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Remarks on This Chapter - 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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Remarks on This Chapter
The principles our author hath laid down in this chapter, are most exact, and proper to decide all questions which can be proposed concerning the right, the privilege, the favour, the leave, or whatever we call it, that arises from necessity. It is however well worth while to look into what the learned Barbeyrac2 hath said upon this difficult subject in his notes upon Pufendorff ’s sixth chapter, book second, of the law of nature and nations. Pufendorff, in the beginning of that chapter, quotes an excellent passage of Cicero with regard to necessity, in which the general rule is very clearly stated. It is towards the end of his second book of invention; too long indeed to be inserted here, but deserving of attentive consideration. The chief design of our Author’s scholia being to refer his readers to passages in ancient authors, where moral duties are rightly explained and urged by proper arguments, in order to shew that the duties of the law of nature are discoverable by reason, and were actually known in all ages to thinking persons, at least, he might very properly have on this occasion referred us to that place in Cicero. For this is no doubt the most perplexed subject in morals, The right and priviledge of necessity. And upon it we find Cicero reasoning with great accuracy and solidity: insomuch, that if we compare with this passage the 25th chapter of his second book of offices, where he treats of comparing things profitable one with another; and the 3, 4, 5, and following chapters in the third book, where he considers competition between honesty and interest, or profit, we will find full satisfaction upon this head. In the 4th chapter of the 3d book he hath this remarkable passage.—“What is it that requires consideration on this subject? I suppose it is this, that it sometimes happens men are not so very certain, whether the action deliberated upon be honest or not honest.” For that which is usually counted a piece of villainy is frequently changed by the times or circumstances, and is found to be the contrary. To lay down one instance, which may serve to give some light to a great many others: pray what greater wickedness can there be upon earth (if we speak in general) than for any one to murder not only a man, but a familiar friend? And shall we therefore affirm that he is chargeable with a crime who has murdered a tyrant, tho’ he were his familiar? The people of Rome, I am sure, will not say so, by whom this is counted among the greatest and most glorious actions in the world. You will say then, Does not interest carry it against honesty? No, but rather honesty voluntarily follows interest. If therefore, we would upon all emergencies be sure to determine ourselves aright, when that which we call our advantage or interest seems to be repugnant to that which is honest, we must lay down some general rule or measure, which, if we will make use of in judging about things, we shall never be mistaken as to point of duty. Now this measure I would have to be conformable to the doctrine and principles of the Stoics, which I principally follow throughout this work. For tho’ I confess, that the ancient Academics and your Peripatetics, which were formerly the same, make honesty far preferable to that which seems one’s interest: yet those who assert, that whatever is honest must be also profitable, and nothing is profitable but what is honest, talk much more bravely and heroically upon this subject than those who allow, that there are some things honest which are not profitable, and some things profitable which are not honest. The principle of the Stoics he explains more fully a little after, where he asserts with them, “Certainly greatness and elevation of soul, as also the virtues of justice and liberality, are much more agreeable to nature and right reason than pleasure, than riches, than even life itself: to despise all which, and regard them as just nothing, when they come to be compared with the public interest, is the duty of a brave and exalted spirit: whereas to rob another for one’s own advantage, is more contrary to nature than death, than pain, or any other evil whatever of that kind.” This question concerning the interferings which may happen between duty and private interest, or self-preservation, will clear up, as we go on with our Author in the enquiry into our duties to others, and into the rights and bounds of self-defence; I shall only add to what our author asserts, in opposition to Pufendorff, about executioners, that if we consult the apology of Socrates by Plato, and that by Xenophon, we will find several fine passages, which shew that we ought never to obey our superiors to the prejudice of our duty; but very far from it; and unless we are in an entire incapacity to resist them, we ought to exert ourselves to the utmost of our power, and endeavour to hinder those who would oppress the innocent from doing them any mischief. See Grotius, l. 2. c. 26. §4. 9. as also Sidney’s discourse upon government, ch. 3. §20,3 and Mr. Barbeyrac’s notes on Pufendorff, of the law of nature and nations, b. 8. c. 1. §6. I beg leave to subjoin, that I know nothing that can better serve to prepare one for wading through all the subtleties, with which morality in general, and this particular question about the contrariety or competition that may happen between self-love and benevolence in cer-tain cases, are perplexed, than a careful attention to two discourses upon the love of our neighbour, by Dr. Butler (Bishop of Bristol) in his excellent sermons,4 to copy which would take up too much room in these notes, and to abridge them without injuring them is hardly possible, with such conciseness and equal perspicuity are they wrote. These sermons make the best introduction to the doctrine of morals I have seen; and the principles laid down in them being well understood, no question in morals will afterwards be found very difficult. It is owing to not defining terms, or not using terms in a determinate fixed sense, (the terms self-love, private interest, interested and disinterested, and other such like, more particularly) that there hath been so much jangling about the foundations of morality. They who say, that no creature can possibly act but merely from self-love; and that every affection and action is to be resolved up into this one principle, say true in a certain sense of the term self-love. But in another sense, (in the proper and strict sense of self-love,) how much soever is to be allowed to it, it cannot be allowed to be the whole of our inward constitution; but there are many other parts and principles which come into it. Now, if we ought to reason with regard to a moral constitution, as we do with respect to a bodily frame, we must not reason concerning it from the consideration of one part singly or separately from the rest with which it is united; but from all the parts taken together, as they are united, and by that union constitute a particular frame or constitution. The final cause of a constitution can only be inferred from such a complex view of it. And the final cause of a constitution is but another way of expressing what may properly be called the end for which it was so framed, or the intention of its Author in so constituting it. The end of our frame therefore, and by consequence the will of our Maker with regard to our conduct, can only be inferred from the nature of our frame, or the end to which it is adapted: But if we are to infer our end from our frame, no part of this frame ought to be left out in the consideration. Wherefore, tho’ self-love ought to be taken into the account, yet several particular affections must also be taken into the account; benevolence must likewise be taken into the account, if it really belongs to our nature; a sense of right and wrong, and reason must also be taken into the account; and whatever is taken into the account must be taken into it as it really is, i.e. affections must be considered as subjects of government, and reason must be considered as a governing principle, for such they are in their natures. But of this more afterwards, in the remark upon the duties reducible to benevolence.
Concerning our absolute and perfect duties towards (others in general), and of not hurting or injuring others (in particular).
The foundation of our duties towards others.Let us now proceed to consider our duties towards others, the foundation of which lies, as was observed above, in this, that man is by nature equal to man, and therefore every man is obliged to love every other with a love of friendship (§85 & 88). And because equality of nature requires equality of offices, hence we concluded, that every man is obliged to love every man no less than himself (§93).
