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CHAPTER IV: Of the application of this rule to actions, and the differences of actions proceeding from thence. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Of the application of this rule to actions, and the differences of actions proceeding from thence.
The connexion.Having considered the nature of human free actions, and the rule according to which they ought to be regulated; the next thing to be considered, is the application of this rule to free actions. The application of a law to a fact is called imputation, and therefore we shall in this chapter treat of it.
Imputation is made by comparing a law with a fact; and therefore by reasoning.Imputation being the application of a law to a fact (§95), which cannot be done otherwise than by comparing a law and a fact, i.e. by two propositions compared together, and with a third by a syllogism; the consequence is, that imputation is a syllogism or reasoning, the major proposition of which signifies a law; the minor a certain action: and the conclusion is the sentence, with regard to the agreement or disagreement of the action with the law.*
Wherein it differs from conscience.Having said much the same thing above concerning conscience (§94), which however is not the same with imputation, let us observe wherein the difference between them consists; and it lies in this: Whereas conscience is a reasoning about the justice and injustice of one’s own actions: imputation is a reasoning about the agreement or disagreement with law of another’s actions. In the first case, every one is his own judge: in the other, another person judges of our actions, and compares them with the law.*
An action is imputed either by God or by human judges.Every application of law to fact is called imputation (§9), whether an action be compared with the divine law or with a human law; and in like manner, whether God himself, or men, whose office it is, apply law to a fact. The former, however, moralists are accustomed to call imputation in foro divino; the latter in foro humano. But there is this very considerable difference between the two, that in the latter none suffers punishment for thoughts, l. 18. D. de poenis; but God being omniscient, and requiring internal obedience (§91), he justly imputes to us even thoughts which are disagreeable to his law.*
And then man is declared to have merited either punishment or reward.Further, whereas the law which is applied to human actions is enforced by a sanction (§64), hence it follows, that to impute is the same as to declare, that the effect which a certain law assigns to an action, agrees to such a particular action. This effect is called in general merit; punishment, if the effect of an action exhibited by the law be evil; and reward, if the effect be good.*
The definition of imputation and axioms relative to it.Imputation therefore is a reasoning by which an action of another person, being, in all its circumstances, compared with a law, whether divine or human, is declared to merit, or not merit a certain effect proposed by a law. From which definition it is manifest, that we cannot certainly pronounce whether an action be imputable or not, unless we have a distinct comprehension both of the law and of the action in all its circumstances: and that one circumstance often alters the whole state of the case.
It supposes the knowledge and interpretation of the law.Since the law must be known to him who would form a right judgment of the imputability of actions, the consequence is, that he ought to be sure there is a certain law, and ought rightly to under-stand the whole of that law, and therefore to interpret it rightly, if it be conceived in concise or obscure terms; i.e. he ought distinctly to comprehend the mind of the law-giver declared by words, or by whatever other signs.†
Its foundation.Seeing an interpreter represents distinctly the law-giver’s meaning, declared by words or other signs; it follows, that in interpreting laws, great attention must be given both to the proper and the metaphorical signification of words; to their connection with what precedes and what follows, and to the nature and character of the subject itself; and yet more especially to the scope and intention of the law-giver, which induced him to enact the law; wherefore they judge well, and we agree with them who assert the reason of the law to be its spirit or soul. See our preface ad Elem. Pandect.*1
Its various sorts.Further, since the reason of a law is as it were its soul, hence it must follow, that the law ceases when the sole reason of it wholly and absolutely ceases: that if it do not agree to a certain case, that case cannot fall under the law on account of the very reason of the law; and this is the foundation of what is called restrictive interpretation; to which may be rightly referred equity, i.e. a power of correcting the law in respect of universality: Grot. de Aequit. indulg. & facilit. c. 1. n. 3.2 2 that if the words of a law do not quadrate with a certain case, and yet the reason of the law be applicable to it, then there is place for what is called extensive interpretation: Finally, that when the words and reason of the law keep as it were pace together, then there is only room for declarative interpretation.*
The difference between authentic, customary, and doctrinal interpretation.Besides, because the law is interpreted either by the legislator or judge, or some other, to whose office it belongs to apply the law to facts, or by a lawyer, interpretation on these accounts is therefore called authentic, customary, or doctrinal; the foundation of the first is the will of the legislator; of the second, practice in courts of justice; and of the last, the application of the rules of interpretation abovementioned.†
