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THE PRELIMINARY DISCOURSE Concerning the Certainty of Right in general; and the Design of this Work in particular. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 1 (Book I) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 1.
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THE PRELIMINARY DISCOURSE Concerning the Certainty of Right in general; and the Design of this Work in particular.
I.The LAW of Nations.I. The Civil Law, whether that of the Romans, or of any other People, many have undertaken, either to explain by Commentaries, or to draw up into short Abridgments: But that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introduced1by Custom and tacit Consent, few have touched upon, and none hitherto treated of universally and methodically; tho’ it is the Interest of Mankind that it should be done.
Of War and Peace.II. Cicero1rightly commended the Excellence of this Science, in the Business of Alliances, Treaties, Conventions between States, Princes, and foreign Nations, and in short, in all Affairs that regard the Rights of War and Peace. And Euripides prefers this Science before the Knowledge of all other Things, whether Divine or Human, when he makes Helen say thus to Theonoe:
Some think Interest alone the Rule of Justice.III. And indeed this Work is the more necessary, since we find some, both in this and in former Ages, so far despising this Sort of Right, as if it were nothing but an empty Name. The Saying of Euphemus in Thucydides is almost in every ones Mouth,1To a King or Sovereign City, no-<xiv>thing is unjust that is profitable. Not unlike to which is this,2That amongst the Great the stronger is the juster Side; and, That no State can be governed3without Injustice. Besides, the Disputes that happen between Nations or Princes, are commonly decided at the Point of the Sword. Now, it is not only the Opinion of the Vulgar, that War is a Stranger to all Justice, but many Sayings uttered by Men of Wisdom and Learning, give Strength to such an Opinion. And indeed, nothing is more frequent than the mentioning of Right and Arms, as opposite to one another. Thus Ennius,4
And Horace5thus describes the Fierceness of Achilles:
Another Latin Poet6introduces another Conqueror, who entering upon War, speaks in this Manner,
Antigonus,7though old, laughed at the Man, who presented him with a Treatise concerning Justice, at the very Time he was besieging his Enemies Cities. And Marius said8he could not hear the Voice of the Laws for the9clashing of Arms. Even the10modest bashful Pompey11could have the Face to say, Can I think of Laws, who am in Arms?
IV. Among Christian Writers we find many Sayings of the same kind; let that of Tertullian suffice for all;1 Fraud, Cruelty, Injustice, are the proper Business of War. Now they that are of this Opinion, will undoubtedly object against me that of the Comedian,
The Existence of Right asserted against the Objections of Carneades.V. But since it would be a vain Undertaking to treat of Right, if there is really no such thing; it will be necessary, in order to shew the Usefulness of our Work, and to establish it on solid Foundations, to confute here in a few Words so dangerous an Error. And that we may not engage with a Multitude at once, let us assign the man Advocate. And who more proper for this Purpose than Carneades, who arrived to such a Degree of Perfection, (the utmost his Sect aimed at,) that he could argue for or against Truth, with the same Force of Eloquence? This Man having undertaken to dispute against Justice, that kind of it, especially, which is the Subject of this Treatise, found no Argument stronger than this.1Laws (says he) were instituted by Men<xv> for the sake of Interest; and hence it is that they are different, not only in different Countries, according to the Diversity of their Manners, but often in the same Country, according to the Times. As to that which is calledNatural Right, it is a mere Chimera. Nature prompts all Men, and in general all Animals, to seek their own particular Advantage: So that either there is no Justice at all, or if there is any, it is extreme Folly, because it engages us to procure the Good of others, to our own Prejudice.
VI. But what is here said by the Philosopher, and by the Poet after him,
must by no Means be admitted. For Man is indeed an Animal, but one of a very high Order, and that excells all the other Species of Animals much more than they differ from one another; as the many Actions proper only to Mankind sufficiently demonstrate. Now amongst the Things peculiar to Man, is his Desire of2Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the3 Stoicks termed Ὀικείωσιν.4Therefore the<xvi> Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted.
VII. For even of the other Animals there are some that forget1a little the Care of their own Interest, in Favour2either of their young ones, or those of their own Kind. Which, in my Opinion, proceeds from3some extrinsick intelligent Principle, because they do not shew the same Dispositions in other Matters, that are not more difficult than these. The same may be said of Infants, in whom is to be seen a Propensity to do Good to others, before they are capable of Instruction, as Plutarch4well observes; and Compassion likewise discovers itself upon every Occasion in that tender Age. But it must be owned that a Man grown up, being capable of acting<xvii> in the same5Manner with respect to Things that are alike, has, besides an exquisite Desire6of Society, for the Satisfaction of which he alone of all Animals has received from Nature a peculiar Instrument, viz. the Use of Speech; I say, that he has, besides that, a Faculty of knowing and acting, according to some general Principles; so that what relates to this Faculty is not common to all Animals, but properly and peculiarly agrees to Mankind.
Peculiar to Man, properly and strictly called.VIII. This Sociability, which we have now described in general, or this Care of maintaining Society1in a Manner conformable to the Light of human Understanding,2is the Fountain of Right, properly so called; to which belongs the Abstaining3from that which is another’s, and<xviii> the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.
IX. From this Signification of Right arose another of larger Extent. For by reason that Man above all other Creatures isendued not only with this Social Faculty of which we have spoken, but likewise with Judgment to discern Things1pleasant or hurtful, and those not only present but future, and such as may prove to be so in their Consequences; it must therefore be agreeable to human Nature, that according to the Measure of our Understanding we should in these Things follow the Dictates of a right and sound Judgment, and not be corrupted either by Fear, or the Allurements of present Pleasure, nor be carried away violently by blind Passion. And whatsoever is contrary to such a Judgment2is likewise understood to be contrary to Natural Right, that is, the Laws of our Nature.
Improperly and more loosely.X. And to this belongs a1prudent Management in the gratuitous Distribution of Things that properly belong to each particular Person or2Society, so as to prefer sometimes one of3greater before one of less Merit, a Relation4before a Stranger, a poor Man before one that is rich, and that according as each Man’s Actions, and5the Nature of the Thing require; which many both of the Ancients and Moderns take to be6a part of Right properly and strictly so called; when notwithstanding that Right, properly speaking, has a quite different Nature, since it consists in leaving7others in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand.<xix>
XI. And indeed, all we have now said would take place,1though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs. The contrary of which appearing2to us, partly from Reason, partly from a perpetual Tradition, which many Arguments and Miracles, attested by all Ages, fully confirm; it hence follows, that God, as being our Creator, and to whom we owe our Being, and all that we have, ought to be obeyed by us in all Things without Exception, especially since he has so many Ways shewn his infinite Goodness and Almighty Power; whence we have Room to conclude that he is able to bestow, upon those that obey him, the greatest Rewards, and those eternal too, since he himself is eternal; and that he is willing so to do ought even to be believed, especially if he has in express Words promised it; as we Christians, convinced by undoubted Testimonies, believe he has.
2. Voluntary. 1. Divine.XII. And this now is another Original of Right, besides that of Nature, being that which proceeds from the free Will1of God, to which our Understading infallibly assures us, we ought to be subject: And even the Law of Nature itself, whether it be that which consists in the Maintenance of Society, or that which in a looser Sense is so called, though it flows from the internal Principles of Man, may notwithstanding be justly ascribed2to God, because it was his Pleasure that these Principles should be in us. And in this Sense Chrysippus3and the Stoicks said, that the Original of Right is to be derived from no other than Jupiter himself; from which Word Jupiter it is probable4the Latins gave it the Name Jus.
XIII. There is yet this farther Reason for ascribing it to God, that God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning, and has forbid us to give way to those impetuous1Passions, which,<xx> contrary2to our own Interest, and that of others, divert us from following the Rules of Reason and Nature; for as they are exceeding unruly, it was necessary to keep a strict Hand over them, and to confine them within certain narrow Bounds.
XIV. Add to this, that sacred History, besides the Precepts it contains to this Purpose, affords no inconsiderable Motive to social Affection, since it teaches us that all Men are descended from the same first Parents. So that in this Respect also may be truly affirmed, what Florentinus said in another Sense, That1Nature has made us all akin: Whence it follows, that it is a Crime for one Man to act to the Prejudice of another.
XV. Amongst Men, Parents1are as so many Gods2in regard to their Children: Therefore the latter owe them an Obedience, not indeed unlimited, but as extensive3as that Relation requires, and as great as the Dependence of both upon a common Superior permits.
2. Human.XVI. Again, since the fulfilling of Covenants belongs to the Law of Nature, (for it was necessary there should be some Means of obliging Men among themselves, and we cannot conceive any other more conformable to Nature) from this very Foundation1Civil Laws were derived.Civil of every State.For those who had incorporated themselves into any Society, or subjected themselves to any one Man, or Number of Men, had either expressly, or from the Nature of the Thing must be understood to have tacitly promised, that they would submit to whatever either the greater part of the Society, or those on whom the Sovereign Power had been conferred, had ordained.
XVII. Therefore the Saying, not of Carneades only, but of others,
1 Interest, that Spring of Just and Right.
if we speak accurately, is not true; for the Mother of Natural Law is human Nature itself, which, though even the Necessity of our Circumstances should not require it, would of itself create in us a mutual Desire of Society: And the Mother of Civil Law is that very Obligation which arises from Consent, which deriving its Force from the Law of Nature, Nature may be called as it were, the Great Grandmother of this Law also. But to the Law of Nature Profit is annexed: For the Author of Nature was pleased, that every Man in particular2should be weak of himself, and in Want of many Things necessary for living commodiously, to the End we might more eagerly affect Society: Whereas of the Civil Law Profit was the Occasion; for that entering into Society, or that Subjection which we spoke of, began first for the Sake of some Advantage. And besides, those who prescribe Laws to others, usually have, or ought3to have, Regard to some Profit therein.
XVIII. But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general. And this is what is called the Law of Nations,1Of Nations; of all or most States. when used in Distinction to the2Law of Nature. This<xxi> Part of Law Carneades omitted, in the Division he made of all Law into Natural and Civil of each People or State; when notwithstanding, since he was to treat of the Law which is between Nations (for he added a Discourse concerning Wars and Things got by War) he ought by all means to have mentioned this Law.
II.Objections confuted: Justice not Folly.XIX. But it is absurd in him to traduce Justice with the Name of Folly.1For as, according to his own Confession, that Citizen is no Fool, who obeys the Law of his Country, though out of Reverence to that Law he must and ought to pass by some Things that might be advantageous to himself in particular: So neither is that People or Nation foolish, who for the Sake of their own particular Advantage, will not break in upon the Laws common to all Nations; for the same Reason holds good in both. For2as he that violates the Laws of his Country for the Sake of some present Advantage to himself, thereby saps the Foundation of his own perpetual Interest, and at the same Time that of his Posterity: So that People which violate the Laws of Nature and Nations, break down the Bulwarks of their future Happiness and Tranquillity. But besides, though there were no Profit to be expected from the Observation of Right, yet it would be a Point of Wisdom, not of Folly, to obey the Impulse and Direction of our own Nature.
XX. Therefore neither is this Saying universally true,
1 ’Twas Fear of Wrong that made us make our Laws.
which one in Plato expresses thus,2The Fear of receiving Injury occasioned the Invention of Laws, and it was Force that obliged Men to practice Justice. For this Saying is applicable only to those Constitutions and Laws which were made for the better Execution of Justice: Thus many, finding themselves weak when taken singly and apart, did, for fear of being oppressed by those that were stronger, unite together to establish, and with their joint Forces to defend Courts of Judicature, to the End they might be an Overmatch for those whom singly they were unable to deal with. And now in this Sense only may be fitly taken what is said, That Law is that which the stronger pleases to impose; by which we are to understand, that Right has not its Effect externally, unless it be supported by Force. Thus Solon did great Things, as he himself boasted,
3 By linking Force in the same Yoke with Law.
Justice brings Peace to the Conscience.XXI. Yet neither does Right lose all its Effect, by being destitute of the Assistance of Force. For Justice brings Peace to the Conscience; Injustice, Racks and Torments, such as Plato1describes in the Breasts of Tyrants. Justice is approved of, Injustice condemned by the Consent of all good Men. But that which is greatest of all, to this God is an Enemy, to the other a Patron, who does not so wholly reserve his Judgments for a future Life, but that he often makes the Rigour of them to be perceived in this, as Histories teach us by many Examples.<xxii>
Equally concerns private Persons, Nations, and Rulers of Nations.XXII. But whereas many that require Justice in private Citizens, make no Account of it in a whole Nation or its Ruler; the Cause of this Error is, first, that they regard nothing in Right but the Profit arising from the Practice of its Rules, a Thing which is visible with Respect to Citizens, who, taken singly, are unable to defend themselves. But great States, that seem to have within themselves all things necessary for their Defence and Wellbeing, do not seem to them to stand in need of that Virtue which respects the Benefit of1others, and is called Justice.
XXIII. But, not to repeat what has been already said, namely, that Right has not Interest merely for its End; there is no State so strong or well provided, but what may sometimes stand in need of Foreign Assistance, either in the Business of Commerce, or to repel the joint Forces of several Foreign Nations Confederate against it. For which Reason we see Alliances desired by the most powerful Nations and Princes, the whole Force of which is destroyed by those that confine Right within the Limits of each State. So true is it, that the Moment we recede from Right,1we can depend upon nothing.
XXIV. If there is no Community which can be preserved without some Sort of Right, as Aristotle1proved by that remarkable2Instance of Robbers, certainly the Society of Mankind, or of several Nations, cannot be without it; which was observed by him who said,3That a base Thing ought not to be done, even for the Sake of ones Country. Aristotle4inveighs severely<xxiii> against those,5who, though they would not have any to govern amongst themselves, but he that has a Right to it, yet in regard to Foreigners are not concerned whether their Actions be just or unjust.
Governs Peace;XXV. A Spartan King having said,1That is the most happy Commonwealth, whose Bounds were determined by Spear and Sword; the same Pompey, whom we lately mentioned on the contrary Side, correcting that Maxim said, That is happy indeed, which has Justice for its Boundaries. For which he might have used the Authority of another Spartan King,2who preferred Justice before3military Fortitude, for this Reason, that Fortitude ought to be regulated by some sort of Justice: And that if all Men were Just, they would have no Occasion for that Fortitude. The Stoicks defined4Fortitude itself to be the Virtue that contends for Justice. Themistius, in his Oration to Valens, says very elegantly, that Kings, who conduct themselves by the Rules of Wisdom, take Care, not only of the Nation whose Government they are entrusted with, but of all Mankind; and are, as he expresses himself, not ϕιλομακέδονες Friends to the Macedonians only, or ϕιλοῥωμαίοι to the Romans, but ϕιλάνθρωποι5 to all Men without Exception. Nothing else made the Name of Minos odious to Posterity,6but his confining Equity within the Limits of his own Empire.
and War; hence the Laws of War.XXVI. But so far must we be from admitting the Conceit of some, that the Obligation of all Right ceases in War; that on the contrary, no War ought to be so much as undertaken but for the obtaining of Right; nor when undertaken, ought it to be carried on beyond the Bounds of Justice and Fidelity. Demosthenes1said well, that War is made against those who cannot be restrained in a judicial Way. For judicial Proceedings are of Force against those who are sensible of their Inability to oppose them; but against those who are or think themselves of equal Strength, Wars are undertaken; but yet certainly, to render Wars just, they are to be waged with no less Care and Integrity, than judicial Proceedings are usually carried on.
XXVII. Let it be granted then, that1Laws must be silent in the midst of Arms, provided they are only those Laws that are Civil and Judicial, and proper for Times of Peace; but not<xxiv> those that are of perpetual Obligation, and are equally suited to all Times. For it was very well said of Dion Prusaeensis,2That between Enemies, Written, that is, Civil Laws, are of no Force, but Unwritten3are, that is, those which Nature dictates, or the Consent of Nations has instituted. This we are taught by that ancient Form of the Romans,4 These Things I think must be recovered by a pure and just War. The same ancient Romans, as Varro observed,5were very slow and far from all Licentiousness in entring upon War, because they thought that no War but such as is lawful and accompanied with Moderation, ought to be carried on. It was the Saying of Camillus,6That Wars ought to be managed with as much Justice as Valour: And of Scipio Africanus,7That the Romans both begin and finish their Wars with Justice. An Author8maintains, There are Laws of War, as there are of Peace. Another9admires Fabricius for a very great Man, and remarkable for a Virtue which is extremely difficult, Innocence in War, and who believed that there are some Things, which it would be unlawful to practise even against an Enemy.
