Front Page Titles (by Subject) CHAPTER I: What War is, and what Right is. - The Rights of War and Peace (2005 ed.) vol. 1 (Book I)
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CHAPTER I: What War is, and what Right is. - 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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What War is, and what Right is.
I.The Order of the Treatise.I. All1 the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People2 that form no Community, or those that are Members of different Nations, whether3 private Persons, or Kings, or other Powers invested with an Authority equal to that of Kings, as the Nobles of a State, or the Body of the People, in Republican Governments: All such Differences, I say, relate either to the Affairs of War, or Peace. But because War is undertaken for the Sake of Peace, and there is no Controversy from whence War may not arise, all such Quarrels, as commonly happen, will properly be treated under the Head of the Right of War; and then War itself will lead us to Peace, as to its End and Purpose.
II.The Definition of War, and the Original of the Word (bellum).II. 1. Being then to treat of the Right of War, we must consider what that War is which we are to treat of, and what the Right is which we search for. Cicero4 defines Wara Dispute by force. But Custom has so prevailed, that5 not the<2> Act of Hostility, but the State and Situation of the contending Parties, now goes by that Name; so that War is the State or Situation of those (considered6 in that Respect) who dispute by Force of Arms. Which general Acceptation of the Word comprehends all the kinds of War of which we shall hereafter treat, not even excluding single Combats, which being really ancienter than Publick Wars, and undoubtedly of the same Nature, may therefore well have one and the same Name. This agrees very well with the Etymology of the Word; for the Latin Word Bellum (War) comes from the old Word Duellum (a Duel) as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo, and thereby implied a Difference between two Persons, in the same Sense as we term Peace Unity (from Unitas) for a contrary Reason. So the7Greek Word Πόλεμος, commonly used to signify War, expresses in its Original an Idea of Multitude. The ancient Greeks likewise called it Λύη, which imports a Disunion of Minds; just as by the Term Δύη, they meant the Dissolution of the Parts of the Body.
2. Neither8 does the Use of the Word (War) contradict this larger Acceptation. For tho’ sometimes we only apply it to signify a Publick Quarrel, this is no Objection at all, since ’tis certain, that the more eminent9Species does often peculiarly assume the Name of its Genus. We do not include Justice in the Definition of War, because it is the Design of this Treatise to examine, whether any War be just, and what War may be so called. But we must distinguish that which is in Question, from that concerning which the Question is proposed.
III.Right, as it is attributed to Action, described, and divided into that of Governors and governed, and that of Equals.III. 1. Since we intitle this Treatise Of the Rights of War, we design first to enquire (as I said before) whether any War be just; and then what is just in that War? For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense. So that the Right of War is properly that which may be done without Injustice with Regard toan Enemy. Now that is unjust which is repugnant to the Nature of a Society of reasonable Creatures. So Cicero says, it is unnatural to take from another to enrich one’s self; which he proves thus, because,10 if every one were to do so, all Human Society and Intercourse must necessarily be dis-<3>solved. Florentinus11 declares, that it is a villainous Act for one Man to lay an Ambush for another, because Nature has founded a kind of Relation between us. And Seneca12 observes, As all the Members of the Human Body agree among themselves, because on the Preservation of each depends the Welfare of the Whole, so should Men favour one another, since they are born for Society, which13cannot subsist but by a mutual Love and Defence of the Parts.
2. But as in Societies, some are equal, as those of Brothers, Citizens, Friends and Allies. And others unequal, καθ’ ὑπεροχὴν,14by Preeminence as Aristotle terms it; as that of Parents and Children, Masters and Servants, King and Subject,15 God and Man: So that which is just takes Place either among Equals, or amongst People where of some are Governors and others governed, considered16 as such. The latter, in my Opinion, may be called theaRight of Superiority, and the former thebRight of Equality.
IV.Right taken for Quality divided into Faculty, and Aptitude or Fitness.IV. There is another Signification of the Word Right different from this, but yet arising from it, which relates directly to the Person: In which Sense Right is17 a moral Quality annexed to the Person, enabling him to have, or do, something justly. I say, annexed to the Person, tho’ this Quality sometimes follows the things, as18Services of Lands, which are called real Rights, in Opposition to Rights,19meerly personal, not because the first are not annexed to the Person, as well as the last, but because they are annexed only to him20 who possesses such or such a Thing. This moral Quality when21 perfect, is called by us a Faculty; when imperfect, an Aptitude: The former answers to the Act, and the latter to the Power, when we speak of natural Things.
V.Faculty strictly taken divided into Power, Property, and Credit.V. Civilians call a Faculty that Right which a Man has to his22own; but we shall hereafter call it a Right properly, and strictly taken. Under which are contain-<4>ed, 1. A Power either over our selves, which is term’d23Liberty; or over others, such as that of a Father over his Children, or a Lord over his Slave. 2.24 Property, which is either compleat,25 or imperfect. The last obtains in the Case26of Farms, for Instance, or Pledges. 3. The Faculty of demanding what is due, and to this27answers the Obligation of rendering what is owing.
VI.Another Division of Faculty into private and eminent.VI. Right strictly taken is again of two Sorts, either private and inferior,28 which tends to the particular Advantage of each Individual: Or eminent and superior, such as a Community has over the Persons and Estates of all its Members for the common Benefit, and therefore it29 excells the former. Thus a regal Power is above30 that of a Father and Master; a King has a31 greater Right in the Goods of his Subjects for the publick Advantage, than the Proprietors themselves. And when<5> the Exigencies of the State require a Supply, every Man is more obliged to contribute towards it, than32 to satisfy his Creditors.
VII.What Aptitude is.VII. Aristotle calls Aptitude or Capacity,1 ἀξίαν2Worth, or Merit: And Michael of Ephesus terms that which is called Equal or Right, according to that Merit, τὸ προσάρμοζον καὶ τὸ πρέπον, Fit and Decent.
VIII.Of Expletive and Attributive Justice not properly distinguished by Geometrical and Arithmetical Proportions, nor is this conversant about Things common nor that about Things private.VIII. 1. ’Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right, and is called by Aristotle συναλλακτικὴ, Justice of Contracts, but this does not give us an adequate Idea of that Sort of Justice. For, if I have a Right to demand Restitution of my Goods, which are in the Possession of another, it is not by vertue of any Contract,1 and yet it is the Justice in question that gives me such a Right. Wherefore he also calls it more properly ἐπανορ-<6>θωτικὴν,2corrective Justice. Attributive Justice, stiledby Aristotle διανεμητικὴ3Distributive, respects Aptitude or imperfect Right, the attendant of those Virtues4 that are beneficial to others, as Liberality, Mercy, and prudent Administration of5 Government. But whereas the same Philosopher says, that Expletive Justice follows6 a simple Proportion, which he calls ἀριθμητικὴν Arithmetical Justice; but Attributive, which he terms γεωμετρικὴν7Geometrical, is regulated by a comparative Proportion, and which is the only Proportion8 allowed by the Mathematicians, this may hold in some Cases, but not in all. Neither does Expletive Justice of itself differ from Attributive in such use of Proportions, but in the Matter, about which it is conversant, as we have said already. And therefore in a Contract of Society,9 the Shares are made by a Comparative Proportion, and if only one<7>10 Person be found worthy of a Publick Office, a simple Proportion is all that is necessary in disposing of it.
2. Neither is that more true which some maintain, that Attributive Justice is exercised about Things belonging to the whole Community; and Expletive about Things belonging to private Persons. For on the contrary, if a Man would bequeath his Estate by Will, he does it commonly by Attributive Justice; and when the State repays out of the11 publick Funds what some of the Citizens had advanced for the Service of the Publick, it only performs an Act of Expletive Justice. This Distinction Cyrus learnt of his Tutor: For when Cyrus had adjudged the lesser Coat to the lesser Boy, tho’ it belonged to another Boy of a bigger size; and so on the other side gave his Coat, being the bigger, to that bigger Boy. His Tutor told him, ὁτι ὁπότε μὲν κατασταθείν του̑ ἁρμόττοντος κριτὴς, &c. That12had he been appointed Judge of what fitted each of them best, he ought to have done as he did: But since he was to determine whose Coat it was, his Business was to have considered13which had a just Title to it, whether he who took it away by Force, or he who made it, or bought it.<8>
IX.Right taken for a Rule or Law defined and divided into Natural and Voluntary.IX. There is also a third Sense of the Word Right, according to which it signifies the same Thing1 as Law, when taken in its largest Extent, as being a Rule of2Moral Actions, obliging3us to that which is good and commendable. I say, obliging: for4 Counsels, and such other Precepts, which, however honest and reasonable they be, lay us under no Obligation, come not under this Notion of Law, or Right. As to Permission, it is not5 properly speaking an Action of the Law, but a meer Inaction,<9> unless as it obliges every other Person not to hinder the doing of that, which the Law permits any one to do. I add moreover, that the Law obliges us to that which is good and commendable, not barely to that which is just: Because Right in this Sense does not belong to the Matter of Justice alone (such as I have before explained it) but also to that6 of other Virtues; tho’ otherwise, whatever is conformable to this Right, may also, in a larger Acceptation, be termed7Just. Of this Right, thus taken, the best Division is that of8Aristotle, into Natural and Voluntary, which he commonly calls Lawful Right; the Word Law being taken in9 its stricter Sense: Sometimes also10 an Instituted Right. We find the same Difference among the Hebrews, who when they speak distinctly, call the Natural Right מצות11 Precepts, and the Voluntary Right חקים Statutes; the former of which the Septuagint call δικαιώματα, and the latter ἐντολὰς.
X.The Law of Nature defined, divided, and distinguished from such as are not properly called so.X. 1. Natural Rightis the Rule and Dictate of1Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature,2 and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.
2. The Actions upon which such a Dictate is given, are in themselves either3 Obligatory or Unlawful, and must, consequently, be understood to be either com-<10>manded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory.
3. But that we may the better understand this Law of Nature, we must observe, that some Things are said to belong to it, not properly, but (as the Schoolmen love to speak) by way of Reduction or Accommodation, that is, to which the Law of<11> Nature is not4 repugnant; as some Things, we have now said, are called Just, because they have no Injustice in them; and sometimes by the wrong Use of the Word,5 those Things which our Reason declares tobehonest, or comparatively good, tho’they are not enjoined us, are said to belong to this Natural Law.
4. We must further observe, that this Natural Law does not only respect such Things as depend not upon Human Will, but also many6 Things which are consequent to some Act of that Will. Thus, Property for Instance, as now in use, was introduced by Man’s Will, and being once admitted, this Law of Nature informs us, that it is a wicked Thing to take away from any Man, against his Will, what is properly his own. Wherefore7Paulus the Civilian infers, that8Theft is forbid by the Law of Nature: Ulpian, that it is9Dishonest by Nature: And10Euripides calls it Hateful to GOD, as you may see in these Verses of Helena,
5. As for the Rest, the Law of Nature is so unalterable, that11 God himself cannot change it. For tho’ the Power of God be infinite, yet we may say, that there are some12 Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil13 should<12> not be Evil. And this is Aristotle’s Meaning, when he says, ἔνια ἐυθὺς ὀνόμασται,&c.14Some Things are no sooner mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of according to this Rule, as we may find, Gen. xviii. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6. iii. 6.
6. Yet it sometimes happens, that in those Acts, concerning which the Law of Nature has determined something, some Sort of Change may deceive the Unthinking; tho’ indeed the Law of Nature, which always remains the same, is not changed; but the Things concerning which the Law of Nature determines, and which may undergo a Change. As for Example: If my Creditor forgive me my Debt, I am not then obliged to pay it; not that the Law of Nature ceases to command me to pay what I owe, but because what I did owe ceases to be a Debt. For as Arrian rightly argues in Epictetus, Ὀυκ ἀρκει̑ τὸ δανείσαθαι πρὸς τὸ ὀϕείλειν, ἀλλὰ δει̑ προσει̑ναι καὶ τὸ ἐπιμένειν ἐπὶ του̑ δανείου καὶ μὴ διαλελύσθαι αὐτὸ. Non sufficit, &c.15To make a just Debt, it is not enough that the Money was lent, but it is also requisite, that the Obligation continue undischarged. So when God commands16 any Man to be put to Death, or his Goods to be taken away, Murder and Theft do not thereby become lawful, which very Words always include a Crime; but that cannot be Murder or Theft, which is done by the express Command of him who is the Sovereign Lord of our Lives and Estates.
7. There are also some Things allowed by the Law of Nature, not absolutely, but according to a certain State of Affairs. Thus, before Property was introduced,17 every Man had naturally a full Power to use what ever came in his Way. And before Civil Laws were made, every one was at Liberty18 to right himself by Force.
XI.That Natural Instinct does not make another distinct Law.XI. 1. But that Distinction, which we find in the Books of the Roman Laws, of immutable Right into such as is1 common to Men with Beasts, which they call in a strict Sense the Law of Nature; and that which is peculiar to Men, which they often style the Law of Nations, is of very little or no use; for nothing is properly susceptible of Right and Obligation, but a Being that is capable of forming2 general Maxims, as Hesiod has well observed,
<13>3 Jupiter has ordained that Fishes, wild Beasts, and Birds should devour each other, because Justice doth not take place amongst them: But to4Men he has prescribed the Law of Justice, which is the most excellent Thing in the World.
Cicero in his first Book of Offices5 remarks, that we do not say Horses and Lions have any Justice. And Plutarch, in the Life of Cato the Elder, νόμω μὲν γὰρ, &c. We by Nature observe Law and Justice, only towards Men. And Lactantius, in his fifth Book,6We find that all Animals, destitute of Wisdom, follow the natural Biass of Self-Love. They injure others to procure themselves some Advantage; for they know not what it is to hurt with a View of hurting, and with a Sense of the Evil that is in it. But Man, having the Knowledge of Good and Evil, abstains from hurting others, tho’ to his own Detriment.7Polybius having related in what Manner Men first engaged in Society, adds, when they saw any one offending his Parents or Benefactors, they could not but resent it, giving this Reason for it, Του̑ γὰρ γένους τω̂ν ἀνθρώπων ταυτῃ διαϕέροντος, &c. For since human Kind does in this differ from other Animals, that they alone enjoy Reason and Understanding, ’tis very unlikely that they should (as other Animals) pass by an Action so repugnant to their Nature, without reflecting on, and testifying their Displeasure at it.