An action is imputed to its author or cause.Because he who would interpret a law aright, ought to know all the circumstances of the fact, (§108), and the principal circumstance is the person acting; hence we conclude, that an action is to be imputed to him who is the author or cause of it; and, on the contrary, imputation ceases if any thing be done, of which the doer is neither the cause nor the author, tho’ we sometimes impute the merits of one to others; which imputation is commonly called imputation by favour, in contradistinction to that which is of debt or merit, strictly so called. Puffend. de jur. nat. & gent. 1. 9. 2.*
What actions are not imputable.If therefore an action be imputed to none, unless he be the cause or author of it (§105); but a person cannot be called the author of any action which is not human; i.e. which is not done by the will, under the direction of the understanding (§30); hence it is obvious, that neither passions, nor natural actions, nor events wholly providential, nor things done in a fit of madness, nor natural imperfections either of body or mind, nor things done in sleep or drunkenness can be imputed to any person, but so far as it depended upon the agent to prevent them (§26, 29, 49).†
Whether actions done thro’ ignorance or error be imputable.As for what relates to ignorance and error, since both these imperfections of the understanding are either culpable or inculpable (§48, 49), vincible or invincible, voluntary or unvoluntary (§50), it follows from the same principles, that inculpable, invincible, involuntary ignorance cannot justly be imputed to a person; but that an action done thro’ culpable, vincible, and voluntary ignorance is justly imputable: and the same holds with regard to error: much less can ignorance or error be any excuse to one, if the action itself be unlawful, or be done in an unlawful place, time, or manner; because, in such cases, it not only was in the agent’s power not to be ignorant or not to err, but he was absolutely obliged to omit the action.*
Of error in fact and in law.Further, one may err either in point of fact or in point of law. To the former belong the rules already laid down (§107), because a circumstance in a fact may escape the most prudent persons, and therefore his error, in point of fact, may be inculpable, invincible, involuntary. But error, in point of law, with relation to the law of nature, does not excuse, because right reason promulgates this law to every one, unless, perhaps, when age, stupidity, and the more subtle nature of a particular law dictate a milder sentence. But as for civil law, ignorance of it is so far imputable, as it is so framed and promulgated that the person might know it.†
Whether undersigned and forced actions are imputable.Since the free will of man must concur to render an action such of which one can be called the author and cause (§30); but unintended actions are such, that they do not proceed from the determination of the mind (§58); hence it follows, that an action which one does against his will, or without intention, cannot be imputed to him; on the contrary, whatever is done spontaneously, is imputable, and much more whatever is done of one’s own free accord: yea, what one is forced to do is imputable to him, if he who forced him had a right to force him; but not, if he who forces him was not in the exercise of his right, or if the person forced was, previously to the force used, under no obligation of doing it.*
Whether bodily constitution, habit, &c.But seeing neither temperament, affections, propensions, habits, nor external force, hinder the free exercise of the will (§54 & seq.) it is abundantly manifest, that neither bodily constitution, which hath so great an influence commonly on the affections of the mind, nor passions, however impetuous and vehement, nor habit, tho’ become a second nature, can hinder the imputation of an action; tho’ sometimes, in human courts, he be reckoned an object of just commiseration, who was transported into a bad action by the violence of just grief, or any afflictive passion.*
Whether actions extorted by some are imputable?Hence it is easy to see whether one be in any degree excusable, who being overpowered by fear, to which the bravest mind may succumb, commits any action contrary to law. For if the fact be such that there is no room to plead necessity, in vain is it pretended. But in what cases necessity cannot be pleaded, we shall enquire more accurately afterwards.*
When and how an action is imputed to the moral cause?Whensoever the understanding and will, and the physical motion of the body concur to an action, then he who does it is called the physical cause of the action; but if the mind alone acts without any corporeal motion, he is called the moral cause. Since therefore understanding and will are the only principles of human actions (§30), hence it follows, that an action is no less imputable to the moral cause than to the physical cause, if the concurrence of the will and understanding in both be equal; more imputable to the moral than to the physical cause, if one induces another, who is under obligation to obey him, to act, by commanding or compelling him; less imputable to the moral than to the physical cause, if one concurs with the action by advice or approbation only.†
Whether the condition of the agent contributes any thing toward imputability.To the circumstances of the person to whom an action is imputable (§105), belong his dignity, rank, and quality; and therefore it is indisputable, that when many persons concur in the same action, if the action be just it is less imputable, and if the action be unjust, it is more imputable to him whom relation, prudence, duty, age, dignity, ought to influence to good conduct, and restrain from bad, than to a stranger, an ignorant, stupid person, one under no particular tie, a boy, a stripling, or, in fine, a person of no rank or dignity.*