XXVIII. Of how great Force in Wars is the Consciousness of the Justice of1the Cause, Historians every where shew, who often ascribe the Victory chiefly to this Reason. Hence the<xxv> Proverbial Sayings,2A Soldier’s Courage rises or falls according to the Merit of his Cause;3seldom does he return safely, who took up Arms unjustly; Hope is the4Companion of a good Cause; and others to the same Purpose. Nor ought any one to be moved at the prosperous Successes of unjust Attempts; for it is sufficient that the Equity of the Cause has of itself a certain, and that very great Force towards Action, though that Force, as it happens in all human Affairs, is often hindered of its Effect, by the Opposition of other5Causes. The Opinion that a War is not rashly and unjustly begun, nor dishonourably carried on, is likewise very prevalent towards procuring Friendships; which Nations, as well as private Persons, stand in need of upon many Occasions. For no Man readily associates ciates with those, who, he thinks, have Justice, Equity and Fidelity in Contempt.
III.The Author’s Reasons for writing this Book.XXIX. Now for my Part, being fully assured, by the Reasons I have already given, that there is some Right common to all Nations, which takes Place both in the Preparations and in the Course of War, I had many and weighty Reasons inducing me to write a Treatise upon it. I observed throughout the Christian World a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of:Restraining the Licentiousness in making War.a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human, just as if from that Time Men were authorized and firmly resolved to commit all manner of Crimes without Restraint.
XXX. The Spectacle of which monstrous Barbarity worked many, and those in no wise bad Men, up into an Opinion, that a Christian, whose Duty consists principally in loving all Men without Exception, ought not at all1to bear Arms; with whom seem to agree sometimes Johannes Ferus2and our Countryman3 Erasmus, Men that were great Lovers of Peace both Ecclesiastical and Civil; but, I suppose, they had the same View, as those have who in order to make Things that are crooked straight, usually4bend them as much the other Way. But this very Endeavour of inclining too much to the opposite Extreme, is so far from doing Good, that it often does Hurt, because Men readily discovering Things that are urged too far by them, are apt to slight their Authority in other Matters, which perhaps are more reasonable. A Cure therefore was to be applied to both these, as well to prevent believing that Nothing, as that all Things are lawful.
An endeavour to promote the Knowledge of Law, by giving an Example of a Method for it.XXXI. At the same Time I was likewise willing to promote, by my private Studies, the Profession of Law, which I formerly practised in publick1Employments with all possible Integrity; this being the only Thing that was left for me to do, being unworthily2banished my Native Country, which I have honoured with so many of my Labours. Many have before this designed<xxvi> to reduce it into a System; but none has accomplished it; nor indeed can it be done, unless those things (which has not been yet sufficiently taken Care of,) that are established3by the Will of Men, be duly distinguished from those which are founded on Nature. For the Laws of Nature being always the same, may be easily collected into an Art; but those which proceed from Human Institution being often changed, and different in different Places, are no more susceptible of a methodical System, than other Ideas of particular Things are.
XXXII. But if the Professors of true Justice would undertake to treat of the several Parts of that Law which is perpetual and natural, setting aside every Thing which owes its Rise to Voluntary Institution, so that one for Instance would treat of Laws, another of Tributes, another of the Office of Judges, another of the Conjecture of Wills, another of the Evidence in Matters of Fact, there might at last from all the Parts collected together be a Body of Law composed.
IV.The Contents and Order of the Work.XXXIII. What Method we thought fit to use, we have shewn in Deed rather than in Words in this Treatise, which contains that Part of Law, which is by far the noblest.
Book I.XXXIV. For in the first Book, after premising some Things concerning the Origin of Right, we have examined the general Question, whether any War is just; afterwards to discover the Difference between a publick and private War, our Business was to explain the Extent of the Supreme Power, what People, what Kings have it in full, who in part, who with a Power of alienating it, and who have it without that Power. And then we were to speak of the Duty of Subjects to their Sovereigns.
Book II.XXXV. The second Book, undertaken to explain all the Causes from whence a War may arise, shews at large, what Things are common, what proper, what Right one Person may have over another, what Obligation arises from the Property of Goods, what is the Rule of Regal Succession, what Rightarises from Covenant or Contract, what the Force and Interpretation of Treaties and Alliances, what of an Oath both publick and private, what may be due for a Damage done, what the Privileges of Embassadors, what the Right of burying the Dead, what the Nature of Punishments.
Book III.XXXVI. The third Book treats first of what is lawful in War; and then, having distinguished that which is done with bare Impunity, or which is even defended as lawful among foreign Nations, from that which is really blameless, descends to the several Kinds of Peace, and all Agreements made in war.
V.The Necessity of Writing.XXXVII. But I thought this Undertaking still the more worth my Pains, because, as I said before, this Subject has not been fully handled by any Body; and those who have treated of the Parts of it, have done it so, that they have left a great deal for the Labour of others.Nothing of the ancient Authors extant on this Subject.There is nothing of this Kind extant of the ancient Philosophers, whether those of the Pagan Greeks, (amongst whom Aristotle had composed a Book intitled, Δικαιώματα Πολέμων,1 The Rights of War,) or those of the Primitive Christians, which was very much to be wished for. Nay, of those Books of the ancient Romans concerning the2 Fecial Law, we have nothing transmitted to us but the bare Name: Those who have made Sums of Cases of Conscience, as they call them, have made only Chapters, as of other Things, so of War, of Promises, of an Oath, of Reprizals.
The Defects of the Moderns.XXXVIII. I have likewise seen some particular Treatises concerning the Rights of War, some of which were written by Divines, as1 Franciscus Victoria, Henricus2 Gorichemus,3 Wilhelmus Matthaei, Johannes4 de Carthagena; some by Professors of Law, as5 Johannes Lupus,6 Franciscus Arius,7 Johannes de Lignano,8 Martinus Laudensis. But upon so copious a Subject, they have all of them said but very little, and most of them in such a Manner, that they have, without any Order, mixed and confounded together those Things that belong severally to the Law Natural, Divine, of Nations, Civil and Canon.
XXXIX. What was most wanting in all those, viz. Illustrations from History, the most Learned1 Faber has undertaken to supply in some Chapters of his Semestria, but no farther than<xxvii> served his Purpose, and only by alledging some Authorities. The same has been done more largely, and that by applying a Multitude of Examples to some general Maxims laid down, by Balthazar2 Ayala, and still more largely by Albericus3 Gentilis, whose Labour, as I know it may be serviceable to others, and confess it has been to me, so what may be faulty in his Stile, in Method, in distinguishing of Questions, and the several Kinds of Right, I leave to the Reader’s Judgment. I shall only say this, that in the Decision of Controversies, he is often wont to follow either a few Examples that are not always to be approved of, or even the Authority of modern Lawyers in their Answers, not a few of which are4accommodated to the Interest of those that consult them, and not formed by the invariable Rules of Equity and Justice. The Causes, from whence a War is denominated just or unjust, Ayala has not so much as touched upon: Gentilis has indeed described after his Manner some of the general Heads; but neither has he touched upon many famous Questions, which turn upon Cases that are very common.
I.The Author’s Case,XL. We have been careful that nothing of this Kind be passed over in Silence, having likewise shewn the very Foundations upon which we build our Decisions, so that it might be easy to determine any Question that may happen to be omitted by us. It remains now, that I briefly declare with what Assistance, and with what Care I undertook this Work.1.In proving the Law of Nature.My first Care was, to refer the Proofs of those Things that belong to the Law of Nature to some such certain Notions, as none can deny, without doing Violence to his Judgment. For the Principles of that Law, if you rightly consider, are manifest and self-evident, almost after the same Manner as those Things are that we perceive with our outward Senses, which do not deceive us, if the Organs are rightly disposed, and if other Things necessary are not wanting. Therefore Euripides in his Phoenissae makes Polynices, whose Cause he would have to be represented manifestly just, deliver himself thus:
And he immediately adds the Judgment of the Chorus, (which consisted of Women and those too Barbarians) approving what he said.
XLI. I have likewise, towards the Proof of this Law, made Use of the Testimonies of1Philosophers, Historians, Poets, and in the last Place, Orators; not as if they were to be implicitly believed; for it is usual with them to accommodate themselves to the2Prejudices of their Sect, the Nature of their3Subject, and4the Interest of their Cause: But that when many Men of different Times and Places unanimously affirm the same Thing for Truth, this ought to be ascribed to a general Cause; which in the Questions treated of by us, can be no other than either a just<xxviii> Inference drawn from the Principles of Nature, or an universal Consent.Of Nations.The former shews the Law of Nature, the other the5Law of Nations. The Difference between which is not to be understood from the Testimonies themselves (for the Law of Nature and of Nations are Words used every where6promiscuously by Writers) but from the Quality of the Subject.2.In distinguishing both of them, and the Civil Law.For that which cannot be deduced from certain Principles by just Consequences, and yet appears to be every where observed, must owe its rise to a free and arbitrary Will.
XLII. Therefore these two I have very carefully endeavoured always to distinguish no less from one another, than from the Civil Law: And even in the Law of Nations, I have made a Distinction between that which is truly and in every Respect lawful,The Species of each.and that which only produces a certain external Effect after the Manner of that primitive Law; so that, for Instance, it may be lawful to resist it, or that it even ought to be every where defended with the publick Force, for the Sake of some Advantage that attends it, or that some great Inconveniences may be avoided. Which Observation, how necessary it is in many Respects, will appear in the following1Treatise. We have been no less careful in distinguishing Things belonging to Right properly and strictly so called, whence arises the Obligation of making Restitution, from those which are only said to belong to it, because that the acting otherwise is repugnant to some other Dictate of right Reason: Which Distinction we have already touched upon.
II.Assistance in the Work.XLIII. Among Philosophers Aristotle deservedly holds the chief Place, whether you consider his Method of treating Subjects, or the Acuteness of his Distinctions, or the Weight of his Reasons. I could only wish that the Authority of this great Man had not for some Ages past degenerated into Tyranny,1.Philosophers. Aristotle, his Praise.so that Truth, for the Discovery of which Aristotle took so great Pains, is now oppressed by nothing more than the very Name of Aristotle. I, for my Part, both in this and in all my other Writings, take to myself the Liberty of the ancient Christians, who espoused no Sect of Philosophers; not that they held with those who asserted that nothing can be known, than which there is nothing more foolish; but were of Opinion, that there was no one Sect that had discovered all Truth, nor any but what held something that was true. Therefore to collect into a Body the Truths that were dispersed in the Writings of each Philosopher and each Sect, they conceived to be nothing else, but1to deliver the true Christian Doctrine.
His Faults.XLIV. Among other Things, (that I may mention this by the by, as not being foreign to our Purpose,) it is not without Reason, that some of the Platonists and ancient1Christians seem to dissent from Aristotle in this, that he placed the very Nature of Virtue2in a Mediocrity of Passions and Actions; which being once laid down, drove him to this, that of Virtues of a different Kind, as for Instance,3Liberality and Frugality, he made but one; and<xxix> assigned4to Veracity two Opposites between which there is not an equal Contrariety, viz. Boasting and false Modesty; and imposed the Name of Vice upon some Things, which either are not in Nature, or in themselves are not Vices, as, the5Contempt of Pleasure and6Honours,<xxx> and an Insensibility to Injuries, which7hinders us from being angry against Men.
All Virtue has not Vice in Excess.XLV. But that this Principle of Mediocrity, taken universally, is not rightly laid, appears from the Instance of Justice itself, whose Opposites, too much and too little, when he could not find in the Affections and their subsequent Actions,1he sought for Both in the Things themselves<xxxi> about which Justice is conversant. Which very thing is in the first Place to leap from one kind of Thing to another, which he deservedly blames in others; and in the next Place, to receive less2than one’s Due may indeed happen to be a Vice, when the Circumstances of himself or his Family cannot allow of any Abatement; but certainly it cannot be repugnant to Justice, since it consists wholly in abstaining from that which is another Man’s. Like to which Mistake is that of his not allowing3Adultery proceeding from Lust, and Murder from Anger, to belong properly to Injustice: Whereas the very Nature of Injustice consists in nothing, else, but in the Violation of another’s Rights; nor does it signify, whether it proceeds from Avarice, or Lust, or Anger, or imprudent Pity, or Ambition, which are usually the Sources of the greatest Injuries. For to resist all Temptations of what Kind soever, and that for this only Reason, viz. the preserving of Human Society inviolable, is indeed the proper Business of Justice.
XLVI. To return from this Digression, true indeed it is, that to some Virtues it happens, that they moderate the Affections, yet not for the Reason, that it is the proper and perpetual Office of all Virtue to do so; but because right Reason, which Virtue always follows,1prescribes a Measure to be followed in some Things; in others it excites us to the utmost we are capable of.Consists often in the utmost we are capable of.We cannot, for instance,2serve God with too much Ardour; for the Crime of Superstition consists<xxxii> not in serving God with too much Ardour, but in serving him perversely. Neither can we too much desire eternal Happiness, nor too much dread eternal Misery, nor too much hate Sin. It is therefore truly said of Gellius,3there are some Things whose Extent has no Bounds, and which are so much more commendable as they are carried to a higher Pitch. Lactantius,4after having discoursed largely on the Passions, says, Wisdom does not consist in moderating them, but in regulating the Impressions of the Causes that produce them, for they are excited by external Objects. Neither ought a Restraint to be put principally upon them, because it is possible for them to be very weak in those who commit the greatest Crime, and to be very violent without leading to any Crime at all. Our Purpose is to set always a high Value upon Aristotle, but so as to reserve to ourselves the same Liberty which he himself took with his Masters, for the Sake of finding Truth.
Histories.XLVII. Histories have a double Use with respect to the Subject we are upon, for they supply us both with Examples1and Judgments. Examples, the better2the Times and the wiser the People were, are of so much the greater Authority; for which Reason we have preferred those of the ancient Grecians and Romans before others. Nor are the Judgments we meet within Histories to be despised, especially when they agree: For the Law of Nature, as we have already said, is in some Measure proved from hence, but of the Law of Nations there is no other Proof but this.
Poets, Orators.XLVIII. The Opinions of Poets and Orators are not of so great Weight: And we often make use of them, not so much for the Sake of building any Thing upon them, as that their Expressions may add an Ornament to what we have a mind to say.
II.Sacred Books.XLIX. The Authority of those Books which Men inspired by God, either writ or approved of, I often use, but with a Difference of the Old and New Law.1.The Old Testament.Some there are who1urge the Old Law for the very Law of Nature, but they are undoubtedly in the wrong: For many Things2in it proceed from the Free Will of God, which yet is never repugnant to the Law of Nature itself; and so far an Argument may be rightly drawn from it, provided we carefully distinguish the3Rights of God, which God sometimes exercises by the Ministry of Men, from the Rights of<xxxiii> Men among themselves. We have therefore avoided, as much as we could, both this Error, and also another contrary to it, viz.4that since the Promulgation of the New Testament the Old one is of no Use. We are of a contrary Opinion, both upon Account of what we have said already, and also because the Nature of the New Testament is such, that whatever are the moral Precepts in the Old Testament, the same, or more perfect,5are enjoined by the New also: And in this Manner we see the Testimonies of the Old Testament made Use of by the Writers among the Primitive Christians.
The Hebrew Writers.L. But to understand the Sense of the Books of the Old Testament, the Hebrew Writers may afford us no little Assistance, those1especially who were thoroughly acquainted with the Language and Manners of their Country.
2.The New Testament.LI. The New Testament I use for this Purpose, that Imay shew, what cannot be elsewhere learned, what is lawful for Christians to do; which Thing itself, I have notwithstanding, contrary to what most do, distinguished from the Law of Nature; as being fully assured, that in that most holy Law a greater Sanctity is enjoined us, than the meer Law of Nature in itself requires. Nor have I for all that omitted observing, what Things in it are rather1recommended to us than commanded, to the Intent we may know, that as to transgress the Commands is a Crime that renders us liable to be punished; so to aim at the highest Perfection, in what is but barely recommended, is the Part of a generous Mind, and that will not fail of a proportionable Reward.
3.The Canons of Councils.LII. The Canons of Councils,1when they are just and reasonable, are Consequences drawn from the general Maxims of the Divine Law, fitted to particular Cases that happen: These likewise either shew what the Divine Law commands, or exhort us to what God recommends. And this is the Office of the true Christian Church, to deliver to us those Things that are delivered to her of God, and in the same Manner as they are delivered.4.The Manners and Customs of the first Christians.But even the Customs2likewise that<xxxiv> were received or commended amongst those antient Christians, who maintained the Dignity of so high a Title, have deservedly the Force of Canons.5.Both the Writings and the Consent of the Fathers.The next in Authority to these, are the Decisions of those who3were famous in their Times for their Christian Piety and Learning, and were not charged with any gross Error: For even what these assert with great Positiveness, as if they were certain of it, ought to have no little Weight in interpreting the Places that seem obscure in Holy Scripture, and that the more, by how much the more there are that consent in the same Thing, and the nearer they are to the Times in which the Church was most pure, when as yet neither Dominion, nor Faction, was able to corrupt the primitive Truth.