2. If at any Time8 Justice be attributed to brute Beasts, it is improperly, and only on the Account of some Shadow or Resemblance of Reason9 in them. But it is not material to the Nature of Right, whether the Act itself, on which the Law of Nature has decreed, be common to us with other Animals, as the bringing up of our Offspring, &c. or peculiar to us only, as the Worship of God.
XII.How the Law of Nature may be proved.XII. Now that any Thing is or is not by the Law of Nature, is generally proved either à priori, that is, by Arguments drawn from the very Nature of the Thing; or à posteriori, that is, by Reasons taken from something external. The former Way of Reasoning is more subtle and abstracted; the latter more popular. The Proof by the former is by shewing the necessary Fitness or Unfitness of any Thing, with a reasonable and sociable Nature. But the Proof by the latter is, when we cannot with absolute Certainty,1 yet with very great Probability, con-<14>clude that to be by the Law of Nature, which is generally believed to be so by all, or at least, the most civilized, Nations. For, an universal Effect requires an universal Cause. And there cannot well be any other Cause assigned for this general Opinion, than what is called Common Sense.
There’s a Passage in Hesiod to this Purpose, very much commended.
2That which is generally reported amongst many Nations is not intirely vain.
Τὰ χοινη̑ ϕαινόμενα πιστὰ.3That is certain, which universally appears to be so,4 said Heraclitus, determining λόγον τὸν ξυνὸν,5Common Reason to be the surest Mark of Truth. And Aristotle,6 κράτιστον πάντας, &c. ’Tis the strongest Proof, if all the World agree to what we say. Cicero,7The Consent of all Nations is to be reputed the Law of Nature. So Seneca,8What all Men believe must be true. Likewise Quintilian, We allow9that to be certainly true which all Men agree in. I with some Reason said, By the most civilized Nations; for as10Porphyry well observes, τίνα τω̂ν ἐθνω̂ν, &c. Some People are savage and brutish,11whose Manners cannot, with Truth and Justice, be reckoned a Reproach to human Nature in general. And Andronicus Rhodius, παρ’ ἀνθρώποις, &c. That Law12which is called the Law of Nature, is unchangeable, in the Opinion of all Men who are of a right and sound<15> Mind: But if it does not appear so to Men of weak and disturbed Judgments, it argues nothing to the Purpose; for we all allow Honey to be sweet, tho’ it may taste otherwise to a sick Person. To which agrees that of Plutarch, in the Life of Pompey, Φύσει μὲν, &c.13No Man either was or is by Nature a wild and unsociable Creature, but some have grown so by addicting themselves to Vice, contrary to the Rules of Nature; and yet these, by contracting new Habits, and by changing their Method of living, and Place of abode, have returned to their natural Gentleness. Aristotle gives this Description of Man, as peculiar to him, ἄνθρωπος ζω̂ον ἥμερον ϕύσει,14Man is by15Nature a mild Creature. And elsewhere, δει̑ δὲ σκοπει̑ν, &c.16To judge of what is natural, we must consider those Subjects that are rightly disposed, according to their Nature, and not those that are corrupted.
XIII.Voluntary Right divided into Human and Divine.XIII. The other kind of Right, we told you, is the1Voluntary Right, as being derived from the Will, and is either Human or Divine.
XIV.Human Right divided into a Civil Right, a less extensive, and a more extensive Right than the Civil: This explained and proved.XIV. We will begin with the Human, as more generally known; and this is either a Civil, a less extensive, or a more extensive Right than the Civil. The Civil Right is that which results from the Civil Power. The Civil Power is that which governs the State. The State is a1 compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit. The less extensive Right, and which is not2 derived from the Civil Power, though subject to it, is various, including in it the Commands of a Father to his Child, of a Master to his Servant, and the like. But the more extensive Right, is the Right of Nations, which derives its Authority from3 the Will of all, or at least of4 many, Nations. I say of many, because there is scarce any Right found, except that of Nature, which is also called the Right of Nations, common to all Nations. Nay, that which is reputed the Right or Law of Nations in one Part of the World, is not so in another, as we shall shew5 hereafter, when we come to treat of Prisoners of War, and Postliminy or the Right of Returning. Now the Proofs on which the Law of Nations is founded,<16> are the same with those of the unwritten Civil Law, viz. continual Use, and the Testimony of Men skilled in the Laws. For this Law is, as Dio Chrysostom well observes,6 εὕρημα βίου καὶ χρόνου, the Work of Time and Custom. And to this purpose eminent Historians are of excellent Use to us.
XV.The Divine Law divided into that which is universal, and that which is peculiar to one Nation.XV. The Divine voluntary Law (as may be understood from the very Name) is that which is derived only from the1 Will of GOD himself; whereby it is distinguished from the Natural Law, which in some Sense, as we have said above, may be called Divine also. And here may take Place that which Anaxarchus said, as Plutarch relates in the Life of Alexander, (but too generally) that2 GOD does not will a Thing because it is just; but it is just, that is, it lays one under an indispensible Obligation, because GOD wills it. And this Law was given either to all Mankind, or to one People only: We find that GOD gave it to all Mankind at three different Times. First, Immediately after3 the Creation of Man. <17> Secondly, Upon the Restoration of Mankind4 after the Flood. And thirdly, Under the Gospel, in that more perfect reestablishment by5 CHRIST. These three Laws do certainly oblige all Mankind, as soon as they are sufficiently made known to them.
XVI.That the Law given to the Hebrews did not oblige Strangers.XVI. Of all the Nations of the Earth, there was but one, to whom GOD peculiarly vouchsafed to give Laws, which was that of the Jews, to whom Moses thus speaks, Deut. iv. 7. What Nation is there so great who hath GOD so nigh unto them, as the LORD our GOD is in all Things that we call upon him for? And what Nation is there so great, who have Statutes and Judgments so righteous, as all this Law, which I set before you this Day. And the Psalmist, cxlvii. 19, 20. He shewed his Word unto Jacob, his Statutes and Ordinances unto Israel. He hath not dealt so with any Nation, and as for his Judgments they have not known them. Neither is it to be doubted, but that those Jews (among whom Tryphon also in his Disputes with Justin) do egregiously err, who think that Strangers too, if they would be saved,1 must submit to the Yoke of the Mosaick Law: For a Law obliges only those, to whom it is given. And2 to whom that Law is given, itself<18> declares, Hear O Israel; and we read every where that the Covenant was made with them, and that they were chosen to be the peculiar People of GOD, which Maimonides owns to be true, and proves it from Deut. xxxiii. 4.
But among the Hebrews themselves the real ways lived some Strangers, ἐυσεβει̑ς καὶ σεβόμενοι τὸν θεὸν,3Pious Persons, and such as feared GOD, as the Syrophenician Woman, Matt. xv. 22. And Cornelius, Acts x. 2. one τω̂ν σεβομένων Ἑλλήνων of the devout Greeks, Acts xvii. 4. in the Hebrew, חםיךו אומותthe Righteous amongst the Gentiles; as it is read in the Talmud, Title of the King;4 and he who is such a one is called in the Law כן רבגa Stranger5simply, Lev. xxii. 25. or, גד ותושב6a Stranger, and a Sojourner, Lev. xxv. 47. Where the Chaldee Paraphrast calls him, an Uncircumcised Inhabitant. These, as the Hebrew Rabbins say, were obliged to keep the Precepts given to Adam and Noah, to abstain from Idols and Blood, and from other Things, which shall be mentioned hereafter in their proper Place; but not the Laws peculiar to the Israelites. And therefore, tho’ it was not lawful for the Israelites to eat of any Beast that died of itself, yet it was allowed7 to the Strangers that dwelt among them, Deut. xiv. 21. There are only<19>8 some Laws, where it is expressly declared, that they were given for the Strangers as well as for the Natives. It was also allowed to Strangers who came from Abroad, and9 never submitted to the Levitical Law, to worship GOD in the Temple at Jerusalem, and to offer Sacrifices; but yet10 they were obliged to stand in a particular Place, separate from that of the Israelites, 1 Kings viii. 41. 2 Macc. iii. 35. John xii. 20. Acts viii. 27. Nor do we find that11Elisha signified to Naaman the Syrian, nor Jonah to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, Moabites, and Egyptians, to whom they wrote, that there was any Necessity for them to receive the Law of Moses.
What I have here said of the whole Law of Moses, I would be understood to mean of Circumcision too, which was, as it were, the Introduction to the Law. There is only this Difference, that the Law of Moses obliged only the Israelites; but that of Circumcision obliged all the Posterity of Abraham. Whence we read in the Jewish and Greek Histories, that the12Idumeans (the Edomites) were compelled by the Jews to be circumcised: Wherefore those People who, besides the Jews, were circumcised, (as there were many, according to13Herodotus,14Strabo,15Phi-<20>lo,16Justin,17Origen,18Clemens Alexandrinus,19Epiphanius,20 St. Jerom, and21Theodoret) were probably descended from Ismael, Esau, or22 the Posterity of Keturah.
But of all other Nations that of St. Paul holds true, Rom. ii. 14, 15. Since the Gentiles, who have not the Law, do by Nature (that is by23 following in their Manners, the Rules which flow from the primitive Source, or from Nature, unless you had rather refer the Word Nature to what goes before, and so24 oppose the Knowledge which the Gentiles acquired of themselves, and without Instruction, to that which the Jews had by means of the Law, which they were taught almost from the Cradle) the Things contained in the Law; these having not the Law are a Law unto themselves, as shewing the Work of the Law written in their Hearts, their Consciences also bearing Witness, and their Thoughts the mean while accusing or<21> else excusing one another. And again, in the 26th Verse, If the Uncircumcision keep the Righteousness of the Law, shall not his Uncircumcision be counted for Circumcision? And therefore, Ananias the Jew, in the History of Josephus, did very well instruct Izates Adiabenus, (25Tacitus calls him Ezates) that GOD might be rightly worshipped, and26 well pleased with us, tho’ we were not circumcised. Now the Reason why so many Strangers were circumcised (among the Jews) and by that Circumcision obliged to keep the Law, (as St. Paul expounds it, Gal. v. 3.) was partly that they might be naturalized; for Proselytes (called by the Hebrewsגרי צרקProselytes of Righteousness)27 enjoyed the same Rights and Privileges with the Israelites, (Numb. xv.); and partly, that28 they might be Partakers of those Promises which were not common to Mankind, but peculiar to the Hebrews only. Tho’ I cannot deny, but that in latter Ages some entertained an erroneous Opinion, that there could be29 no Salvation without the Pale of the Jewish Church. Hence we may conclude, that we (who are not Jews) are obliged to no Part of the Levitical Law, as a Law30 properly so called, because all Obligation beyond that, arising from the Law of Nature, is derived from the Will of the Law-giver; but it cannot be made appear, that it was the Will of GOD, that any other People, beside the Israelites, should be bound by that Law; and therefore, as to us, it is by no Means necessary to prove the abrogating of that Law; for it cannot be said to be abrogated in respect to them whom it never bound. But the Obligation of it was abolished to the Israelites, as to the ceremonial Part, as soon as ever the Evangelical Law began to be published, which was manifestly revealed to St. Peter, Acts x. 15.; but as to the Rest, after that People ceased to be a People, by the Destruction of their City, and the utter Desolation of it, without any Hopes of Restauration. The Advantage which we who are Strangers have obtained by the Coming of CHRIST, does not then consist in being freed from the Law of Moses; but, whereas before, we had only very weak Hopes in the Goodness of GOD, we are now, by an express Covenant, assured thereof; and we, together with the Jews, (the Children of the Patriarchs) are made one Church; their Law, which as a Partition Wall divided us, being quite taken away, Eph. ii. 14.
XVII.What Arguments Christians may fetch from the Judaical Law, and how.XVII. Since then the Mosaick Law cannot directly oblige us (as I have already shewed) let us see of what other Use it may be to us, as well in regard to the Right of War, which we are to treat of, as in other like Cases. For the Knowledge of it may be necessary in many Points.
First then, the Law of the antient Hebrews serves to assure us, that nothing is injoined there contrary to the Law of Nature; for since the Law of Nature (as I said before) is perpetual and unchangeable, nothing could be commanded by GOD, who can never be unjust, contrary to this Law. Besides, the Law of Moses is called pure and right, Psalm xix. 8. and by the Apostle St. Paul, holy, just, and good, Rom: vii. 12.
I speak of its Precepts, for we must treat more distinctly of its Permissions. Now the Permission, positively granted by the Law, (for that which is of the1 bare Fact, and signifies the Removal only of Hindrances, on the Part of the<22> Law, is not to the present Purpose) is either compleat, and without Reserve, which gives us a Right to do something with an intire Liberty in all Respects; or less compleat, and with Reserve, which gives us only an Impunity with Men, and a Right to do a Thing, so as that no Man shall molest and hinder us. From the first of these Permissions, as well as from a positive Precept, it follows, that what the Law allows, cannot be contrary to the Right of Nature. But as to the latter,2 the Case is entirely different: But it seldom happens that there is Occasion to draw that Consequence with Certainty;3 for the Terms which express the Per-<23>mission being equivocal, it is better to have Recourse to the Principles of the Law of Nature, in order to discover what Kind the Permission is of, than to conclude from the Manner in which the Permission is conceived, that the Thing permitted is conformable or not conformable to the Law of Nature.
The next Observation is not unlike this, viz. That Christian Princes may now make Laws of the same Import with those given by Moses, unless they be such Laws as wholly related either to the Time of the expected Messias, and the Gospel, not then published; or that CHRIST himself has either in4 general, or in5 particular commanded the contrary: For, excepting these three Reasons, no other can be imagined, why that which the Law of Moses formerly established, should now be unlawful.