They are either perfect or imperfect.We have also shewn that there are two degrees of this love, one of which we called love of justice, and the other love of humanity and beneficence (§82 & seq.) But because the former consists in doing nothing that may render one more unhappy, and therefore in not hurting any person, and in giving to every one his own, or what is due to him; and the latter consists in endeavouring, to the utmost of our ability, to increase and promote another’s perfection and happiness, and in rendering to him even what we do not owe to him by strict and perfect obligation; the consequence of this is, that of the duties we owe to others, some are duties of justice, which are of perfect obligation, and others are duties of humanity and beneficence, which are of imperfect obligation.
These duties defined.Therefore those are perfect duties, to which one is bound by such perfect obligation, that he may be forced to perform them; such as to injure no person, and to render to every one what is due to him: those are imperfect, to which we cannot be forced, but are only bound by the intrinsic goodness of the actions themselves; such as, to study to promote the perfection and happiness of others to the utmost of our power (§84).*
They are divided into absolute and hypothetical.Since perfect duties may be reduced to not injuring any one, and rendering to every one his due (§174); but to injure, is to render one more unhappy than he is by nature, or would otherwise be (§82); and one may call that his due, or his own, which he hath justly acquired (§82); it follows, that obligation not to injure any one is natural; and obligation to render to every one his due is acquired; whence the former is called absolute, and the latter we call hypothetical.†
In what order these duties ought to be treated.Further, since the right we acquire to any thing arises either from dominion, or from compact or convention, it follows that all hypothetical duties spring either from compact or from dominion; and therefore this will be the properest order we can follow, to begin first with considering perfect absolute duties, and then to treat of imperfect ones; next to speak of those hypothetical duties, which arise from dominion or property; and lastly, to handle those which arise from compact. But imperfect ones ought to be considered before we come to the hypothetical ones, because after dominion and compacts were introduced into the world, humanity becoming very cold and languid, men have sadly degenerated into selfishness.
Every man ought to treat every other as his equal.First of all, it ought to be laid down as a maxim, that men are by nature equal (§172), being composed of the same essential parts; and because tho’ one man may share perfections, as it were by his good lot, above others, yet different degrees of perfection do not alter the essence of man, but all men are equally men: whence it follows, that every one ought to treat every other as equally a man with himself, and not to arrogate to himself any privilege in things belonging to many by perfect right, without a just cause; and therefore not to do to any other what he would not have done to himself (§88).*
And then no person ought to be injured.Since therefore we ought not to do to any one what we would not have done to ourselves (§177); but none of us would like to be deprived by any other of our perfection and happiness which we have by nature, or have justly acquired; i.e. to be injured or hurt (§82); the consequence is, that we ought not to render any one more imperfect or unhappy, i.e. injure any one. And because to what constitutes our felicity and perfection, belongs not only our body, but more especially our mind, this precept must extend to both these parts, and an injury to our mind must be as much greater than an injury to our bodily part, as the mind is more excellent than the body.*
No person may be killed, no injury may be done to one’s body, health, &c.The perfection and happiness of man consists in life, i.e. in the union of his soul and body (§143), which is of all he hath received from nature the most excellent gift, and is indeed the basis or foundation of all the rest: since therefore it is unlawful to deprive any one of the perfection and happiness he hath received from nature, and we would not choose to have our life taken away by another, (§178), it is self-evident, that it is our duty not to kill any person; not to do the least detriment to his health; not to give any occasion to his sickness, pain, or death, or not to expose him to any danger, without having a right to do it, or with an intention to have him killed.*
Unless necessity obliges to lawful self-defence.Yet since none is obliged to love another more than himself (§94), and it may often hap-pen that either one’s self or another must perish; the consequence is, that in case any one attack us, in this doubtful state of danger, every way of saving one’s self is lawful (§163); and therefore we may even kill an aggressor, provided we do not exceed the limits of just self-defence.
Its limits.But what are the limits of just self-defence none will be at a loss to understand, who calls to mind, that absolute or inevitable necessity merits favour, (§158): For hence it follows, That blameless self-defence takes place, if one be in absolute necessity, or even in relative necessity, provided he be so, not by his own fault (§158): That all danger being past, there is no further any right of defence: That when danger can be avoided without hurting the aggressor, or by a lesser evil, there is no right to kill him;† because of two evils the least ought always to be chosen.
Against whom we may use it.These evident principles being attended to, nothing can be more easy than to answer all the questions which are commonly proposed with relation to due moderation in self-defence. For if it be asked against whom it is allowable, you will answer rightly, if you say, against all by whom we are brought into danger without any fault of our own (§81); and therefore even against mad persons, persons disordered in their senses, and even against those who attack you by mistake, when they are intending to assault another. For as Grotius of the rights of war and peace, 2. 1. 3. has well observed, the right of self-defence in such cases does not proceed from his injustice or fault, by whom the danger is occasioned, but from our own right of repelling all danger by any means, and of not preferring in such circumstances the life or safety of another to our own.*
The extent of it in a state of natural liberty.Nor will it be less easy to determine how long this right of defence against an aggressor continues. For here doctors justly distinguish between those living in a state of nature, and subject to no magistrate, by whom they may be defended and protected, and those who live in a civil state, and under magistracy. For since, in a state of natural liberty, there is none to protect us against injuries, our right of self-defence cannot but begin the moment our danger commences, and cannot but continue while it lasts, or till we are absolutely secure, (§181). But our danger begins the moment one shews a hostile disposition against us, and while that continues, our right of self-defence lasts.*
And in a civil state.On the other hand, in a civil state, one who shews enmity against another, trapps, or lays snares for him, may be coerced by the civil magistrate; the consequence of which is, that a member of a civil state, hath not a right, by his own force and arms, to resist another member who attacks him, or lays snares for him; nor, when the danger is over, to take that revenge at his own hand which he might expect from the magistrate. And therefore, the space or time of just self-defence is confined within much narrower limits in that state; it begins with the danger, and lasts no longer than the danger itself lasts.†
The measure of violent self-defence.Moreover, from these principles (§181), you may easily see that self-defence to the point of killing the aggressor is not lawful; if one was forewarned of the assault, or foreseeing it in time, could have kept at home, or retired into a safer place, or could, by wounding or maiming the injurious person, disable him:‡ tho’ no person, when he is assaulted, be absolutely obliged to betake himself to flight, because of the danger or uncertainty of it, unless there be near at hand a place of most secure refuge, (Pufendorff of the law of nature and nations, 2. 5. 13.). But upon this head it is proper to observe, that under civil governments, the time of making an unblameable self-defence being confined within very narrow bounds, and indeed almost reduced to a point or instant, since, in such a perturbation of mind, one cannot think of all the ways of escaping; therefore, with good reason, such cases ought not to be too rigidly exacted, but great allowances ought to be made.