6.Schoolmen.LIII. The Schoolmen that succeeded these, give us many Proofs of their great Capacities; but their Misfortune was to live in unhappy Times, when good Learning was entirely neglected. The less Wonder then, that among many Things, in their Writings commendable, there are some that need Indulgence. And yet when they agree in Matters of Morality, they seldom err, as being quick in discerning those Things that are blameable in the Sayings of others; and even in this their prevailing Humour of contradicting, they set us a laudable Pattern of Modesty, as disputing against one another with Arguments, and not, as the Custom of late hath been, to the Dishonour of Learning, with Reproaches, the base Offspring of an impotent Mind.
III.Lawyers.LIV. Of those that profess the Knowledge of the Roman Laws, there are three Sorts. The first is of those whose Works appear in the Digest, the Codes of Theodosius and Justinian, and the Novels. The second is, of those who succeeded1 Irnerius, as2 Accursius, Bartolus,3and many others, that for a long time reigned at the Bar. The third comprehends4those who joined<xxxv> the Knowledge of the Belles Lettres with the Study of Laws.1.Ancient.For the first I have a great Deference; for they both supply us with Reasons, and those often the very best, to demonstrate what belongs to the Law of Nature; and also often give Testimony to it, as well as to the Law of Nations; yet so as that they, as well as others, often5confound these Words, nay and often call that the Law of Nations, which prevails among some Nations only, and that not by a sort of tacit Agreement, but by Imitation of one another, or even by a casual Consent. But again, those Things which really belong to the Law of Nations, they often handle promiscuously and indiscriminately with those that belong to the Roman Law, as appears from the6Title concerning Captives and Postliminy. Therefore we took Pains to have these distinguished.
2.Those of the middle Age.LV. The second Class, being regardless of the Divine Law and ancient Histories, studied to determine all Controversies between Kings and Nations from the Roman Laws, to which they sometimes joined the Canon Law. But these were likewise hindered, by the Infelicity of their Times, from discovering the true Sense of those Laws, though otherwise sagacious enough in searching into the Nature of Equity: From whence it comes, that they often make very good Overtures for new Laws, at the same Time that they are but bad Interpreters of Laws already made. But they are then chiefly to be attended to, when they give Testimony to such a Custom, as now in our Time passes for a Law of Nations.
3.Modern.LVI. The Professors of the third Class, confining themselves within the Limits of the Roman Law, and either never, or but lightly, meddling with this Law common to Princes and Nations, are scarce of any Use to us in our Subject.Spaniards.Amongst these, Covarruvias1 and Vasquez,2two Spaniards, have joined Scholastick Subtilty with the Knowledge of Laws and Canons; so that they could not forbear treating of the Controversies between Nations and Kings; the one with a great deal of Freedom, the other more modestly, and not without some Exactness of Judgment.Frenchmen.The French have with most Care attempted to introduce History into the Study of Law, amongst whom Bodin,3and Hottoman4are in great Esteem, the one for a continued Treatise, the other for some scattered Questions. Their Decisions and Reasons will often furnish us with Matter for the Search of Truth.
VII.The Design and Order observed through the whole Work explained.LVII. In this whole Work there were three Things that I chiefly proposed to myself; to render the Reasons of my Decisions as evident as possible, to dispose the Matters to be treated of into a regular Method, and to distinguish clearly those Things which might appear to be the same, but were not.
LVIII. I have forborn meddling with those Things that are of aquite different Subject, as the giving Rules about what it may be profitable or advantageous for us to do: For they properly belong to the Art of Politicks,1which Aristotle rightly so handled by itself, that he mixed nothing foreign with it: Bodin on the contrary has confounded it with that which is the Subject of this Treatise. Yet in some Places I have made mention of the useful, but by the by, and to distinguish it more clearly from a Question of the just.
LIX. He will do me wrong whoever shall think that I had Regard to any Controversies of the present Age, either already risen, or that can be foreseen to arise. For I profess truly, that as Mathematicians consider Figures abstracted from Bodies, so I, in treating of Right, have withdrawn my Mind from all particular Facts.
A concise way of speaking.LX. As to the Style, I was not willing, by joining a Multitude of Words with a Multitude of Things to be treated of, to create a Distaste in the Reader, whose Advantage I consulted. I have therefore followed, as much as I could, a concise way of speaking, as convenient for such as undertake to instruct; that so, they who are employed in publick Affairs, may, as at one View, see, both what Kinds of Controversies usually arise, and also the Principles by which they may be<xxxvi> decided; which being known, it will be easy to suit the Discourse to the Subject Matter, and enlarge upon it as much as they please.
The very Words of Authors quoted.LXI. I have sometimes quoted the very Words of the ancient Writers, when they were such as seemed to be expressed, either with a singular Force or Elegancy; which I have done sometimes in regard to Greek Authors, especially when either the Sentence was short, or the Beauty of it such as I could not hope to equal in a Translation; which notwithstanding I have always subjoined, for the Use of those who have not learned the Greek Language.
The Liberty of judging left to the Reader.LXII. And now, whatever Liberty I have taken in judging of the Opinions and Writings of others, I desire and beseech all those, into whose Hands this Treatise shall come, to take the same with me. They shall no sooner admonish me of my Mistakes, than I shall follow their Admonitions. And moreover, if I have said any thing contrary either to Piety, or to good Manners, or to Holy Scripture, or to the Consent of the Christian Church, or to any Kind of Truth, let it be unsaid again.<1>
[1 ]The Author here means what he calls the Law of Nations, which he distinguishes from the the Law of Nature as making a separate Class. But in this he is mistaken; as is acknowledged by most, who have pursued this Study. See Note 3. on B. I. Chap. I. § 14.
[1 ]This is not Cicero’s Sense. The Words here quoted only signify that Pompey, of whom he is speaking, was very well versed in Alliances, Treaties, and Conventions made, concluded, and formed, between States, Princes, and foreign Nations, &c. Equidem contrà existimo, Judices, quum in omni genere ac varietate Artium, etiam illarum, quae sine summo otio non facilè discuntur, Cn. Pompeius excellat,singularem quamdam laudem ejus et praestabile messe scientiamin foederibus, pactionibus, conditionibus Populorum, Regum, exterarum Nationum: in omni denique Belli Jure ac Pacis. Orat. pro L. Corn. Balbo, Cap. VI.
This Theonoe was an Egyptian Priestess, who dealt in Divination. Helen does not here design to prefer the Knowledge of what is just and unjust, to that of all things human and divine, as our Author pretends. The Poet only intimates, that we ought to join the Study of Morality with the Study of Religion. In this Sense the Verses here quoted may very justly be understood as addressed to all employed in the publick Ministry of Religion, either to remind them of their Duty, or reprove them for the Faults committed in the Discharge of it, which has been but too often the Case at all Times. See what I have said on this Subject in my Preface to Pufendorf, §7, &c.
[1 ]These Words occur in the sixth Book of that Historian. (Chap. LXXXV. Edit. Oxon.) We find the same Maxim in the fifth, where the Athenians, whose Power was then very considerable, speak thus to the Melians. For you cannot but know that, according to the common Notions of Mankind, Justice is regulated by the equal Necessities of the Parties; and that those who are invested with a superior Power, do all they find possible, while the Weak are obliged to submit. (Chap. LXXXIX.) Grotius.
[2. ]The Words here used by the Author, are taken from Tacitus.Id in summâ fortunâ, aequius, quod validius. Annal. Lib. XV. Cap. I.
[3. ]The Author alludes to a Fragment of the second Book of Cicero’s Treatise De Republicâ, preserved by St. Augustin; where Scipio, on the contrary, maintains, that it is impossible to govern a State well, without observing the Rules of Justice with the utmost Exactness. De Civit. Dei. Lib. II. Cap. XXI.
[4. ]This Fragment, which may be seen in Cicero’s Oration for Muraena, Cap. XIV. is more entire in Aulus Gellius, Lib. XX. Cap. X.
But the Poet speaks only of Civil Laws; and sets violent Measures, the distinguishing Characteristicks of War, in Opposition to the legal Proceedings, used for composing Differences in Times of Peace. The same is to be observed of some of the following Passages.
[5. ]Art. Poet. Ver. 122.
[6. ]Lucan puts this Speech into the Mouth of Julius Caesar on his passing the Rubicon.
[7. ]PlutarchDe fortuna Alexand. Mag. p. 330. Tom. II. Edit. Wech.
[8. ]He spoke of the Civil Laws. The Words here referred to are that General’s Answer on Occasion of his being blamed for conferring the Freedom of Rome on a thousand valiant Soldiers, who had signalized themselves in the War against the Cimbri, without the Authority of any Law. See the Passage at Length in Plutarch’sApophthegms, p. 202. Tom. II. See likewise the Life of Marius by the same Author; and Valerius Maximus, Lib. V. Cap. II. Num. 8.
[9. ]The Inhabitants of Argos being ingaged in a Dispute with the Lacedemonians about some Lands, and the former having supported their Claim with the best Reasons, Lysander drew his Sword, saying: He, who is Master of this, reasons best about the Boundaries of Lands.Plutarch’sApophthegms, p. 190. The same Author, in the Life of Caesar, p. 725. Tom. I. relates that Metellus, Tribune of the People, opposing that General for taking Money out of the publick Treasury, and alledging some Laws against that Practice, Caesar replied, that the Laws must give Place to the Exigencies of War.
[10. ]He was very apt to blush, especially when he was obliged to appear in the Assembly of the People. See Seneca’s eleventh Epistle, and Gronovius’s Note on it.
[11. ]Plutarch, in the Life of Pompey, relates the Matter thus, The Mamertines pretending to be independent on Pompey, by Virtue of an old Roman Law, that General broke out into the following Expression: Will you still continue to alledge the Laws against us, while we have our Swords by our Sides?Quintus Curtius observes that War inverts even the Laws of Nature. Lib. IX. (Cap. IV. Num. 7.) Grotius.
[1 ]This Passage is taken from the ninth Book of his Treatise against the Jews.
[2. ]Terence in his Eunuch, Act I, Scene I, Ver. 16, &c.
[1 ]In Lactantius, Instit. Divin. Lib. V. Cap. XVI. Num. 3. Edit. Cellar.
[1 ]Horace, Lib. I. Sat. III. Ver. 113
[2. ]The natural Inclination of Mankind to live in Society is a Principle which has been admitted by the Wise and Learned of all Ages. Aristotle advances it in all his Books of Morality and Politics. Man, says he, is a sociable Animal in regard to those, to whom he is related by Nature. There is therefore such a Thing as Society, and somewhat that is just, even independently of what we call Civil Society. Eadem. Lib. VII. Cap. X. p. 280. Edit. Paris. The same Philosopher observes elsewhere, that Man is by Nature more strongly inclined to Society than Bees, or any other Animals, which are observed to flock or herd together. Polit. Lib. I. Cap. II. p. 298. And this he proves from the Consideration of Man alone being in Possession of the Use of Speech. See Note 3on the 3 d Section of Chap. I. Book VII. of Pufendorf’sLaw of Nature and Nations.Cicero, reasoning on the Principles of the Stoicks, lays it down for a certain Fact, that no Man would chuse to live in absolute Solitude, even though he might enjoy an Infinity of Pleasures. From which he immediately infers, that we were born for Society. To this he adds, that as we make Use of our Limbs, before we have learnt what was the Design of Nature in furnishing us with them; so we are naturally formed for civil Society; without which there would be no Room for the Exercise of Justice or Goodness. De finib. Bon & Mal. Lib. III. Cap. XX. See also Lib. V. Cap. XXIII. and De Officiis, Lib. I. Cap. IV. VII, and XLIV. Seneca, De Benef. Lib. VII. Cap. I. and Epist. XCV. p. 470. Diogenes Laertius, Lib. VII. § 123. and the Passages quoted in Note (6) on the following Paragraph. And here I cannot conclude this Note without a beautiful Passage taken out of Epictetus’s Discourses, collected by Arrian, in which we have an excellent Argument ad hominem against such as deny the natural Inclination of Men to Society. The Stoick Philosopher thus attacks his Antagonists. “Epicurus, while he is endeavouring to destroy the Principle of natural Society, reasons on the very same Principle. Suffer not yourselves to be imposed on, says he; beware of Illusion. Take my Word for it, there is naturally no such Thing as Society amongst reasonable Creatures; those, who affirm there is, only abuse your Credulity. But, we may ask him, how does this concern you? Leave us in quiet Possession of our Error. What Damage will you suffer, if all but you and your Followers should be persuaded that there is a natural Society amongst Mankind, and that we ought to do all in our Power for its Support? Why so much Concern for us? What can induce you to light up your Lamp, and spend whole Nights in Study for our Sakes? Why are you at the Pains of composing so many Books? You will tell us, it is with a View of undeceiving us in this Particular, That the Gods interest themselves in our Affairs; and that Happiness essentially consists in something else than Pleasure. —But what is it to you whether others form a right Judgment on these Points or not? What tie is there between you and us? What Interest have you in what regards us? Have you any Compassion for the Sheep, because they submit to be shorn, milked and slaughtered? Ought not you to wish, that Men, inchanted and lulled to sleep by the Stoicks, would as tamely deliver up themselves to the Direction of you and your Companions?—In short, what was it that deprived Epicurus of his Rest, and engaged him to write all he published? Nature, without doubt, that most powerful Principle of human Motions, which strongly influenced him, and forced his Obedience, in spite of all the Resistance he could make, such is the invincible Force of human Nature!—As it is neither possible nor conceivable that a Vine should shoot like an Olive-tree, and not according to the Impulse of its own Nature, and so vice versa; so neither is it possible for Men to be entirely free from human Motions. If you castrate a Man, you cannot extinguish all carnal Inclinations and Desires in him. Thus Epicurus, as much as in him lies, has cut off all the Relations of Husband, Master of a Family, Citizen and Friend, but the Inclinations of human Nature are still entire in him. It was no more in his Power to divest himself of those, than it was in that of the wretched Academicks to throw away or blind their Senses, though no Set of Men ever took so much Pains to do it.” Dissert. Lib. II. Cap. XX. p. 201, &c. Edit. Colon. 1591. The late Lord Shaftesbury has reasoned in the same manner, but with a lively Turn, which gives his Piece the Air of an Original, against Hobbes, who with still more Warmth than his Master Epicurus, undertook to persuade the World that all Men are by Nature so many Wolves one to another. See that Lord’s Essay on the Use of Raillery, &c. p. 64, & seq. printed at the Hague in the Year 1710.
[3. ]“We have,” says St. Chrysostom, Hom. XXXII. ad Roman. “a certain natural Affection one for another, which subsists even amongst Beasts.” See what the same Father says farther on the first Chapter to the Ephesians, where he affirms that Nature has furnished us with the Seeds of Virtue. To all this let us add the Words of that great Philosopher, the Emperor Antoninus. “It has long since been shewn that we are born for Society. Is it not evident that Things which are less perfect were made for the Use of the more perfect, and that those which have greater Degrees of Perfection were designed for the Service one of another?” Lib. V. § 16. Grotius.
[4. ]Ὀικείωσις. The Author, in the preceding Note, alledges no other Authority but that of St. Chrysostom; for the Word in question does not occur in the Passage quoted from Antoninus. In the following Passage of Porphyry the Term is used precisely in regard to the natural Sociability of Man. Τάχα μὲν καὶ ϕυσικη̑ς τινὸς οἰκειώσεως ὑπαρχούσης τοι̑ς ἀνθρώποις πρὸς ἀνθρώπους, &c. DeAbstin. Anim. Lib. I. p. 13. Edit. Lugd. 1620. See also Lib. II. p. 159. Lib. III. p. 294, 328. and Plutarch, De Stoicorum Repugn. p. 1308. Tom. II. Edit. Wech.Antoninus uses the Adverb οἰκείως in the same Sense. Lib. IX. § 1. And Arrian has the Verb οἰκειου̑σθαι. Dissert. Epict. Lib. III. Cap. XXIV. They all seem to have copied Aristotle in this Particular, who says Ἴδοι δ’ ἄν τις, καὶ ἐν ται̑ς πλάναις, ὡς ὈΙΚΕΙΟΝ ἅπας ἄνθρώπῳ καὶ ϕίλον. Ethic. Nicom. Lib. VIII. Cap. I.