The third Observation may be this; whatsoever was enjoined by the Law of Moses, which relates to those Virtues that CHRIST requires of his Disciples, ought now as much, if not more,6 to be observed by us Christians. The Ground of this Observation is, because what Virtues are required of Christians, as Humility, Patience, Charity, &c. are to be practised in a7 more eminent Degree, than under the State of the Hebrew Law, and that with good Reason too; because the Promises of Heaven are more clearly proposed to us in the Gospel. Wherefore the old Law, in comparison with the Gospel, is said to be neither perfect nor ἄμεμπτος faultless, Heb. vii. 19. viii. 7. And CHRIST is termed the End of the Law, Rom. x. 5. but the Law only our Schoolmaster, or Guide, to bring us unto CHRIST, Gal. iii. 24. Thus the old Law concerning the Sabbath, and8 that relating to Tythes, shew, that Christians are obliged to set apart no less than the seventh Part of their Time for the Worship of GOD, nor no less than the tenth Part of their Income for the Maintenance of those who are employed in Holy Affairs, or for other Sacred and Pious Uses.
[1. ]See Pufendorf, Law of Nature and Nations. B. I. Chap. I. § 8. Note I.
[2. ]Such were the antient Patriarchs, who lived in Tents, and travelled from Place to Place, without forming a Community or depending on any Government; though there were civil Societies already established in the World at that Time. The learned Gronovius on this Place, alledges the Example of the Aborigines, the first Inhabitants of Italy, and of several People in Africa; The Aborigines, a savage People, free and independent, without Laws or Government.Salust. Bell. Catil. Cap. VI. The Getulians and Libyans, a rough and uncivilized Set of Men, were the first Inhabitants of Africa... they lived without any Government or Laws, or the least Measures of Discipline among them. Idem Bell. Jugurth. Cap. XXI. Edit. Wass. They (the remote Inhabitants of Cyrenaica) being scattered about the Country in Families, and living under the Direction of no Law, had no common Regulations.Pomponius Mela, Lib.I.Cap. VIII. Num. II. Edit. Voss. We find even at this Day amongst the Arabians, and Africans several Nations of Savages, and Vagrants, without Laws, Magistrates or any Form of Government.
[3. ]See B. II. Chap. XI. § 1. Num. 5.
[4. ]II. For since there are two Ways of disputing Things, one by Debate, the other by Force, &c. De Offic. Lib. I. Cap. XI. See Pufendorf.B. V. Chap. XIII. where he treats of other Ways of deciding Differences in the independent State of Nature.
[5. ]Philo the Jew considers as Enemies not only such as actually attack us by Sea or by Land, but also those who make Preparations for either, those who erect Batteries against our Ports, or Walls, though no Battle is given. De Specialib. Lib. II. p. 790. Edit. Paris.Servius, on Verse 545, of the first Book of the Eneid.
Makes this Remark. This is not an idle Repetition; for the Word Bellum, (War) includes Counsels, and Measures, taken against the Enemy; that is a Skill in Military Affairs. Whereas the Word Arma, (Arms) is used only to express the very Act of employing Forces: thus the former relates to the Mind, the latter to the Body. The same Commentator, on Verse 547. of B. VIII. says: Bellum is the whole Time employ’d in making the necessary Preparations for fighting or in Acts of Hostility: and Praelium denotes an actual Engagement.Grotius.
[6. ]For not only those who are at War, stand in several different Relations to other Persons, who observe a Neutrality, by Vertue of which they do many Things that by no Means relate to a State of Hostility: but they also may and frequently do act towards each other, as if they were not Enemies; so that in such Cases the Use of Force, and the Laws of War are suspended. This takes Place when two Enemies enter into an Agreement, or Treaty; as the Author shews at large in the proper Place. Gronovius, in a Note on this Place, and HuberDe jure Civitatis, Lib. III. Sect. IV. Cap. IV. §. 2. allow of no Difference in the Main between Cicero’s Definition, and that given by our Author. It is sufficient however, if the latter is more clear and extensive than the former. Obrecht, in his Dissertation De ratione Belli (which is the eighth in the Collection published in 1704.) has defended our Author’s Definition against the mistaken Criticisms of some Commentators.
[7. ]Our Author, giving the Etymology of πόλεμος, derives it from πολυς ; while others search elsewhere for the Origin of that Word; nor are we to be surprised at this. The Country of Etymologies is of a very large Extent, and affords great Numbers of different Roads, where each Man may walk at his Ease. However, in Complaisance to those who delight in such Enquiries, and for the Sake of clearing up our Author’s Meaning, we must say something on the last Words of this Paragraph, which stand thus in the Original: Veteribus etiam λύη dissolutione, quomodo & corporis dissolutio δύη. Here the Commentators are silent, not excepting Gronovius, a Critic by Profession; who only explains δύη by other Greek Words, signifying any Sort of Unhappiness. But this neither shews the Reason of our Author’s Etymology, nor his Application of it. At first sight it might be imagined that the Text is faulty; and I know some have been of Opinion, that λύη ought to be repeated in this Place; but we find δύη in all the Editions of this Work; and I firmly believe I have found out what our Author Means, and what induced him to propose the Etymology of this Word, which he tacitly derives from δύω. He took δύη in the Sense which some Lexicographers give to λύπη, dolor; and at the same Time was thinking of Plato’s Etymology of λύπη, Pain, which he derives from λύω, to dissolve; because, says he, when we suffer Pain, the Body suffers a Dissolution; in Cratylo, p. 419. Vol. I. Edit. H. Steph. Our Author in Imitation of that ancient Philosopher, derives δύη from δύω for the same Reason; for on a Separation of the Parts of the Body, it follows that those which before appear’d only as one continued whole, by their Union, become more than one. The Principles of the old Philosophy, in which our Author was educated, helped him moreover to form this Etymology; for we know that according to those Principles, Pain is caused by a Dissolution of Continuity.
[8. ]See, for Example, HoraceB. I. Sat. III. v. 107. and TerenceEunuch. Act. I. Scen. I. v. 16.
[9. ]The Author gives Instances of this B. II. Chap. XVI. § 9.
[10. ]III. De Officiis. Lib. III. Cap. V.
[11. ]I have quoted this Law in my first Note on § 14. of the Preliminary Discourse.
[12. ]De Ira. Lib. II. Cap. XXXI.
[13. ]In Ep. XLVIII. he says thus: We ought to observe carefully and religiously the Laws of this Society, which unite us all together, and teach us that there is a Law common to all Mankind. The Reader may likewise see what S. Chrysostom says on this Subject on 1 Cor. Chap. XI. v. I. Grotius.
[14. ]Καθ’ ὑπεροχὴν. But the Philosopher makes this Distinction with Regard to Friendship, which is the Bond of Societies. The Friendships already mention’d therefore, are founded on Equality....But there is another Sort of Friendship, established on Preeminence, such as that between Father and Son, the Elder and the Younger, Husband and Wife, and between every Prince and his Subjects. Ethic. Nicom. B. VIII. Chap. VI. VII.
[15. ]Concerning this Society, see Philo the Jew, on these Words ἐξένηψε Νω̂ε Noah awaked (from his Wine) p. 281, 282. Edit. Paris.Plutarch also has something on the same Subject in his Life of Numa. p. 62. Edit. Wech. Vol. I. Grotius.
[16. ]This Restriction is to be carefully observed. For, as Ziegler very well remarks on this Place, in all Dealings between a Superior and an Inferior, independently of the Relation of Superiority, the Right of Equality takes Place, as amongst Equals; thus, for Example, Contracts between a Prince and one of his Subjects require no other Rules than those which ought to be observed between two private Persons. When a Merchant has sold his Goods to his King, the King is as much obliged to pay for them, on the Terms, and at the Time agreed on, as the meanest Purchaser. To which I add, that there are some Cases, wherein a Superior becomes in certain Respects the Inferior; and that then the Right of Superiority is changed in Regard to the same Persons, according to the Nature of the Things. Thus a Magistrate is bound to honour his Parents, and consequently to submit to their Will to a certain Degree, whenever the Administration of publick Affairs is not concern’d; but, in the Character of Magistrate, he is to have no Regard for the Will of his Parents, but may even command them. See B. II. Chap. V. § 6. Note I.
[a ]Jus Rectorium.
[b ]Jus Equatorium.
[17. ]IV. See Pufendorf, B. I. Chap. I. § 19, 20.
[18. ]See the same Author, B. IV. Chap. VIII.
[19. ]Such, for Example, is the Power of a Father over his Child, the Right of a Husband over his Wife, the Usufructuary Right and the Right of demanding the Performance of a Promise, by which a Man has personally engaged himself, &c.
[20. ]Thus the Right of Passage, belonging to the Proprietor of a Country House in the Neighbourhood, is inherent only in the Possessor of the said House, and is transmitted to all, who shall possess the same, till that Right is extinct.
[21. ]Perfect Right, is that which we may assert by Force, and the Violation of which is a Wrong properly so called. Whence it is easy to judge what is Imperfect Right. See Pufendorf, B. I. Chap. I. § 7. and our Author, B. II. Chap. XXII. § 16.
[22. ]V. As when we say, Suum cuique tribuendum est, we must give every Man his own.
[23. ]Hence the Roman Lawyers very well called this Liberty Facultas.Grotius. This Definition occurs twice in the Body of the Law: Libertas est naturalis Facultas ejus, quod cuique facere libet, nisi quid Vi, aut Jure, prohibetur.Digest.Lib. I. Tit. V. De statu Hominum. Leg. V. and Instit.Lib. I. Tit. III. De Jure Personarum, §1. In order to understand it thoroughly, it will be proper to read Mr. Noodt’s excellent Commentary on the first Part of the Pandects, p. 29. See Pufendorf’s Remark on the Manner, how this natural Power of Man over himself is to be understood. B. I. Chap. I. § 19.
[24. ]The Scholiast on Horace says the Word Jus is taken for Property or a Right to a Thing. Jus pro Dominio.Grotius.
[25. ]See Pufendorf. B. IV. Ch. IV. § 2.
[26. ]Ut Ususfructus, Jus Pignoris, says our Author. As these Words stand, they insinuate that the Usufructuary, and the Creditor have a Sort of Right of Property, though imperfect, the former to the Goods in his Possession by vertue of his Tenure, the latter to the Thing pledged in his Hands for Security of the Debt. But, if we reason conformably to the Ideas of the Law of Nature, neither of them has any such Right, of Property, properly so call’d. The whole Matter is, that the Enjoyment of the Goods by the Usufructuary, till the Time of the Tenure is expired; and the Detention of the Pledge by the Creditor till he is pay’d, renders the Property imperfect, of which the Master of the said Things, who remains solely such, has not all the Profits, or full Exercise, during that Time. But our Author had the Niceties of the Roman Law in View, which allows an Usufructuary Creditor, &c. a real Action for recovering the Possession of another Man’s Goods, in the same Manner as if they were the real Proprietors of them; and thus they are often considered as such, and the Right to them near to that of Property: Jus dominio proximum, say the Interpreters.
[27. ]Creditum: Debitum. Short, and very proper Expressions, taken from the Roman Law. See what I have said on PufendorfB. I. Chap. I. § 20. Note 3. of the second Edition: and B. V. Chap. XI. § I. Note 5. The learned Gronovius, without Reason, restrains the Terms in Question to Contracts of Loan, properly so called. It is surprising, that he did not observe, that our Author here imitates the Language of the Roman Lawyers; and the more so, because some other Commentators, much less skill’d in Criticism, have perceived this Allusion. In my Opinion it may be affirm’d, without the least Hesitation, that by the Word Creditum, we are here to understand, not only the Right a Man hath to demand what is due to him by Vertue of some Contract, Bargain, Promise, or Law; but also the Right we have to require Satisfaction for any Damage or Injury received; all which is included in the Idea affix’d to that Word by the Roman Lawyers. CreditorumAppellatione non hi tantum accipiuntur, qui pecuniam crediderunt, sed omnes, quibus ex qualibet causâ debetur, utsicuiexempto, vel ex locato, vel ex alio ullo debetur: Sed etsi ex delicto debeatur, mihi videtur Creditoris loco accipi.Digest.Lib. I. Tit. XVI. De verborum, & rerum signif. Leg. XI, XII. See B. II. Chap. I. § 2. and Chap. XVII. § 1. I believe our Author goes still farther, and extends the Word Creditum to the Right of punishing, and that of Debitum to the Obligation of submitting to condign Punishment. I am induced to think so, because first the Perfect Right, to which the Debitum & Creditum in Question relate, answers to the Law of Nature, or Natural Right, properly so called, of which the Author has spoken in his preliminary Discourse, § 8. Now one of the general Rules of that Law is, that those who violate its Maxims, deserve to be punished. See what I have said on § 10, Note 7. It is very probable therefore, that our Author, while he was enumerating the several Things which may be required in Rigour, would not forget the Punishment of Criminals. Secondly, because he elsewhere actually ranks Debitum ex poena, or poenale among those things, which we may demand of another in Rigour. B. III. Chap. XIII. § 1, 2. and makes a Right to punish belong to Justitia expletrix, which is the Matter of Perfect Right. B. II. Chap. XX. § 12.
[28. ]VI. This takes in all those Rights, natural or acquired, with which each Man is invested, independently of the Relation of a Citizen, or Member of the State. The Author produces Examples of this kind which are sufficient for making the Matter clear and intelligible. See what he says concerning Promises, B. II. Chap. XI. § 8. and Chap. XIII. § 20.
[29. ]Because the Design and Good of civil Society necessarily require, that the natural and acquired Rights of each Member should admit of Limitation several Ways and to a certain Degree by the Authority of him or them, in whose Hands the sovereign Authority is lodged.
[30. ]So that a Subject ought to obey his Prince preferably to his Father and his Master. And the Prince may allow a Father and a Master more or less Power over their Children, and Slaves, as he shall judge most conducive to the Public Good. See B. II. Chap. V. § 7, and 28.
[31. ]This is the Observation of Philo the Jew, who says: Certainly Silver, Gold, and all other valuable Things, which Subjects treasure up, belong more to those who govern, than to those in Possession of them, περὶ ϕυτουργίας (of Noah’s Planting.) p. 222. Edit. Paris.Pliny the younger declares, that a Prince, to whom the Possessions of every one of his Subjects belong, is as rich as all of them together. Paneg. Cap. XVII. And a little after: What doesCesar see, that is not his own? See John of Salisbury in his Polycrat. Lib. IV. Cap. I. p. 335. Edit. Lugd. 1639. Grotius.