For what things it is lawful.Hence we may likewise perceive for what things one may proceed to self-defence by force and violence: for since some calamities are bitterer to man than death, and not only extreme necessity, but even that which may be undergone with safety to our life, merits favour (§158); the consequence is, that what is allowable for the sake of life, is permitted likewise in defence of health, the soundness of our bodies, and even our chastity;* and likewise in defence of magistrates, parents, children, friends, and all others whom we find in danger.
Whether it be allowable in defence of our honour and reputation?The question, whether one is excusable for killing another in defence of his honour and reputation, e.g. for a box on the ear, or some more slight injury, is more difficult. But tho’ nothing be more valuable, life only excepted, than honour; and therefore some think, that in this case violent self-defence is not unlawful; (see Grotius of the rights of war and peace, 2. 1. 10.) yet because the danger of losing life, or other things upon an equal footing with life, alone give us the right to blameless self-defence (§186); and because honour and reputation are not lost by an injury done to us; and there are not wanting in civil governments lawful means of revenging an injury; we cannot choose but assent to their opinion, who prudently affirm, that the right of violent self-defence ceases in these cases.
No person ought to be injured with regard to his understanding.Again, the absolute duty of not hurting any person extends no less to the mind than to the body (§178), and the faculties of the mind are will and understanding: as to the first therefore, none can deny that he greatly injures a person, who seduces into error a young person, or any one of less acute parts than himself by falshood and specious sophistry; or who prepossesses any one with false opinions, or he who, even by a tedious disagreeable method of teaching, or affected severity, begets, in any one committed to his charge, an aversion to truth and the study of wisdom.*
Nor with respect to the will.Now because that injury done to the will, which is called corruption, is no less detrimental to one; the consequence is, that they act contrary to their duty who corrupt any person, by alluring him to pursue unlawful pleasures, or to commit any vice, and either by vitious discourse or example, debauch his mind; or when they have it in their power, and ought to restrain one from a vitious action, and reclaim him into the right course of life, either do it not, or set not about it with that serious concern which becomes them; but, on the contrary, do all that lies in them to forward him in his vitious carrier.*
Nor with respect to the body.Since it is not more allowable to hurt one’s body than his mind (§178), it is certainly unlawful to beat, strike, hurt, injure, wound any one in any manner or degree, or to maim any member or part of his body; to torment him by starving, pinching, shackling him, or in any other way; or by taking from him, or diminishing any of the things he stands in need of in order to live agreeably and comfortably; or, in one word, to do any thing to any one by which his body, which he received from nature sound and intire, can, by the malice or fault of another, suffer any wrong or detriment. Because since we ourselves certainly are so abhorrent of all these things, that death itself does not appear less cruel to us than such injuries do; surely what we would not have done to ourselves by others, we ought not to do to them, and we must, for that very reason, or by that very feeling, know that we ought not to do so to them.*
Nor in respect of fame and reputation.As to the state or condition of man, to this article chiefly belongs reputation, not only a simple good name, or being looked upon not as a bad person, but likewise the superior reputation one deserves by his superior merits above others; (for of wealth and possessions, which cannot be conceived without dominion or property, we are afterwards to speak). Now, seeing one’s fame cannot but be hurt by calumnies (§154), or deeds and words tending to disgrace one, which we call injuries; it is as clear and certain that we ought to abstain from all these, as it is, that we ourselves take them in very ill part.*
Nor in respect of chastity.Besides, the condition of a person may be wronged in respect of chastity, because being thus corrupted by violence, or by flattery, one’s good name suffers, and the tranquillity of families is disturbed, (§178); whence it is plain, that we ought not to lay snares against one’s chastity, and that all uncleanness, whether violently forced, or voluntary; and much more, adultery, and other such abominable, cruel injuries, are absolutely contrary to the law of nature.†
One may be injured by thoughts, gestures, words, and deeds.From what hath been said, it is plain enough that a person may be wronged even by internal actions; i.e. by thoughts intended to one’s prejudice, as well as by external actions, as gestures, words, and deeds (§18); whence it follows, that even hatred, contempt, envy, and other such vices of the mind, are repugnant to the law of nature. And that we ought to abstain from all gestures shewing hatred, contempt, or envy, and what may give the least disturbance to the mind of any person. But that hurt, which consists in words and deeds, is accounted greatest (in foro humano) in human courts of judicature.*
The faculty of speech distinguishes man above the brute creation.Because a person may be hurt by words or discourse (§193), it is worth while to enquire a little more accurately into our duties with relation to speech. For such is the bounty of the kind author of nature towards us, that he hath not only given us minds to perceive, judge and reason, and to pursue good, but likewise the faculty of communicating our sentiments to others, that they may know our thoughts and inclinations. For tho’ the brutes, we see, can express, by neighing, hissing, grunting, bellowing, and other obscure ways, their feelings,* yet to man is given the superior faculty of distinctly signifying his thoughts by words, and thus making his mind certainly known to others.
What discourse is.Seeing what peculiarly distinguishes us from the brutes, with relation to speech, consists in our being able clearly to communicate our thoughts to others, (§193), which experience tells us we do by articulate sounds;†i.e. by sounds so diversified by our organs of speech as to form different words, by which all things, and all their affections and properties or modes may be expressed; therefore discourse is articulated sound, by which we impart the thoughts of our minds to others distinctly and clearly.
How it ought to be employed.From this definition it is obvious enough, that the faculty of speech is given us, not for the sake of God, nor of brutes, but for our own advantage, and that of our kind; and therefore, that God wills that by it we should communicate our thoughts to others agreeably to the love he requires of us: for which reason, he wills that we should not injure any one by our discourse, but employ it, as far as is in our power, to our own benefit, and the advantage of others.*
We ought to use words in their received signification.The design of discourse being to communicate our sentiments to others (§196), which is done by articulate sounds, denominating things, and their affections, modes, qualities, and properties (§195); it follows, that being to speak to others, we ought not to affix any meaning to words but what they are intended and used to signify in common discourse; or if we make use of uncommon words, or employ them in a less ordinary acceptation, we ought accurately to explain our mind. But no person has reason to be displeased, if we use words in a sense they have been taken in by those acquainted with languages, or which is received at the present time, if the construction of words and other circumstances admit of it.