[1 ]It is an old Proverb that a Dog will not eat Dog’s Flesh.VarroDe Ling. Lat. Lib. VI. p. 71. Edit. H. Steph. See likewise Erasmus’sAdagia.Juvenal remarks that Tigers live peaceably together, and that the wildest Beasts spare those of their own Species.
Philo, the Jew, has a beautiful Passage to this Purpose. Addressing himself to Men in regard to the Duties of the fifth Commandment, “At least,” says he, “imitate the Behaviour of some brute Beasts, which know how to make an affectionate Return for Favours received. Dogs keep the House, and even expose their Lives in Defence of their Masters, when in imminent Danger. It is said that Shepherds Dogs go before the Flocks and fight till they die, rather than suffer any of their Cattle to be lost. Is it not most shameful that Man should be outdone by a Dog in Point of Gratitude, the tamest and most civilized Creature, by the most brutal of Beasts? But if the Conduct of terrestrial Animals is not sufficient for our Instruction, let us pass on to the Consideration of the Birds of the Air, and learn our Duty from them. The Storks, when rendered incapable of flying by Age, stay in their Nests, whilst their Young traverse Sea and Land in quest of Food for them. The old ones, enjoying a Repose suitable to their Age, live in Plenty and Pleasure, whilst the young ones supporting the Fatigue of their Course cheerfully, with the Satisfaction they find in acquitting themselves of their Duty, and the comfortable Expectation of the same Assistance in their old Age, perform this necessary Office at a proper Time, in return for the Treatment they have received. Thus the same Birds feed their Young whilst unfledged, and their Parents when in the Decline of Life. Thus they are taught by Nature to provide with Pleasure for the Sustenance of those, from whom they received it, when not able to take Care of themselves. Is not this sufficient to confound such as shew no Concern for their Parents, and neglect those who alone, or at least preferably to all others, have a Right to their Assistance? especially when they consider that in this Case they only return what they have received. For all that Children call their own is received from their Parents, who either gave the Things themselves, or put their Children in a Condition of acquiring them.” See concerning the particular Care of Pigeons about their Young, PorphyryDe non esu Animalium, Lib. III. And as to certain Fishes, called Scari and Sauri, which shew a Concern for those of their own Species, CassiodorusVar. Lib. XI. Cap. XL. Grotius.
[2. ]Gronovius on this Place brings the Example of Hens which feed their Chickens, and Cocks which feed the Hens out of their own Mouths. Everyone has observed this Practice, as well as the Ardour, with which the wildest Beasts expose their own Lives in Defence of their Young; and the Abstinence of Hounds, which bring the Game to their Masters. Nor are we less acquainted with the Fervour, with which Bees and Pismires unite their Labours for the Good of their respective Communities, as remarked by the same Annotator from Cicero and Quintilian. The Words of the former in the 19th Chapter of his 3d Book De Finibus Bonorum & Malorum, are; “Even Bees, Pismires and Storks, do some Things for the Sake of others. This Union is much stronger among Men; we are therefore formed by Nature for Society, mutual Assistance, and living in Community.” The latter in his Instit. Orat. Lib. V. Cap. XI. p. 303. Edit. Obrecht. gives this Direction: “If you press a Concern for the Commonwealth, you may shew how those little dumb Creatures, the Bees and Pismires, labour for the common Good.” Several of those who have undertaken to criticize, or comment on our Author, have given his Thoughts a wrong Turn in this, and many other Places. The Weakness of their Criticism sufficiently appears from this single Consideration; that our Author only affirms that the Principle of Sociability has so real a Foundation in the Nature of Man, that we find some faint Tracks of it even amongst irrational Animals, in regard to those of their own Species. He does by no means pretend either that there is any Right common to Men and Beasts, or that any certain Consequences can be drawn from the Actions of Brutes, for proving any one particular Thing conformable or contrary to the Law of Nature. See what he says Book I. Chap. I. § II. and my Remark in the Notes on Pufendorf’sLaw of Nature and Nations, Book II. Chap. III. § 2.
[3. ]See the Passage of Pufendorf, referred to in the preceding Note. By this intelligent and exterior Principle our Author means God himself; as appears from his Treatise Of the Truth of the Christian Religion; where he expresses himself more clearly; but still he does not give us a more just and philosophical Idea of the Thing. Lib. I. § 7. Consult Mr. Le Clerk’s Note on that Piece, p. 13. of the last Edition of Amsterdam, 1717.
[4. ]I know of no other Place in Plutarch, where that Philosopher speaks of this natural Propensity or Inclination of Children, but in his Account of his little Daughter, who, he tells us, was so surprisingly sweet tempered and benevolent, that she expressed a Desire that her Nurse should give the Breast not only to other children, but even to her Puppets and Play-things, sharing with others, whatever was most agreeable to herself. Consol. ad Uxorem. p. 608. Tom. II. Edit. Wech. But he is not there speaking of the common Inclination of all Children: On the contrary, he seems to attribute something particular to his little Girl, as a Reason for being more sensibly affected by her Death. As to the Thing itself, I think it very probable that, though the Principles and Maxims of the Law of Nature cannot be deduced from the Behaviour of Children, at an Age when their Inclinations act with most Freedom, which our Author indeed does not insinuate, there is still great Room to believe, that notwithstanding the infinite Diversity of Tempers, such Dispositions as are contrary to Humanity, are rather the Result of a bad Education and Custom, than of a natural and invincible Inclination; so that it may be maintained that all Men, even before they arrive to Years of Discretion, have the Seeds of Sociability, which consequently are founded in human Nature, and have no Dependence on a View of Interest, which is all our Author designs to advance.
[5. ]Whereas Beasts act in a certain and uniform Manner only in regard to one Thing, to which they are impelled, or from which they are diverted by their natural Instinct.
[6. ]The Emperor Marcus Antoninus observes that “whenever Man, who is born with a Disposition to do good Offices, exerts an Act of Beneficence, he does no more than what he was formed for by Nature.” Lib. IX. § 42. He also asserts that “we may sooner find a terrestrial Body entirely separated from all that is terrestrial, than a Man divided from all other Men.” Ibid. §9.Nicetas Choniates, one of the Writers of the Byzantine History, says, “Nature has engraved and planted inusasort of Sympathy for one another as Members of the same Family.” See St. AugustineDe Doctrina Christiana, Lib. III. Cap. XIV. Grotius.
[1 ]Hence it appears that our Author does not mean that bare natural Instinct in the Rule of the Law of Nature; but that he adds Reason for the Direction of such Instinct, without which it might misguide us, and induce us to consult only our private Interest. Hence it is also that he elsewhere makes what belongs to the Law of Nature consist in a necessary Conformity to, or Difformity froma reasonable and sociableNature, Book I. Chap. I. § 12. Num. I. So that it is ridiculous to object, as Gaspar Ziegler has done, that the Desire of Society, whichGrotiuslays down as the Foundation of the Law of Nature, might be gratified, though a Man were united in Society and Friendship with one Nation only, or even with one single Family: and that Highwaymen and Pyrates have also their Societies, &c. For Reason, which is peculiar to Man, and which is more natural to him than the Desire of Society, of which we find some Traces in Beasts, clearly teaches us that it is not proper to confine Sociability and Affection to a small Number of Persons, or to one single Community; but that it ought, in some Manner or other, to extend to all Men, or to all of our own Species; on whom it is equally diffused by Virtue of the Design of Nature, and on the Account of their being naturally all alike and equal. I shall not here enlarge on this Subject, but refer the Reader to the Explication and Defence of the general Principle of Sociability, in my Notes on Pufendorf’sLaw of Nature and Nations, Book II. Chap. III. So that, on the whole, a Man must be very wrong headed, who will hereafter expose himself by starting and multiplying frivolous Difficulties against a Truth, which when well understood, leaves no room for any plausible Objection.
[2. ]Seneca makes an excellent Application of this Principle. “That a Sentiment of Gratitude,” says he, “is a Thing valuable in its own Nature, appears from the odious Character which Ingratitude bears in the World, there being nothing so destructive of Concord and the Union of Mankind, as this shameful Vice. In reality, on what does our Security depend, but on the mutual Exchange of good Offices? Certainly nothing but this Commerce of Benefits can make Life commodious, and put us in a Condition of guarding against unforeseen Insults and Invasions. How miserable would Mankind be, if every one lived apart, and had no Resource, but in himself? So many Men, so many Persons exposed every Moment to be the Prey and Victims of other Animals: Blood continually ready to be spilt, in a Word, Weakness itself. Other Animals are strong enough to defend themselves. All such as are designed for a wandering Life, and whose natural Ferocity doth not allow them to go in Bodies, come into the World armed, as I may say. Whereas Man is defenceless on all Sides, having neither Claws nor Teeth to make him formidable. But in Society with his like hefinds the wanted Succours. Nature to make him amends, has furnished him with two Things, which from weak and miserable as he would have been, render him very strong and powerful; I mean, Reason and a Disposition to Society. So that he, who when alone was not able to resist any other, by this Union becomes Master of all. The Disposition to Society gives him the Dominion over all the Animals, not even excepting those bred in the Sea, which live in another Element. It is Society also that furnishes him with Remedies against Distempers, Assistance in his old Age, Relief and Comfort in the midst of Sorrows and Afflictions. This is what puts him in a Condition of defying Fortune, if I may use the Expression. Take away the Disposition to Society, and you will at the same Time destroy the Union of Mankind, on which the Preservation and Happiness of Life depend. Now to maintain that Ingratitude is not a detestable Vice and what ought to be avoided for its own Sake, but only on the Account of its pernicious Consequences, is no better than destroying the Disposition to Society.” De Benefic. Lib. IV. Cap. XVIII. Grotius.
[3. ]Porphyry, Of Abstinence from Animals, Book III. Justice consists in this, the Abstaining from what is another’s, and the doing no Injury to those that do none to us. Grotius.
[1 ]Indicium ad aestimanda quae delectant aut nocent—& quae in utrumvis possunt ducere. These Words Mr. Barbeyrac renders—choses agréables & desagréables, &c. On which Occasion he professes to follow the Author’s Sense, rather than his Expression. The Word delectant, says he, is not directly opposed to nocent; and I suspect some Omission in the Text; though the Passage appears the same in all Editions of this Work. It is probable, continues our learned Commentator, that Grotius wrote, or designed to write, Quae delectantaut dolorem creant, quae juvant, aut nocent, &c. and that the Words here given in the Roman Character being left out, he did not observe the Omission in reading over this Place.
[2. ]It is evident that this includes those Duties of Man in regard to himself, which are enjoined him even by the Frame of his Nature, and which may be seen at large in Pufendorf’sLaw of Nature and Nations, Book II. Chap. IV.
[1 ]St. Ambrose treats of this in his first Book Of Offices.Grotius.
[2. ][[The footnote is wrongly included as part of the previous one in the original. Our Author speaks here of such Rewards as are given by the State, or those who represent it, to Persons distinguished by their Merit; as also of the Collation of publick Offices. For they who receive the former, or are placed in the latter, had no full Right to demand them, nor to claim considerable ones as their due, how great soever their Merit may be, or how glorious soever the Actions are, which recommended them. See Book II. Chap. XVII. § 2.]]
[3. ]This Maxim is always to be observed by those, whose Business it is to dispose of publick Employs. But it does not always take Place in private Liberalities and the Services we do one another; the Ties of Blood, a pressing Necessity, and other such Considerations, sometimes require the Preference of a Person, otherwise of less Merit. See a beautiful Passage of Cicero to this Purpose, quoted at large in my Pufendorf’sLaw of Nature and Nations, Book III. Chap. III. § 15.
[4. ]This takes Place, all Things else being equal. For it would be a mistaken piece of Charity to bestow a publick Employ on one who is in great Necessity, to the Prejudice of another, much more capable of discharging the Obligations of such a Post. In that Case, a Regard to the Poverty of the Candidate, would be a Respect of Persons as culpable as that of a Judge, who should on that Consideration pronounce Sentence in Favour of a poor Man, contrary to Law and Equity; which is expresly forbid by the Law of Moses, Exod. xxiii. 3. on which Place see the Note of Mr. Le Clerc.
[5. ]Much Judgment and Circumspection are to be used in this Particular; and it is difficult to lay down any general Rules in Relation to it, because the Practice of this Duty is diversified by an infinite Variety of Circumstances. Mr. Buddeus has written an useful Dissertation on that Subject, intitled, De Comparatione Obligationum, quae ex diversis hominum statibus oriuntur; it was printed in 1704, among the Selecta Juris Naturae & Gentium.
[6. ]The Author speaks of such as follow Aristotle, and make the Distribution in Question belong to distributive Justice, according to that Philosopher’s Acceptation of the Term, who reckons it part of private or rigorous Justice, by Virtue of which a Man may make a rigorous Demand of what is his Due. See the following Note, and what the Author says, Book I. Chap. I.§7,8.
[7. ]Since it consists in leaving others in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand. This is the Sense of the Author’s concise Expressions: Ut quae jam sunt alterius, alteri permittantur, aut impleantur. It is probable that he had written or designed to write, autquae altera debentur, impleantur, as I have observed in my Edition of the Original. A few Examples will explain his Meaning. When we forbear striking, wounding, robbing, injuring or defaming any one, we only leave him in quiet Possession of what was his own; for the good Condition of his Limbs, his Goods, and Reputation, are actually his own, and no Man has a Right to dispossess him of them, while he has done nothing to deserve such Treatment. When we repair the Damage he has sustained in his Person, Goods, or Reputation, whether designedly or through Inadvertency, we restore what we had taken from him, and what was his own, which he had a strict Right to demand. When we keep our Word to him, when we perform our Promise, or make good an Engagement, we do not indeed restore, what he was once in actual Possession of; but we perform what he might strictly require at our Hands. All this relates to the Law of Nature, taken in the strict and proper Sense of that Term; not to mention the Punishment of the Guilty, of which our Author seems not to design to speak in this Place; though he ranks it in the same Class, as we have seen § 8, and as we shall shew in our last Note on Book I. Chap. L. § 5. When the Sovereign refuses to bestow an Employment on one of his Subjects, who is worthy of it, or prefers one less capable of discharging the Duty, or does not reward the Person according to his Merit, he does indeed offend against the Law of Nature, taken in an improper, and less extensive Sense, according to our Author’s Ideas; but he does that Subject no Wrong, properly speaking, because he had no full and rigorous Rights to demand the Employment, or the Reward. The same is to be said of those, who refuse Relief or Assistance to the poor and miserable, not in extreme Necessity; for in that Case they have a strict Right to demand what they want, as we shall see in the proper Place. The learned Gronovius, prepossessed with Aristotle’s Ideas, and not giving due Attention to the Matter, and the Sequel of our Author’s Discourse, widely mistakes his Meaning, and perplexes the Question both here and elsewhere; in which he has been faithfully followed by Mr. De Courtin.
[1 ]This Assertion is to be admitted only in the following Sense: That the Maxims of the Law of Nature are not merely arbitrary Rules, but are founded on the Nature of Things; on the very Constitution of Man, from which certain Relations result, between such and such Actions, and the State of a reasonable and sociable Creature. But to speak exactly, the Duty and Obligation, or the indispensible Necessity of conforming to these Ideas, and Maxims, necessarily supposes a superior Power, a supreme Master of Mankind, who can be no other than the Creator, or the supreme Divinity. We shall treat of this Subject more largely in the fourth Note on Book I. Chap. I. § 10.
[2. ]The Reader may see on that Subject the excellent Treatise of our Author, Concerning the Truth of the Christian Religion.
[1 ]For this Reason, according to the Sentiment of Marcus Antoninus, every Man, who commits an Act of Injustice, renders himself guilty of Impiety. Ὁ ἀδικω̂ν ἀσεβει̑. Lib. IX. § 1. Grotius.
[2. ]“When I speak of Nature,” says St. Chrysostom, on 1 Cor. xi. 3. “I mean God; for he is the Author of Nature.” And Chrysippus expresses himself thus. “For it is not possible to find any other Principle or Origin of Justice, than Jupiter and universal Nature; for there we must always begin, whenever we design to treat of Good and Evil.” Book III. Of the Gods.Grotius.
[3. ]See the preceding Note. Cicero also maintains, that the wisest and most learned Men have been of Opinion that the Source of all Law and Justice is to be sought for in the Divinity. See his Treatise de Legibus, Lib. II. Cap. IV. and Lib. I. Cap. V, VII, X.
[4. ]Perhaps, it might be rather said that as Ossum has been converted into Os, so Jussum has been changed into Jus, Gen. Jusis, which was afterwards made Juris, as Papisii was turned into Papirii. See CiceroEp. ad Fam. Lib. IX. Ep. XXI. Grotius.