[32. ]And consequently, the Sovereign may discharge a Debtor from the Obligation of paying, either for a certain Time, or forever, if the publick Good requires it. We have an Example of this in Livy, Lib. XXIII. Cap. XIV. Num. 3. which is here produced by Gronovius. After the fatal Battle of Cannae; Marcus Junius Pera, the Dictator ordered publick Notice to be given, that he would pardon all who had been guilty of capital Crimes, and exempt from Payment all such as were in Chains for Debt, if they would list under him.
[1 ]Ἀξία. The Philosopher uses this Word when he treats of Distributive Justice, by Vertue of which we are to give every one what is due to him, according to his Merit. Ethic. Nicom. B. V. Chap. VI. But I find that Cicero uses the Latin Word Dignitas, which answers to the Greek Ἀξία, in a large Sense, including both perfect and imperfect Right: His Words are, Justitia est habitus animi, communi utilitate conservata, suamcuique tribuensDignitatem. De Invent. Lib. II. Cap. LIII. And the Author of a Treatise on Rhetorick, ascribed to that great Orator and Philosopher, makes Justice consist in rendering to every one his due, (Jus) according to his Merit, (prodignitatecujusque) Ad Heren. Lib. III. Cap. II. Huber, in his Treatise De Jure Civitatis, and his Praelect. in Institut. & in Pandect. quotes these two Passages wrong, as if he had read quae cuique jus suum & dignitatem tribuit; and on the sole Authority of this false Quotation, he pretends that Cicero expresses perfect Right by the Term Jus, and imperfect Right by Dignitas.
[2. ]Cicero has given us an Example of several Degrees of Merit and Fitness, which confer more or less of this imperfect Right; which I shall here set down, translated from the Author’s Note on this Place.
[1 ]Our Author’s Criticism in this Place, has been justly censured, for the Word συνάλλαγμα, according to Aristotle’s Sense of it, expresses all Dealings Men may have one with another, and in which any Inequality appears that ought to be redressed by the Exercise of the Species of Justice in question. The Philosopher, (Ethic. Nicom. Lib. V. Cap. V.) distinguishes these συναλλάγματα into voluntary, by which he understands Contracts properly so called, as those of Sale, Loans, Bail, Trusts, Hiring, &c. and Involuntary, under which he comprehends all Sorts of Damage and Injuries done to another; either clandestinely, or by open Violence; in short, what the Roman Lawyers call Delictum, and which the learned Gronovius improperly compares to Quasi contractus, which, according to them, Non ex maleficio substantiam capiuntInstitut.Lib. III. Tit. XXVIII. The same Commentator (in order to shew, that the Example of a Person in possession of another Man’s Goods may relate to Aristotle’sPermutative Justice) observes, that ever since the Establishment of Property, there has been a tacit Agreement among all Men, by which each of them is obliged to restore the Goods of another. This is a false Principle, laid down by our Author himself, B. II. Chap. X. § I. in which he has been followed by Pufendorf, B. IV. Chap. XIII. § 3. I have confuted them both, in my Note on the Passage of the latter, here referred to. I am not therefore surprized that Gronovius grounds his Argument on it; for besides that he had a better Talent at commenting on the Thoughts and Expressions of others, than at examining and considering Subjects of this Nature, he thus found an Argument ad hominem, against Grotius, in favour of his dear Aristotle. But it is very strange that he has not added a Remark, very proper for supporting his Criticism, and the more so, as it depends on a grammatical Nicety, viz. that the Word συνάλλαγμα does not signify the Foundation of the Obligation arising from the Justice under Consideration, but only the Object or Matter on which this Sort of Justice is employed, which Aristotle therefore calls, Δικαιοσύνη, or Δίκαιον, τὸ ὲν τοι̑ς συναλλάγμασι διορθώτικον, Lib. V. Cap. V. and ὅ γίνεται ἐν τοι̑ς συναλλάγμασι καὶ τοι̑ς ἑκουσίοις καὶ τοι̑ς ἀκουσίοις Cap. VII. that is, corrective Justice in Mans Dealings one with another, or barely corrective Justice, a Term which Interpreters would have done well to preserve, as much more expressive of the Philosopher’s Sense than that of commutative Justice, which conveys a very different Idea. Thus when our Author says, it is not by Vertue of a Contract, (ἐκ συναλλάγματος) that the Possessor of another Man’s Goods is obliged to restore them, it makes nothing against Aristotle, according to whose Principles, συνάλλαγμα is here a Detention of what belongs to another; but the Obligation of restoring, is founded on an In equality subsisting to the Prejudice of the Proprietor, an In equality which the Justice under Consideration requires to be redressed. To which it may be added, that Aristotle’sCorrective or Permutative Justice, does no more answer exactly to our Author’s Expletive Justice, than the Distributive Justice of the former does to the Attributive Justice of the latter, and that there is a wide Difference between those two Distinctions, both in regard to their Foundation, and the Extent of each particular Member. But all this is of little Consequence in the Main, and it would be better to leave the Philosopher with his Division, which besides that it is very defective, is useless at present, as several Authors have observed. See Pufendorf, B. I. Chap. VII. § 12. Mr. Thomasius’sInstitutiones Juris Divini, Lib. I. Cap. I. § 106: As also the Principia Juris, secundum ordinem digestorum; by Mr. Westenberg, Professor at Franeker, Lib. I. Tit. I. § 15, &c.
[2. ]Ἐπανορθωτική Ethic. Nicom. Lib. V. Cap. VII. p. 65. Edit. Paris. Vol. II. Or, as Aristotle more frequently calls it, Διορθωτική.
[3. ]It is not the same Thing. See Note 1. on this Paragraph.
[4. ]For the Justice in question regulates the Exercise of those Virtues, which consist in doing such Things in favour of others, as cannot in Rigour be demanded, and directs a proper Application of the Acts of those Virtues, by a prudent choice of Persons the most worthy, to feel the Effects of them. See the second Note on Paragraph 7th, and what has been said in the Preliminary Discourse, § 10, and the Notes of that Place; as also our Author, B. II. Chap. I. § 9. Num. 1.
[5. ]The Author has here in view, chiefly the Distribution of Rewards and publick Employments; for tho’ the Prince on such Occasions ought to prefer Persons of most Merit, and greatest Abilities, no private Person can in Rigour demand this Preference. See Pufendorf, B. I. Chap. VII. § 11. So that Catiline made use of a very frivolous Pretence, in Justification of his Conspiracy, when he said, Deprived of the Fruits of my Labour and Industry, I was not raised to a Post equal to my Merit.... I saw Men of no Worth promoted to Honours, and myself repulsed upon groundless Surmises.Sallust, Bell. Catilin. Cap. XXXVI. Edit. Wass.
[6. ]Simple Proportion, or Arithmetical, is found, according to Aristotle, between three Quantities, the first of which exceeds, or is exceeded by the second, as much as the second surpasses, or is surpassed by the third; so that to reduce Things to a just Medium, in which Justice consists, we must take from or add to the first Quantity, as much as is added to or taken from the second. In this Place we are to add or take away what is agreeable or advantageous, and what is disagreeable or disadvantageous; which the Philosopher calls κέρδος Gain, and ζημία Loss or Damage; for we take away part of both from him who has too much of either, in order to give it to him who has too little of them. Thus supposing a Thing worth only six Crowns, has been fraudulently sold for nine, the Seller has three Crowns too much, and the Buyer three too little: Take away three Crowns from the former, and give them to the latter, and you come to an Arithmetical Proportion between 9, 6, and 3; because 9 exceeds 6 as much as 6 does 3. See Ethic. Nicom. Lib. V. Cap. VII.
[7. ]This Geometrical Proportion subsists between four Quantities, the first of which contains or is contained in the second, as often as the third contains or is contained in the fourth; as when we say, Six is to three as twenty-four to twelve; or Three is to six as twelve to twenty-four.
[8. ]Cassiodorus calls it Habitudinis comparatio.Homer gives a pretty good Description of this Sort of Proportion, which commonly belongs to Attributive Justice, when he says,
He gave valuable Things to him who deserved most, and Things of less Value to him, who had less Merit.Grotius.
[9. ]It has been justly remarked, that in Geometrical Proportion, by which Distributive Justice is regulated, according to Aristotle, the Merit of the Persons is compared with the Things themselves, so that the Quantity of what is given to one, is to the Quantity of what is given to another, as the Merit of one is to the Merit of the other. This evidently appears from Ethic. Nicom. Lib. V. Chap. VI, & VII. and particularly from a Passage where the Philosopher says, that in Affairs where Corrective or Permutative Justice, as opposed to Distributive, is concerned, (ἐν τοι̑ς συναλλάγμασι) an Arithmetical Proportion is to be observed; so that the Question is not whether a Man of a good or bad Character cheats, is cheated, or commits Adultery; but that the Law considers no other Difference than that of the Damage sustained, looking on them as equal in other Respects, Lib. V. Cap. VII. p. 63. Edit. Paris. An Opposition, which plainly insinuates, that in the other sort of Justice, a Regard is paid to the Quality of the Persons, as well asto the Advantage or Disadvantage arising to either of the Parties. So that in a Contract of Society, which belongs to Aristotle’sCorrective or Permutative Justice, according to him, no Regard is tobe had to the Quality of the Person; and as Gronovius observes, if the Prince of Orange puts 1000 Crowns, for Example, into the India Company’s Stock, he receives no more Dividend than a private Person, who deposits the same Sum. Nor does our Author pretend he does; though his Commentator insinuates as much. All he means is, that in the Administration of Corrective or Permutative Justice, Men do not always observe such an Arithmetical Proportion, as Aristotle describes; for upon dividing the Profits among several Proprietors, who have engaged in a Partnership in unequal Shares, it is certain, that Geometrical Proportion must be observed, and that the other is not sufficient. It is true, this is not a Geometrical Proportion, by which the Merit of the Persons is compared with Things; and that it is enough that the Things themselves are compared together, that is, each Person’s Share with that of others, and with the Loss or Gain, of which each is to have his Part. It is also true, as Pufendorf observes, B. I. Chap. VII. § 9. the Shares of the Partners may be equal; in which Case, there will be a perfect Equality in the Division of the Profits. But as they may be, and very frequently are unequal, it may justly be affirmed, that the Use of Arithmetical Proportion is not sufficient in Contracts, which is all our Author contends for.
[10. ]Some reply, that the Case is not possible, but all that can be said with Certainty is, that it seldom happens. Others say, that Geometrical Proportion is observed even in that Case, because the Merit of that Person, who alone is capable of an Employment, is compared with the want of Merit in all the other Subjects. But then the Comparison is not made between Things of the same Kind, and consequently, Geometrical Proportion cannot take Place here. In reality, the whole Dispute is of very little Importance; and how faulty soever Aristotle’s Division may be, our Author had better have proposed his own, than have given himself the Trouble of reconciling it with the other, as he has rectified it; for they are still very different at the bottom, as will easily appear on a careful perusal of that great Philosopher’s Moral Treatises.
[11. ]I am inclined to think the Author here had in view a Passage of Aristotle, where he says, that Distributive Justice always follows Geometrical Proportion. For, continues the Philosopher, upon a Distribution of the Publick Money, it must be made in Proportion to what each has contributed. Ethic. Nicom. Lib. V. Cap. VII. p. 62. I suppose the Philosopher designed to speak of the following Case. Several private Persons have furnished the State with Money for the Demands of the Publick, and that in different Sums; the proper Officers are inclined to reimburse them, but the Sum destined for that End, is not sufficient for the Payment of all the Creditors; so each receives in Proportion to what he lent. But this very Example may serve to shew, how little Justness there is in Aristotle’s Ideas. For, properly speaking, there is no Comparison between the Degree of the Merit of the Persons, and the Quantity of the Things, but only between what is advanced, and what is restored. If it be said that each Person deserves more or less to be reimbursed, as he had lent more or less, it may be easily shewn, that this Circumstance is but a very ambiguous Proof of more or less Merit; for it may, and often will happen, that those, who have furnished the largest Sums, have not lent so much in Proportion, as Persons of smaller Fortunes, who perhaps have very much streightened themselves to assist the Publick, whilst the former have suffered little or no Inconvenience, by depriving themselves for some Time of a Sum, very inconsiderable in comparison of what remained in their Hands. Now can it be doubted, that on this Supposition, they, who have expressed most Zeal for the publick Good, and have suffered most by promoting it, deserve to receive in Proportion to a larger Share of the Sum, which is not sufficient to discharge the whole Debt, than they whose Debt is in itself the most considerable? I reason here on the Principle established by our Lord Jesus Christ, in regard to Alms, in the Judgment he pronounces of a poor Widow’s Charity, who gave only two small Pieces of Money for the Use of the Poor. Mark xii. 42, &c.
[12. ]Cyropaed. Lib. I. Cap. III. § 14. Edit. Oxon.
[13. ]See the same Writer, Lib. II. of the Cyropaedia. To the same Purpose God forbids the Judges of his People to countenance a poor Man in his Cause, or respect the Person of the Poor, in giving Judgment, Exod. xxiii. 3. Levit. xix. 15. In truth, as Philo the Jew observes, the Merits of the Cause are to be considered in themselves, and abstractedly from any Regard to the contending Parties. Lib. De Judice, p. 720. Edit. Paris.Grotius.
[1 ]In this Sense Horace says,
[2. ]See Pufendorf, B. I. Chap. V. Where he explains the Nature and Foundation of moral Actions.
[3. ]The Author’s Expression in this Place seems to insinuate, that the Law obliges by its self, and merely as it is a Rule; whereas, all Laws derive their Power of obliging from a Superior, who makes them; that is, from some Intelligent Being, who has a Right of imposing an indispensible Necessity of submitting to his Direction, on those whose Liberty he restrains. To which may be added, that the Author reduces the whole Effect of the Law to the Obligation; whereas Permission ought to be joined to it, which he without Reason excludes.
[4. ]See Pufendorf, B. I. Chap. VI. § 1.