No person ought to be wronged by discourse.And since God wills that we communicate the sentiments of our mind to others by speech, agreeably to the love of others he requires of us by his law (§196); which love does not permit us to hurt any person by our discourse: but it is to injure a person, to detract any thing from his perfection or felicity (§82): hence it follows, that we ought, not to hide from any one any thing, the knowledge of which he hath either a perfect or imperfect right* to exact from us; not to speak falshood in that case: not to mislead any person into error, or do him any detriment by our discourse.
We may hurt another by dissimulation, by lying, by deception.He who conceals what another has a perfect or imperfect right to demand certain and true information of from him, dissembles. He who in that case speaks what is false, in order to hurt another, lies. Finally, he who misleads any one to whom he bears ill-will into an error, deceives him. Now, by these definitions, compared with the preceding paragraph, it is abundantly plain, that dissimulation, as we have defined it, and all lying and deception, are contrary to the law of nature and nations.
When it is allowable to be silent, to speak falsly or ambiguously.But since we are bound to love others, not with greater love than ourselves, but with equal love, (§94); the consequence is, that it is lawful to be silent, if our speaking, instead of being advantageous to any person, would be detrimental to ourselves or to others: and that it is not unlawful to speak falsly or ambiguously, if another have no right to exact the truth from us (§198); or if by open discourse to him, whom, in decency, we cannot but answer, no advantage would redound to him, and great disadvantage would accrue from it to ourselves or others; or when, by such discourse with one, he himself not only suffers no hurt, but receives great advantage.*
What is meant by taciturnity, what by false speech, and what by fiction.Hence we may infer, that all dissimulation is unjust (§199), but not all silence: (by which we mean, not speaking out that to another which we are neither perfectly nor imperfectly obliged to discover to him (§200); that all lying is unjust (§199), but not all false speaking (§200); that all deception is unjust (§199); but not all ingenious or feigned discourse (§200). And therefore all these must be carefully distinguished, if we would not deceive ourselves, and make a false judgment concerning them.*
What truth and veracity mean.The same holds with respect to truth and veracity. For since one is said to be a person of veracity, who speaks the truth without dissimulation, whenever one has a perfect or imperfect right to know the truth from us; the consequence is, that veracity always means a commendable quality. On the other hand, speaking truth may be good, bad, or indifferent; because it consists in the agreement of words and external signs with our thoughts, and one does not always do his duty who lays open his thoughts.†
What is meant by an asseveration, what by an oath, what by benediction, and what by imprecation.Words, by which we seriously assert that we are speaking truth, and not falsly, are called asseverations. An asseveration made by invoking God as our judge, is called an oath. Words by which we wish good things to a person, or pray to God for his prosperity, are called benedictions. Words by which we, in the heat of our wrath, wish ill to our neighbour, are commonly called malediction or cursing. When we imprecate calamities upon our own heads, it is called execration.
When it is allowable to use asseverations.From the definition of an asseveration (§203), it is plain that no good man will use it rashly or unnecessarily, but then only, when a person, without any cause, calls what he says into doubt, and he cannot otherwise convince him of the truth whose interest it is to believe it; whence we may conclude, that he acts greatly against duty, who employs asseverations to hurt and deceive any one.*
When it is allowable to use benedictions, and when imprecations.Since we desire happiness no less to those we love, and in whose felicity we delight, than to ourselves, it cannot be evil to wish well to another, and pray for all blessings upon him, provided it be done seriously and from love, and not customarily and in mere compliment.† But all maledictions breathe hatred, and are therefore unjust, unless when one with commiseration only represents to wicked persons the curses God hath already threatened against their practices. Finally, execrations, being contrary to the love we owe to ourselves, and the effects of immoderate anger and despair, are never excusable; but here, while we are examining matters by reason, certain heroic examples do not come into the consideration, they belong to another chair.
What is the use of an oath?As to an oath, which is an asseveration by which God is invoked as a witness or avenger (§203), since we ought not to use a simple asseveration rashly or unnecessarily (§204); much less certainly ought we to have recourse rashly or unnecessarily to an oath; but then only when it is required by a superior as judge; or by a private person, in a case where love obliges us to satisfy one fully of the truth, and to remove all suspicion and fear of deception and falsity. And this takes place with regard to every oath, and therefore there is no need of so many divisions of oaths into promissory and affirmatory, and the latter into an oath for bearing witness, and an oath decisive of a controversy: for the same rules and conditions obtain with respect to them all.*
Who and how.Since by those who swear God is invoked as a witness and avenger (§203), the consequence is, that atheists must make light of an oath, and that it is no small crime to tender an oath to such persons; that an oath ought to be suited to the forms and rites of every one’s religion;* and therefore asseverations by things not reckoned sacred, cannot be called oaths; that he is justly punished for perjury, who perjures himself by invoking false gods; nay, that even an atheist is justly punished for perjury, who concealing or dissembling his atheistical opinions, swears falsly by God, seeing he thereby deceives others.
How an oath ought to be administred.Moreover, since one ought not to swear rashly, or without being called to it (§206); hence it follows, that an oath is made for the sake, not of the swearer, but of him who puts it to the swearer; and therefore it ought to be understood and explained by his mind and intention, and not according to that of the person sworn; for which reason all those equivocations and mental reservations, as they are called, by which wicked men endeavour to elude the obligation of an oath, are most absurd. Those interpretations of oaths are likewise absurd, which require base or unreasonable things of one, who of his own accord had sworn to another not to refuse him any thing he should ask of him.*
The obligation and effects of an oath.Again, an oath being an invocation of God, (§203), it follows that it ought to be religiously fulfilled; that it cannot be eluded by quibles and equivocations, but that the obligation of an oath must yield to that of law: and therefore that it can produce no obligation, if one swears to do any thing that is base and forbidden by law; tho’ if it be not directly contrary to law, it be absolutely binding, provided it was neither extorted by unjust violence, nor obtained by deceit (§107 & 109): whence is manifest what ought to be said of the maxim of the canonists, “That every oath ought to be performed which can be so without any detriment to our eternal happiness.”†
He who does an injury, is obliged to make re-paration.We have sufficiently proved that it is unlawful to hurt any one by word or deed, nay even in thought. Now, since whosoever renders another more unhappy, injures him; but he renders one most unhappy, who, having injured him, does not repair the damage; the consequence is, that he who does a person any injury, is obliged to make reparation to him; and that he who refuses to do it, does a fresh injury, and may be truly said to hurt him again; and that if many persons have a share in the injury, the same rule ought to be observed with regard to making satisfaction and reparation, which we laid down concerning the imputation of an action in which several persons concur (§112 & seq.).*
What is satisfaction?By satisfaction we here understand doing that which the law requires of one who has done an injury. Now, every perfect law requires two things, 1. That the injury be repaired,* because a person is hurt or wronged. 2. That the injurious person should suffer for having transgressed the law by doing an injury, because the legislator is leased by his disobedience or transgression. And for this reason satisfaction comprehends both reparation and punishment, (Grotius of the rights of war and peace, 2. 17. 22. & 120.). The one doth not take off the other, because the guilt of the action for which punishment is inflicted, and the damage that is to be repaired, are conjunct in every delinquency. But of punishment in another place.
