents of commerce. It seems, however, to have been
a theory of superficial reasoners on public wealth, that it depended
on the exchanges far more than is really the case; and in the second
part of this treatise Serra opposes a particular writer, named De
Santis, who had accounted in this way alone for abundance of
money in a state. Serra thinks that to reduce the weight of coin may
sometimes be an allowable expedient, and better than to raise its
denomination. The difference seems not very important. The coin of
Naples was exhausted by the revenues of absentee proprietors,
which some had proposed to withhold: a measure to which Serra
justly objects. This book has been reprinted at Milan in the collection
of Italian œconomists, and as it anticipates the principles of what
has been called the mercantile theory, deserves some attention in
following the progress of opinion. The once celebrated treatise of
Mun, England’s Treasure by Foreign Trade, is supposed to have been
written before 1640; but as it was not published till after the
Restoration, we may postpone it to the next period.
Hobbes.—His 56. Last in time among political philosophers before the
political middle of the century we find the greatest and most
works.
famous, Thomas Hobbes. His treatise De Cive was
printed in 1642 for his private friends. It obtained however a
considerable circulation and excited some animadversion. In 1647,
he published it at Amsterdam with notes to vindicate and explain
what had been censured. In 1650 an English treatise, with the Latin
title, De Corpore Politico, appeared; and in 1651 the complete
system of his philosophy was given to the world in the Leviathan.
These three works bear somewhat the same relation to one another
as the Advancement of Learning does to the treatise de Augmentis
Scientiarum; they are in effect the same; the same order of subjects,
the same arguments, and in most places either the same words or
such variances as occurred to the second thoughts of the writer; but
much is more copiously illustrated and more clearly put in the latter
than in the former; while much also, from whatever cause, is
withdrawn or considerably modified. Whether the Leviathan is to be
reckoned so exclusively his last thoughts that we should presume
him to have retracted the passages that do not appear in it, is what
every one must determine for himself. I shall endeavour to present a
comparative analysis of the three treatises, with some preference to
the last.
Analysis of his 57. Those, he begins by observing, who have hitherto
three written upon civil polity have assumed that man is an
treatises.
animal framed for society; as if nothing else were
required for the institution of commonwealths than that men should
agree upon some terms of compact which they call laws. But this is
entirely false. That men do naturally seek each other’s society, he
admits in a note on the published edition of De Cive; but political
societies are not mere meetings of men, but unions founded on the
faith of covenants. Nor does the desire of men for society imply that
they are fit for it. Many may desire it who will not readily submit to
its necessary conditions.[347] This he left out in the two other
treatises, thinking it, perhaps, too great a concession to admit any
desire of society in man.
[347] Societates autem civiles non sunt meri congressus, sed fœdera, quibus
faciendis fides et pacta necessaria sunt.... Alia res est appetere, alia
esse capacem. Appetunt enim illi qui tamen conditiones æquas, sine
quibus societas esse non potest, accipere per superbiam non dignantur.

58. Nature has made little odds among men of mature age as to
strength or knowledge. No reason, therefore, can be given why one
should by any intrinsic superiority command others, or possess more
than they. But there is a great difference in their passions; some
through vain glory seeking pre-eminence over their fellows, some
willing to allow equality, but not to lose what they know to be good
for themselves. And this contest can only be decided by battle,
showing which is the stronger.
59. All men desire to obtain good and to avoid evil, especially death.
Hence, they have a natural right to preserve their own lives and
limbs, and to use all means necessary for this end. Every man is
judge for himself of the necessity of the means, and the greatness
of the danger. And hence, he has a right by nature to all things, to
do what he wills to others, to possess and enjoy all he can. For he is
the only judge whether they tend or not to his preservation. But
every other man has the same right. Hence, there can be no injury
towards another in a state of nature. Not that in such a state a man
may not sin against God, or transgress the laws of nature.[348] But
injury, which is doing anything without right, implies human laws
that limit right.
 [348] Non quod in tali statu peccare in Deum, aut leges naturales violare
impossibile sit. Nam injustitia erga homines supponit leges humanas,
quales in statu naturali nullæ sunt. De Cive, c. 1. This he left out in the
later treatises. He says afterwards (sect. 28), omne damnum homini
illatum legis naturalis violatio atque in Deum injuria est.