Occasion being wanting, the action is not imputed.Since, in the imputation of actions, regard ought to be had not only to the person of the agent, but to all the other circumstances; but that concurrence of circumstances in the object, of time and place, together with sufficient abilities, without which an action cannot be done, is called occasion or opportunity; it follows necessarily, that he is not excusable whom occasion tempts to commit any crime; nor he who loses the opportunity of doing a good action thro’ indolence or negligence; but an omission of an action is not to be imputed to one who had no opportunity of doing it.*
Whether the omission of things impossible can be imputed, or how and when?Much less then can the omission of these actions be imputed to one, which are either impossible in the nature of things, or contrary to laws and good manners, or at least which he had not sufficient ability to perform, except so far as one had weakened the abilities with which he was endowed by his own fault, or had rashly, with bad intention, promised what he might have foreseen to be impossible for him to perform.†
What actions are good, and what are evil?Moreover, actions compared in this manner with a rule of action, take different names. If they, in all their circumstances, be agreeable to right reason, not obliging by external obligation, or to internal obligation merely (§7), they are good; but if in one or more circumstances they deviate from right reason to whatever side, they are bad. From which definitions it follows, that an action must be both materially and formally good (as the schools speak) in order not to be classed with bad actions.*
What actions are just, and what are unjust?Again, if we compare actions with a law, those which are in all things agreeable to law are just; those which are, in any one circumstance, disagreeable to law, are unjust, and are therefore called sins. Whence we may learn why St. John places all sin in ἀνομἰα, i.e. a transgression of a law.
The difference between just and honest actions, and between unjust and dishonest actions.Finally, since the divine law or will obliges us to love (§79), and love is either love of justice, or love of beneficence (§82), an action agreeing in all circumstances with the love of justice, is a just action, and one ever so little repugnant to it, is an unjust action; but those which proceed from the love of humanity and beneficence, are called honest, and those which are not agreeable to that love, are called dishonest, base, inhumane; and hence it is easy to understand wherein the difference lies between expletive and attributive justice.
Remarks on This Chapter
Our Author’s positions concerning the interpretation of laws, and the imputation of actions in foro humano, are very clear and just. But it may not be improper to add the following observations concerning the effects of ignorance and error in foro divino, i.e. with respect to the good and bad consequences of actions occasioned by ignorance or error, according to the laws of God in his government of the world.
1. It must be as true in morals as it is confessed to be in mechanics, that deviation from truth will lead into a wrong manner of acting; and all action must be liable to all the consequences of the laws of nature, i.e. to all the consequences connected with it in the regular and wise constitution of things, according to which every cause operates, means are proper and effectual, and different operations have different effects. And in fact we know no mistakes in action through ignorance, rash judgments, or whatever way it happens, which do not produce hurtful consequences; insomuch that there is good reason to conclude, that more of the misery of mankind is owing to wrong methods of action which are the effects of ignorance or error, than to any other cause. It must be true in general, that in a world governed by general laws; or in which connexions are invariably established, every deviation from truth, every mistake about the connexions of things in it, must be in some degree hurtful.
But, 2. Since all the interests of intelligent agents require government by general laws, or fixed connexions which operate invariably, the government of the world will be perfectly good, if the connexions or general laws which constitute it are the best adapted that may be, to promote the greater good of rational agents in the sum of things. Now, that it is so, must be certain, if the being and providence of an infinitely good God can be proved à priori. And there is sufficient reason to conclude that it is so à posteriori, because the more examples we find by enquiring into the government of the world, of such good general laws, the greater is the presumption that the whole is governed by the best general laws. But the further we enquire, the further we search, the more and clearer instances do we find of good, of perfect government. See my Principles of Moral and Christian Philosophy.
3. Our great business therefore is to endeavour to acquire just notions of the connexions of things; or of the good and bad consequences of actions, in order to act agreeably to them. If getting knowledge to direct our conduct were not in our power, directing our conduct could not be in our power: wherefore, if ignorance, want of knowledge, error, false notions or judgments be not imputable to us, wrong actions are not imputable to us. So that ultimately, whether we speak of the imputation of actions in the juridical stile, or in other words, as we have now spoken of it, (both of which must mean the same thing) it is ignorance or error in judgment that is imputed, when action is imputed; it is ignorance or error that brings evil upon us, when wrong action does it; because every action is directed by our present opinion and judgment, and the affection corresponding to it. And for that reason, our chief business, interest and duty, must be to have just or true ideas of the nature and consequences of actions; or of the connexions of things, according to which our actions ought to be regulated, since it is according to them that actions have certain effects or consequences.