How it is to be made.Damage done, is either of such a nature that every thing may be restored into its former state, or that this cannot be done. In the former case, the nature of the thing requires that every thing should be restored into its first state, and, at the same time, that the loss should be repaired which the injured person suffered by being deprived of the thing, and by the expences he was obliged to in order to recover it. In the latter case, the nature of the thing requires, that the person wronged should be indemnified by as equal a valuation of his loss as can be made; in which regard is to be had not only to the real value, but to the price of fancy or affection. Pufendorff hath illustrated this doctrine by examples in murder, in maiming, in wounding, in adultery, in rapes, in theft, and other crimes. Puf. of the law of nature and nations, B. 3. c. 1.
[2 ] The Huguenot refugee Jean Barbeyrac (1674–1744) gave Grotius’s and Pufendorf’s works considerable circulation throughout Europe by his heavily annotated translations from Latin into French.
[3 ] Algernon Sidney (1623–83), Discourses Concerning Government.
[4 ] Joseph Butler (1692–1752), Fifteen Sermons Preached at the Rolls Chapel.
[* ]Perfect duties therefore lay us under a necessity of not rendering any one more imperfect or more unhappy: imperfect duties shew us, that we then only arrive to the glory of being truly good and virtuous, when we delight in promoting the perfection and happiness of others, as much as in us lies. These duties were accurately distinguished by ancient lawyers, when with Paullus they said, some were rather of good will and virtue than of necessity (voluntatis & officii magis quam necessitatis) l. 17. §3. D. commodati. Add to this a passage of Seneca quoted above in the scholium upon §84.
[† ]Absolute duty is what one man has a right to exact from another, without any right acquired to himself by any previous deed: hypothetical duty is what one can exact from another, in consequence of a right acquired by some deed. Thus a man has a right, to exact from every other that he should not take away his life, which is not acquired by any particular deed: But no person hath a right to complain, that things are taken from him by another unjustly, unless he hath acquired a right or property in them by some deed: therefore, not to kill any one is a duty of an absolute nature: but not to steal, is a duty of a hypothetical kind. If Salmasius had attended to this distinction (Salmasius de usur. cap. 9.) [[Claude Saumaise (Claudius Salmasius), De usuris liber he would easily have understood why the lawyers said that theft is forbidden by natural law (furtum admittere jure naturali prohibitum esse) l. 1. §3. D. de furt. §1. Inst. de oblig. quae ex delict.]]
[* ] This rule is so agreeable and so manifest to right reason, that it was known to the Pagans. Lampridius [[Aelius Lampridius was the alleged author of several emperors’ biographies (see, for example, Boxhorn, ed., Historiae Augustae scriptores Latini minores.) tells us, that Alexander Severus delighted in this maxim. cap. 1. “He had this sentence,” says he, “frequently in his mouth, which he had learned from Jews or Christians: ‘Do not to others what you would not have done to yourself.’ And he ordered it to be proclaimed aloud by a public crier, when he was to correct or animadvert upon any person. He was so charmed with it, that he ordered it to be inscribed every where in his palace, and on all public works.” It is not improbable, as Lampridius observes, that Alexander had learned this maxim from Christians: For we find it in the affirmative sense, Mat. vii. 12. and Luke vi. 31. But it does not follow from hence, that reason could not have discovered this truth. We find similar precepts and maxims in Simplicius upon Epictetus Enchirid. cap. 37.]]
[* ] Hence Epictetus severely reproaches those who look upon that only as an injury by which their body or their outward possessions are impaired, and not that by which their mind is rendered worse. “When we have received any damage in what belongs to our bodies or estates, we immediately think we have suffered a great loss. But when any detriment happens to us with respect to our will or temper, we think we have suffered no damage, for as much as he who corrupts or is corrupted by another, hath neither an aking head, stomach, eye or side, nor hath not lost his estate; and we look no farther than to these outward things. But with us it admits no dispute, whether it be better to have a pure and honest will, or an impure and dishonest one, &c.” Arrian. Diss. Epict. 2. 10.
[* ] For he who exposes a person, over whom he hath no authority, to danger, is no less guilty than he who, abusing his right and power to command, exposes one whose death he desires, to danger, purposely that he may get rid of him. There are examples of this in Polybius, 1. 9. Diod. Sic. Bibl. 14. 73. 19. 48. Justin. Hist. 12. 5. Curt. 7. 2. [[Polybius, The Histories; Diodorus Siculus, Bibliotheca historica; Justinus, Justini Historiae Philipicae; Curtius, History of Alexander and likewise in the sacred writings, 2 Sam. xi. 15. and xii. 9. where Nathan accuses David of murder for having placed Uriah in a most dangerous situation, with intention that he might perish. See Pufend. de jure nat. & gent. 8. 2. 4.]]
[† ] Man is always bound to choose that which is best, (§92); but that is best which is the safest and easiest mean for obtaining our end. We are therefore obliged to take the safest and least hurtful mean of saving ourselves, and therefore to avoid killing a person, if there be any other way of delivering ourselves from danger. Theocritus says rightly, “It is fit to remove a great contention by a small evil.” [[Theocritus (ca. 310–250 bc), Greek pastoral poet.]]
[* ] And to this belongs the fable of Oedipus, who having unknowingly killed his father, who attacked him, in his own defence, thus excuses himself in Sophocles, in Oedip. v. 1032. [[Sophocles, Oedipus at Colonus, lines 991–99, in Sophocles. “Answer me one thing. If any one should attack you, even a just person, to kill you, would you ask whether it was your father, or would you not immediately defend yourself? I think, if you loved your life, you would defend yourself against the aggressor, and not stay to consider what was just. I fell into such a misfortune by fate, as my father, could he revive, would himself acknowledge.”]]
[* ] And this is the foundation of the whole rights of war, viz. that we may carry on acts of hostility against any person who hath clearly shown his hostile disposition against us, and refuses obstinately all equal terms of peace, till having laid aside his enmity, he is become our friend: of which afterwards in its own place.