[1 ]Disorderly Passions are condemned through the whole Scripture, especially in the New Testament, which forbids us, under very severe Penalties, to allow ourselves to be hurried away by those blind Motions. The Apostle St. John includes them all under three Heads, the Lust of the Flesh, the Lust of the Eyes, and the Pride of Life, 1 Ep. Chap. II. Ver. 16. that is, in the Language of the Philosophers, sensual Pleasure, Covetousness, and Ambition.
[2. ]In the Original it is quite the reverse: Quae nobis ipsis, quique aliis consulunt. But though all the Editions I have seen, and even that of 1632 read it so, it is evidently faulty. It should be read malè consulunt, as I have corrected it in my Edition of the Original, where the Reader may see the Reason why the Word supplied is here absolutely necessary. [[But see my introduction, p. xxiv n. 30, in support of the original reading.]]
[1 ]Digest. Lib. I. Tit. I. De Justitiâ & Jure. Leg. III. The Ideas of the Stoicks, and such was this Lawyer, concerning the Origin of Mankind, were very confused; and though they introduced the Divinity, it was in a very different Manner from what Moses uses in his History of the Creation. See Justus Lipsius’sPhysiolog. Stoic. Lib. III. Dissert. IV. The Kindred, which they conceived as subsisting among Men, did not consist in their considering all Mankind as descended from the same Father and the same Mother; but only in the Conformity of their Nature, and the Principles or Materials of which they thought them composed. See Marcus Antoninus, Book II. § 1. and Gataker’s learned Notes on that Place.
[1 ]The Author here passes almost imperceptibly to another Species of Voluntary Law, which however is founded in Nature; it is what a Father and a Mother prescribe to their Children; for Children are obliged to obey their Parents, because they gave them Birth; in which Action, though the Husband and Wife are no more than blind Instruments, they in some Measure imitate God.
[2. ]Hierocles, in his Comment on Pythagoras’s Golden Verses, says that a Father and a Mother are terrestrial Gods.Philo, on the Decalogue, calls them visible Gods, who imitate the unoriginated God, in producing living Creatures. Pag. 761. Edit. Paris. St. Jerom (Ep. XLVII. Tom. 1. p. 224. Edit. Basil,) says that the Relation between Parents and their Children is next to that between God and Men; secunda post Deum foederatio.Plato calls Fathers and Mothers Images of the Divinity. De Legib. Lib. XI. (p. 930, 931. Tom. II. Edit. H. Steph.) Parents are to be honoured like the Gods, according to Aristotle.Ethic. Nicomach. Lib. IX. Cap. II. Grotius.
[3. ]See below Book 1. Chap. IV. § 6. Num. 2.
[1 ]So that the Civil Law, though no kind of Law is in itself more arbitrary, is at the Bottom no more than an Extension of Natural Law, a Consequence of that inviolable Law of Nature, that every one is obliged to a religious Performance of his Promise.
[1 ]Atque ipsa Utilitas Justi propè mater, & Aequi.Horat. Lib. I. Sat. III. Ver. 98. Upon which Place, an ancient Commentator on Horace, whether Acron or any other Grammarian, makes the following Remark. “The Poet here opposes the Tenets of the Stoicks; for his Design is to prove that Justice is not Natural, but derived from Interest.” See what St. Augustin says against this Opinion, De Doctrina Christiana, Lib. III. Cap. XIV. Grotius.
[2. ]Ibid. §8. Note 2.
[3. ]See Pufendorf, Book VII. Chap. IX. § 5.
[1 ]See Book I. Chap. I. § 14.
[2. ]For these two Names are sometimes confounded. See what I have said on Pufendorf, Book II. Chap. III. § 23. Note 3.
[1 ]Add to all this what Pufendorf says Book II. Chap. III. § 10.
[2. ]The Emperor Marcus Antoninus makes a judicious Use of this Comparison. Every Action of yours, which has not a near or remote Relation to the Publick Good, as its End, destroys the Harmony and Uniformity of Life: It is seditious, like that of a Citizen, who by forming Cabals, breaks the Union of the State. Book IX. § 23. And in another Place he says, He who divides himself from another, cuts himself off from all human Society. Book XI. § 8. In Reality, as the same Emperor elsewhere observes, what is useful to the whole Swarm, is useful to each particular Bee. Grotius.
[1 ]Jura inventa metu injusti fateare necesse est.Horat. Sat. III. Ver. III.
[2. ]Book II. Of the Common-Wealth, Tom. II. p. 359. Edit. H. Steph. See likewise Gorgias, Tom. I. p. 483, and Pufendorf, Book I. Chap. VI. § 10.
[3. ]Ὁμου̑ βίην τε καὶ δίκην συναρμόσας. Plut.in Solon. Tom. I. p. 86. Edit. Wechel. To the same Purpose Ovid:
That is, “ And it is my Opinion we shall be overcome by the Superiority of his Arms, which favour the Justice of his Cause. ” See Mr. Burman’s Edition, published in 1713.
[1 ]See Gorgias. Tom. I p. 524, 525, and Book IX. of Plato’sRepublic. Tom. II. p. 579. Tacitus produces that Philosopher’s Thought on Occasion of the Remorse of Conscience, with which Tiberius was tortured. The wisest of Men had good Reason for affirming that if the Souls of Tyrants could be exposed to View, we should see them under violent Racks and Tortures; for as the Body is torn with Whips, so is the Mind with Cruelty, Lust, and Male-Administration. Neither the Splendor of the Imperial Dignity, nor Retirement, could secure Tiberius, or hinder him from confessing the Torments of his Soul, and interior Punishment of his Crimes. Annals, Book VI. Chap. VI.
[1 ]Quae foras spectat.Gronovius observes, that our Author here makes Use of an Expression of Apuleius, Book II. Of Moral Philosophy, (p. 15, 16. Edit. Elmenhorst.) where that Platonist, treating of the Virtues according to the Notions of his School, says, that When Justice is advantageous to the Possessor of that Virtue, it is termed Benevolence; but when it extends to the Interest of others, it is properly called Justice. The Commentator, who produces this Passage, might have gone higher, and discovered the Source from which both Apuleius and Grotius derived this Distinction. Cicero, in Book II of his Republic, says, Justiceregards what is without us; it is diffused and extensive. And in this he only follows Aristotle, whose Words are these: The Just Man acts for the Benefit of others; and it is for this Reason that we say Justice is a Good belonging to others. Ethic. Nicom. Lib. V. Cap. X. p. 67. Ed. Paris.
[1 ]The Words here used are taken from a Passage in one of Cicero’s Epistles, which our Author quotes in his Note on the next Paragraph. They do not relate to Right in general, but to Civil Laws only. The same is to be observed of the Passage in the Oration for Cecina, to which Gronovius refers us in this Place, as if the Author had it in View, and it exactly expressed his Thought.
[1 ]I am very much mistaken, if the Author has not put the Scholar’s Name for that of the Master. I am induced to think so, not only because he has not specified the Place of Aristotle either in the Margin, or the following Note, where he has thrown together several Passages of other Authors to the same Purpose; but also because I never saw that Philosopher quoted for the Observation in Question; nor do I remember to have found this Thought in any of his Moral or Political Works. On the contrary, the Commentators have quoted Plato, on a wellknown Passage of Cicero, where the same Remark is very finely turned; so that it is surprizing that Grotius takes no Notice of either of those two great Writers. The Grecian Philosopher speaks thus: Do you imagine that a City, an Army, a Gang of Thieves or Highwaymen, or any other Body of Men, united in an unjust Design, could ever succeed in their Enterprizes, if they dealt unjustly with one another. No certainly, replied the other Person in the Dialogue. De Rep. Lib. I. p. 351. Edit. Steph.
[2. ]St. Chrysostom has the same Observation. But you will ask how Highwaymen live peaceably together; and when this is the Case? Certainly, when they do not act like Robbers; for if in the Distribution of what they get, they do not observe the Laws of Justice, and give every one his Share, you will then see them quarrel and fight with one another. In Eph. IV. Plutarch having set down Pyrrhus’s Expression, that he would leave his Kingdom to that of his Sons, whose Sword should be sharpest, compares it with a Verse in the Phenician Women of Euripides. (Ver. 68.) They divide my Estate with a sharp Sword. To which he adds this Exclamation: So unsociable and brutalis the Passion of Avarice! In the Life of Pyrrhus, Tom. I. p. 388. Edit. Wech.Cicero says, We can have no certain Dependence on any Thing, when Justice is disregarded. Ep. ad Fam. Lib. IX. Ep. XVI. Polybius observes that the Dissolution of the Society of Villains and Robbers, is chiefly owing to unjust Practices among themselves, and their not being true one to another. Chap. XXIX. Grotius.
[3. ]The Author probably had his Eye upon a Passage of Cicero, where that great Orator and Philosopher proposes this Question: Whether the Interest of a Community most conformable to the Law of Nature is always to be preferred to Moderation and Modesty; he answers in the Negative; For, says he, there are some Things so shameful and criminal, that a wise Man will not do them even for the Preservation of his Country. De Offic. Lib. 1. Cap. XIV. He afterwards asserts, that by good luck it can never happen that the Interest of the State should require such Things to be done, which ought to be well observed. Grotius.
[4. ]The Passage here alledged is in the seventh Book of Aristotle’sPoliticks, Chap. II. p. 427. See also his Rhetorick, Book 1. Chap. III. p. 519 Tom II. Edit. Paris, 1629. For the better understanding his Thought, it is to be observed that he is opposing the Opinion of such as maintain that good Policy requires making Conquests, and extending them as far as possible, at the Expence of the Liberty of the neighbouring People. The Philosopher, amongst other Reasons against this way of thinking, urges that “ It does not become an able Administrator of the State, and a wise Legislator, to do any thing which is not lawful, or agreeable to the Rules of Civil Society. But, says he, it is unlawful, and contrary to the Rules of Civil Society, to desire to have the Command of others at any Rate, justly or unjustly; and Conquests may be unjust. This way of reasoning holds good in regard to other Sciences. For Example, it is not the Business of a Physician or a Pilot to use Persuasion or Force indifferently in their respective Professions. But,” adds Aristotle, “the Generality of Mankind give into this Mistake, that political and despotick Governments are but two Names for the same Thing: They make no Scruple of doing that to others, which they look on as unjust, and prejudicial in regard to themselves. They are willing to submit only to those who command them with Justice; but when it comes to their turn to command, they give themselves no Concern about the Justice of the Action.” On reading these Words, one would conclude that Aristotle entertained very just Ideas of the natural Quality of each Man in particular, and Nations in general. But it appears from the Sequel, that he was of Opinion that some Men, and even some People, were naturally Slaves, on whom he thought War might be made without any other Reason; and he makes use of the Comparison of a Hunter, who is not indeed allowed to take or kill Men for Food or Sacrifice, but may lawfully pursue such Animals as are wild and proper for the Purposes designed. See what I have said on this Philosopher’s Notions in my Preface to Pufendorf, p. xcviii. § XXIV. Second Edition, Of the Law of Nature and Nations.
[5. ]Plutarch, in his Life of Agesilaus, blames the Lacedemonians for making Virtue consist principally in the Interest of their Country, and being unacquainted with any other Justice, but what they thought might contribute to the aggrandizing of Sparta. Thucydides gives us the Sentiments of the Athenians concerning the Humour of that People. The Lacedemonians generally observe the Rules of Virtue among themselves, and in what relates to the Laws of their own Country; but several Examples might be given of their different Conduct in regard to others; in short, they esteem only that virtuous, which is agreeable to them, and only that just, which promotes their Interest. Book V. Chap. CV. p. 344. Edit. Oxon.Grotius.
[1 ]I know not whence this is taken. Plutarch says nothing like it, either in his Life of Pompey, or in his Apophthegms; and it is not probable he would have omitted so remarkable an Expression. Nor do I find the Saying of the Spartan King, as it stands here, in the Apophthegms of the Lacedemonians, or elsewhere. So that I much suspect our Author has depended too much on his Memory; and imagine the Mistake may be thus accounted for. Phraates, King of the Parthians, having sent an Embassy to Pompey, desiring him to be content with bounding his Empire by the Euphrates; that great General replied, that the Romans chose rather to make Justice the Boundary of their Empire.Plutarch, Apophthegm, p. 204. Tom. II. Edit. Wech. See also the Life of Pompey, Tom. I. p. 637. where the Story is told with some Difference. The same Philosopher ascribes the following Reply in one Place to Agesilaus, and in another to his Son Archidamus. One of these Kings being asked how far the Lacedemonian Dominions extended, brandished his Spear, and answered, as far as this can be carried. P. 210. See likewise p. 218, both of the second Volume. Out of these two Stories confusedly remembered, our Author has formed what he here relates, and which, as far as I know, is to be found no where as he gives it.
[2. ]It was Agesilaus; and Plutarch has preserved this Saying as an Answer to a Question proposed concerning the comparative Excellency of the two Virtues. Apophthegm. Lacon. p. 213. Tom. II.
[3. ]Agesilaus having observed that the Inhabitants of Asia had a Custom of distinguishing the King of Persia by the Appellation of Great, asked: How is that Prince greater than I, unless he is more just and more wise?Plutarch, Apopht. Lacon. p. 213. Grotius.
[4. ]This Definition is produced and commended by Cicero, De Offic. Lib. I. Cap. XIX.
[5. ][[This footnote is wrongly included as part of the previous one in the original text. The Latin edition has it in the correct place. The Emperor Marcus Antoninus declares, that, as Antoninus, he considered Rome was his City and native Country; but as a Man, the whole World. (Book VI. § 44.) Porphyry says, the Man, who is conducted by Reason, forbears injuring his Fellow-Citizens, and observes the same Rule still more rigorously in regard to Strangers and all Mankind; and thus keeping the irrational Part in due Subjection, becomes more rational, and consequently more like Divinity than those with whom he deals in this manner. Of Abstinence, Book II. (p. 333.) Grotius.]]
[6. ]We have a Verse of an old Poet to this Purpose.
See St. Cyril’s VIth Book against the Emperor Julian.Grotius.
[1 ]The Passage, which our Author had in View, occurs in the Oration on Chersonesus, where Demosthenes, undertaking to dissuade the sending of a new General into the Hellespont, in the Room of Diopithes, who lay under an Accusation of Extortion and Pyracy, shews that it would be an extravagant Piece of Madness to proceed to that Extremity against a Subject of the State, whom they might easily punish without so much Noise. It is proper, says the Orator, and even necessary to pay Troops, employ Vessels, and erect publick Funds against an Enemy, who cannot be reduced by the Laws; a Decree, an Impeachment, and a single Galley are sufficient against our own Citizens, in the Opinion of all considerate Men. P. 38. Edit. Basil. 1572.
[1 ]See the Commentators on these Words of Cicero, in his Oration for Milo; silent enim Leges inter Arma. Cap. IV.
[2. ]No written Law is of Force in Regard to Enemies; but there are certain Rules and Customs, which are observed by all, even when the Enmity is carried to the greatest Length. Orat. περὶ ἔθους. This Passage is quoted by Peter du Faur, Semestr. Lib. II. Cap. I. p. 8. Edit. Genev. The Orator instances in the Permission of burying the Dead, the Security of Embassadors, &c.
[3. ]Upon this Principle it was, that King Alphonsus, being asked which of the two he had been most obliged to, Books or Arms; answered, that he had learned by Books, both the Art of War, and the Rights of War. Plutarch says, that amongst good Men there are Laws of War; and that we ought not to push the Desire of conquering so far, as to make an Advantage of wicked and impious Actions.Grotius.
[4. ]This Formulary is found in Livy, Book I. Chap. XXXII.
[5. ]This occurs in a Fragment of that learned Author, preserved by Nonius, and was taken from his second Book De Vitâ Populi Romani. See what is said on this Passage, Book III. Chap. III. § 11. Note 2.
[6. ]These are the Words of that great General, as related by Livy, on the Occasion of the perfidious School-Master; whence Plutarch has taken Occasion to ascribe to him a Speech very like this, which we have related above, Note 3. There are Laws of War as well as of Peace; and we have learnt how to carry on a War with as much Justice as Bravery. Book V. Chap. XXVII.