60. Thus the state of man in natural liberty is a state of war, a war of
every man against every man, wherein the notions of right and
wrong, justice and injustice have no place. Irresistible might gives of
itself right, which is nothing but the physical liberty of using our
power as we will for our own preservation and what we deem
conducive to it. But as, through the equality of natural powers, no
man possesses this irresistible superiority, this state of universal war
is contrary to his own good which he necessarily must desire. Hence,
his reason dictates that he should seek peace as far as he can, and
strengthen himself by all the helps of war against those with whom
he cannot have peace. This, then, is the first fundamental law of
nature. For a law of nature is nothing else than a rule or precept
found out by reason for the avoiding what may be destructive to our
life.
61. From this primary rule another follows, that a man should be
willing, when others are so too, as far forth as for peace and defence
of himself he shall think it necessary, to lay down his right to all
things, and to be contented with so much liberty against other men,
as he would allow to other men against himself. This may be done
by renouncing his right to anything, which leaves it open to all, or by
transferring it specially to another. Some rights indeed, as those to
his life and limbs, are inalienable, and no man lays down the right of
resisting those who attack them. But, in general, he is bound not to
hinder those to whom he has granted or abandoned his own right,
from availing themselves of it; and such hindrance is injustice or
injury; that is, it is sine jure, his jus being already gone. Such injury
may be compared to absurdity in argument, being in contradiction to
what he has already done, as an absurd proposition is in
contradiction to what the speaker has already allowed.
62. The next law of nature, according to Hobbes, is that men should
fulfil their covenants. What contracts and covenants are, he explains
in the usual manner. None can covenant with God, unless by special
revelation; therefore, vows are not binding, nor do oaths add
anything to the swearer’s obligation. But covenants entered into by
fear he holds to be binding in a state of nature, though they may be
annulled by the law. That the observance of justice, that is, of our
covenants, is never against reason, Hobbes labours to prove, for if
ever its violation may have turned out successful, this being contrary
to probable expectation ought not to influence us. “That which gives
to human actions the relish of justice, is a certain nobleness or
gallantness of courage rarely found; by which a man scorns to be
beholden for the contentment of his life to fraud or breach of
promise.”[349] A short gleam of something above the creeping
selfishness of his ordinary morality!
[349] Leviathan, c. 15.

63. He then enumerates many other laws of nature, such as

gratitude, complaisance, equity, all subordinate to the main one of
preserving peace, by the limitation of the natural right, as he
supposes, to usurp all. These laws are immutable and eternal; the
science of them is the only true science of moral philosophy. For that
is nothing but the science of what is good and evil in the
conversation and society of mankind. In a state of nature private
appetite is the measure of good and evil. But all men agree that
peace is good, and therefore the means of peace, which are the
moral virtues or laws of nature, are good also, and their contraries
evil. These laws of nature are not properly called such, but
conclusions of reason as to what should be done or abstained from;
they are but theorems concerning what conduces to conservation
and defence; whereas, law is strictly the word of him that by right
has command over others. But so far as these are enacted by God in
Scripture, they are truly laws.
64. These laws of nature, being contrary to our natural passions, are
but words of no strength to secure any one without a controlling
power. For till such a power is erected, every man will rely on his
own force and skill. Nor will the conjunction of a few men or families
be sufficient for security, nor that of a great multitude guided by
their own particular judgments and appetites. “For if we could
suppose a great multitude of men to consent in the observation of
justice and other laws of nature without a common power to keep
them all in awe, we might as well suppose all mankind to do the
same, and then there neither would be, nor need to be, any civil
government or commonwealth at all, because there would be peace
without subjection.”[350] Hence, it becomes necessary to confer all
their power on one man, or assembly of men, to bear their person
or represent them; so that every one shall own himself author of
what shall be done by such representative. It is a covenant of each
with each, that he will be governed in such a manner, if the other
will agree to the same. This is the generation of the great Leviathan,
or mortal God, to whom, under the immortal God, we owe our peace
and defence. In him consists the essence of the commonwealth,
which is one person, of whose acts a great multitude by mutual
covenant have made themselves the authors.
[350] Lev., c. 17.