4. False judgments, which tend to direct into a wrong course of action, or to introduce a wrong temper into the mind, must, (as hath been said) be hurtful. But, on the one hand, it is as sure as that there is a God, and that the world is governed by good laws, for the greater general good of the whole, that a virtuous reasonable temper, and virtuous reasonable conduct, are, upon the whole of things, the most advantageous course of acting. It is so in fact in the present life considered by itself without any regard to futurity; and it must be so in a special manner in a future state. And, on the other hand, it is as sure as that there is a God, that no opinions, tho’ false, which do not tend to corrupt the temper, or to lead into a wrong course of action, can render us obnoxious to the divine displeasure, can be provoking to him, as such, if the bent of the heart be sincerely towards truth and right; or can as such involve in any hurtful consequences appointed to be punishments of false opinions, not tending to corrupt the temper, nor to lead to vitious behaviour; and not proceeding from want of love to truth and right in any degree, or from want of impartial, honest diligence, as far as that is in our power, to find out truth and avoid error.
How moral conscience, or our sense of right and wrong may be, and only can be impaired, corrupted, or overpowered, is explained at great length in the Enquiry concerning virtue, Characteristicks, T. 2.p. 40, amp;c.3 And to improve it, and preserve it pure and untainted, must be our chief duty and interest. Enquiries therefore into right and wrong conduct are of the utmost importance. They are enquiries into the natures and consequences of things, and are in that sense philosophy. But which is more, they are enquiries into the natures and consequences of things which ought to direct our conduct; and therefore they are moral philosophy, or compose the science of life, the science of right conduct, the science and art of living suitably to our nature and rank, suitably to our dignity; agreeably to the will of our Creator, manifested by the connexions of things established by him; and agreeably to our own best interest. For this must be certain, that it is the established connexions of things which constitute our best interest. And if the established connexions of things be according to the best order, acting according to virtue or the best order, must be in the sum of things our best interest. And why should we doubt that it is really so in a future state, and for ever, since it is really so at present, even while virtue is but in its first state of education, culture and discipline; since the compleat natural effect of highly improved virtue cannot take place till virtue be brought to a great pitch of perfection by gradual culture, because the effect cannot precede the cause. But that virtue is our best interest, as well as acting according to the best order, and easily discoverable to be such, will appear as our author proceeds in his deduction and demonstration of particular duties or virtues. I thought it proper to add this remark, as well on account of those who speak vaguely and loosely about the imputability of ignorance and error, as of those who maintain opinions which result in asserting, That sincere love of truth, and impartial diligence to discover it, is not the best temper, the best part we can act, nay, all the good within our power, with regard to knowledge, speculative or practical. And if this be not the temper and conduct which leads to happiness, according to the constitution of things, what a terrible, what a wretched constitution of things must it be!
[* ] To impute, properly signifies to place something to the account or charge of another person. Sen. epist. 8. “Hoc non imputo in solutum de tuo tibi.” [[Accurately: “Hoc non imputo in solutum; dedi de tuo tibi” (“I shall not charge this to the expense account, because I have given it to you from your own stock”). Seneca, Ad Lucilium epistulae morales, vol. 3, 42. Now as that can’t be done without ballancing accounts with one, hence it came about, that this term seemed proper to express that application of a law to facts, which is done in like manner by a similar comparison. Thus when, as the story is told by Livy, Horatius had killed his sister, and a question arose, whether the law against murder, ordaining that the person guilty of it should have his hands tied, and his head veiled, and be whipped either within or without the walls, and then be hanged upon a tree, ought to be applied to that action? The Duumviri legally appointed by Tullius Hostilius the king, to judge of the matter, were of opinion, that the law extended to the fact, upon which one of them pronounced this sentence: “I find you, Publius Horatius, guilty of murder. Go, lictor, bind his hands.” But Horatius appealing, and the father himself appearing for him, the people absolved him. The Duumviri therefore reasoned in this manner, “He who knowingly with evil design kills a person, is as a murderer to be punished so and so. This is the law. Publius Horatius by running his sister through with his sword, has willingly and with evil intention killed a person. This is the fact. He is therefore to be punished so and so. Here is the sentence.” But the people computed or stated the account in another manner thus: “He who kills an enemy to his country, is not to be punished as a murderer. Here is the law. Publius Horatius in killing his sister, killed an enemy of her country. Here is the fact. Therefore he ought not to be punished as a murderer. Here is the sentence, and it is a sentence of absolution.” Livy, The Early History of Rome, 1.26, pp. 61–62. The Duumviri therefore imputed the fault to Publius Horatius, but the people did not impute it.]]