[7. ]Livy makes him speak thus, in his Answer to the Embassadors from Carthage, who came to sue for a Peace, that, though he was almost secure of Victory, he does not refuse to make a Peace, that the whole World may know the Roman People have a strict Regard to Justice both in engaging in and finishing their Wars. Book XXX. Chap. XVI. The thing itself, however, is far from being indisputable. On the contrary, if we look into the Conduct of the Romans, we shall find Injustice practised in several of their Wars, either in regard to the Subject, the Manner, or Conclusion of them; though Alberic Gentilis has taken upon him to justify that People in his Treatise De Armis Romanis. See Mr. Buddeus’s Dissertation, intitled, Juris prudentiae Historicae Specimen, § 82, &c. among his Selecta Juris Naturae & Gentium; and what Grotius himself says in his Book De Verit. Rel. Christ. Lib. II. § 12. I remember a Passage in Cicero, where that celebrated Orator and Philosopher says, that Equity and Fidelity are most commonly observed in entering on, pursuing, and ending a War. De Legib. Lib. II. Cap. XIV.
[8. ]Livy, whose Words have been quoted Note 6.
[9. ]Seneca, Ep. CXX. We admired that great Man, persevering in his Resolution of giving a good Example, and unmoved by all the King’s Offers, or the Promises made him on the other Side; preserving his Innocence in War, which is extremely difficult, being persuaded that some Things were not allowable even in an Enemy, P. 595. Edit. Gronov. 1672.
[1 ]Appian makes Pompey speak thus to his Army: “We ought to rely upon the Gods and the Goodness of our Cause, since we are engaged in this War out of an honest and just Desire of maintaining the Government and Liberty of our Country.” De Bell. Civil. Lib. II. p. 460. Edit. H. Steph. (p. 755. Edit. Amstel.) The same Historian introduces Cassius saying, that in War nothing gives so great Hopes as the Justice of the Cause (De Bell. Civil. Lib. IV. p. 645. H. Steph. 1034. Edit. Amst.) Josephus says that King Herod made use of this Consideration to animate his Soldiers, that God is with those, who have Justice on their Side. Antiq. Jud. Lib. XV. We find in Procopius many Thoughts to the same Purpose; as for Instance, what Belisarius says in the Speech he made, when he went into Africa. “Valour will not render us victorious, unless it be regulated and conducted by Justice.” (Vandalic. Lib. I.Cap. XII.) See also another Speech of the same General’s before an Engagement, near Carthage (Ibid. Cap. XIX.) In the Discourse of the Lombards to the Herculi, we have the following Passage, which I have a little corrected. “We call God to witness, whose Power is so great, that the least Particle of it infinitely surpasses all human Force. There is Reason to believe, that having a Regard to the Causes of the War, he will give to it an End answerable to the Deserts of both.” (Gothic. Lib. II. Cap. XIV.) And it is remarkable, that this Prediction was soon accomplished by a wonderful Event, which the Historian afterwards recites. Totilas, in the same Author, says to the Goths: “It is not possible, no, it is not possible, that those who commit Acts of Injustice and Violence, should acquire Glory by Arms; but every one is fortunate or unfortunate, as he behaves himself well or ill.” (Ibid. Lib. III. Cap. VIII.) After the taking of Rome, Totilas makes another Speech, tending to the same Purpose. (Ibid. Cap. XXI.) Agathias, another Historian of those Times, tells us, Book II. Chap. I. that Injustice and Irreligion ought always to be guarded against, and are very prejudicial, but especially when we are obliged to make War, and to come to an Engagement with the Enemy. He proves it elsewhere (Cap. V.) by the Examples of Darius, Xerxes, and the Athenians in their Expedition against Sicily. See also what Crispinus says to the Inhabitants of Aquileia in Herodian, Lib. VIII.(Cap. VI. Edit.Oxon. 1678.) Thucydides observes, that the Lacedemonians believed they had brought upon themselves, by their own Fault, the Disasters they met with at Pylos and other Places, because they had refused to submit to the Decision of Arbitrators, though summoned there to by the Athenians, according to their Treaty. But the Athenians having afterwards refused in their turn to give the same Satisfaction, after several Infringements and unjust Enterprizes, the Lacedemonians from thence conceived good Hope of success in their Affairs for the future. Lib. VII. Grotius.
[2. ]The Author here makes use of the very Terms of Propertius, and not of Ovid, as Gronovius pretends. His Memory failed him on this Occasion, which was also the Case of the learned Mr. Menage. This Mistake has been corrected by the last Commentator on the Poet last mentioned.
[3. ]This Thought is contained in the following Verse of Euripides, taken from one of his Tragedies, not now extant.
[4. ]Lucan introduces Pompey employing this Reason for encouraging his Soldiers before the Battle of Pharsalia.
But long before that Poet’s Time, Menander had said in general:
See also some Passages cited by our Author, Book II. Chap. I.§1.
[5. ]Tacitus makes Otho say that good and lawful Undertakings are frequently attended with very bad Success, for want of a judicious Manner of proceeding, Hist. Book I. Chap. LXXXIII.
[1 ]Gladius bené de Bello cruentus, & melior homicida.Tertul.De Resurr. Carnis. Cap. XVI. Grotius.
[2. ]He was a Franciscan Preacher at Mentz, who lived in the Reign of Charles V. Ziegler on this Place quotes Sixtus of Sienna, Biblioth. Lib. VI. Annot. 115, 156; where the Author produces and criticizes the Passages of those two Writers on this Subject.
[3. ]This great Author has a long Digression on the Proverb, Dulce Bellum in expertis.
[4. ]This has very often been the Practice of several Moralists, in all Ages. See a beautiful Passage of Seneca on this Subject, which I have given at Length, with a Translation in my Treatise On Gaming, Book I. Chap. III. § 12.
[1 ]The Author had been Advocate-General, and Pensionary of Rotterdam.
[2. ]He wrote this at Paris in 1625.
[3. ]Laws merely positive.
[1 ]The Author is misled here by a corrupted Passage of Ammonius the Grammarian, in his Treatise Of like and different Words, upon the Word Νη̑ες, where we read, Δικαιώματα πολέμων, The Laws of War, instead of πόλεων, States; as it is quoted by Eustathius on the seventh Book of the Iliad. See Menage on Diogenes Laertius, Book V. § 26. and Selden, Of the Law of Nature and Nations, Juxta Discipl. Hebr. Lib. I. Cap. I. p. 4.
[2. ]The Justice of War is taught most strictly by Fecial Law of the Romans. Cicero, De Offic. Lib. I. Cap. XI. See Book II. Chap. XXIII. § 4 and 8 of this Treatise.
[1 ]He was a Spanish Dominican, who lived in the XVIth Century; and the Treatise here mentioned is intitled, De Indis & Jure Belli, and appears among his twelve Theological Lectures.
[2. ]A Dutchman, so named from the Place of his Birth, and Chancellor of Cologn. He lived about the Middle of the XVth Century, and wrote a Treatise De Bello Justo.
[3. ]I know not who, or what Countryman he was. Mr. De Courtin has translated his Name Matthison; and thus he appears to be an Englishman; but perhaps this is only done by guess.
[4. ]His Book was printed at Rome, in 1609. Grotius.
[5. ]A Native of Segovia. His Treatise De Bello & Bellatoribus, may be found in the large Collection, called Tractatus Tractatuum, Tom. XVI.
[6. ]A Spaniard, his Name is Arias, and his Book is in the same Volume of the same Collection, under the Title of De Bello & ejus Justitiâ.
[7. ]A Native of Bologna in Italy. His Treatise De Bello, is inserted in the same Volume of the Collection already specified.
[8. ]His Name was Garat. His Treatise De Bello appears in the same Volume of that Collection. It was reprinted at Louvain in 1647, with the Treatise of Ayala, which our Author speaks of a little lower.
[1 ]Peter Du Faur of St. Jori, Counsellor in the Grand Council, afterwards Master of Requests, and at last First President of the Parliament of Toulouse. He was Scholar to Cujas. His Work intitled Semestrium Libritres, is full of Erudition. It has born several Impressions at Paris, Lyons, and Geneva.
[2. ]He was a Native of Antwerp of Spanish Extraction. His Treatise, De Jure & Officiis Bellicis, was printed in that City in 1597, in 8 vo. The Edition I make use of is that of Louvain, 1648.
[3. ]This Author has written De Jure Belli: My Edition is printed at Hanau, 1612.
[4. ]This Reproach does not fall on the modern Lawyers alone; Mr. Noodt has plainly proved that the antient Professors of that Science have sometimes been guilty of the same Fault. See his Probabilia Juris, Lib. II. Cap. II.
See my Preface to Pufendorf, §1,& c. Cassiodorus observes, that to teach Men the Duties of Justice is indeed a Work of some Difficulty, but not impossible; because the Divinity has been so indulgent to all, that even they, who are unacquainted with the Principles of Law, are yet sensible of the consequential Truths derived from them. Var. VII. 26.
[2. ]The same Poet introduces Hermione speaking thus to Andromache.
“We do not govern our State by the Laws of Barbarians.” To which Andromache replies:
“What is dishonourable or dishonest among them, bears the same Character also among us.” Androm. Ver. 242, 243. Grotius.
[1 ]Why should they not be thus employed? The Emperor Alexander Severus read every Day Cicero’s Books De Republicâ, and his Treatise Of Offices.Grotius.
[2. ]The Philosophers, in Consequence of certain false Principles, with which they were infatuated, frequently advanced very false Maxims, and sometimes contradicted themselves. The Academists were particularly remarkable on this Account, valuing themselves on the Art of maintaining both Sides of all manner of Subjects. See Buddeus’s Dissertations Of Moral Sceptism, and the Errors of the Stoicks, among his Analecta Historiae Philosophicae, and the Morality of the antient Philosophers, abridged in my Preface to Pufendorf’s great Work.
[3. ]The Historians, as well as the Poets, with a View of keeping up the Character of the Persons introduced, often put Maxims into their Mouths, which are false and contrary to Natural Law. The Writers of both Classes entertained likewise some Ideas which were far from being just, and sometimes very gross, on several Subjects; but the Poets exceeded the Historians in this Particular. In regard to the former, see my Preface to Pufendorf, § 16; and as to what concerns the latter, Mr. Le Clerc’sParrhasiana, Tom. I. p. 200, & c. Our Author, in the Course of this Work, produces a great Number of Passages, which may serve to prove beyond Dispute what he here advances. We have already seen some of them, at the Entrance of this Preliminary Discourse, § III. Notes 1, 2. which are taken from Thucydides and Tacitus, two of the greatest and most judicious Historians of Antiquity, the one Greek, and the other Latin.
[4. ]This relates to the Orators. See Pufendorf’sLaw of Nature and Nations, Book IV. Chap. I. § 21. Note 1.
[5. ]See what I say on Book I. Chap. I. § 14.
[6. ]See on Pufendorf, Book III. Chap. III. § 23. Note 3.
[1 ]See, for Example, Book III. Chap. VII. § 6, 7.
[1 ]This is what Lactantius says, Would any one but collect what Truths are scattered through the Writings of each of them, and diffused through the several Sects, and reduce them into one Body, he would not differ from us. Instit. Divin. Lib. VII. Cap. VII. (Num. 4. Edit. Cellar.) Justin Martyr speaks to the same Purpose in his first Apology: Not, says he, because the Doctrines ofPlatoare entirely different from those ofChrist;but because they are not conformable to them in every Particular. Which is also the Case in regard to the Tenets of the other Philosophers, as of the Stoicks, and of the Poets and Historians; for each of them, being directed by a Ray of the Light of innate Divine Reason, discovered something conformable to it, and spoke well so far (p. 34. Edit. Oxon.) Tertullian frequently calls Seneca, our Seneca; but then he observes that, none butChristcould give us a complete Body of Spiritual Virtues, (Adv. Jud. Cap. IX.) St. Augustine lays it down as a Fact that those Rules of Morality, which are so highly commended byCicero, are taught and learnt in the Christian Churches, diffused through the whole World, Ep. CCII. See what the same Father says in regard to the Platonists, whom he maintains to be almost Christians, Ep. LVI, in his Treatise De Verâ Religione, Cap. III. and Confess. Book VII. Chap. IX. and Book VIII. Chap. II. Grotius.
[1 ]Lactantius treats on this Point at large in his Divine Institutes, Books VI. Chap. XV, XVI, XVII. Let us add this Passage of Cassiodore:Non adfectibus moveri, sed secundum eos moveri, utile vel noxium.Grotius.
[2. ]Ethic. Nicom Lib. II. Cap. VI.
[3. ]Whatever the learned Gronovius may say on the Subject, these are really two different Virtues. Aristotle might give the Greek Word Ἐλευθεριόστης a compound Idea, including both that Disposition, by which a Man is inclined to give freely, and that which directs him to a prudent Regulation of his Expences; but they are in Reality two different Dispositions, and two distinct Ideas. It is true, the more saving we are, the more we have to give away; but it does not therefore follow that Frugality, or a commendable Savingness, is only Part of Liberality. It is a very different Modification of the Soul, which indeed puts us in a Condition of performing more numerous and more considerable Acts of Liberality, on certain Occasions; but which is not therefore more a Part of Liberality itself, than Sobriety and a Love of Work are Parts of Chastity, because they are good Preservatives against Temptations to Impurity, and because those three Virtues, like most others, mutually assist one the other. Whoever takes a Delight in relieving the Indigent with his Substance, and actually does it on proper Occasions in a judicious manner, and as far as his present Circumstances permit, is so far truly liberal, even though for want of that Oeconomy, and Care of his Affairs, which compose the Character of a good Manager, he should be reduced to a Station, in which he is no longer able to give as much as would otherwise have been in his Power. We shall sometimes see Persons, who, in spite of all their Negligence, and after their superfluous Expences, have still something to give, and bestow it freely on all, whom they have an Opportunity of assisting; will any one deny such Men the Character of Liberality? In a Word, Liberality, and Frugality, are two different Virtues; but they are both to be equally acquired and cultivated, but the Want of the latter should hinder the Practice of the former, or at least confine the Exercise of it to too narrow a Compass. The Philosopher himself owns that Liberality, according to his Definition, consists more in giving and spending judiciously than in getting Debts in, and keeping one’s Money. The Use of Money seems to consist in Expences and Gifts; for receiving and keeping it are rather to be called Possession; so that it is the Business of a liberal Man rather to give to whom he ought to give, than to receive from those who are indebted to him, and not receive where it is not due. Ethic. Nicomach. Lib. IV. Cap. I. Thus our Author rightly observes that Aristotle was obliged to reduce the two Virtues under Consideration to one, in order to find two opposite Vices, one by Defect, the other by Excess; for Avarice is indeed opposite to Liberality, according to the common Ideas; but Prodigality is so far from being in itself contrary to Liberality, that it bears some Resemblance to that Virtue, and may have some Tendency toward promoting the Practice of it, which at least is not incompatible with it. If some prodigal Persons become niggardly, when the Necessitous are to be relieved, there are others, who give freely, and take a Pleasure in doing good, though they often do it without much Judgment, or a sufficient Regard to all Circumstances.
[4. ]There are several Faults in this Distinction. 1. The Philosopher does not distinguish the Virtue in question by any particular Name, but only calls the Person endowed with it ἀληθέυτικος and ϕιλαλήθης ; and understands by it that Disposition which directs a Man to love Truth, and commit no violence on it by his Actions, in Things indifferent, i.e. in regard to which we were otherwise under no Obligation to speak and act sincerely from the Laws of Fidelity and Justice; for, says he, Sincerity in Dealings, and every thing that regards Justice and Injustice, relates to another Virtue. Ethic. Nicom. Lab. IV. Cap. XIII. Thus he makes a faulty Distinction of two Sorts of Sincerity, and Veracity, one relating to Things indifferent, the other to those, which are obligatory; as if the Diversity of the Objects on which one and the same Virtue is employed, would privilege the Multiplication of that Virtue into as many different Species. 2. He no where treats of that other Sort of Veracity and Sincerity, which is only occasionally mentioned in this Place; and that which he here treats of is entirely reduced to indifferent Things; which relate only to the Person of him, who speaks or acts. But is it not possible for a Man to lie, feign, or dissemble in a thousand other indifferent things, on a Point of History, for Example, a Phaenomenon of Nature, an Event, on some Action or Quality of another Man, which does neither good nor harm to any one?: Strictly speaking, Boasting and Dissimulation, which Aristotle gives us for the two opposite Extremities, are both of them contrary to Truth and Sincerity by Defect, and not by Excess. Both he who attributes to himself Qualities, with which he either is not endowed at all, or not in so high a Degree, and he who refuses to acknowledge or extenuates those of which he is really possessed, are faulty in deviating from the Truth. If one says more than true and the other less, they only take two different Ways of saying things otherwise than they are. The opposite Extremity in the Excess would be to speak and act too sincerely, and with an excessive Simplicity, which discovers either by Words or Conduct what was not proper to be known. Besides, the End of Dissimulation, of which the Philosopher discourses, is commonly to acquire more Esteem than we deserve, while we either seem unwilling to acknowledge our Merit, or undervalue it; and he himself observes that it sometimes seems to be a sort of Boasting in Disguise; and concludes the Chapter, which treats of these two Vices, with saying that Boasting is diametrically opposite to Veracity, and even worse, that’s Dissimulation. The same Inequality of Opposition is found between several other Vices; from which it appears how loose and useless his Principle of Mediocrity proves.