[† ] And therefore the lawyers rightly permit violent self-defence, only in the moment of assault. Ulpian, l. 3. §9. D. de vi & armis. “We may repel him by force who assaults us with arms, but in the moment, and not some time after.” And Paullus more expressly in another place, where he says, “That one who throws a stone against one rushing upon him, when he could not otherwise defend himself,” was not guilty by the Lex Aqu. l. 45. §4. D. ad leg. Aquil.
[‡ ] Much less then can one with right have recourse to force and killing, after the aggressor desists, and shews he is reconciled to his adversary. Whence Aristides in Leuctric. 1. justly observes, “That the Thebans being disposed to all that was equal, and the Lacedemonians being obstinate, the goodness of the cause was transferred from the latter to the former.” [[Publius Aelius Aristides (117–after 181), sophist and man of letters. His Leuctrian orations are historical declamations, which consider the arguments for and against an alliance of Athens with either Sparta or Thebes. See Aristides, The Complete Works, vol. 1. See Grotius, 2. 1. 18. and Pufendorff, 2. 5. 19.]]
[* ] But here many differ from us, as Augustinus de libero arbitrio, 1. 5. [[Augustine, On Free Choice of the Will (De libero arbitrio) Thomasius, Jurisp. 2. 2. 114. Buddeus Theolog. mor. part. 2. c. 3. §3. Budde, Institutiones theologiae moralis because chastity being a virtue of the mind, cannot be forced or extorted from us. But tho’ the chastity of the mind be secure enough, yet no injury is more attrocious to a chaste virgin or matron than a rape. Wherefore, Quintilian says justly, Declam. 349. “You have brought an injury upon the girl, than which war hath nothing more terrible.” Quintilian, Declamatio 349, in Quintilian, Declamationes quae supersunt CXLV, p. 347. Who then will blame an honest woman for defending herself against so high an injury, even at the expence of the ravisher’s life?]]
[* ] Thus Petrus did a very great injury to Maximilian I. Emp. of whom Cuspinianus relates, p. 602. “Maximilian when he was of a proper age for being instructed in letters, was put under the care of Petrus, where he learned Latin for some time with other fellow scholars of quality. But his teacher employed all his time in inculcating upon him certain logical subtleties, for which he had no disposition or capacity; and being often whipped on that account by one who better deserved to be whipt himself, seeing such usage is for slaves and not free-men, he at last conceived an utter disgust at all learning, instead of being in love with it.” [[Probably Cuspinianus, De Caesaribus atque imperatoribus Romanorum . . . opus. He never forgot what a detriment that was to him. The same Cuspinianus tells us, that he often complained very heartily of his fate, and sometimes said at dinner, while many were present, “If my preceptor Petrus were alive, tho’ we owe much to our teachers, I would make him repent his having had the care of my institution,” Add. Ger. a Roo. l. 8. p. 288. Probably Gerardus de Roo (d. 1589), Annales rerum belli domique ab Austriacis Habsburgicae gentis principibus.]]
[* ] How great an injury this is, Dionysius the Sicilian tyrant well knew, who being desirous to give pain to Dion, who he heard was levying an army, and preparing to make war against him, ordered his son “to be educated in such a manner, that by indulgence he might be corrupted with the vilest passions: for which effect, while he was yet a beardless boy, whores were brought to him, and he was not allowed to be sober one minute, but was kept for ever carousing, reveling and feasting. He afterwards, when he returned to his father, could not bear a change of life, and guardians being set over him to reform him from this wicked way of living he had been inured to and bred up in, he threw himself from the top of the house, and so perished.” Corn. Nep. Dion. cap. 4. [[Cornelius Nepos, “Dion” in Cornelius Nepos. This art was not unknown to the Romans. Examples of treating their enemies, or their suspected friends in this manner, are to be found in Tacitus Hist. 4. 64. and Agricola’s life, 21. 1. Tacitus, The Histories; Tacitus, Tacitus, vol. 1: Agricola, Germania, Dialogus. This secret tyranny is taken notice of by Forstner upon Tacitus’s annals, l. 1. Christoph Forstner (1598–1667) produced an annotated edition of Tacitus’s Annals. I wish then, that from such examples, youth easily corrupted into a vitious taste and temper, and averse to admonitions, would learn this profitable lesson, to look upon those as their worst enemies who endeavour to seduce them from the paths of virtue into luxury and softness, and to consider them as tyrants to whom they are really in bondage, who set themselves to deprave their morals]]
[* ] And hence it seems to be, that by many ancient laws, retaliation was proposed against those who broke or hurt any member of another person. See Exod. xxi. 23. Lev. xxiv. 50. Aulus Gellius, Noct. Attic. xx. 1. Diod. Sicul. xii. 17. For tho’ it be not probable, that either among the Hebrews or the Romans, this law of retaliation took place (κατὰ τὸ ῥητὸν) strictly: (Joseph. antiq. Jud. 4. 7. [[Flavius Josephus, Antiquitates Judaicae (Judean antiquities 1–4, trans. Feldman) Gellius 20. 1.) yet by this it appears, that the best law-givers acknowledged it to be most just, that one should not do to another what he would not have done to himself]]
[* ] Therefore Simplicius upon Epictetus Enchirid. cap. 38. p. 247. calls contumelies and such injuries, evils contrary to nature, nay diseases, spots in the soul. But what is contrary to the nature of the mind is certainly an evil, and what is such, cannot but be contrary to the law of nature, which obliges us to do good
[† ] For tho’ when both the parties consent, the maxim, “Do not to another what you would not have done to yourself,” ceases; yet, first of all, in general, none desires any thing to be done to him that would render him less happy. But he is more unhappy, who is allured by temptations to pleasure, or to any vice. His will is hurt or injured (§189). Again, others very often are wronged, such as parents, husbands, relations, and at least, with regard to them, the debaucher violates the maxim, “Do not to another what you would not have done to you.” Finally, he who seduces a woman into lewdness, corrupts her. But since, if we are wise, we would not choose to be corrupted ourselves by guileful arts, neither ought we to have any hand in corrupting any person. So far is seduction of a woman by flattery into unchastity from being excusable, that some lawyers have thought it deserving of severer punishment than force, “Because those who use force, they thought, must be hated by them to whom the injury is offered; whereas those who by flattering insinuations endeavour to persuade into the crime, so pervert the minds of those they endeavour to debauch, that they often render wives more loving and attached to them than to their husbands, and thus are masters of the whole house, and make it uncertain whether the children be the husband’s or the adulterer’s.” Lysias, Orat. 1. [[Lysias, “On the Murder of Eratosthenes,” chap. 33 in Lysias.]]