[5. ]I cannot be of our Author’s Opinion in this Point. Permission is as real an Effect of the Law, taken in its utmost Extent, as the strongest and most indispensible Obligation. The Superior, who gives Being to the Law, has a Right of positively directing either all the Actions of those who depend on him, or at least, all those of a certain kind: In regard of all those Actions, he has a Power of imposing a Necessity of acting or not acting in a certain manner. But no Superior exercises his Authority so extensively; there is always a considerable Number of Things subject to his Direction, in which he leaves every one the Liberty of doing as he pleases. This is not a mere Inaction, or Negation of Action, as our Author pretends, but a real positive Act, though commonly tacit, by which the Superior or Legislator makes an Abatement of his Right. So that, as the Actions commanded or prohibited, are regulated positively by the Law, so far as it imposes an indispensible Necessity of doing the former, and forbearing the latter, the Actions permitted, are likewise positively regulated by the Law in their own Way, and according to their own Nature, so far as the Law either originally gives a Power of doing or not doing them at Pleasure, or confirms and leaves Men in Possession of a Liberty, which it might have taken away either entirely, or in Part. There is no manner of Necessity of an express Permission, which seldom takes place in Divine or Human Laws: The Silence of the Legislator sufficiently infers a positive Permission of whatever is neither enjoined nor prohibited. Thus when God, who alone can regulate all the Actions of Men, of what Nature soever they be, forbad the Jews the Use of certain Animals for Food, as he might, if he had pleased, [[have extended the Prohibition to several other Kinds, by his only forbidding some Particulars, he actually and positively allowed them the Liberty of eating or not eating all others. As to human Laws, either they turn on Things already commanded or prohibited in some manner by Divine Law, natural or revealed; and in that Case, they give as much as in them lies, a Permission of doing several other Things of that Kind, where they are silent; which is a necessary Consequence of Impunity: Or they relate to Things otherwise indifferent in themselves; and then they of course permit whatever they do not forbid; there being an Infinity of Actions of such a Nature, that a Man invested with Authority may lay a Restraint on the Liberty of others, which the Law of Nature allows only so far as a lawful Superior does not think proper to bound it. In one Word, whoever fixes certain Limits, and declares no one shall be allowed to exceed them, does by that very Action express how far he grants Men Liberty to go, if they please. This Way of Reasoning is the more just, because, as our Author owns, the Permission which a Law gives to any one, lays an Obligation on others not to form any Obstacle to his acting, when he is disposed to do what the Law permits. Now this Obligation arises, and ought necessarily to arise from a Right inherent in him, to whom the Law gives a Liberty of acting as he pleases; for in all Obligations in which we stand engaged to others, there is some correspondent Right; and we have not a Right to require a Thing, because another is obliged to do it, but on the contrary, he is obliged to do it, because we have a Right to require it. Whence then arises this Right? It can certainly arise only from the Permission granted by the Law, a Permission, by vertue of which we are also empowered to resist those, who disturb us in the Enjoyment of this Right, and employ either the common Means of Justice, when we are in a Condition of having Recourse to the Protection of a proper Judge, or Force, if we have no other Way left of righting ourselves. In short, every one knows, that the Laws grant an express Permission, either to all such as depend on the Legislator, or only to some in Particular. From all which it appears, in my Opinion, that the Author had no Reason for excluding Permission from the general Idea of the Law. To which may be added what I have said on this Subject against Pufendorf, who is of the same Opinion with Grotius, B. I. Chap. VI. § 15. Note 2. By way of Supplement for this Omission, and some others, I am of Opinion that Law should be defined as I have already defined it, in a Note on the Abridgment of The Duties of a Man and a Citizen. B. I. Chap. II. § 2. of the last Editions: The Will of a Superior sufficiently notified in some manner or other, by which Will he directs either all the Actions in general of those who depend on him, or at least all those of a certain Kind, so that, in Regard to such Actions, he either imposes on them a Necessity of doing or not doing certain Things, or leaves them at Liberty to act or not act as they shall judge proper.]]
[6. ]We have an Example of this in a Law made by Zaleucus, inflicting a Penalty on those, who should drink Wine against the Physician’s Orders. Grotius.
[7. ]Thus we say: It is just to acknowledge Favours, to have Compassion for the Poor, to be liberal to those who want our Assistance, to take a prudent Care of our Health and Fortune, &c.
[8. ]In his Ethic. Nicom. Lib. V. Cap. X. where he makes a Distinction between Δίκαιον Φυσικὸν, and Δίκαιον νομικὸν, as making part of what he calls Δίκαιον πολιτικὸν Civil Law. So that his Division is not exactly the same with that of our Author. See my Preface to Pufendorf, § 24. p. 97, 98. of the second Edition.
[9. ]That is, for a Constitution absolutely depending on the Will of the Legislator.
[10. ]Τὸ ἐν τάξει. The Philosopher makes use of this Expression, when speaking of Injustice. Ἀδικὸν μὲν γάρ ἐστι τῃ̑ ϕύσει, ἢ τάξει. Ethic. Nicom. Lib. V. Cap. X. p. 68. Vol. II. Edit. Paris.
[11. ]Thus Maimonides, in his Guide to the Doubtful, Lib. III. Cap. XXVI. Grotius. See Selden, who also adopts this Rabbinical Remark, in his Treatise, De Jure Nat. & Gent. secundum Disciplinam Hebraeorum, Lib. I. Cap. X. p. 119, 120. But our Author here gives us to understand, that this Distinction is not always observed, as he expressly acknowledges in his Commentary on St. Luke i. 6. See Mr. Le Clerc, on Genesis xxvi. 5. and in his Additions to Dr. Hammond’s Notes on Rom. viii. 4.
[1 ]Philo the Jew, in his Treatise, where he undertakes to prove that every good Man is free, speaks thus, Right Reason is an unerring Law, not corruptible or lifeless, written by this or that mortal Man, on Papers or inanimate Pillars, but incorruptible, and engraved by an immortal Nature on an immortal Mind, p. 871. Edit. Paris. Will you enquire where the Law of GOD is? says Tertullian, when you have a common Law exposed to every one’s View, and written on the Tables of Nature? De Coronâ Militis, Cap. VI. The Emperor Marcus Antoninus declares, The End to be proposed by all rational Creatures, is to follow the Reason and Laws of the most antient Commonwealth, Lib. II. § 16. See a Fragment of Cicero’s Treatise De Republicâ, Lib. III. quoted by Lactantius, Lib. VI. Cap. VIII. St. Chrysostom has several fine Thoughts on this Subject, in his twelfth and thirteenth Homilies On the Statues. What Thomas Aquinas says, Secunda Secundae, I.VII. 2. and Scotus, III. Dist. 37. is not unworthy our Notice. Grotius.
[2. ]Our Annotator adds the Words ac Sociali, & Sociable in the Text of his Latin Edition, because his Author expresses himself in the same Manner, § 12. Num. 1. and in the following Chapter, § 1. Num. 3. He thinks it probable, that the Transcriber or Printer omitted those two Words; and that the Author overlooked the Omission, as he has done in several other Places.
[3. ]Actus debiti, aut illiciti per se. The Author here supposes we should be under an Obligation of doing or not doing certain Things, even tho’ we were not answerable to any one for our Conduct. We are not to be surprized that his Notions on that Subject are not entirely just, since we see at this Day not only the Generality of Philosophers and Scholastick Divines, but also some Authors, otherwise very judicious, and far from being Slaves to the Schools, strenuously maintain, that the Rules of the Law of Nature and Morality do in themselves impose an indispensible Necessity of conforming to them, independently of the Will of GOD. Some however, reason so as to make it seem a mere Dispute about Words. I shall endeavour to put the Question in a clear Light in a few Words, and shew the Foundation of the Negative, which I take against the Author. This Note may be joined to what I have said on the same Subject in my Preface to Pufendorf, § 6. p. 36. Second Edition. The Question here is not whether we can discover the Ideas and Relations, from which all the Rules of the Law of Nature and Morality are deduced, abstractedly from the Will of an intelligent Being. It must be acknowledged with the Patrons of the Opinion which I oppose, that these Rules are really founded on the Nature of Things; that they are agreeable to the Order conceived necessary for the Beauty of the Universe; that there is a certain Proportion or Disproportion, a certain Fitness or Unfitness between most Actions and their Objects, which give a Beauty to some, and a Deformity to others. But it does not follow from this Concession, that we are, properly speaking, obliged to do or not to do such a Thing. The Fitness or Unfitness, which may be termed the natural Morality of Actions, is indeed a Reason for acting, or not acting; but then it is not such a Reason as imposes an indispensible Necessity, which is implied in the Idea of an Obligation. This Necessity can come only from a superior, that is, from some intelligent Being existing without us, who has a Power of restraining our Liberty, and prescribing Rules for our Conduct. If there were any Obligation independently of the Will of a Superior, it must be laid on us either by the Nature of the Things themselves, or by our own Reason. Now the Nature of Things cannot impose any Obligation properly so called. The Relation of Fitness or Unfitness between our Ideas, can of itself only oblige us to acknowledge such a Relation; something more is necessary for obliging us to make our Actions conformable to it. Nor can Reason of itself lay us under an indispensible Necessity of following those Ideas of Fitness or Unfitness, which it places to our View, as grounded on the Nature of Things. For, first, the Passions oppose these abstracted and speculative Ideas with sensible and affecting Ideas, they shew us in several Actions contrary to the Maxims of Reason, a Relation of Pleasure, Content, and Satisfaction, which attend them, as soon as we resolve to perform them. If our Understanding diverts us from such Actions, the Inclination of our Heart carries us toward them with much more Force. Why then should we comply with the former, preferably to the latter, if there is no exterior Principle that obliges us so to do? On this Supposition, are not the Inclinations of our Heart as natural as the Ideas of our Mind? Do they not arise from a certain Disposition in our Nature? You will say, Reason evidently shews us that we shall act more conformably to our Interest, by observing the Rules which she prescribes, than in being guided by our Passions. But the Passions will dispute this Advantage, and even pretend it lies on their Side, because the Satisfaction which they offer is present and certain; whereas the Interest to which Reason would engage our Attention, is future and distant, and perhaps therefore to be looked on as uncertain. Even tho’ we were convinced that, all Things well considered, it would be advantageous to us to listen to the Dictates of Reason, is not every one at full Liberty to renounce his Interest, while no other Person is concerned in his acting conformably to it, or invested with a Right of requiring he should consult it as much as is in his Power? How much so ever a Man acts in contradiction to his real Interest, he will, on this Supposition, be only imprudent: He will be guilty of no Violation of any Duty or Obligation, properly so called. But secondly, what ought to be particularly observed, and which alone is sufficient for proving the Thesis here advanced, is that our Reason, considered as independent on the Being who endowed us with it, is at the Bottom nothing but Ourselves. Now no Man can impose on himself an indispensible Necessity of acting or not acting in such a particular Manner. The very Notion of Necessity implies, that it cannot cease at the Pleasure of the Person subject to it; otherwise it would be ineffectual, and reduced to Nothing. If then the Person obliged, and the Person who lays the Obligation be one and the same, he may disengage himself from it, when, and as often as he pleases; or rather there will be no real Obligation; as, when a Debtor succeeds to the Estate and Rights of his Creditor, the Debt ceases. In a Word, as Seneca very well observes, properly speaking, No Man owes any thing to himself.... The Word Owe takes Place only between two. De Benef. Lib. V. Cap. VIII.
[4. ]He speaks here of such Things as are neither commanded nor forbidden by the Law of Nature, in regard to which we are left to our Liberty to act as we judge proper, unless a lawful Superior makes some positive Law in that Point; as it is in his Power; which is agreeable to the Law of Nature only in the Manner here specified, not being immutable, as our Author observes elsewhere, B. I. C. II. § 5. n. 1. But it is evident from what I have said, Note 5. on the preceding Paragraph, that there is a Natural Law of bare Permission, as well as one which is obligatory; and thus the Things which the Author means, may very well be considered as belonging to Natural Law, in the former Acceptation of the Term.
[5. ]Our Author, in another Part of this Work, mentions Concubinage, Divorce, Polygamy, B. I. C. II. § 6. n. 2. the Action of a Person, who discovers to another, what he is not by the Law of Contract obliged to discover: (B. II. C. XII. § 9. n. 2.) The Care of declaring War in certain Cases, where it may be omitted without any Violation of Natural Law: (B. III. C. III. § 6 n. 6.) The Vow of Celibacy, Second Marriages, and the like, (B. III. C. IV. § 2. n. I.) as so many Examples of Things belonging to this Class. What we shall say on those Places, and on B. I. C. II. § 1. n. 3. will help to explain the Principle here laid down by our Author, and shew wherein he has misapplied or extended it too far. See also Pufendorf, B. II. C. III. § 22.
[6. ]See Pufendorf, B. II. C. III. § 15. Note 5. and § 22, 24.
[7. ]Theft is a fraudulent taking of a Thing, for the Sake of making an Advantage either of the Thing itself, or of the Use or Possession of it: All which is forbidden by the Law of Nature. Digest. B. XLVII. Fol. 2. De Furtis, Leg. I.§3.
[8. ]The Words of the Emperor Julian on that Subject are, Besides that, by which we are all convinced, without Instruction, of the Existence of something Divine; there is a second Law, sacred and divine by Nature, which orders us entirely to abstain from another Man’s Property, and allows us not to make any Attempt on it, either by Word or Action, or even in our secret Thoughts, &c. Orat. VII. p. 209. Edit. Spanheim. The Philosopher Chrysippus, as represented by Cicero, said, There is no Injustice in seeking ones own Advantage; but it is contrary to Equity to take away from another. De Offic. Lib. III. Cap. X. Grotius.
[9. ]Theft and Adultery are in their own Nature Evil and Infamous. Digest. Lib. L. Tit. XVI. De Verborum significatione, Leg. XLII.
[10. ]For the Deity abhors violence. It is his Will that all Men should remain in quiet Possession of their own Goods; but no Rapine is allowed. Riches unjustly acquired are to be renounced, for the Air and Earth are common to all Men, where, when they increase their Possessions, they are not to detain or take away what belongs to others. Helen. V. 909, &c.
[11. ]Compare this with what Pufendorf says, B. II. C. III. § 5.
[12. ]See Mr. Le Clerc’sOntology, C. XIV.