[* ] But because it does not belong to every one to judge of the actions of others, and yet such is the weakness of human nature, that most persons are very indulgent to their own faults, and not very severe in searching their own consciences, and yet are very quick-sighted and rigid with regard to the failings and blemishes of others; it is no wonder that judging others is reprehended as unjust and wicked, not only by our Saviour, Matt. vii. 1. Luke vi. 37. and by his apostle, Rom. ii. 1. xiv. 4. 1 Cor. iv. 5. but likewise by profane writers, who had only right reason to guide them in their determinations. Hence the pleasant witty fable of the two budgets, one of which filled with his own faults a man carried on his back, the other filled with the faults of others he carried on his breast: To which Phaedrus subjoins this moral, fab. 4. 9. v. 4.Hac re videre nostra mala non possumus:Alii simul delinquunt, censores sumus.
[[Phaedrus, Fabulae 4.10: “For this reason we are unable to see our own vices; but as soon as others commit errors we become their critics.”
Several parallel passages of ancient authors are collected by Is. Casaubon, ad Pers. p. 340. probably a reference to Casaubon, Auli Persii Flacci Satirarum liber and by learned men upon this fable, whose coffers we will not pillage.]]
[* ] The ancient philosophers were not ignorant of this truth, and have asserted that God seeth not only all our outward acts, but likewise our most secret thoughts. So Thales Milesius, Socrates, Plato and his followers, Pythagoras and his disciples, and all in general who entertained juster and sublimer conceptions concerning God. Testimonies to this purpose are collected by Huet. in qu. Alnet. ii. 2. 16. Hence we see, how reasonable the interpretation of the Mosaic law is, which our Saviour gave, Matt. v. 22, 28.
[* ] But since a legislator is not obliged to propose rewards, hence it is manifest that even actions in themselves just are not meritorious. To this purpose belongs that remarkable saying of Christ: “So likewise ye, when ye shall have done all these things which are commanded you, say, we are unprofitable servants: we have done that which was our duty to do,” Luke xvii. 10. But if a law-giver promises rewards, as God has done, who has enacted his laws, not for his own sake, but for the advantage of mankind, because he wills their perfect happiness (§78); rewards may be said to be merited, not in respect of the law-giver, who of free-goodness proposed them, but in respect of imputation.
[† ] Interpretation therefore does not properly belong to the law of nature, but only to positive laws, whether divine or human. For since legal interpretation is a distinct representation of the law-giver’s mind, declared by words or other signs (§101): and the law of nature is not conceived in words, but is promulgated by right reason (§11): it follows, that the mind of the supreme law-giver cannot be collected from words or other signs; and therefore this law does not admit of interpretation. Reason sufficiently understands itself without an interpreter. Arrian. Diss. Epict. 1. “The reasoning faculty being conscious to itself, clearly perceives what it is, and what it can do, and of what price and value it is, if it applies itself to the direction of our other faculties.” [[Epictetus, “Discourses,” 1.17 in The Discourses as Reported by Arrian.]]
[* ] We have a remarkable example of the utility of this rule in our Saviour’s explication of the law about the sabbath, when he was censured by the Jewish doctors for teaching, that works of charity and mercy ought not to be intermitted on the sabbath-day. He on that occasion shews the source whence the interpretation of that law must be brought. He says, “The sabbath was made for man, and not man for the sabbath,” Mar. ii. 27. From which reason of the law it clearly follows, that all works which tend to disturb the tranquillity and piety of mankind were forbidden to be done on that day; but not such as conduce to human preservation and happiness. But take away this sole and adequate reason of that law, and it is most certain that in the words of the law themselves, there is nothing from which one would have inferred our Saviour’s doctrine.
[1 ] Heineccius, Elementa iuris civilis secundum ordinem Pandectarum.
[2 ] Grotius, De aequitate, indulgentia, et facilitate liber singularis.
[* ] For example, our Saviour interprets the law of the sabbath restrictively; the laws concerning adultery and homicide extensively, Mat. v. which not being done by the Pharisees, they reasoned ill concerning the imputation of actions. Hence it was, that they accused the apostles of impiety for plucking ears of corn on the sabbath; and our Saviour himself for healing the sick on the sabbath; and that they reputed those righteous who fulfilled the traditions of the Rabbins, and washed, e.g. their cups carefully, paid tithes, gave alms to the poor, fasted frequently, though they did all this thro’ vain-glory, neglected the weightier matters of the law, and committed gross crimes.
