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tioned to the intention of the offender (which may be truly 501 called the offence) as well as to the injury actually committed. And tho' it may feem cruel, that one man fhould fuffer the fame punifhment for caufing a trivial injury, as another doth for caufing the greateft; yet if it be certain that the defign of the former was equally criminal with the latter, we do not fee that the accidental defeat of that defign renders him lefs deferving of - punishment. On the other hand, if a trivial injury only be intended and committed, we do not fee why the frequent repetition of fuch injuries by different perfons, fhould aggravate the punishment of any one. According to our ideas of natural juftice it fhould not. If the punishment fhould be, as we think, proportioned to the offence as well as to the injury; we don't fee how the crime of a man who robs an orchard this the fame orchard's having been robbed laft year, fuppofing the year, is aggravated by prefent criminal innocent and ignorant of the prior robbery. But granting the crime is aggravated by its frequency and for the reafons our Author alledges, yet ere a government is juftified in aggravating the punishment, it fhould be firft proved that fuch aggravation is the only method of producing the effect intended. Now, though the prevention of crimes may not be effected by one kind of punishment, it does not thence follow that it might not be effected by one of another kind, equally mild with refpect to the perfon of the offender. It is far from being proved that capital punishments are the beft fecurity of property; and, till this be done, we must efleem it a fpecies of cruelty highly difgraceful to the laws of this and fome other countries, to doom indifcriminately to death, the poor wretch who artfully deceives or boldly compels you to relieve his neceffities, and the infolent villain who wantonly plunders thousands and involves whole families in poverty and
In treating of the validity and obligation of promifes, Wolfius hath laid down the following propofition.
"Si conditio potefliva fuerit ex parte promiffèris, is cam protrahere
the evil already committed, (for this being done and pat, cannot be undone and recalled) but on account of the evil which might otherwife be committed hereafter. Plat. de legibus, lib. xi.
* Mr. Vattel indeed appears, in another part of the work, to be exactly of our opinion in this respect."1 eft important d' obferver encore fur cette matiere, que la rigueur des peines n'est plus sûr moyen d'empêcher que le defordre et le crime ne falfent des pas toujours les progres. Ajoutez qu'il eft ties dangereux de rendre communes les peines capitales, qui doivent (tre réservées pour les grands forfaits. L'experience nous apprend que le brigandage eft devenu frequent dans bien des pay, où le vol ell pani de mort.”
non debet eo fine, ne quod promiffum præftare teneatur: multo minus efficere debet ne exftet conditio, eodem fine." If a man be in the conditional circumftances of difcharging his promife, he ought not to change his fituation, in order to avoid the completion of fuch promife; much lefs ought he to do any thing to prevent his being in fuch circumftances,
Mr. Vattel conceives this propofition to be true only with regard to promifes made against an equivalent. Thus, for inftance, when the perfon to whom a promise is made, hath done any thing with a view to fuch promife, it would be a fraud to fhun the conditions under which it fhould be fulfilled : because, confiding in your good faith, by admitting of a condition dependent on yourfelf, he refts affured you will perform your promife if nothing fhould abfolutely prevent. Affift me in my affairs to-day; and, to-morrow, if I am here, I will affift you in yours. This certainly fignifies, that I will affift you to-morrow, if nothing prevents my being here. I fhould therefore defraud you, if I departed without neceffity, and merely with a view to elude the condition of my promife. And yet, even in fuch a cafe, you would have no right to compel me, jure belli, in a state of nature, to ftay; because it is left to myself to judge, whether I am to stay or go. So that, though my procedure is unjuft, yet you have no right to complain.'
With regard to promifes which our Author calls purement gratuites, he thinks they always include a tacit condition, that the performance thereof thould not be highly inconvenient to the promifer, and that the perfon to whom the promife is made fhould, in the interim, do nothing to offend him. For our part, however, we do not rightly understand what Mr. Vattel means by promifes purement gratuites. If he means promifes perfectly difinterefted, and made without a view to any kind of equivalent or return paft, prefent, or future, fuch promifes appear altogether the effect of caprice, and cannot be judged of as the actions of a rational creature, to which the standard of right and wrong is at all applicable. But the truth is, that promifes (not merely capricious) are, however apparently difinterefted, ftill gratuitous, and, as the very term imports, made with a view of gratitude to fervices or pleafures received or expected. If it be objected, that this is not the cafe, with regard to promises made out of pure love and affection for the perfon promifed; we anfwer, thefe are lefs difinterefted than moft others; as in fact, we gratify ourselves in promifing to ferve those whom we take pleafure in obliging. "If I fhould promife, fays Mr. Vattel, to give a friend an hundred crowns a fortnight hence, and, in the mean time, he declares himself my enemy, I am not under any obligation to make him fuch a prefent."
We believe, indeed, that few perfons would in fact be scrupulous obfervers of their word in fuch a cafe; and yet a refufal would, in our opinion, plainly fhew, that the promise was not purely difinterefted; the intended prefent being hereby declared the purchase-money of the other's friendship. So that, on the whole, it appears that no promife legally valid, can be made on a purely difinterested motive.
The next queftion we fhall felect, relates to the literary reputation of Authors, and immediately affects ourfelves, in the capacity of Reviewers. Our Readers, however, will fee what Wolfius hath advanced against the equity of detracting from unmerited reputation, very fairly refuted by Mr. Vattel.
"Nemo eruditorum alterius famæ ac laudi, five meritæ, five immerita detrahere debet. Men of letters ought not to detract from the merited, or even unmerited, reputation of others.