[13. ]The Definition of moral Good and Evil, of Virtue and Vice, being established on the necessary Congruity or Incongruity, which we perceive between certain Ideas, founded on the very Nature of Things; to say the Good becomes Evil, and Evil Good, as long as the Things remain the same, implies a Contradiction. If therefore God should command a Thing in which we find a necessary Incongruity with the Nature of Things; and on the contrary, prohibit a Thing in which we discover a necessary Congruity with the Nature of Things; he would act in Contradiction to himself, because he is the Author of that Nature: Thus he would be wise and not wise at the same Time; he would have all Perfections, and yet want one of the greatest; which is such a manifest Contradiction as can never be the Object of the Divine Omnipotence. If it be said, that God can change the Nature of Things, the Proposition is unintelligible, and when closely examined, implies no less Contradiction. For either the Things would not be the same, tho’ called by the same Names; as Man, for Example, would be no longer a rational and sociable Creature; or Things remaining still the same, they would no longer be endowed with the same Properties, and the same essential Relations, i.e. they would and would not be the same; for the Essence of a Thing, and the Thing itself, differ only in Name.
[14. ]Ethic. Nicom. B. II. C. VI. The Application of this Passage is not entirely just. Aristotle is not here speaking of the Mutability or Immutability of Moral Evil. He means no more than that some Passions and Actions are of such a Nature, that they can be innocent in no Case, nor in what Manner soever they are admitted. Of this Sort are a malicious Joy at our Neighbour’s Misfortunes, Impudence, Envy, Adultery, Theft, and Murder; whereas some other Passions and Actions are Good or Evil, as a just Medium is observed, or as we depart from it, and give into either Extreme: Such are Fear, Confidence, Desire, Aversion, Anger, Compassion, Joy, Sorrow, the Actions of giving or receiving, of speaking or being silent, &c. But, whether the moral Evil, always inherent in the former Sort of Actions and Passions, and sometimes in the latter, is absolutely inseparable from them, even by the Will of God, is another Question, on which the Philosopher says nothing either directly or indirectly, which leaves us Room to suppose he had it in his Thoughts.
[15. ]This Example is employed, B. I. C. VII. by way of Comparison, in relation to a very different Subject.
[16. ]See Preliminary Discourse, § 49. n. 3. and B. I. C. II. § 2. num. 1. B. II. C. VII. §2. n. 3. and B. III. C. XI. § 9. num. 2.
[17. ]This is treated of in B. II. C. II. § 2.
[18. ]See B. I. C. III. § 1, 2. and B. II. C. XX. § 8.
[1 ]See Pufendorf, B. II. C. III. § 2, 3.
[2. ]Brutes have not a Power of forming abstracted or general Ideas, as Mr. Locke has shewn in his Essay on the Human Understanding, B. II. C. XI. § 10, 11. See also Cicero, De Officiis, B. I. C. IV. and Seneca, Ep. 124. Or if it be imagined, that by allowing Brutes Knowledge, it will be hardly possible to deny them some universal Ideas; it must be granted, at least, that they are not very extensive, and, according to all Appearance, are raised only by the Impressions of some particular Object which is present.
[3. ]Oper. & Dier. V. 276, &c. Edit. Cleric.
[4. ]Juvenal makes the same Observation, Sat. XV. v. 142, &c. “It is that which distinguishes us from Brutes. And it is also upon that Account that we only, of all Animals, have obtained a wonderful Capacity of apprehending divine Things, of inventing and exercising divers Arts. This Understanding we derive from Heaven, which the other Animals, whose Bodies are formed to look towards the Earth, are intirely deprived of. The common Creator of the Universe has given to them Souls endowed only with Sense; but to us he has moreover given Reason, that a mutual Affection might encline us to ask and give mutual Assistance, to unite together, and to form Notions, &c. ”St. Chrysostom says, We ought not to trans gress the Rules of Justice, even in regard to inanimate Beings, and such as are void of Sense. On VII. C. of Epist. to the Romans.Grotius.
[5. ]Nor does our Nature differ in any Thing more from that of Beasts, to which we attribute Strength, as a Horse and a Lion, but never Justice, Equity, or Beneficence; for they have neither the Use of Reason nor Speech. De Off. B. I. C. XVI. Our Author might have added a Passage from Aristotle, where that Philosopher observes, that We never say Beasts are temperate or intemperate, but by a Metaphor, tho’ one Species of Animals differs widely from another, in the natural Desire of Generation, and Greediness in Eating. Ethic. Nicom. Lib. VII. Cap. VII. p. 92.
[6. ]Cap. XVII. Num. 30, 31. Edit. Cellar.
[7. ](Polyb.) Lib. VI. Cap. IV. In regard to what the Philosopher says of Offences committed against Parents, we have an Example of that Kind in Ham, and the Punishment of his Crime, Gen. ix. 22, &c. St. Chrysostom observes, that We are naturally inclined to join in our Indignation with those who have been injured; for, says he, we immediately become Enemies to the Offenders, tho’ we have no Share in the Injury. Hom. XIII. De Statuis. The Scholiast on Horace, Sat. III. Lib. I. v. 97. remarks, that Our Sentiments of Indignation upon hearing of a Murther, are different from those that arise in our Soul when we are inform’d of a Robbery.Grotius.
[8. ]Pliny, in his Natural History, Lib. VIII. Cap. V. speaks of a Sort of Sense of Justice in Elephants, which he terms divinatio quaedam Justitiae. The same Writer, Lib. X. Cap. LXXIV. tells us, on the Credit of another Author, that in Egypt, an Asp was known to kill one of its own Young, for having killed the Man’s Son who entertained and fed him. Grotius.
[9. ]Seneca says, that wild Beasts are not, properly speaking, subject to Anger, but have a Sort of blind Impetuosity in its stead. Brutes, says he, are void of human Passions, but have certain Impulses resembling those Motions. De Ira. Lib. I. Cap. III. Origen also observes, that Beasts are not susceptible of Vice, properly so called, but that we find in them something that resembles Vice. Contra Celsum. The Peripaticks said, The Lion seems to be angry.Porphyr, De non esu Animalium, Lib. III. p. 309. Edit. Lugd. 1620. Grotius.
[1 ]This Way of proving the Existence of the Law of Nature is of little Use, because only the most general Maxims of that Law have been received by most Nations. Some Practices even contrary to the most evident of them, were long considered as indifferent in the most civilized Countries, as appears from the horrible Custom of exposing Children. See Pufendorf, B. II. Chap. III. § 7, 8. and what I have said in my Preface to that Author, § 4.
[2. ]Opp. & Dier.vers. penult. But the Passage is not well applied in this Place; for the Poet means only that we ought to endeavour at securing a good Reputation in the World, because false Reports always make some Impression, and prejudice the Person to whose Disadvantage they are spread. Ὀυ πάμπαν ἀπόλλυται, Are not entirely without Effect.
[3. ]This is taken from Sextus Emtricus, [[sic:Empiricus, Adv. Mathem. Lib. VII. § 134. p. 399. Edit. Fabric.]]
[4. ]Aristotle maintains, that What all Men conceive in a certain Manner, is really such as it appears; and that, Whoever attempts to discredit such a Belief, will advance nothing much more worthy of Credit. Ethic. Nicom. Lib. X. Cap. II. p. 130. Edit. Paris.Seneca, undertaking to prove that no Duty is more evident than that of Gratitude, gives the following Reason for it: How different so ever the Opinions of Men may be on other Subjects, they will all unite in declaring that a proper Return is to be made to those who have deserved well of us. Epist. LXXXI. Quintilian says, I will therefore call the Consent of the Learned, the Standard of Language, and the Consent of good Men, the Rule of Life. Lib. I. Cap. VI. To the same Purpose, Josephus, the Jewish Historian, There is no Nation in which the same Customs are generally established: One City frequently differs from another in this Point, but Justice is equally proper for all Men, being extremely useful both to the Greeks and Barbarians. As our Laws have a strict Regard to that Virtue, they render us, if religiously observed, benevolent and friendly to all Men. This is what we are to require from Laws: Nor are others to profess an Aversion to them, on the Account of the Difference between their Institutions and ours, but rather to consider whether our Laws have a Tendency to promote Probity and Virtue; for this is the common Concern of all Mankind, and is of itself sufficient for maintaining human Society. Antiq. Judaic. Lib. XVI. Cap. X. Tertullian says, that Whatever is equally received by great Numbers of People, is not an Error, but a real Tradition. De praescript. adv. Haeret. Cap. XXVIII. Grotius.
[5. ]Sextus Empiric.Adv. Mathem. Lib. VII. § 131, 133.
[6. ]I know not whence this is taken; for I do not find it in any of those Books where it might be supposed that Philosopher has said any Thing of this Nature.
[7. ]Tusculan Quaest. Lib. I. Cap. XIII.
[8. ]Epist. CXVII.
[9. ]Instit. Orator. Lib. V. Cap. X. p. 399. Edit. Burman. He instances in the Belief of a Divinity, and the Obligation under which Children lie of loving and obeying their Parents.
[10. ]Of Abstinence, Lib. IV. p. 428. Edit. Lugd. 1620.
[11. ]Justin Martyr makes this Exception, Except such as being possessed with impure Spirits, and corrupted by a bad Education, evil Customs, and unjust Laws, have lost their natural Ideas. Colloq. cum Tryphone. Philo the Jew observes, that It is surprizing any Man should be so blind, as not to perceive certain Properties of Things, which are as clear as the Sun. In his Treatise proving all good Men to be free, p. 871. Edit. Paris. St. Chrysostom cautions us against forming a Judgment of Things from the Opinion of such as have a corrupt Mind. In his Homily on the Divinity of Jesus Christ. Grotius.
[12. ]Ethic. Nicom. Lib. V. Cap. X. Num. 2. Edit. Heins.
[13. ]In the Life of Pompey, Vol. I. p. 633. Edit. Wech.
[14. ]Topic. Lib. V. Cap. II. p. 228. Vol. I. Edit. Paris.
[15. ]St. Chrysostom says the same in his eleventh Homily On the Statues.Philo the Jew is larger on this Point. Nature, says he, when it produced the tamest of all living Creatures, made him sociable, and disposed to Concord. She also gave him the Use of Speech, for promoting an Harmony and a Conformity of Manners. On the Decalogue, p. 763. Edit. Paris. And in another Place, Man is the most tractable of Animals, being by Nature endowed with the Gift of Speech, by which the most savage Passions are charmed into Tameness. Of the Immortality of the World, p. 945. Grotius.
[16. ]Polit. Lib. I. Cap. V.
[1 ]This is usually called Positive Law. Its Objects are Things in themselves indifferent, or such as are not founded on the Constitution of our Nature, and consequently admit of different Regulations, as Time, Place, and other Circumstances require; all which depend on the Will of a Superior, which is the only Foundation of this Kind of Law, which is therefore called Arbitrary. See Pufendorf, B. I. Chap. VI. § 18.
[1 ]The Author follows Aristotle in the Addition of this Epithet. That Philosopher considered Civil Society, as a perfect Society, ἀυτάρκη, containing all that is necessary for living commodiously and happily. Politic. Lib. I. Cap. I. See also Lib. III. Cap. VI. & Lib. VII. Cap. IV. The Definition of a State may be seen in Pufendorf, B. VII. Chap. II. § 13; and the Note on that Place.
[2. ]For there were Parents and Children, Masters and Servants, &c. before there were Princes and Subjects. The Authority of a Father over his Child, that of a Master over his Servant, &c. is by no Means founded on the Will of the Civil Power, and the Obligations incumbent on Men as Members of a State; but has a different Origin, as shall be shewn in the proper Place. The Sovereign in this Case can only lay a Restraint on that Authority, as far as the Publick Good requires.
[3. ]This Positive Law of Nations, distinct from the Law of Nature, is a mere Chimera. See PufendorfB. II. Chap. III. § 23. with the Notes. I grant there are some Laws common to all Nations, or certain Things which ought to be observed by all Nations, in Regard to one another; and this may very well be termed the Law of Nations. But, besides that the Obligation to obey those Laws, does not arise from the Consent of Nations, which cannot take Place here; the Principles and Rules of such a Law, are in Reality the same with those of the Law of Nature, properly so called: The whole Difference consists in the Application which may be made in another manner, on the Account of the different Ways taken by Communities for determining Disputes. This is evident from the Example of Reprisals, which are founded on that general Maxim of the Law of Nature and Nations, that Damages ought to be repaired; for a Man in the State of Nature, cannot demand Satisfaction, for any Injury received from one who lives out of all Civil Society, of any of his Relations or Friends, who are really not concerned in the Affair. As to Customs received by the Generality of Nations, and concerning which the Law of Nature has given no Directions, if we are obliged to submit to them, it is not because they are obligatory in themselves, but because as soon as we know a Thing is generally practised, we are, and may be supposed to conform to such a Custom, while we give no Proof of the contrary. Thus the whole Obligation arises from this tacit and private Agreement, without which the Customs in Question have no Force.
[4. ]See Vasquez, II. Controv. Illustr. LIV. 4. Grotius.
[5. ]B. III. Chap. VII, IX.
[6. ]Orat. LXXVI. De Consuetudine.
[1. ]We have the following Passage on this subject in one of our Author’s Epistles. “Salmasius, in his Treatise De Usuris, frequently disputes about Words. Thus (p. 589, 685.) he spends much of his Time in opposing the Epithet Voluntary, which I have employed as a proper Term for characterizing and distinguishing non-natural divine Law. But he did not observe that Cicero calls a bad Action Facinus voluntarium, and opposes voluntarius to necessarius. God was at full Liberty not to create Man. The Moment he is determined to create Man, that is, a Nature endowed with Reason, and formed for a Society of an excellent Kind, he necessarily approves of such Actions as are suitable to that Nature, and as necessarily disapproves of those which are contrary to it. But there are several other Things which he commands or prohibits, because he thought fit so to do, and not because he could not act otherwise. I do not see what more proper Word could be found for expressing this Sort of Law, which is not invariably attached to the Nature of Man, and for establishing which the free Determination of the Divine Will intervenes.” Epist. Part II. Ep. 429.
[2. ]I have produced and explained the Passage of Plutarch, to which our Author here alludes, in my Remarks on Pufendorf, B. II. Chap. III. § 4. n. 1.