[* ] Because the author of the law of nature is καρδιογνώστης, a discerner of hearts, he undoubtedly no less violates his will, who indulges any thought contrary to his commands, than he who transgresses them by words or deeds: and for that reason we have observed above, that the law of nature extends to internal as well as external actions (§18). Besides, love being the genuine principle or foundation of the law of nature (§79), which does not consist principally in the external action, but in the desire of good to the object beloved, and delight in its happiness and perfection (§80), it must needs be contrary to the law of nature to hate any person, and to delight in his unhappiness and imperfection: or to have an aversion to his happiness and perfection, though it should consist merely in thought and internal motion, must be repugnant to that law. Hence our Saviour, the best interpreter of divine law, natural or positive, condemns even thoughts and internal actions repugnant to the law of nature, Matt. v. 22. 28. And this we thought proper to oppose to those who assert, that the law of nature extends to external actions only
[* ] Thus a dog expresses anger by one sound, grief by another, love to mankind by another, and other affections by other sounds: but he does not distinctly or clearly express his particular thought, nor can he do it, tho’ dogs and many other animals have almost the same organs of speech with which man is furnished. The more imperfect an animal is, the less capable is it of uttering any sound whereby it can give any indication of its sensations, as fishes, oisters, for instance, and other shell-fish. And therefore Pythagoras really affronted men’s understandings when he pretended to understand the language of brute animals, and to have had conversation with them, and by this shewed either a very fantastical turn of mind, or a design to impose upon others. See Iamblichus’s life of Pythagoras, cap. 13. [[Iamblichus, Iamblichus on the Mysteries . . . and Life of Pythagoras.]]
[† ] Human genius hath not rested in finding certain and determinate names for all things, but hath invented other signs to be used in place of discourse, when there is no opportunity for it. Thus we have found out the way of communicating our minds to distant persons by the figures of letters so distinctly, that they do not hear but see our words: which is so surprising an invention, that some have ascribed it to God. There is also a method of speaking, as it were by the fingers, invented in Turkey by the dumb, and very familiar to the nobles in that country, as Ricaut tells us in his description of the Ottoman empire, cap. 7. 12 [[see Ricaut, The History of the Present State of the Ottoman Empire: Not to mention speaking with the eyes and the feet, upon which there are curious dissertations by Mollerus Altorffensis. Daniel Wilhelm Moller (1642–1712) was praeses of a number of dissertations at the university of Altdorf. It is not evident here to which one Heineccius is referring. Tho’ all these do not deserve to be called speech, yet they supply the place of it; and therefore, whatever is just or obligatory with regard to speech, holds equally with regard to them.]]
[* ] We say rightly, that the faculty of speech was not given us for the sake of God, since God without that assistance intimately knows our most secret motions and thoughts: nor for the sake of the brutes, who do not understand our discourse as such, or any otherwise than they do other signs to which they are accustomed. And therefore it remains, that it can be given us for no other reason but for the sake of ourselves and other men. But it cannot be given us for our own sake, in order to our communicating our thoughts to ourselves, of which we are immediately conscious; but that we may inform others what we would have done to us, and in what they may be useful to us. And for the sake of others it is given to us, that we may signify to them what it is their interest to know, or what may be of use to them. Since therefore we ought to love others equally as ourselves, and what we would not have others to do to us, we ought not to do to others; the plain consequence is, that we are obliged not to hurt any one by our discourse, but to endeavour to be as useful as we can to others by it.
[* ]Perfect right is the correlate to perfect obligation, imperfect right to imperfect obligation. The former requires that we should not wrong any person, but render to every one his own (§174): And therefore every one can as often demand from us by perfect right the truth, as he would be hurt by our dissimulation, by our speaking falsely, or by our disguising and adulterating the truth: or as often as by compact, or by the nature of the business itself which we have with another, we owe it to him to speak the truth. And since the latter obliges us by internal obligation, or regard to virtue, to promote the perfection and happiness of others to the utmost of our power, it is very manifest that we are obliged to speak the truth openly, and without dissimulation, as often as another’s happiness or perfection may be advanced by our discourse. He therefore offends against the perfect right of another, who knowing snares to be laid for him by an assassin, conceals it, or persuades him that the assassin only comes to him to pay his compliments; as likewise does he, who having undertaken the custody of another’s goods, knowingly hides the breaking in of thieves, or endeavours to make them pass for travellers come to lodge with him. He acts contrary to the imperfect right of another, who when one is out of his way, denies he knows the right road, tho’ he know it, or directly puts him into the wrong one.
[* ] Thus, none will blame a merchant, if being asked by some over curious person how rich he might be, he should not make any answer, or should turn the conversation some other way. Nor ought a General more to be blamed who deceives the enemy by false reports or ambiguous rumours, because an enemy, as such, hath no right, perfect or imperfect, to demand the truth from an enemy as such. Moreover, the prudence of Athanasius is rather commendable than blameable, who detained those who were pursuing him with such ambiguous conversation, that they knew not it was Athanasius with whom they were conversing, Theodoret. Hist. Eccl. 3. 8. [[Theodoretus (393–458), Ecclesiasticae historiae libri quinque. For he could not remain silent without danger, and plain discourse would not have been of any advantage to his pursuers, and of great hurt to himself. Finally, none can doubt but a teacher may lawfully employ fables, fictions, parables, symbols, riddles, in order to suit himself to the capacity of his hearers, and insinuate truth into their minds through these channels, since these methods of instruction are far from being hurtful to any persons, and are very profitable to his hearers.]]
[* ] Amongst the Greeks the word ψεῦδος was somewhat ambiguous, signifying both a lie and false speech. Demosthenes [[Demosthenes (384–322 bc), considered the greatest Athenian orator of classical antiquity takes it in the first sense in that saying so familiar to him, “That there is nothing by which we can hurt others more than by (ἠ ψεύδη λέγων) lies.” Chariclea understands by it false speech, in that famous apophthegm of his, “That false speaking (τὸ ψεῦδος) is sometimes good, viz. when it is in such a manner advantageous to the speaker as to hurt no other body.” Heliod. Aethiop. l. 1. c. 3. p. 52. Heliodorus, Aethiopica (An Ethiopian Romance, trans. Hadas). Charicles is one of the main characters in Heliodorus’s story. But the word lie is not one of these ambiguous words, but being always used to signify a base and detestable vice, ought to be distinguished from false speaking, and the other words we have above mentioned.]]