65. This person (including of course an assembly as well as

individual) is the sovereign, and possesses sovereign power. And
such power may spring from agreement or from force. A
commonwealth by agreement or institution is when a multitude do
agree and covenant one with another that whatever the major part
shall agree to represent them, shall be the representative of them
all. After this has been done, the subjects cannot change their
government without its consent, being bound by mutual covenant to
own its actions. If any one man should dissent, the rest would break
their covenant with him. But there is no covenant with the
sovereign. He cannot have covenanted with the whole multitude, as
one party, because it has no collective existence till the
commonwealth is formed; nor with each man separately, because
the acts of the sovereign are no longer his sole acts, but those of the
society, including him who would complain of the breach. Nor can
the sovereign act unjustly towards a subject; for he who acts by
another’s authority cannot be guilty of injustice towards him; he
may, it is true, commit iniquity, that is, violate the laws of God and
nature, but not injury.
66. The sovereign is necessarily judge of all proper means of
defence, of what doctrines shall be taught, of all disputes and
complaints, of rewards and punishments, of war and peace with
neighbouring commonwealths, and even of what shall be held by
each subject in property. Property, he admits in one place, existed in
families before the institution of civil society; but between different
families there was no meum and tuum. These are by the law and
command of the sovereign; and hence, though every subject may
have a right of property against his fellow, he can have none against
the sovereign. These rights are incommunicable, and inseparable
from the sovereign power; there are others of minor importance,
which he may alienate; but if anyone of the former is taken away
from him he ceases to be truly sovereign.
67. The sovereign power cannot be limited nor divided. Hence, there
can be but three simple forms of commonwealth; monarchy,
aristocracy, and democracy. The first he greatly prefers. The king
has no private interest apart from the people, whose wealth, honour,
security from enemies, internal tranquility, are evidently for his own
good. But in the other forms each man may have a private
advantage to seek. In popular assemblies, there is always an
aristocracy of orators, interrupted sometimes by the temporary
monarchy of one orator. And though a king may deprive a man of all
he possesses to enrich a flatterer or favourite, so may also a
democratic assembly, where there may be as many Neros as orators,
each with the whole power of the people he governs. And these
orators are usually more powerful to hurt others than to save them.
A king may receive counsel of whom he will, an assembly from those
only who have a right to belong to it, nor can their counsel be
secret. They are also more inconstant both from passion and from
their numbers; the absence of a few often undoing all that had been
done before. A king cannot disagree with himself, but an assembly
may do so, even to producing civil war.
68. An elective or limited king is not the sovereign, but the
sovereign’s minister; nor can there be a perfect form of government,
where the present ruler has not power to dispose of the succession.
His power, therefore, is wholly without bounds, and correlative must
be the people’s obligation to obey. Unquestionably there are risks of
mischiefs and inconveniences attending a monarchy; but these are
less than in the other forms; and the worst of them is not
comparable to those of civil war, or the anarchy of a state of nature,
to which the dissolution of the commonwealth would reduce us.
69. In the exercise of government the sovereign is to be guided by
one maxim, which contains all his duty: Salus populi suprema lex.
And in this is to be reckoned not only the conservation of life, but all
that renders it happy. For this is the end for which men entered into
civil society, that they might enjoy as much happiness as human
nature can attain. It would be, therefore, a violation of the law of
nature, and of the trust reposed in them, if sovereigns did not study,
as far as by their power it may be, that their subjects should be
furnished with everything necessary, not for life alone but for the
delights of life. And even those who have acquired empire by
conquest must desire to have men fit to serve them, and should, in
consistency with their own aims, endeavour to provide what will
increase their strength and courage. Taxes, in the opinion of Hobbes,
should be laid equally, and rather on expenditure than on revenue;
the prince should promote agriculture, fisheries, and commerce, and
in general whatever makes men happy and prosperous. Many just
reflections on the art of government are uttered by Hobbes,
especially as to the inexpediency of interfering too much with
personal liberty. No man, he observes in another place, is so far free
as to be exempted from the sovereign power; but if liberty consists
in the paucity of restraining laws, he sees not why this may not be
had in monarchy as well as in a popular government. The dream of
so many political writers, a wise and just despotism, is pictured by
Hobbes as the perfection of political society.
70. But, most of all, is the sovereign to be without limit by the power
of the priesthood. This is chiefly to be dreaded, that he should
command anything under the penalty of death, and the clergy forbid
it under the penalty of damnation. The pretensions of the See of
Rome, of some bishops at home, and those of even the lowest
citizens to judge for themselves and determine upon public religion,
are dangerous to the state and the frequent cause of wars. The
sovereign, therefore, is alone to judge whether religions are safely to
be admitted or not. And it may be urged, that princes are bound to
cause such doctrine as they think conducive to their subject’s
salvation to be taught, forbidding every other, and that they cannot
do otherwise in conscience. This, however, he does not absolutely
determine. But he is clearly of opinion that, though it is not the case
where the prince is infidel,[351] the head of the state, in a Christian
commonwealth, is head also of the church; that he, rather than any
ecclesiastics, is the judge of doctrines; that a church is the same as
a commonwealth under the same sovereign, the component
members of each being precisely the same. This is not very far
removed from the doctrine of Hooker, and still less from the practice
of Henry VIII.
[351] Imperantibus autem non Christianis in temporalibus quidem omnibus
eandem deberi obedientiam etiam a cive Christiano extra
controversiam est: in spiritualibus vero, hoc est, in iis quæ pertinent ad
modum colendi Dei Sequenda est ecclesia aliqua Christianorum. De
Cive, c. 18, § 3.

71. The second class of commonwealths, those by forcible

acquisition, differ more in origin than in their subsequent character
from such as he has been discussing. The rights of sovereignty are
the same in both. Dominion is acquired by generation or by
conquest; the one parental, the other despotical. Parental power,
however, he derives not so much from having given birth to, as from
having preserved, the child, and, with originality and acuteness,
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