[3. ]I do not understand what positive Laws the Author means, which God delivered at the beginning of the World, and which are still obligatory, as soon as they are known. It is probable he understands by those Terms the several Sorts of Incest in the Collateral Line relating to the fourth of the six Commandments, which he, with the Rabbies, supposes were given to Adam and Noah, though they are only distinguished by the Name of the latter, as is also the Seventh, concerning Abstinence from Blood, which we find prescribed to Noah, Gen. ix. 4. See Num. 4. of the following Paragraph, and Chap. II. of this Book, § 5. Num. 5. B. II. Chap. V. § 13. num. 2, 5, 6; as also Selden, De Jure Nat. & Gent. juxta disciplinam Hebraeorum, Lib. I. Cap. X. But all this is grounded only on a very uncertain Tradition, which can never have the Force of a general Law, duly promulgated; as will appear still more evidently from what I shall say on the Places here referred to. We shall shew in Note 1. on B. II. Chap. V. § 13 that the Consequence drawn from Levit. XVIII. 24. &c. is not well founded. Others, (as Mr. Hochsteter, Professor at Tubingen, in his Collegium Pufendorfianum, Exercit. III. § 19.) with more Reason refer this to the Prohibition given to our first Parents in regard to the Tree of Knowledge of Good and Evil.Gen. ii. 16, 17 iii. 2, 3. But, tho’ that positive Law would have been equally obligatory to their Posterity, had they remained in Paradise, yet as the Matter of the Prohibition was but of short Duration, and the Law could never take Place afterwards, it is to no Purpose to make it an Example of an universal positive Law. The same Author, and several others, after Mr. Thomasius, who first reduced this Sort of Laws to a System, but afterwards ruined his own Edifice; those Authors, I say, place the Prohibition of Polygamy and Divorces among the universal positive Laws given to Adam; and pretend to find it in Gen. ii. 24. as also the Observation of the Sabbath, ibid. v. 3. the Authority of a Husband over his Wife, iii. 16. the Use of Sacrifices, iv. 3. But, first, tho’ Moses says, A Man shall leave his Father and his Mother, and shall cleave unto his Wife; and they shall be one Flesh. Nothing can hence be concluded either for or against Polygamy or Divorce. The Expression, Shall be one Flesh, in itself means no more than that there shall be the strictest Union between a Man and his Wife; but it does not imply that a like Tie cannot at the same Time subsist between a Husband and two or more Wives. And all that can be inferred from the same Text, in regard to the Dissolution of Marriage, is, that it ought not to be admitted rashly, and without some good Reason. The Word Flesh, according to the Hebrew Idiom, signifies all Ties, both of Affinity and Consanguinity, as Mr. Le Clerc has observed. Thus Laban says to Jacob, Thou art my Bone and my Flesh, Gen. xxix. 14. that is, I own you for one of my Relations. As therefore all the Relations of a Man are his Flesh; so, in the same Way of Speaking, a Man may be said to be one Flesh with several Wives. Secondly, Inregard to the Sabbath, it is owned by the most judicious Divines, that when Moses, after the History of the Creation, says, GOD blessed the Seventh Day, and sanctified it, he speaks by Anticipation, and only touches by the by on the Reason why GOD afterwards instituted the Feast of the Sabbath, so considerable among the Jews. Thirdly, When GOD says to Eve, Thy Desire shall be to thy Husband, and he shall rule over thee, the Penalty consists rather in the Necessity laid on Wives, in consequence of Sin, of obeying ill Husbands, than in any Right conferred on Husbands to command them in certain Cases, and to a certain Extent, that Right being grounded on the Law of Nature, and not barely on Divine Positive Law; as we shall see in the proper Place. Fourthly, The fourth Chapter of Genesis gives us only one Example of Sacrifices offered by two Sons of Adam; but there is not the least Insinuation, that GOD had commanded them to render him that Kind of exterior Worship. It is not probable indeed, that Men should so soon have thought of it, without some Direction, as Mr. Le Clerc very well observes; but it does not thence follow, that GOD had then prescribed that Practice, in the Form of an universal and perpetual Law for all Mankind.
[4. ]Of this Sort are usually said to be the Prohibition of eating Blood, Gen. ix. 4. and the Punishment of Murther, v. 6. But, First, The Prohibition of eating the Flesh of Animals, with their Blood or Life, was a Sort of symbolical Law, for diverting Men from Cruelty towards one another, at a Time when a Tenderness in that Particular was of the greatest Importance for the Multiplication of Mankind. See Mr. Le Clerc’s Comment on the Place. Besides, we have not the least Insinuation, that any but the moral Part of this Law was to be obligatory at all Times, and in all Places; and such as pretend it not allowable, even under the Gospel Dispensation, to eat the Blood of any Animal, have been sufficiently confuted. Secondly, When GOD says, Whoso sheddeth Man’s Blood, by Man shall his Blood be shed. This is not a Law, properly so called, but a bare Declaration of the just Punishment which Murtherers are to fear, either from Man or from GOD, by an Effect of the Divine Providence and Vengeance. See the following Chapter, § 5. note 2. This is evident from the preceding Words, where God says, At the Hand of every Beast will I require it: (the Life of Man) At the Hand of every Man’s Brother will I require the Life of Man. To which he adds, by way of Confirmation, Whoso sheddeth, &c. For in the Image of GOD made he Man. From this Passage mis understood, some Lawyers, as the late Mr. Cocceius, Professor of Law at Francfort on the Oder, (Dissert. De Sacrosancto Talionis Jure § 29, &c.) infer that even at this Day no human Power can pardon a Murtherer. See a Dissertation of Mr. Thomasius, printed at Hall, in 1707, and entitled, De Jure aggratiandi Principis Evangelici in causis Homicidii. in which he opposes this Error. See also the following Chapter, § 5. num. 3.
[5. ]See the following Chapter, § 6 num. 2.
[1 ]Some Commentators, as well Lawyers or Criticks as Divines, inveigh strongly against this Assertion of our Author; but they only copy the common Places of Scholastick Divinity. They need not have given themselves so much Trouble, had they but considered, that the Question concerning the Salvation of the Pagans ought not to be brought into this Dispute, as being nothing to the Purpose. For whether the Heathens could or could not be saved without some Knowledge of JESUS CHRIST, either distinct or typical, it is still certain, that the Law of Moses, as such, laid no Obligation on the Pagans. This Law was undoubtedly directed only to the Israelites, as our Author observes; and an infinite Number of Pagans, who neither did or could know that there was such a People in the World, to whom GOD had given particular Laws, being therefore in an absolute Impossibility of having any Acquaintance with them, it cannot be reasonably said, they were under an Obligation of observing them. Thus supposing that the Efficacy of the Sacrifice of JESUS CHRIST cannot be extended to such as have not had the Assistance of Revelation, though through no Fault of their own, how moral soever they may live; they will not be condemned for not submitting to Laws of which they neither had nor could have any Knowledge; but for a Multitude of other Sins. Their being deprived of such a Means of Salvation, which GOD was not obliged to allow them, will be their Misfortune, not their Crime. As to those Pagans who lived in the Neighbourhood of Judea, and thus had it in their Power to embrace Judaism, as GOD did not forbid their being received when they offered themselves, so neither did he command them to be circumcised, to qualify themselves for sharing the Advantages of the Mosaick Law. Gronovius was sensible of this, and even gives a Reason for it, which evidently shews the Laws of Moses, as such, did not oblige the Pagans. The Prophets, says he, were not to encroach on the Functions of the Messiah, who alone was to unite the Nations, call all Men, and render the Church universal.Eusebius, in his Evang. Demonst. says, The Law of Moses was delivered only to the Jews, and that while they remained in their own Country. Whence he infers, that therefore there was a Necessity of another Prophet, and another Law. Lib. I. Cap. I. See Mr. Le Clerc’sProlegomena to the Eccl. Hist. Sect. I. Cap. VIII. § 10.
[2. ]The learned Gronovius objects, that the Laws of the Decalogue are universally obligatory, tho’ the short Preface which ushers them in is addressed to Israel, whom GOD had brought out of Egypt. But, beside that the fourth Commandment, relating to the Observation of the Sabbath, was only for the Jews, as appears from the whole Tenor of the Words in which it is drawn up; and that the Reason of the Fifth, that thy Days, &c. evidently proves the same in regard to that; if the Pagans lay under any Obligation to practise the moral Parts of the Decalogue, it was not as they were a Set of Laws delivered from Heaven on Mount Sinai, but as so many Precepts which all Men may learn from natural Reason. So that Ziegler’s Criticism does not affect our Author, whom he impeaches of not distinguishing between the Moral, Ceremonial, and Judiciary Laws.
[3. ]Ἐυσεβει̑ς καὶ ϕοβούμενοι τὸν Θεὸν not σεβόμενοι, as our Author, who has taken this from the Epithet given to Cornelius the Centurion, Acts x. 2. This Sort of Strangers are likewise called simply, Ὁι σεβόμενοι Ἑλληνες, Greeks who feared or adored (GOD)Acts xvii. 4. For nothing is more groundless than the Assertion of Gronovius, who says, They were so called in relation to their Conversion to Christianity, not in regard to their former State. It is impossible to give into this Thought, if we read the Words of St. Luke with ever so little Attention.
[4. ]And Tit. De Synedrio, Cap. XI. Grotius. The Quotation of Tit. De Rege is false, as we are told by Boecler, on the Credit of Wagenseil, Not. p. 175.
[5. ]Of such Persons see also Exod. xii. 45. Grotius.
[6. ]Such a Stranger is distinguished from a Proselyte, or circumcised Stranger; as appears from Numb. ix. 14. Maimonides talks much of these pious uncircumcised Persons, in his Treatise On Idolatry, Cap. X. § 6. The same Writer, in his Com. on Misnajoth, and elsewhere, says, that such pious Gentiles will partake of the Happiness of the World to come. St. Chrysostom, in his Exposition of Romans ii. has these Words, Of what Sort of Jews, and of what Sort of Greeks does he here discourse? Of those who lived before the Appearance ofChrist;for he has not yet brought his Discourse down to the Times of Grace. To which he adds, He (the Apostle) here speaks not of the idolatrous Greeks, but of such of them as worshipped GOD, of Men who follow the Dictates of natural Reason, of Men, who except only that they do not observe the Jewish Ceremonies, practise all the Duties of Piety. He instances in Melchizedeck, Job, the Ninevites, and Cornelius the Centurion. He afterwards repeats it, that by the Term Greek, the Apostle means not an Idolater, but a pious and virtuous Man, not subject to the Ceremonies of the Law. He pursues the same Ideas in explaining those Words of St. Paul, 1 Cor. ix. 21. To them that are without Law, as without Law. And in his XII. Homily De Statuis, he observes, that the Apostle using the Word Greek, does not thereby mean an Idolater, but a Man who worships one GOD, without being tied down to the Observation of the Jewish Rites; such as Keeping of the Sabbath, Circumcision, and the several Sorts of Purifications; but yet makes the Study of Wisdom and Piety appear through his whole Conduct.Grotius.
[7. ]Here the learned Gronovius replies, that this proves only, that GOD allowed these Strangers Liberty of Conscience, but it does not thence follow, that they were exempt from all Obligation of submitting to the whole Law. But, since GOD absolutely required they should observe certain Laws, as that against Idolatry; so that without a Compliance with that Prohibition, they were not permitted even to live in the Country, he plainly discharged them from the Obligation of submitting to the rest. This is insinuated in the Reason given in the Passage under Consideration: For, says GOD, thou art an holy People, unto the LORD thy GOD. That is, You Israelites ought not to eat of what is forbidden by the Laws, established for you in particular; but these Strangers are dispensed with in that Point, because those Laws were not given for them. So that it is surprising our Commentator should alledge those Words as a Proof of what he asserts, when they make directly against him.
[8. ]Such as the Prohibition of working on the Sabbath Day, Exod. xx. 10.
[9. ]To the Passages of Scripture produced by our Author, we may add the Testimony of Josephus, De Bello Jud. Lib. II. Cap. XXX. p. 809, 810. Edit. Lips. See Mr. Le Clerc on Esdras vi. 10. The learned Gronovius pretends that GOD allowed Strangers to pray and offer Sacrifices in the Temple of Jerusalem, only with a view of rendering them in some Manner tributary to the Jews; as he permitted that People to carry off the Spoils of the Egyptians, and Hiram King of Tyre to furnish Solomon with Materials for building the Temple. But this great Critick did not observe Solomon’s Words at the Dedication of the Temple, 1 Kings viii. Moreover, concerning a Stranger that is not of thy People Israel, but cometh out of a far Country for thy Name’s sake.... Hear thou in Heaven, thy Dwelling-Place, and do according to all that the Stranger calleth to thee for; that all People of the Earth may know thy Name, to fear thee, as doth thy People Israel. From which it is evident, that GOD accepted of the Homage of Strangers, when offered with pious Dispositions, as Solomon supposes they might be; so that GOD had a very different View on this Occasion from what our Commentator pretends: Nor is the Passage quoted from Tacitus, for proving that the Jews were enriched by the Offerings and Presents of the Pagans, well applied, Every one of that detestable People sent their Tribute thither, in Contempt of the Religion of the respective Countries in which they lived; and thus the Jews grew rich. Pessimus quisque, spretis Religionibus patriis, Tributa & Stipes illuc congerebant; unde auctae Judaeorum res. Histor. Lib. V. Cap. V. where Tacitus evidently speaks of the Money which the Jews themselves dispersed through several Parts of the World, transmitted every Year to Jerusalem; Money raised by the Sale of their First-Fruits. That this was their Practice, appears from the Passages of Philo and Josephus, quoted by Justus Lipsius in one of his Notes, which Gronovius himself has inserted in his Edition of the Latin Historian, from whom the Passage is taken.
[10. ]See Josephus, where he treats of Solomon’s Temple. Grotius.
[11. ]We have a Reflection to the same Purpose in St. Hilary, on Matt. xii. Grotius.
[12. ]See Josephus, Antiq. Jud. Lib. XIII. Cap. XVII. Ptolom. Lib. I. De Vita Herodis, as quoted by Ammonius under the Word Ἰδουμαίοι. Selden, De Jure Nat. & Gent. secund. Hebr. Lib. II. Cap. II. and my 19th Note on this Section.