[† ] We have examples of all these three in the sacred writings: Thus, after God, Numb. xxvii. 7. had given this law: “If a man die and have no son, then ye shall cause his inheritance to pass unto his daughter,” the supreme legislator himself adds this interpretative clause, Numb. xxxvi. 5, 6. “So shall not the inheritance of Israel move from tribe to tribe.” This is an example of authentic interpretation, which is frequently the same as a new law. We have an instance of customary interpretation, Ruth iv. 7. where the plucking off and casting the shoe, which was originally restricted to a particular case, Deut. xxv. 7. is by judicial interpretation extended to rejection of inheritance; with relation to which custom we have a curious disquisition by An. Bynaeus de Calc. Heb. l. 2. c. 7. [[Bynaeus, De calceis Hebraeorum libri duo. Finally, there is an instance of doctrinal interpretation, Nehemiah viii. 13.]]
[* ] And this is the origine of hereditary nobility; yea, sometimes of hereditary kingdoms. Thus among the Germans, the distinguishing nobleness, or the eminent services of fathers, gave dignity even to striplings, Tacitus, de moribus Germ. c. 13. And of hereditary kingdoms, Polyb. Hist. 6. 5. “This is the origine of hereditary sovereignty: hence it is, subjects obey for a long time, not only kings but their Offspring, through a persuasion that being descended from them, and educated by them, they will be like to them in temper and disposition.” [[Tacitus, Germania, 82; Polybius, The Histories, vol. 6, bk. 6, chap. 7 (not 5), p. 283.]]
[† ] Thus impudence is imputed to one, if he neglect the decorum with regard to natural actions. Thus shipwreck is imputed to the commander of the ship, if by his fault the ship was lost; whereas in other cases, what can be more true than what Tacitus says, Ann. 14. 3. “Who is so unjust as to make a crime of what the winds and waves have done?” [[Tacitus, The Annals of Tacitus, vol. 2. Thus deformity is imputable to one who has sacrificed his nose to Venus that is, been deformed as a result of venereal disease, whereas in other cases Phaedrus justly pronounces, Fab. 3.Sed quid fortunae, stulte, delictum arguis?Id demum est homini turpe, quod meruit pati.
Phaedrus, Fabulae 3.11, the Eunuch to a wicked man: “But why, fool, do you bring as a charge against me that which is the fault of Fortune? What is really disgracful is what he has deserved to suffer.”
Much more reasonably still is ignorance imputed as a fault to a man who had opportunity of a good education in his youth, which is not reckoned criminal in the vulgar; yea, dreams are imputed, which are occasioned by waking thoughts and actions throughout the day; of which kind of dreams called by the antients ἐνὐύπνια, according to Macrobius in Somn. Scip. 1. 13. Macrobius, Commentary on the Dream of Scipio, bk. 1, 13. Claudian justly asserts,Omnia, quae sensu voluuntur vota diurno,Pectore sopito, reddit amica quies.Furto gaudet amans, permutat navita merces,Et vigil clapsas quaerit avarus opes.Hon. Aug. Praef. v. 1.
Claudian, Panegyric on the Sixth Consulship of Honorius Augustus (Panegyricus de sexto consulatu Honorii Augusti), Preface, 1–2 and 7–8: “All the desires that are turned over in our senses during the day are brought back to us by the friendly quiet of the night when our breasts are stilled. The lover rejoices in secret activity, the sailor exchanges his merchandise and the miser searches for the wealth he has lost while awake.”
To which Gasp. Barth. in his notes, p. 714. has added more examples. Caspar Barth (1587–1658), German poet who produced a commentary on Claudian, which was published in several editions. The edition used here appears to be the 1650 Claudii Claudiani poetae praegloriosissimo quae exstant. In fine, wilful drunkenness, and the actions perpetrated in that condition, are imputed for a reason that needs not be mentioned, it is so obvious.]]