[5. ]Our Philosopher owns himself that no Man is without a Relish for Pleasure; and that human Nature is a Stranger to such an Insensibility; that even Brutes make a Distinction in their Food, and are pleased with one Kind preferably to another: If any one, says he, finds nothing delightful, or makes no Distinction between one thing and another, he is far from being a Man. As there is no such Person in the World, there is no Name assigned him. Ethic. Nicom. Lib. III. Cap. XIV. It appears from this passage that Aristotle had an Idea of a thing that has no Existence; for where is the Man, to whom every thing is indifferent, and who takes a Pleasure in nothing? If any one be found insensible to the natural Pleasures of the Taste and Touch, to which the Philosopher confines Temperance, and makes this Insensibility the Extremity by Defect, it must be the Result of a very singular Constitution, a deep Melancholy, or some other Indisposition of Body; and in this Case the Defect will not be moral, butpurely physical. In regard to other Pleasures, as that of Musick, or what arises from a Contemplation of the Beauties of Painting, or Architecture, &c. an Insensibility to them is not a thing evil in itself. The Instance here alledged by Gronovius, of Timon the Manhater, and the Conduct of Mark Anthony, who copied his Example for a short Time, are nothing to the Purpose. That famous Humourist, notwithstanding his Enmity to Mankind, and his Aversion to Society, took a Pleasure in cultivating his Garden. Mr. Hemsterhuis has given us his Character, and all the Particulars to be found in History concerning him, in his beautiful Remarks on Lucian’sTimon, published in 1708, in a new Edition of the Select Dialogues, and some other Pieces of Grecian Antiquity. One might with more Propriety here alledge the Example of Misers, who deprive themselves of the Comforts and Conveniencies, and sometimes even of the Necessaries of Life. But, besides that it is no common thing to see the Matter carried to that Excess, if they deny themselves the Use of several Things, this does not commonly proceed from a stupid Insensibility to the most natural Pleasures, but from the Preference they give their Money; for when it is in their Power to taste those Pleasures, without being at any Expence, they indulge themselves without Reserve, and are more apt to exceed the Bounds of Moderation, than those who pay for the Use of what Nature offers them.
[6. ]Gronovius is of Opinion that the Philosopher would not be understood to speak of the Contempt of Honours, which is not Evil, but only of the Contempt of Reputation, by which a Man is induced to act ill, to get above the Consideration of what will People say, and sink into a base and sordid way of living. He instances in the famous Dionysius, Tyrant of Syracuse, who having left his Kingdom, retired to Corinth, where he wore dirty and ragged Cloaths, drank freely with all he met, frequented Taverns and Brothels, and amused himself with chattering about Trifles with the Refuse of Mankind, as Justin tells us, Book XXI. Chap. V. But we need only observe Aristotle’s Description of the Contempt of Honours, in which he makes the Extremity opposite to Magnanimity in the Defect consist, to be convinced that the learned Gentleman, whose Explication I have given, disguises the Philosopher’s Thought out of a too warm Concern for the Credit of the Antients. Aristotle says: Those who are subject to the Fault in Question do not seem to be bad Men, because they are guilty of no Crime: That the pusillanimous are faulty only in depriving themselves of those Honours, which the Philosopher considers as real Goods, though they deserve them, and forego the Possession of some valuable Thing, for want of a due Sense of their own Merit. —That such Persons seem rather chargeable with Laziness than Folly. The Opinion, they entertain of themselves, makes them still worse.—they forbear engaging in good Actions and glorious Enterprizes, as unworthy of appearing in them, and decline the Enjoyment of exterior Goods. Ethic. Nicom. Lib. IV. Cap. IX. Such a Disposition has nothing in it that is of itself vitious, and even comes near to Humility, of which the Pagans had some Idea, as I have shewn in my Treatise On Play, Book I. Chap. III. § 6. As long as a Man is ignorant of his own Merit, he is so far from being culpable for not aspiring at Honours, that require Qualifications, of which he believes himself not possessed, that he is to be commended for not aiming at them; and Ignorance in this Case is the more excusable, as we are much more inclined to the opposite Extreme, and to flatter ourselves with the Possession of good Qualities, of which we are entirely unprovided. It is good always to entertain a Diffidence of ourselves in that Point, in order to avoid the Illusion of Self-Love; and there is commonly great Reason for presuming, that the Man who declines Honours, does it rather on a Principle of Modesty, than out of Indolence, or Meanness of Soul. Aristotle, however, maintains that Pusillanimity (by which Term he means an In difference to Honours) appears more frequently in Opposition to Magnanimity, than Ambition, and that it is the more culpable of the two, Ibid. Experience shews the Falsity of the former of these Assertions; in regard to the latter, it must be allowed that the Philosopher speaks conformably enough to the Notions of the Vulgar, and the ambitious Part of Mankind. Hence it was that among the Romans, for Example, those who had a Right to aspire at the Consulship, and declined the Charge, were particularly careful to offer the Reasons for their Conduct in the strongest Terms, to avoid the Reproach of Pusillanimity. See Cicero’s Epistles to Atticus, Book I. Ep. I. p. 8. Edit. Graev. But, consulting the Ideas of sound and right Reason, it will appear that there is more Greatness of Soul in refusing Honours than in pursuing and embracing them.
[7. ]According to our Philosopher, it is no less a Folly not to be angry on just Occasions, as to give a loose to Passion without Reason. They, who are not angry, as Persons, Times, and Things require, are chargeable with Folly. They seem miserable, incapable of being affected, or revenging an Injury. To which he adds that to suffer patiently in such Cases, and neglect the Defence of our Friends, is a Mark of a mean and servile Mind. Ethic. Nicom. Lib. IV. Cap. XI. Hence it appears that Aristotle considers the Disposition of all those in general, who command their Passion, when they have just Reason to be angry, as a Vice opposite to Lenity by Defect; and that he does not, as Gronovius pretends, confine that Censure to the stupid and mean Patience of Buffoons and Parasites, who tamely submit to the greatest Affronts and Indignities, in Consideration of some paultry Advantage. But if we consider the Matter in itself, the Tranquillity of a Mind, free from Anger, is not a moral Defect. For supposing, what is very seldom to be found, a Man either naturally or by the Force of long Custom so hard to be moved, that he is seldom or never angry, he is thus very happy, as being secured from the Excesses of a blind Passion; nor will such a Man be less disposed, or less able to maintain his just Rights, and that of his Friends. On the contrary, by being Master of his Passions, and of a peaceable Disposition, he will be able to take more just Measures, and manage his Interest better than those, who are actuated by a Passion so hard to govern as Anger. Though Anger is not evil in its own Nature, and may be allowed to a certain Point, it is never absolutely necessary. We always may, and that with more Security, support our Dignity and maintain our Right, without being in a Passion. But it is evident that our Philosopher makes a Virtue of a moderate Degree of Anger, and a Desire of Revenge, the natural Effect of that Passion; which being in itself vitious, never allows Anger to be kept within due Bounds.
[1 ]He speaks in the following Manner of Justice, properly so called, which he terms particular or private, to distinguish it from universal or general Justice, including the Practice of all the Virtues which relate to our Neighbour. This Distinction being made, it is evident that a just Action consists in observing a Medium between doing an Injury and receiving one. He that does an Injury, has more, and he who is injured, less than his due. Justice is a Mediocrity; not in the same manner as the Virtues already spoken of; but as the Medium is its Object, and Injustice includes the two Extremes. Justice therefore is a Disposition to act what is right with Choice and Deliberation, and to render every one his Due, both in our Dealings with others, and those which others have with one another; so that we do not take to ourselves more of what is agreeable and advantageous, or less of what is disagreeable and prejudicial than is our Due, leaving others too small a Share of the former, and too much of the latter, but observe a just Proportion here, as well as in the Distribution to be made among others. Injustice, on the contrary, is a Disposition of doing Wrong designedly, that is of giving each Person too much or too little of what is advantageous or prejudicial, without any regard to exact Proportion. Thus there is both Excess and Defect in Injustice, because it consists in giving too much and too little, that is, in appropriating to ones self too large a Share of what is simply advantageous, and taking too little of what is prejudicial; and observing the same unequal Distribution in regard to other Men, deviating from the Rule of Proportion sometimes on one Side, and sometimes on the other. The Extreme in unjust Actions, by way of Defect, is to receive an Injury; that by way of Excess, to do one. Ethic. Nicom. Book V. Chap. IX. Gronovius thinks Aristotle sufficiently defended against our Author’s Criticism, by saying, that whereas in other Virtues there is but one Medium, fixed by Geometrical Proportion, Justice observes sometimes the Medium of this Geometrical Proportion, and sometimes that of Arithmetical Proportion; so that here is only an Explication and Distinction of Terms, not a Transition from one kind of Thing to another. But the present Question does not turn on the Nature of the Medium, or the Proportion to be observed for determining it. The Subject, in which this Medium is placed, must be specified, so as to be found between two opposite Extremes of the same Thing, whatever Proportion is observed for determining it. According to Aristotle, the Medium, in which the Essence of Moral Virtue consists, is planted, as one may say, in certain Sorts of Passions and Actions, not vicious in themselves, but which become such, by deviating from that Medium, and thus form two opposite Vices, one by Excess, the other by Defect. Fear, for Example, is a Passion not evil in its own Nature; too much Fear is Timidity, or Cowardice; too little is Audacity, or a rash Boldness: The just Medium is Fortitude, or rational Courage. Speaking, laughing, a regular Composure of the Face and exterior walking, standing still, in short all we say or do in Conversation are in themselves indifferent. Behaving ourselves in these Particulars so as to endeavour at pleasing every one, or certain Persons on all Occasions, is Flattery: on the contrary, to act as if we had no Concern for pleasing any one, is Clownishness or Incivility; the just Medium is Civility, or a reasonable Complaisance. See Ethic. Nicom. Book II. Chap. VI, VII. To return to Justice, the Virtue under Consideration, according to our Philosopher, its Medium consists in a certain Equality, an equal Distribution of Advantages and Disadvantages; for this is what he means by that Equality to which the Actions, whereby we practice Justice, relate. An exact Observation of this Equality, is the proper Employment of Justice, and what constitutes its Nature. A Disregard of this Equality, whether we take or give more or less than it requires, is a Vice opposite by Defect; the more or the less is not then in Matter of Justice, but in the Things about which it is employed: We do not observe this Equity too much or too little, we do not exceed the just Equality, but always fall short of it, even when we take or give too much, this is no more than a different manner of Inequality. Where then is the other opposite Extreme, which ought to consist in an excessive Concern for maintaining the Equality in question? It will not be the Jus summum, that rigorous Justice, which is called the Height of Injustice. (Summum Jus, Summa Injuria, CiceroDe Offic. Lib. I. Cap. X. TerenceHeautont. Act. IV. Scene V. Ver. 48.) For when a Man pushes his Demands as far as he may according to the Rigor of the Law, or presses the Terms of the Law too severely in pronouncing Sentence, it is a Defect of Equity: He offends against the Spirit of the Law, against that very Equality which the Law designs to establish, and introduces a real Inequality contrary to Equity, as Aristotle himself makes appear, Book V. Chap. XIV. Ina Word, our Philosopher was very sensible of the Lameness of his Principle of Mediocrity, when applied to this Virtue, and shews it plainly enough in the Words already quoted. He owns that Justice is a Mediocrity, not in the same manner as other Virtues are, but as a Medium is its Object, and Injustice only is its opposite Vice, which alone includes the two Extremes. This abundantly shews the Uselessness and Insufficiency of Aristotle’s Principle. Besides, it will appear, on a careful Examination of the Matter, that the Nature of all the Virtues may be accurately explained without having recourse to that Principle. See a Passage from Mr. Grew, an ingenious Englishman, quoted in my Preface to Pufendorf, p. xciv, xcv. of the second Edition.
[2. ]The learned Gronovius calls this Chicanry; because, says he, this less, according to Aristotle, relates to Hardships and Disadvantages, and not Profits and Advantages. But he is himself guilty of the Fault with which he charge sour Author. Grotius has his Eye on the Definition of an Unjust Action, which occurs in the Close of the Passage quoted in the foregoing Note; according to which receiving an Injury, or having less than one’s due is comprehended in the Idea of Injustice, as well doing an Injury, or taking more than one’s Due. The Philosopher explains himself clearly in another Place, where he says, It is evident that both receiving and doing an Injury are evil; for by the former a Man has less, and by the latter more than the Medium requires—But doing an Injury is the more culpable of the two, because done maliciously; whereas a Man receives an Injury without Malice, or an Inclination to Injustice.—So that receiving an Injury is in itself the less evil, though it may by Accident become a greater. Ethic. Nicom. Lib. V. Cap. XV. p. 73. On reading this last Sentence, we immediately perceive the tacit Allusion which Grotius makes to it, while he explains it, and refutes the Philosopher’s Opinion.
[3. ]Supposing one Man commits Adultery for Lucre’s Sake, and receives his Reward; another is guilty of the same Crime out of a Motive of Lust, and pays for it. The latter seems rather sensual than covetous; whereas the former is unjust, but not sensual, because he acted with a View of Gain. Besides, every other unjust Action has always a Relation to some View. Thus Adultery relates to Intemperance; abandoning one’s Comrade in an Engagement, to Cowardice: striking, to Anger. But when a Man gains by his Crime, it relates only to Injustice. Ethic. Nicom. Lib. V. Cap. 4. We see here that the Philosopher does not sufficiently distinguish between the Principle or Motive, which induces a Man to commit an Injustice, and the unjust Action itself; for he pretends that one and the same Action, by which we invade another’s Property, relates either to universal Justice, or to particular Justice, which is Justice properly so called, as the Agent is influenced by a Motion of Sensuality, Cowardice, Anger, or by a formal Design of seizing on what belongs to another, and taking more than one’s Due. Now besides that this formal Design is seldom found in Injustice, few Men doing an Injury merely for the Sake of doing it, and without being actuated by some Passion, without which they would rather choose to leave their Neighbour’s Right untouched; besides this Consideration, I say, the Diversity of Principle may indeed make us offend at the same Time both against Justice, properly so called, and against some other Virtue, relating either to ourselves or others; but, this notwithstanding, every Action tending to the Prejudice of another’s Right, such as Adultery and Murder, will always be a real Injustice in itself; and all that Gronovius has advanced in Defence of Aristotle, is nothing to the Purpose. He may, if he pleases, alledge the Example of Mnester the Comedian, who was proof against all the Solicitations of Messalina, till the Emperor Claudius, her Husband, commanded him to do whatever she should require of him. This Comedian, according to our Commentator, did indeed commit an unjust Action, and an Act of Intemperance; but if we judge of his Conduct in a moral Manner, he was neither chargeable with Injustice nor Intemperance. I own he was not so culpable, as if he had solicited Messalina; but even granting that a Husband can yield to another Man his Right to his Wife’s Body, this was by no means the Emperor’s Intention, whose general Order to obey the Empress did not extend to this Action. So that the Comedian ought still to have persisted in his Refusal, and by his Compliance he certainly became even more guilty of Injustice than Intemperance; though this single Action did not denominate him habitually unjust or intemperate, which is not the present Question. As to Murder committed by a Motion of Anger, it is sufficiently specified in the Passage here quoted, striking, relates to Anger. So that Gronovius had no Reason to say he knew not whence this was taken, and that it could only be from Eth. Nicom. Lib. V. Cap. X. p. 68, in which he pretends our Author contradicts himself; for he himself quotes and commends this very Passage, Book III. Chap. XI. § 4. But the Question there turns on a different Thing, viz. the Distinction between unjust Actions committed maliciously, and such as are done without any premeditated Design.
[1 ]Agathias makes a famous General speak thus: Those Motions of the Soul, which by Nature prompt us to what is pure, good, eligible and our Duty, are to be indulged without Restraint. Those, which have a contrary Tendency, are not to be followed on all Occasions, but only so far as is consistent. Thus Prudence is in the Opinion of all Mankind a pure Good, without the least Mixture of Evil; and Anger, so far as animates us to Action, is commendable; but an Excess of that Passion is to be avoided as prejudicial. In Belisarius’s Speech, Book V. (Chap. VII.) Grotius.
