[913] L. iv., c. 1.
[914] Barbeyrac admits that several writers of authority since Puffendorf had maintained the strict obligation of veracity for its own sake; Thomasius, Buddæus, Noodt, and above all, La Placette. His own notions are too much the other way, both according to the received standard of honourable and decorous character among men, and according to any sound theory of ethics. Lying, he says, condemned in Scripture, always means fraud or injury to others. His doctrine is, that we are to speak the truth, or to be silent, or to feign and dissemble, accordingly as our own lawful interest, or that of our neighbour, may demand it. This is surely as untenable one way as any paradox in Augustin or La Placette can be the other.
46. We now advance to a different part of moral philosophy, the rights of property. Puffendorf first inquires into the natural right of killing animals for food; but does not defend it very well, resting this right on the want of mutual obligation between man and brutes. The arguments from physiology and the manifest propensity in mankind to devour animals, are much stronger. He censures cruelty towards animals, but hardly on clear grounds; the disregard of moral emotion, which belongs to his philosophy, prevents his judging it rightly.[915] Property itself in things he grounds on an express or tacit contract of mankind, while all was yet in common, that each should possess a separate portion. This covenant he supposes to have been gradually extended, as men perceived the advantage of separate possession, lands having been cultivated in common after severalty had been established in houses and moveable goods; and he refutes those who maintain property to be coeval with mankind, and immediately founded on the law of nature.[916] Nothing can be the subject of property which is incapable of exclusive occupation; not therefore the ocean, though some narrow seas may be appropriated.[917] In the remainder of this fourth book he treats on a variety of subjects connected with property, which carry us over a wide field of natural and positive jurisprudence.
[915] C. 3.
[916] C. 4. Barbeyrac more wisely denies this assumed compact, and rests the right of property on individual occupancy.
[917] C. 5.
47. The fifth book of Puffendorf relates to price, and to all contracts onerous or lucrative, according to the distinction of the jurists, with the rules of their interpretation. It is a running criticism on the Roman Law, comparing it with right reason and justice. Price he divides into proper and eminent; the first being what we call real value, or capacity of procuring things desirable by means of exchange; the second the money value. What is said on this subject would now seem common-place and prolix; but it is rather interesting to observe the beginnings of political economy. Money, he thinks, was introduced by an agreement of civilized nations, as a measure of value. Puffendorf, of more enlarged views than Grotius, vindicates usury which the other had given up; and mentions the evasions usually practised such as the grant of an annuity for a limited term.
48. In the sixth book we have disquisitions on matrimony and the rights incident to it, on paternal and on herile power. Among other questions he raises one whether the husband has any natural dominion over the wife. This he thinks hard to prove, except as his sex gives him an advantage; but fitness to govern does not create a right. He has recourse therefore to his usual solution, her tacit or express promise of obedience. Polygamy he deems contrary to the law of nature, but not incest except in the direct line. This is consonant to what had been the general determination of philosophers.[918] The right of parents he derives from the general duty of sociableness, which makes preservation of children necessary, and on the affection implanted in them by nature; also on a presumed consent of the children in return for their maintenance.[919] In a state of nature this command belongs to the mother, unless she has waived it by a matrimonial contract. In childhood, the fruits of the child’s labour belong to the father, though the former seems to be capable of receiving gifts. Fathers, as heads of families, have a kind of sovereignty, distinct from the paternal, to which adult children residing with them are submitted. But after their emancipation by leaving their father’s house, which does not absolutely require his consent, they are bound only to duty and reverence. The power of a master over his servant is not by nature, nor by the law of war, but originally by a contract founded on necessity. War increased the number of those in servitude. A slave, whatever Hobbes may say, is capable of being injured by his master; but the laws of some nations give more power to the latter than is warranted by those of nature. Servitude implies only an obligation to perpetual labour for a recompence (namely, at least maintenance); the evil necessary to this condition has been much exaggerated by opinion.[920]
[918] L. vi., c. 1.
[919] C. 2.