[* ] Judah, when he went into Thamar his Daughter-in-law, could not plead ignorance, because the action was in itself unlawful, Gen. xxxviii. 15, 16. Nor is he excusable, who sporting with darts in an unlawful time and place, ignorantly wounds a man, because an action done in a place and time in which it ought not, is in itself unlawful, §4. Inst. de lege Aquilia. Nor is an injury done to one who was pruning a tree near the highway, if he be charged with killing a man, whom he might have saved by calling out to him, §5. instit. eodem. Those who were thus employed among the Romans used to cry aloud cave, take care: among the Athenians Φύλαξαι [[Φύλαξαι: “Watch out!” / “Be on your guard!”, as Theod. Marcil. ad §5. instit. eod. shews. Justinian, Imp. Caes. Iustiniani P. P. Augusti institutionum quatuor. Wherefore the sentence of the Areopagites mentioned by Aristot. mag. mor. 1. 17. Aristotle, Magna moralia, in The Works of Aristotle, vol. 9 absolving a woman who killed a young man by a love-charm which she gave him, because it was not done designedly, having given him the draught out of love, and missed her aim, was blameable, since it proceeded upon a supposition that it was not unlawful to give such love-making medicines. How much more justly does the Roman lawyer Paullus, l. 38. §5. D. de poenis, condemn such practices, as giving medicines to create love or abortion: Qui abortionis aut amatorium poculum dant, etsi dolo non faciant, tamen quia mali exempli res est, &c. “They who give a drink that causes either miscarriage or another person to fall in love, and do so without deceit, yet, because it sets a bad example, etc.” (trans. Eds.)]]
[† ] For who would rigidly exact an accurate knowledge of the law of nature from infants, or those hardly arrived beyond the infant state, from deaf and dumb persons, from changelings, or from stupid persons brought up among the brutes? Besides, tho’ the law of nature be as it were written or engraved on the minds of men, yet it cannot be otherwise known than by reasoning about just and unjust (§15): now, because some precepts of the law of nature flow immediately from clear principles of reason, others are derived from principles of reason by many intermediate steps, and a long chain of reasoning, none can doubt that precepts of the first sort may be known by every person who is not quite stupid; whereas those of the latter sort are more difficultly understood, and require a more improved and perfect understanding. Hence by the Roman law, tho’ it reckoned incest forbidden by the law of nations, l. 38. §2. D. ad L. Jul. de adult. c. 68. D. de rit. nupt. yet the punishment was sometimes mitigated, both with respect to men and women; as, for instance, if a son-in-law should after divorce lie with his mother-in-law, l. 38. §5. D. ad L. Jul. de adulterio: of which no other reason can be given but because the unlawfulness of incest cannot be inferred immediately, or without a long train of reasoning from the principles of natural law.
[* ] Because, tho’ a person compelled or forced wills (§58), yet right and obligation are correlates, which mutually found or destroy one the other (§7); and therefore, when right ceases, obligation must also cease: the consequence from which is, that if the one hath no right to compel, the other can be under no obligation to do what he was unjustly compelled to. Hence it is, that the promise of a stubborn debtor, extorted by the magistrate by threatning execution is valid, because the magistrate is in the exercise of his right when he forces stubborn debtors to pay: But if a robber forces a traveller to promise him a certain sum of money, because the robber hath no right to force him, the traveller can be brought under no obligation to perform what he was thus compelled to promise. To this effect is that famous Epigram of Martial.Quid si me tonsor, dum curva novacula supra est,Tunc libertatem divitiasque roget?Promittam, nec enim rogat illo tempore tonsor,Latro rogat: res est imperiosa timor.Sed fuerit curva quum tuta novacula theca:Frangam tonsori crura, manusque simul.Epig. 11. v. 5.
[[Martial, Epigrams 11.58.5–10: “What if the barber, while the curved/drawn [stricta in original rather than curva] blade is over me, should at that moment ask for freedom and riches? I should promise, for at that moment it’s a robber asking, not a barber, and fear is an imperious thing. But when his razor is safe in its curved sheath, I shall break the barber’s legs, and his hands too.”
[* ] It is easier, as Aristotle has observed, to resist lust, or any voluptuous appetite, than the afflictive passions. See Nicomach. 3, 12. 3, 15. 7, 7. Mag. moral. 2. 6. The same is observed by Marcus Antoninus, ἐις ἐαυτόν, 2. 10. [[Εἰς ἐαυτόν (To himself), that is, Marcus Aurelius’s Meditations. So that one cannot but wonder to find Aristotle, as if he had forgot himself, asserting, ad Nicom. cap. 2. “That it is more difficult to resist the impulses of pleasure than of anger,” since to be deprived of pleasure is only a privative evil, and that only for the greater part but apparent, not real; whereas to feel pain is a positive, and very frequently a real ill. Who does not think parricide more to be imputed to Nero, who was not excited to that wickedness by any afflictive passion, but by mere cruelty and wickedness, than to Orestes, who giving the reason why he killed Clytemnestra, says, Now is she who betrayed my father’s bed killed. Eurip. Orest. v. 937. Euripides, Orestes.]]