[2. ]Here Gronovius makes two Replies in Favour of Aristotle.First, that the Philosopher is to be excused for not ranking Piety, Faith, Hope and Charity among the Moral Virtues, as they are known only by Revelation delivered to Christians; for Aristotle, says he, as all the ancient Pagan Philosophers did, included the Worship of the Deity under Magnificence.Ethic.Nicom. Lib. IV. Cap. V. This Idea is followed by Sallust, Bell. Catilin. Cap. IX. In suppliciis Deorum magnifici, &c. and by Justin, Book XXIV. Chap. VI. speaking of the Presents offered in the Temple of Delphos. Now Excess in this Case is possible, as appears from that ancient Law: Pietatem adhibento: opes amovento.Cicero de Legib. Lib. II. Cap. VIII. and from the Reason assigned by Lycurgus for a Law he had made for regulating the Expence of the Sacrifices. Plut.Apophthegm. Lacon. p. 229. Tom. II. Edit. Wech. The other Answer is, that solid Piety indeed cannot be carried too far, and the same is to be said of all other Virtues, which, as such, are always found in the just Medium, to what Length soever they are carried; but that there may be Excess in exterior Actions, by which alone one Man can form a judgment of another’s Sentiments. For how do we make it appear that we serve God? Is it not by frequenting Places of Worship; by praying on our Knees, bear-headed, and with our Hands joined and raised up to Heaven: By giving Alms, by contributing to the necessary Expences of the publick Worship; by observing Festivals; by reading and meditating on the Holy Scriptures; by abstaining from every thing, which we think contains any Impiety, and hindering the Commission of it, as much as in us lies, &c ? Now who does not know that in each of these Particulars we may do more than God requires, and sound Reason allows? Thus, conformably to Aristotle’s Principle, Piety will certainly hold the middle Way between Superstition, which makes its Excess, and Impiety or Atheism, which is its Defect. This is our learned Commentator’s Reasoning; on which I have two observations to make. First, it is no very easy Matter entirely to justify Aristotle’s Omission of so considerable a Virtue as Piety; and several judicious Authors have with good Reason blamed him for allowing Religion no Place in his System of Morality, as I have shown in my Preface to Pufendorf, § 24. In Reality, as soon as we acknowledge a Deity, as he did, if we reason with ever so little Exactness, we must necessarily discover certain Duties in which we stand engaged to that Being. Thus we see several of the Pagan Philosophers have spoken very finely on that Subject. In vain does Gronovius pretend that according to the Ideas of all the ancient Heathen Writers, the Worship of the Divinity is included in that Virtue, which Aristotle calls Magnificence. He had forgot that beautiful Passage of Cicero.The best, the purest, most holy and most pious Worship of the Gods is always to honour them with Purity, Sincerity, and Integrity both of Mind and Words. For the Philosophers are not the only Persons, who have distinguished Piety from Superstition; our Ancestors have done the same. De Nat. Deor. Lib. II. Cap. XXVIII. See also his Oration Pro domo suâ, ad Pontifices, Cap. XLI. with Graevius’s Notes, and the Passages quoted from Seneca and Epictetus in my first Note on Pufendorf, Book II. Chap. IV. § 3. It is evident from those and several other Authorities, which might easily be produced, that many of the wise Pagans made Piety, and the Worship of the Divinity consist principally in the interior Sentiments, and not in the exterior Acts of Devotion. Secondly, we must then find out two vicious Extremes in the interior Sentiments: It must be possible for a Man to entertain too exalted an Idea of God, respect and love him too much, be too submissive to his Will, &c. in all which there never can be any Excess. So that whatever they may say who are resolved to reconcile Aristotle with Reason and good Sense at any Rate, it will still be certain that here, as in several other Virtues, there is no Medium, equally or almost equally removed from two opposite Extremes, in the same Kind of Things, which are the proper Object of Virtue.
[3. ]Noct. Attic. Lib. IV. Cap. IX. at the End.
[4. ]Instit. Div. Lib. VI. Cap. XVI. Num. 7. Edit. Cellar.
[1 ]Which are to be used with much Caution. See the Author’s Reflection on that Subject. Book I. Chap. III. § 5. Num. 6.
[2. ]Of this Sort, according to Gronovius, are these found in the Roman History, down to the six hundredth Year from the Foundation of Rome, or the third Punick War; and those in the Grecian History to the Peloponnesian War.
[1 ]The same Gronovius, says our Author, had Bodin and other Judaizing Christians in View in this Place.
[2. ]The Ceremonial, and several Political Laws.
[3. ]From what God is pleased to do or command by Virtue of his supreme Authority over the Life and Goods of his Creatures, no Consequence can be drawn that the same Thing is ordered in Regard to Men, or allowed by the Law of Nature. On this Occasion are alledged the Example of Abraham, whom God commanded to sacrifice his Son: And that of the Israelites who received an express Order from him to carry off the Egyptians Gold and Silver Vessels, and utterly exterminate the seven Nations of Canaanites, after having seized on their Country, and all their Possessions. See what our Author says on this Subject, Book I. Chap. I. § 10. Num. 6. Book II. Chap. XXI. § 14. and Book III. Chap. I. § 4. Num. 6.
[4. ]This some Anabaptists maintain. Ziegler refers us to Sixtus Senonensis’s Bibliotheca Sanct. Book VIII. Haeres. I.
[5. ]This is to be understood of the Letter, not of the Spirit of the Law, or the Intention of the Legislator. See what I have said in my Treatise Of Play, Book I. Chap. III. § 1, and my first Note on Book I. Chap. I. § 17. of this Work.
[1 ]This is an Observation of Cassian in his Divine Institutions.Grotius. But the most judicious Part of the learned World have at present but little Value for the Rabbies, and are of Opinion that those Doctors are of very little Use for understanding the Old Testament. The most antient Rabbies, whose Writings are extant, are the Authors of the Talmud, who lived some Centuries after Jesus Christ. The Hebrew had then long been a dead Language; they had no Book in that Tongue but the Old Testament; they were very bad Criticks, and Men of little Judgment. They had no other antient Monuments of the History of their own Nation, than the Books of the Old Testament, and were unacquainted with Heathen Authors: Their Traditions must have undergone much Alteration and Corruption by Length of Time. To supply their Defect of Knowledge, and indulge their Inclination to Fables and Allegories, they have invented the most extravagant and chimerical Facts and Customs. So that they are on no Account comparable to Christian Interpreters, who, like Grotius, have studied the Languages methodically, and had recourse to all the Monuments of Antiquity. See Cunaeus, De Repub. Hebr. Lib. II. Cap. XXIV. Mr. Le Clerc’s Thoughts on Father Simon’sCritical History, p. 198, 199, and the Defence of that Book, Letter VI; the Bibliotheque Universelle, Vol. IV. p. 315, &c. Vol. VII. p. 247, &c. Vol. X. p. 117, 118. Vol. XXIV. p. 115, &c. Bibliotheque Choisie, Vol. VII. p. 83, 84. David le Clerc’sQuaestiones Sacrae, p. 139, 285, &c. and John le Clerc’sQuaestiones Hieronymianae, Quaest. VI. Ziegler here quotes a Passage of Isaac Casaubon’sExercit. in Baron. XVI. Num. 15; and another from Joseph Scaliger, De Emendat. Temporum, Lib. VII. But the Rabbies are least to be depended on in Matters of Morality and Law. Selden’s Treatise De Jure Nat. ac Gent. secundum Disciplinam Hebraeorum, is a good Proof of what I advance, how advantageous an Opinion so ever that learned Gentleman may have entertained of the Jewish Doctors. See my Preface to Pufendorf, §7.Boecler accuses Grotius of not reading the Books of the Rabbies with sufficient Care and Attention, and confining himself almost wholly to Moses the Son of Maimon. But others, perhaps, will think he allows them too much Weight, and lost too much of his Time in perusing them, though the Strength of his Judgment preserved him from the Contagion.
[1 ]See my nineteenth Note on Book I. Chap. II. § 9.
[1 ]These Canons can be of no great Use to our Author’s Design. First, because we have very little remaining of the Councils of the two or three first Centuries, when, according to him, the Doctrine of the Church must have been in its greatest Purity; and several of those that have come to our Hands, are either supposititious, falsified, or corrupted in several Places. Secondly, because, generally speaking, the Decisions of Councils commonly run either on speculative Points, or on Ecclesiastical Discipline. Thirdly, because the Councils not only were subject to Error, but have very often actually erred, even in such Things as were very easy. Our Author gives us to understand as much, when he says, Synodici Canones, quirectisunt; i.e. Those Synodical Canons which are just and reasonable. So that, after all, Recourse must be had to the Scripture, which, when well interpreted, is the Touchstone for examining the Decisions of the Councils, in order to see whether they are just and reasonable. Lastly, it is well known that the Proceedings of most of the Councils were very irregular, and they were generally only so many Cabals of Men devoted to the Emperors, or some other prevailing Party; so that the least Concern on those Occasions was to furnish the Mind with necessary Knowledge, or bring an upright and Christian Heart to such Assemblies.
[2. ]It is a great Mistake to imagine the Generality of the primitive Christians Men of a Piety and Probity exactly conformable to the Rules of the Gospel. See Mr. Le Clerc’sEcclesiastical History, Saec. I. Anno LVII. § 6, &c. But how good soever they might have been, their Judgment and Conduct cannot be here admitted as a Rule, in Matters not otherwise clearly and expresly decided in Scripture. The Extent of their Knowledge, and the Justness of their Judgment were not always equal to the Warmth of their Zeal, and the Integrity of their Heart. Every one knows that several of them entertained too high a Notion of the Necessity of Martyrdom, and thus prepossessed run to it with some Rashness. The Generality of them seemed to think it unlawful to engage in a War, to go to Law, to bear publick Offices, to take an Oath, to carry on Trade, to marry a second Time, or receive Interest for Money; all which it is impossible to prove evil in themselves, either from Reason or Scripture. Thus too great a Veneration for the uninlightened Simplicity of those first Ages seems to have induced our Author to give into the Distinction of Evangelical Councils, and Precepts; as appears from Book I. Chap. II. § 9. where my Remarks on that Subject may be seen at Length.
[3. ]I have been pretty large in shewing, in my Preface on Pufendorf, § 9, and 10, that the Fathers of the Church, of whom our Author speaks in this Place, are but indifferent Masters, and even bad Guides in Law and Morality. I have not changed my Opinion since Father Cellier, a Benedictin Monk opposed me on that Head in a Book in 4 to, entitled, An Apology for the Morality of the Fathers of the Church, published at Paris in 1718. I could easily make it appear that I have been so far from dealing in false Accusations, that I have advanced nothing on the Subject in Question, but what may be demonstrated either by the Confession of my Antagonist himself, or the Weakness of the Reasons he offers in Favour of these antient Doctors of the Church, whom he undertakes to justify at any Rate. Their Cause is not in very good Hands, since their Apologist, on one Side, does not understand the State of the Question; and on the other, distrusting the Force of his Proofs, calls in Invectives and abusive Language to his Assistance; not to mention an Infinity of trifling Things, nothing to the Purpose.
[1 ]This Irnerius, or, as some call him, Wernerius, lived at the Beginning of the XIth Century; some make him a Milanese, others a German. The Roman Law had been for some Ages, if not absolutely unknown and out of Use in the West, at least but little known or followed. The Digest in particular seemed then quite buried in Oblivion. But the famous Pandects of Florence being found at Amalphi, in the Kingdom of Naples, when the Town was taken by the Emperor Lotharius II, in the War which he made, in Conjunction with Pope Innocent II, on Roger King of Sicily, the Inhabitants of Pisa, who had furnished the Emperor with some Ships, desired that Copy, as a Recompence of their Services, and obtained it. The Taste of Learning was then beginning to revive, and Professors in all Sciences had been lately settled at Bologna.Pepo, one of that Number, undertook to explain the Roman Law. But he did not succeed in that Post. Irnerius, who had been Professor of the Liberal Arts at Ravenna, took his Place. He was called Lucerna Juris, i.e. The Light of the Law, and introduced the Roman Law into the Schools, either of his own Head, or as the Abbé D’Ursperg says, at the Solicitation of Matilda, Countess of Tuscany. Soon after the Roman Law made its Way to the Bar, and Lotharius and his Successors gave it the Force of Law. Irnerius, who understood Greek, had studied the Basilics, and other Greek Books of the Roman Law, preserved in the East. He made short Scholia on the Body of the Civil Law, and thus gave Birth to the Glosses, which increased very much under his Successors. See Delineatio Historiae Juris Romani & Germanici, written by Mr. Thomasius, § 121, &c. published at Leipsic, in 1704, at the Head of Francis Hotman’sAntitribonianus: and Origines Juris Civilis, by the late Mr. Gravina, Professor at Rome, Book I. § 143. p. 101. &c. the last Edition, printed in 1717.
[2. ]Francis Accursius, a Native of Florence, lived in the Close of the XIIth and the Beginning of the XIIIth Century. He made a Collection of all the Explications of the Lawyers before his Time, with considerable Additions of his own; so that though he was almost forty Years old, when he entered upon that Study, he has left us Glosses on the whole Civil Law, somewhat larger than the former, but still pretty short. The great Cujas places him above all the Expositors both Greek and Latin, with whom he was acquainted. See Gravina’s Book quoted in the preceding Note, § 153. p. 108.
[3. ]He was born at Sentinum, a Town in Umbria, called at present Sassoferrato, and lived in the middle of the XIVth Century. He brought the Subtilties of Logick, and the barbarous Language of the Schools into the Law, so that he did not so much apply himself to the Explanation of the Roman Law, as to the Decision of an Infinity of Cases and Questions, of which the Laws take no Notice, but which he undertook to deduce from them, either by Consequences, and those often very remote, or without any Grounds. See Mr. Gravina’sOrigines Juris Civilis, § 164. p. 112, &c. where a Distinction is also made between the Disciples of Bartoli, as making a Class of Lawyers different from that of Accursius’s Scholars.
[4. ]Andrew Alciati, a Lawyer of Milan, was the first who united these two Studies, which ought to be inseparable. He was Professor, first at Bourges, and afterwards at Avignon. Returning into his own Country he taught publickly at Bologna and Ferrara; he then retired to Pavia, where he died in 1550, aged about 59. Francis Cujas went so far beyond him in this Point, that he is deservedly esteemed the chief Restorer of the Roman Law. That great Man was a Native of Tholouse. He taught in the Universities of Cahors and Bourges, at Valence in Dauphiny, and Turin. Having appeared to great Advantage in all those Places, he returned to Bourges, where he died in 1590, about 70 Years of Age. We meet with the most considerable Particulars relating to the Life, Character, and Writings of those two celebrated Lawyers, and the chief of their Successors in Mr. Gravina’sOrigines Juris Civilis, Lib. I. § 170. p. 121, &c. to the End of the Book.
[5. ]See Note the third on Pufendorf, Law of Nature and Nations, Book II. Chap. III. § 23.
[6. ]See Book III. Chap. IX.
[1 ]Diego Covarruvias was born at Toledo, and was the first Professor of Canon Law at Salamanca. He enjoyed several publick Employments, and died Bishop of Segovia in 1577. His Works have been printed several Times, in two Volumes in Folio.
[2. ]Fernando Vasquez, was Scholar to Covarruvias. His Controversiae Illustres is the chief Piece used in this Work. It is divided into six Books, and has born more than one Impression. Our Author has some Quotations from his Book De Successionibus & ultimis voluntatibus, which makes three Volumes in Folio.
[3. ]John Bodin, a Lawyer of Anjou, died in 1585. The Work here meant by our Author, is his famous Treatise of the Commonwealth, which is extant both in Latin and French; but the Latin Edition is the better and more compleat. That which I make use of is printed at Francfort in 1622.
[4. ]Francis Hotman, a Native of Paris, and descended from a Silesian Family, died at Basil in 1590, after having written a great Number of Books. His Quaestiones Illustres, the Treatise here meant, appeared in 1573.
[1 ]Good Policy ought to authorize nothing against the invariable Rules of Justice; and that of the Machiavellians, which makes the Advantage of the State, or of those who rule it, the only Principle, is false and abominable. However, the Just and the Useful are really two different Things, even in Politicks; as will be easily comprehended by one single Example taken from the Matter of the Work before us. Before engaging in a War, it is above all Things necessary, that a just Cause should appear for so doing. But how good soever the Reasons for such a Step may be, if Circumstances do not allow of taking Arms, without acting to the Prejudice of the Publick Good, if there is Danger of losing as much as, or even more than will be gained, it would then be contrary to good Policy.