"The demonftration of this propofition is defective: for, it doth not follow, that, becaufe we fhould not indulge ourselves in envy, we are not permitted to depreciate, or leffen the unmerited fame of others. We may do this from very different motives. But the propofition itself, fo far as it regards groundlefs reputation, is not true, at least in the general manner expreffed. For, 1ft, there is a great difference even between depriving a man of the praise he doth not deferve, and cafting on him the cenfure he may merit. I admit, that charity forbids us to reveal those things which may be hurtful to others, at leaft without good reafon for fo doing: but doth it forbid us to correct the erroneous judgment of thofe, who give praise to such as do not deserve it? Or hath fuch a perfon any just cause of complaint, that we deprive him of a thing to which he hath no right, and which he unjustly affumes to himself, in breach of his own duty? I fay in breach of his own duty; for, he ought not to aim at the glory which is not his due, and by that means impofe on the public. 2d. It will at least be admitted, that there are many cafes, in which the publick intereft obliges us to deprive a man of the reputation he may have unjustly acquired; as the falfe idea which people entertain of him, might lead them into measures highly prejudicial to themselves and the ftate they might, for inftance, confer an important employment on a man who fhould thus obtain the reputation of being fit for it, and he might afterwards be fatally found incapable; they might intruft the education of their children to a mafter falfely reputed a man of learning, &c. The reputation, in fhort, which is not deferved is injurious to that which is fo; and thus men of true merit become fufferers by the vain and undeferving. When praife and fame are proftituted on unwor
thy objects, they lofe their value; the world becomes mistrustful; and in confequence of being made the dupe of impudent pretenders, it refufes to beftow its applaufe on the truly deferving. Ought we to contribute to all thele inconveniencies, for fear of depriving an impoftor of the reputation on which he plumes himfelf, and to which he hath no juft pretence ?" Surely not!
Wolfius affirms, in feveral propofitions of his treatise on the law of nature, that the promifcuous ufe of women is unlawful; that monogamy is fufficient to anfwer all the ends of population; that it would indeed be impoffible for every man to have two wives, and that matrimonial jealoufy is implanted in human nature. Our ingenious Commentator hath the following reflections on thefe fubjects. With regard to the first, he obferves, that the decifion of Wolfius is founded on the confideration, that if women were common, their children would have no father to take charge of their education. "But might not this inconvenience be remedied, fays he, by proper inftitutions for educating all children at the charge of the public? It is not impoffible, that children fo educated, would be better formed for good citizens, than those which are brought up in the ordinary method, by ignorant parents, or thofe whose partial fondness, or want of neceflary means, prevent their giving a good education to their children. The reafon given, therefore, is not fufficient to condemn in general the promifcuous ufe of women. Perhaps a better might be deduced from those disorders, which the licentioufnefs of fuch a cuftom might give rife to; and from that indolence and want of induftry, which individuals would fall into if their children were all in common, unknown to them, and thus educated at the charge of the public *.”
In regard to one wife's being fufficient to anfwer the ends of pupulation, Mr. Vattel obferves, that this affertion may be true with refpect to 'the greater part of Europe in its prefent ftate; but that it is far from being true in general. It would be very advantageous, fays he, that mankind fhould multiply fafter than they do in the American colonies. So that, this. principle not being univerfal, the propofitions dependent on it, cannot be regarded as part of the law of nature.
"As to polygamy, continues he, I muft obferve, that a plurality of wives is even to be permitted, in cafes where it is not
Perhaps none of thefe diforders, however, would equal the prefent ill effects of particular and domeftic education. As men are at prefent brought up, indeed, the licentious effects of fuch a custom are apparent but, if their education were totally different, we know not what its effects would prove.
neceffary for the multiplication of the fpecies. There are fome men of fuch a temperament, that they cannot abstain from their wives, even during pregnancy, without injury to their health. But our Author [Wolfius] condemns every act of conjugal love that doth not tend to propagation. Doth it not thence follow, therefore, that he may have feveral wives, particularly if he be in circumftances to provide for a great number of children?"
With refpect to the impoffibility of every man having more than one wife; "this fuppofition is founded on the equality which is obferved in the numbers of males and females that are born. The obfervation is, indeed, true in general, but the confequence deduced from it is not fo certain. War, commerce, and travelling, take off a great number of males, and prevent others from marrying; fo that in many countries we fee crouds of women, who remain ufelefs to propagation for want of hufbands. Now, if the married men, who can provide for their children, should take these for second wives, no one would fuffer, and the state would be better peopled." Our Author would not, however, be understood here to bring this argument as valid against any good reafons that might be given against a plurality of wives. Wolfius himfelf hath many cogent ones, though his commentator doth not think he fairly deduces the prohibition from the law of nature. Mr. Vattel, when the number of children conftituted the "In ancient times, fays ftrength and riches of a family; when education, agreeable to the times and circumftances, was fimple and eafy; and when the father of the family was refpected by his wives as their lord and mafter; a plurality of them was then not only free from thofe inconveniencies which must attend it at prefent, but perhaps, was preferable to the marriage of one man to one woman. But this plurality neceffarily becomes more inconvenient, in proportion as mankind extend their refinements, and depart from their original state of innocence and fimplicity."
It is fomewhat fingular, as M. de Vattel juftly obferves, that his Author fhould place matrimonial jealoufy among the prima nature, and make it a kind of natural obligation. To affert the principles of fuch jealoufy to be inherent in our nature, he obferves, that we fhould be able to difcover it in all animals, or at leaft in the greater part of them; it being not fufficient that it is obfervable in fome few.
Wolfius fell into a lefs fingular, and more important error, when he maintained the equity of the civil magiftrate's obliging the fubject to comply with. the established forms of religious worship. Our more liberal Commentator, however, hath very justly corrected him in this particular.