[† ] It is a known apophthegm of Syracides. (sapienti os in corde, stulto cor in ore esse, a wise man’s mouth is in his heart, and a fool’s heart is in his mouth). A rich person who discovers his treasures to thieves tells truth, but none will on that account commend his virtue and veracity: whereas, on the other hand, he would not be reproached with making a lie who kept silent to a thief, or turned the discourse another way (§200). Hence the saying of Simonides, “That he had often repented of speaking, but never of silence.” And that of Thales, “That few words are a mark of a prudent man.” To which many such like aphorisms might be added.
[* ] For since to circumvent and deceive a person, is itself base and unjust (§199), what can be more abominable or unjust, than to deceive by asseverations? And hence that form used among the Romans, “As among good men there ought to be fair dealing,” “That I may not be taken in and deceived by putting trust in you, and on your account.” Cicero, de off. l. 3. 16. For it is base to cheat and defraud any one; and it is much more base to cheat and defraud by means of one’s credit with another. See Franc. Car. Conradi de pacto fiduc. exerc. 2. §4. [[Conradi, De pacto fiduciae.]]
[† ] And therefore many congratulatory acclamations, which on various occasions are addressed to illustrious persons and men in power, degenerate into flatteries: nay, sometimes they are poison covered over with honey, because at the very time these fair speeches are made, the person’s ruin is desired, if snares be not actually laid for him. Since all this proceeds not from love but hatred, who can doubt of their being repugnant to the law of nature, which is the law of love?
[* ] Besides, if we carefully examine the matter, we shall find that every oath is promissory. For whoever swears, whether the oath be imposed by a judge, or by an adversary, he promises to speak the truth sincerely and honestly. And the distinctions between oaths about contracts past or future, the former of which is called an oath of confirmation, and the other a promissory oath; an oath about the deed of another, and an oath about our own deed, the former of which is called an oath of testimony, the other a decisory oath, which again, if it be tendered by the judge is called judicial, if by the party, without judgment, voluntary: these and other decisions belong rather to Roman law than to Natural law, as is plain from their not being in use in several other nations, as the Greeks and Hebrews. See Cod. Talmud. tom. 4. edit. Surenhus. [[Probably Willem Surenhuys (1666–1729), Mischna sive totius Hebraeorum juris, rituum, antiquitatum, ac legum systema. Maimonides de jurejurando, edit. Diethmar. Leiden 1706. Maimonides, Constitutiones de jurejurando. Selden de Synedr. Heb. xi. 11. Selden, De synedriis & praefecturis juridicis veterum Ebraeorum. Jac. Lydius de juramento. Lydius, Dissertatio philologico-theologica de juramento. To which may be added what Petit Pierre Petit (1617–87), French physician and other writers on antiquities say of the use of an oath among the Greeks.]]
[* ] Provided the form doth not tend to dishonour the true God, because such actions are not excusable even by extreme necessity (§160). Hence it is plain, that an oath tendered to a Jew may be suited to his religion, because such a form contains nothing which tends to the dishonour of the true God. But I doubt whether it be lawful for a Christian judge to order a Mahometan to swear before him by Mahomet, as the greatest prophet of the one God, especially since the nature of the Mahometan religion is not such, that an oath by the true God, the Creator of heaven and earth, does not equally bind them to truth, as if they at the same time made mention of that impostor.
[* ] Tho’ he be guilty in many respects, who takes such an oath, because he does it of himself, unnecessarily and without being called to it (§206); and because he thus swears before hand not to refuse, without knowing what the person may demand, and so exposes himself either to the danger of perjury, or of a rash oath: yet by such an oath no person is bound to fulfil what he promised by his oath, if the other, taking advantage of it, requires any thing of him that is impossible, unjust or base. For since he swore voluntarily, and of his free accord, his oath ought without doubt to be interpreted according to his own mind and intention. But no man in his senses can be supposed to mean, to bind himself to any thing which cannot be done, either through physical impossibility, or on account of legal prohibition. Herod therefore sinned, Mat. xiv. in promising to his daughter by a rash oath to grant her whatever she should demand of him; but he was yet more guilty in yielding to her when she desired John the Baptist’s head.
[† ] It comes under the definition of evasion, cavillatio, if one satisfies the words, but not the mind and intention of the imposer: the impiety of which is evident. He who thinks of satisfying an oath by evasion or equivocation, deceives another. But to deceive any person is in itself unjust (§199): it must be therefore much more unjust to deceive one by invoking God to witness, and as judge and avenger. An oath then excludes all cavils. Hence it is plain that Hatto archbishop of Mentz was guilty of perjury, when, having promised to Albertus, that he would bring him back safe to his castle, pretending hunger, he brought him back to breakfast, thinking that he had thus satisfied his oath. [[Hatto (ca. 850–913), archbishop of Mainz, who was allegedly implicated in a treacherous capture of Duke Adalbert of Badenberg. Otto Frising. Chron. 6. 15. The work to which Heineccius refers is Otto of Freising’s (1112–58) Rerum ab origine mundi ad ipsius usque tempora gestarum libri octo, also known as Chronica. Marian. Scot. ad ann. 908. Marianus Scotus, Chronicorum libri tres. Ditmarus Merseb. l. 1. Dietmar von Merseburg, Chronicon (see Thietmar von Merseburg, Ottonian Germany) at the beginning, wonders at this subtlety of the archbishop, and he had reason, since even the Romans would not have suffered a captive to escape without some mark of ignominy who had by such guile deceived an enemy, Gell. Noct. Att. 7. 18. Of such fraud Cicero says justly in his third book of offices, cap. 32. “He thought it a sufficient performance of his oath: but certainly he was mistaken: for cunning is so far from excusing a perjury, that it rather aggravates it, and makes it the more criminal. This therefore was no more than a foolish piece of craftiness, impudently pretending to pass for prudence: whereupon the senate took care to order, that my crafty gentleman should be sent back in fetters again to Hannibal.”]]
[* ] Aristotle Ethic. ad Nicom. 5. 2. derives the obligation to make reparation from an involuntary contract: Pufendorff of the law of nature and nations, 3. 1. 2. deduces it from this consideration, that the law against doing damage would be in vain, unless the law-giver be likewise supposed to will that reparation should be made. But we infer this duty from the very idea of wrong or hurt. For he does not render us more imperfect or unhappy who robs us of any thing belonging to us, than he who having robbed us, does not make restitution or satisfaction. If therefore injury be unlawful, reparation or satisfaction must be duty.
[* ] If damage be done by the action of no person, no person is obliged to satisfaction; for what happens solely by divine providence, cannot be imputed to any mortal (§106). And hence it follows, that when a proprietor suffers any damage in this way, he is obliged to bear it. For what is imputable to no person we must suffer with patience.