[* ] Truly, if any thing be commanded contrary to piety and justice, that then no pain or force ought to be yielded to, both the scriptures and reason teach. This is acknowledged by several Pagan writers. So Juvenal, §8. v. 80. [[The following verse is quoted slightly inaccurately.Ambiguae si quando citabere testis,Incertaeque rei: Phalaris licet imperat, ut sisFalsus, & admoto dictet perjuria tauro,Summum crede nefas, animam praeferre dolori,Et propter vitam vivendi perdere caussas.
Juvenal, Satires 8.80–84, in Juvenal and Persius: “If you’re summoned as a witness in some tricky, murky case, even if Phalaris commands you to commit perjury and dictates his lies with his Torture-bull close by, think it to be the worst evil to put survival ahead of honour and for the sake of life to lose the reasons for living.” Phalaris was a tyrant of Agrigentum who slow-roasted his victims in a bronze bull.
[† ] Hence that distinction of Hen. Koehlerus, in his Exercit. juris natur. §108. & seq. between efficacious will, when the effort is sufficient to produce or suspend the action, and inefficacious will, when the effort alone is not sufficient, is to be admitted as of great use: wherefore, if the will of the moral cause be efficacious, the action is justly imputed to him; and in proportion as the will is more or less such, the action is more or less imputable to one. For who doubts, for instance, that if a father command his son to steal, the theft is more imputable to him than to a stranger, either commanding or persuading to do it?
[* ] Thus, whatever good service was done to a relative, the ancients called a good office, what was done to a stranger they called a benefit. Seneca de Benef. 3. 18. The latter is more imputable than the former. On the other hand, an injury done to a father by a son, whom filial duty ought to have restrained from such a crime, is more imputable than one done by a stranger is to him. And who does not blame the faults committed by a prudent person well instructed in the thing, more than those done by a stupid ignorant person: those committed by a person of age and experience, or even by a man arrived at the years of discretion, than those done by a youth: those committed by a theologue skilled in sacred matters, than those done by an illiterate person: those, in fine, committed by a person of distinction, or placed in any honourable station, more than those done by a vulgar person of lower life? So Hieronymus in Ezech. 2. Salvianus de gubern. Dei, p. 118. [[Hieronymus, Commentarius in Ezechielem et Danielem, Homiliae in Jeremiam, in Hieronymus, Opera, vol. 5; Salvianus, De gubernatione Dei and so likewise Juvenal in these well known lines.Omne animi vitium tanto conspectius in seCrimen habet, quanto, qui peccat, major habetur.Sat. 8. v. 140.
Juvenal, Satires 8.140 in Juvenal and Persius: “[T]he higher the wrongdoer’s status, the more glaring the criticism.”
[* ] For the occasion of committing a fault or temptation to it, ought to be avoided; and one ought to resist the allurements of vice. He who does it not is blameable, if he yields to sinful appetites or passions. He is therefore the author and cause of that action; and it ought to be imputed to him. It is therefore a wretched excuse Chaereas offers for himself in Terence: “Should I lose so desirable, a so much longed for, so favourable an opportunity?” [[Terence, The Eunuch, lines 604–6, in vol. 1 of Terence. For he suffered himself to be tempted to sin. On the other hand, how blameable the not taking hold of an opportunity of doing well is, Christ elegantly sets forth to us in the parable of the servants, Matt. xxv. 14.]]
[† ] Hence it is plain, why a debtor who had squandered his estate is still liable, and is not excusable on account of his indigence, because he reduced himself by his own fault: and why an alchymist, who had promised mountains of gold, when he was found to have deceived, was as justly condemned of fraud, as one who had knowingly, and with evil intention promised a treasure. See an example in Tacitus, Annal. 16. 1. in the story of Cesellius Bassus. [[Tacitus, Annals 16.1, tells the story of a Carthaginian (said to be a madman) who convinced Nero that he had discovered, through a dream, Dido’s treasure buried in a cave.]]
[* ] Hence the largesses, the fastings, and all the austerity of the Pharisees were not good actions, tho’ materially conformable to right reason, because not done from a good motive, but from ostentation and vain-glory. We ought not only to do good things, but we ought to do them in a right manner. The just man is rightly described by Philemon in Stobaeus, Serm. 9. thus: “Not he who does good things in whatever manner he does them, but he who sincerely desires not merely to be thought, but really to be upright in all his conduct, is good.”
[3 ] Anthony Ashley Cooper, Third Earl of Shaftesbury (1671–1713), An Enquiry Concerning Virtue or Merit (1699), in Shaftesbury, Characteristics of Men, Manners, Opinions, Times, 163–230. This is one of the rare references by Turnbull to Shaftesbury.