[13. ]That Father of Historians speaks of the Egyptians and Ethiopians, and the People of Colchis, Lib. II. Cap. XCI, CIV. He asserts that the Use of Circumcision was derived from the Egyptians to the other two Nations, as also to the Phenicians and to the Syrians, who inhabited Palestine; by whom he understands the Jews, who, according to him, acknowledge the Truth of this Account, as far as it relates to them. See also Diodorus of Sicily, Lib. I. Cap. XXVIII. and Lib. III. Cap. XXXII. p. 17 and 115. Edit. H. Steph.
[14. ]See his Geography, Lib. XVI. p. 771. Edit. Paris. where he treats of the Cacophagi, a People of Ethiopia, and p. 776. in his Account of the Troglodytes, some of whom, he tells us, are circumcised after the Manner of the Egyptians, spoken of Lib. XVII. p. 824.
[15. ]See his little Piece On Circumcision, p. 810, 811. Edit. Paris.
[16. ]In his Dialogue with Tryphon, where he speaks of the Idumeans.
[17. ]In his Answer to Celsus, Lib. V. where he observes, that the Egyptians, and the People of Colchis had not the same Reason for Circumcision, that obliged the Jews to the Practice of that Ceremony; and that the Jews themselves made a Distinction between their Circumcision and that used by the Ishmaelites of Arabia, tho’ the People last mentioned were Descendants of Abraham, and Ishmael, the Founder of their Nation, had been circumcised by the Hands of that Patriarch, Pag. 263. Edit. Cantab.
[18. ]That Father, in his Stromata, Lib. I. Cap. XV. p. 354. Edit. Oxon. says that Pythagoras, travelling into Egypt, was circumcised in that Country, in order to qualify himself for being initiated in the Mysteries of the Egyptians, and enabling him to learn the Philosophy of their Priests.
[19. ]He says, Haeres. XXX. § 30. that the Egyptians, the Saracens, or Ishmaelites, the Samaritans, the Idumeans, and the Homerites, were circumcised as well as the Jews; but that most of these People used that Ceremony out of Custom, without assigning any Reason for it, and by no Means with a View of obeying the Divine Law which prescribed it. Hence we may observe, that tho’ the first Persons who neglected Circumcision, and thus occasioned its being abolished among the Nations descending from Abraham, were to blame, yet the Law of Circumcision ceased to oblige their Posterity, who had no Knowledge of that Institution: So that the Action of Hyrcanus, who forced the Idumeans to be circumcised, must necessarily be considered as violent and unjust, and not authorized by him who is the sole Master of Men’s Consciences. Besides, the same Wagenseil, mentioned in Note 4 of this Paragraph, observes, after Boecler, that Maimonides says the direct contrary of what our Author advances in this Place, viz. that all Abraham’s Posterity were obliged by the Law of Circumcision, and that the Jews forced the Idumeans to observe that Ceremony.
[20. ]In his Commentary on Jerem. IX. Vol. V. p. 287. Edit. Bas.
[21. ]In his third Question on Exodus.
[22. ]Those Ethiopians whom Herodotus ranks among the circumcised, seem to have descended from the Posterity of Keturah: St. Epiphanius calls them Homerites.
[23. ]St. Chrysostom understands this of natural Inferences, Τοι̑ς τη̑ς θὺσεως λογισμοι̑ς. To which he adds, They are therefore the Objects of our Wonder, because they stood not in need of a Law.... Conscience, and the Use of Reason, are sufficient, instead of a Law.Tertullian asserts, that Before the Law of Moses, written on Tables of Stone, there was an unwritten Law, which was understood naturally, and observed by the Patriarchs. Adv. Jud. Cap. II. To these may be added, a Thought of Isocrates, If Men would govern a State well, they ought not to fill the Portico’s with Letters, but carve the Maxims of Justice on the Minds of the Citizens. Areopag. p. 148. Edit. H. Steph.Grotius.
[24. ]This is the Apostle’s true Meaning, the Words Nature and naturally are often used by the Greek and Latin Authors, in Opposition to the Way of Instruction, which gives us the Knowledge of certain Things. We find St. Paul, speaking of a Custom established in his Time, says, Doth not Nature itself teach you, that if a Man hath long Hair it is a Shame unto him? But if a Woman hath long Hair it is a Glory unto her. 1 Cor. x. 14, 15. This Exposition is justified by daily Observation; several Things are learnt without a Master, which are looked on as what we know naturally. Much more then may it be said, that the Gentiles, who were deprived of Revelation, did of themselves, and without that Assistance, know the Precepts of Morality, which the natural Light of Reason led them to discover, and which were the same with those prescribed by the Law of Moses to the Jews; so that when a Pagan acted according to those Precepts, He did by Nature the Things contained in the Law, Rom. xi. 14. Which shewed the Work of the Law (that is, the moral Precepts of the Law) written in his Heart, or in his Mind, v. 15. that is, he could easily form such Ideas, and retain them in his Memory. See, concerning this last Expression, Mr. Le Clerc’sArs Critica. Tom. I. p. 163, &c. Edit. 4.
[25. ]In the last Editions of this Historian, and in those which have the best Reputation among the Learned, we find Tzates, which was probably the true Name of that Adiabenian Prince, who was converted to Judaism, with his Mother Helena.
[26. ]Tryphon the Jew, making some Abatement in this Point, owns to Justin Martyr, that If he persisted in that Manner of philosophizing, he had some Hopes left of a better State.Grotius.
[27. ]Thus Justin Martyr, in his Dialogue with Tryphon, observes, that A Proselyte, who receives Circumcision, and is ranked among the (Jewish) People, is considered as one of the same Country.
[28. ]Such Proselytes were therefore admitted to the Celebration of the Passover. Grotius. See Exod. xii. 19, 47, 48.
[29. ]St. Paul frequently argues against this Opinion, particularly in his Epistles to the Romans and Galatians.
[30. ]See what I have said in my second Note on this Paragraph.
[1 ]That is, which consists solely in the Silence of the Law. For Silence alone is not an incontestable Proof, that the Legislator approves of what he does not forbid. We can only infer from it, that he does not design to employ the Means in his Power for hindering Men from doing such Things. The only Case in which Silence can be taken for a Mark of Approbation, is when it clearly appears, that the Legislator designed to forbid whatever he judged to be evil. Now we have no Reason to believe that GOD designed to forbid, positively, by the Law of Moses, every Thing that is any way evil. On the contrary, it was even necessary, that he should not prohibit some such Things. In reality, when GOD gave written Laws to the Jewish Nation, he acted rather as the temporal Master and Sovereign of that People, than as the perfect Teacher of Mankind in general. For which Reason all the Punishments, with which he threaten’d the Offenders, were of a temporal Nature. As therefore there is no Civil Society, whose Interest permits that every Thing contrary to some Virtue, or some Law of Nature, should be attended with some Penalty; GOD would have acted contrary to his own Wisdom, if, in Quality of Civil Legislator of the Jews, he had not left several Things in themselves evil unpunished, and consequently, been silent on such Articles, especially when he had to do with so gross and stubborn a People. Thus, for Example, Murder was punished with Death, Levit. xxiv. 21. Numb. xxxv. 16, 17, 30. And that with good Reason: A Civil Society, in which Men might kill one another with Impunity, could not subsist; but such Motions of Anger as tended only to do some Injury, were not prohibited; because if the Legislator had annexed a Punishment to a Thing so common among all People, and from which the Jews, in particular, would have much Difficulty to abstain, the Regulation would have produced more Harm than Good. See Matt. v 21, &c.
[2. ]See St. Chrysostom, on the Close of Rom. vii. Grotius.
[3. ]I should think that we ought to reason in a different Manner on Divine from what we use to do on Human Laws. The Permission granted by human Laws, however it may be given, never of itself implies any Approbation of the Legislator, but only supposes that he judges proper not to punish the Thing in Question. The Reason is, that the Design of Legislators, considered as such, is to make the best Provision in their Power, for the Regulation of each Man’s exterior Actions, in order to secure the publick Safety and Tranquillity; and not, properly speaking, to make Men good. But the same Thing cannot be said of GOD. In what Manner soever he acts, he always proposes making Men virtuous; and consequently, all positive Permissions from him are certain Proofs of Approbation. He may indeed be silent in regard to certain Things which imply some Vice, and leave them unpunished in this World, for the Reason given in Note 1. on this Paragraph; and that the rather, because, on due Consideration, it will appear that the Evil of such Things may be easily discovered by Consequences drawn from their Conformity with what is expressly prohibited, or their Incompatibility with what is clearly commanded. But GOD cannot positively permit the least Thing evil in its own Nature, even when he acts as a temporal Monarch; for that Character does not divest him of his Sanctity, but he still may and ought to be thought to approve of every Thing, at least as innocent, which he permits either in express Terms, or by a necessary Consequence from some formal Law or Ordinance. These then, in my Opinion, are the Consequences which may be drawn from the Divine Permission, when the Reasons deduced from the Nature of Things, which must always be considered, appear doubtful. First, When GOD permits a Thing in certain Cases, and to certain Persons, or in regard to certain Nations, it may be inferred, that the Thing permitted is not evil in its own Nature. For he would act in Contradiction to himself, if he authorized any Thing evil, in any Circumstances, or in Favour of any Person. For Example, Exod. xxii. 2, 3. Permission is given to kill a Thief in the Night, but not in the Day: Whence we may safely conclude, against the Opinion of some Doctors, too rigid on that Point, that when we resist an unjust Aggressor so far as to kill him, tho’ he attempts only our Goods, this Defence is not criminal in itself, or contrary to the Law of Nature. GOD forbid the Jews to lend Money to one another on Interest; but he permitted that Practice in regard to Strangers, without excepting the Proselytes of the Gate: Therefore lending on Interest is not evil or unlawful in its own Nature, whatever some Divines and Lawyers may pretend. The Consequence is demonstrative, and sufficient to justify such Contracts, when reduced to lawful Bounds. The Law of Moses, Deut. xvii. 17. forbids Kings to multiply Wives to himself, lest they should induce him to violate the Law: This Prohibition implies a tacit Permission, both for them and all other Men, to have more than one Wife, without which it would be superfluous: Polygamy therefore is not in its own Nature evil and unlawful. Secondly, When GOD regulates the Manner of a Thing, or makes some other Regulation in regard to that Thing, which necessarily supposes it permitted; we are to enquire whether this is one single occasional Action, or a Thing, either by itself or by its Consequences, reduced to a Habit, and a continual Practice. In the last Case, a Permission always implies a real Approbation of the Thing in Question, as in its own Nature lawful. Thus it is impossible that GOD should permit the Practice of Robbery, Piracy, Assassination, Duelling, &c. under any Sort of Conditions. When therefore we find him directing the Manner of Divorces, and regulating certain Cases which suppose the Permission of Polygamy, as in Deut. xxi. 15. we may very reasonably conclude, that neither Divorces nor Polygamy are essentially contrary to the Law of Nature. See our Author’s Application of this Principle in the following Chapter, §2. num. 2. in order to shew, that all Sorts of War are not in their own Nature unjust. But when it is one single Act, which does not intail a Series of Sins, the Permission may imply no more than Impunity, without any Prejudice to the Divine Sanctity. Of this Kind is the Permission granted by the Law of Moses to the Revenger of Blood, that is, to the nearest Relation or Heir of a Person killed without any Malice or premeditated Design; this Revenger of Blood was allowed to kill such an involuntary Murtherer, if he found him out of his Asylum, even tho’ he had been declared innocent by the Judges; He shall not be guilty of Blood, Numb. xxxv. 27. But it does not follow, that GOD considered this Action as innocent before the Tribunal of Conscience, and conformable to the Law of Nature; but only, that he thought proper to grant an Impunity in that Case, before the Civil Judge, to a Man who had killed another through a Spirit of Revenge. This was one single Act, and the Person might be sensible of its Injustice, and repent of it, after the first Motion of his Passion was over: Besides, the Person thus killed was in fault, who might have been secure, had he not left his Asylum against the express Orders of GOD.
[4. ]JESUS CHRIST, for Example, has abolished all the Laws in general, which related to the Distinction of Meats. If therefore any Civil or Ecclesiastical Power pretends to oblige Men to Abstinence from any Sort of Food, on a Principle of Religion, such an Attempt is an open Violation of the Christian Liberty, established by our Saviour. I suppose this done on a Principle of Religion; for the Case will be widely different, if the Use of certain Meats are prohibited for good Reasons, founded on the Interest of the State. The Sovereign has an undoubted Power to impose such Abstinence in that View; as he may be allowed to decline making the wisest political Regulations in the Mosaick Law his Model, when they are not suited to the Constitution of the State under his Government.
[5. ]Thus JESUS CHRIST having repealed the Husband’s unlimited Permission of putting away his Wife for any Cause whatever, and without any other Reason than his own Will; a Christian Prince cannot make a Law, permitting Divorces in that Manner, only obliging the Husband to testify in a Writing delivered to his Wife, that he will have no farther Commerce with her.
[6. ]Christian Liberty has done no Prejudice to Innocence; the Law of Piety, Sanctity, Humanity, Truth, Fidelity, Chastity, Justice, Mercy, Benevolence, and Modesty, remain intire.Tertul.De Pudicit. Cap. VI. Grotius.
[7. ]We ought to shew greater Degrees of Virtue, because we have now a plentiful Effusion of the HOLY SPIRIT, and the Advantages resulting from the Coming of CHRIST are very great.Chrysost.De Virginitate. XCIV. See the same Father, in his Discourse, tending to shew that Vice is occasioned by Negligence. De Jejuniis III. And on Rom. vi. 14. vii. 5. As also St. Irenaeus, Lib. IV. Cap. XXVI. The Author of Synopsis Sacrae Scripturae, among the Works of St. Athanasius, writing of Matt. v. observes, that our Lord enlarges the Extent of the Precepts of the Law.Grotius.
[8. ]The same Use is made of this Law, in regard to Christians, by St. Irenaeus, Lib. IV. Cap. XXXIV. And St. Chrysostom, on the Close of the last Chapter of 1 Cor. and on Ephes. ii. 10. Grotius.