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Remarks on This Book - 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 Book
Our Author may perhaps be thought by some to have mentioned several cases; as for instance, with regard to alluvion, casting up of islands, &c. which are rather curious than useful. But let me answer to such objections against our Author, (Grotius, Pufendorff, and other writers on the law of nature), 1. That of as little use as these questions may appear to us, they were not so in other countries, such as Egypt, where, as Strabo observes, Geograph. l. 17. p. 1139. edit. Amst. “They were obliged to be particularly exact and nice in the division of their lands, because of the frequent confusion of boundaries, which the Nile, by its overflowing occasioned, taking from one part, and adding to another, changing the very form and look of places, and entirely concealing those marks that should distinguish one man’s property from another’s. For which reason, there was a necessity for their often making new surveys, &c.”2 And it is so still in Holland and other countries, in some measure; nay some such cases may and do happen in every country, where there are large and impetuous rivers, &c. 2. But however rarely any such cases may happen, yet as one cannot be an expert, ready natural philosopher, without having run through many possible cases, and determined how gravity, elasticity, or any other physical powers, would operate in these circumstances according to their laws of working; and therefore, such exercise is by no means useless, but highly useful: So for the same reason, one cannot be ready and expert in the moral science, so as to be able readily to determine himself, or advise others how to act upon every emergency, without having practised himself in resolving all, or very many possible cases, i.e. in determining what is requisite in such and such cases, in order to do the least harm, and render every one his due. Thus, it is evident, must one prepare himself for being able to judge readily what ought to be the general rules of justice in states with regard to different cases. Thus alone can one prepare himself for judging of cases in enacting, abrogating or mending laws. And indeed the proper way of studying the laws of any particular country, is by comparing them all along with the dictates or the laws of nature concerning the same cases, in an orderly way, proceeding from simple to more and more complex cases gradually. Whence it is evident, that one well versed in the knowledge of natural law, can never be at a loss to find out what ought to be the general positive law in certain cases, and how positive law ought to be interpreted in cases, which, tho’ not expresly excepted in a law, which must be general, yet are in the nature of things excepted. 3. The same thing holds with respect to the duties of societies, one towards another, for the laws by which particular persons ought to regulate their conduct in all pacts, covenants, bargains or contracts, under whatsoever denominations they are brought by the doctors of laws, are the very rules by which societies ought likewise to regulate their conduct one towards another; societies being, as we shall find our author himself observing afterwards, moral persons. Whence it follows, that the former rules or laws being determined, it cannot be difficult to fix or determine the latter. And indeed our Author having fixed the former in such a manner, that there was almost no occasion to differ from him, and but very little occasion to add to him; in following him while he deduces and fixes the other in the succeeding book, there will be very little need of our adding any remarks, except in the affair of government, that not having been distinctly enough handled by any writer of a system of the law of nature and nations, for this reason that, as we have already had occasion to observe, none of them has ever considered government in its natural procreation, or its natural causes. Nor do I know any author by whom that hath been done but our Harrington, tho’, as he himself shews, the principles upon which he reasons were not unknown neither to ancient historians, nor to ancient writers on morals and politics. It will not therefore be a disadvantage to young readers, for whom this translation, with the remarks, is chiefly intended, in order to initiate them into this useful science, if we, upon proper occasions, in the following book concerning the laws of nations, add a few things to set the more important questions about government in a clear light. On this subject, we of this nation, and we only, dare write freely. For our happy constitution is the blessed effect of thinking freely on this matter: and it must last uncorrupted, unimpaired, while we continue to exercise the right to which we owe it: A right without the exercise of which men are not indeed men. For who will say that slaves, who know not the price of liberty, or who know not that they are slaves, deserve to be called men!
The end of the first book.
OF THE LAW OF NATIONS
A METHODICAL SYSTEM
From Certain Principles, and applied
to Proper Cases.
Written in Latin by the celebrated
JO. GOT. HEINECCIUS,
Counsellor of State to the King of Prussia,
and Professor of Philosophy at Hall.
Translated, and illustrated with Notes and Supplements,
By GEORGE TURNBULL, LL. D.
To which is added,
A DISCOURSE upon the Nature and Origine of Moral and Civil Laws; in which they are deduced, by an Analysis of the human Mind in the experimental Way, from our internal Principles and Dispositions.
Natura enim juris ab hominis repetenda natura est.1Cic.
Printed for J. Noon, at the White-Hart, near Mercer’s Chapel, Cheapside. MDCCXLI.
Concerning the natural and social state of man.
The connection.Hitherto we have considered the law of nature, by which the actions of particulars ought to be regulated. Now, the next thing to be done in this undertaking, is to deduce the laws of nations from their principles, and to give a compendious view of them. This we promised (l. 1. §23). But since the law of nations is the law of nature, applied to social life, the affairs of societies, and of independent political bodies (l. 1. §21), we cannot treat of it distinctly, without first giving a clear notion of what we call states and societies.
Of man’s physical and moral state.State in general means the quality which constitutes a particular thing, or makes it what it is; and thus the qualities constituting man are rightly said to make his state. Now, we may either consider man merely as consisting of certain faculties of body and mind with which he is endowed by his Creator, or we may consider him as subjected to laws for the regulation of his free actions. The first way of considering man is called considering him in his physical state.* The second is considering him as a moral being, or in his moral state. But in treating of the law of nations, the objects of which are mens free actions, it is evident, that it is not merely man’s physical, but more directly his moral state, which then falls under consideration.
What is meant by a natural, and what by an adventitious state.This moral state, by which men are so greatly distinguished, is either cogenial to them, or it depends upon some deed of ours. The first is called natural; the other adventitious. Wherefore the natural state of man is that quality or condition imposed upon man by nature, without any deed of his, by which our free actions are subjected to, and limited by a natural law, suitable to the nature of that state. The adventitious state of man, on the other hand, is a quality or condition which man brings him-self into by his own deed, in consequence of which his free actions are subjected to, and limited by a natural law, suitably to the nature and exigencies of that state.*
Natural state is not opposed to the state of brutes, nor to a state contrary to nature.We do not then oppose a natural state to the state of brutes, for the difference between our nature and that of the brutes belongs rather to our physical than our moral state (§2); nor to what the Civilians call a contra-natural state, such as they have feigned the state of slaves to be, §2. Inst. de jure pers. but to a social and a civil state; both of which being imposed upon men by themselves, are equally adventitious. But what this state is, shall be more accurately considered, and thereby it will appear, why so great a number of men, forsaking their natural state, have put themselves into other states, attended with many and various uneasinesses.†
It is a state of equality.We have already observed (l. 1. §88), that all men, tho’ one may be more perfect than another, are however equal by nature. And who can call this into question, since all men consist of the same essential parts, body and mind? But hence it follows, that a state of nature is a state of equality; and consequently, among those who live in it, there is no superior or inferior; and therefore in it empire and subjection, and distinction of dignities, have no place; so that Ulpianus justly says, “That by the law of nature all men are equal,” l. 32. D. de reg. jur. l. 4. D. de just. & jure, l. 12. §3. D. de accusat. l. 64. D. de condict. indeb.*
And likewise of liberty.But there being, in a state of nature, no place for empire and subjection (§5), it must be a state of liberty;† nor can either political subjection, or that servitude which is introduced by the law of nations, have place in it; so that in it there can be no positive laws, no magistrates, no positive punishments, nor none of those things which suppose a certain prerogative in some above the rest.
But the law of nature must have place, and be of full force in it.Yet because magistracy, and positive laws and punishments, have no place in this state merely on account of the natural equality of mankind (§6), which reason does not at all affect that eternal law which is constituted by God himself; it is plain that the actions of men, even in a state of nature, are subject to the law of nature; and those who live in that state, are no less bound than we who have put ourselves into adventitious states, to love and obey God, to love, preserve, and perfect ourselves, and to love other men as ourselves; to do no injury to any one, but to render to every one his own, and to all the duties of humanity and beneficence.*
And therefore in this state all men had not a right over all, nor were men mere brutes.Whence it is evident, how absurdly Hobbes1 derives all right from compact, and therefore attributes to every man, in a state of nature, a right to all, and over all; and thus prescribes the law of nature from this state (l. 1. §73) nor do those writers speak less unreasonably, who represent a state of nature, as a state in which men would differ very little from brutes, as being bound or cemented together by no ties, no obligations.*
In a state of nature, all men have the right of making war.Now, since where magistracy, and positive laws, and punishments, do not take place, as we have said, they do not in a state of nature (§6); there the oppressed can have no recourse, have no defence but in themselves; the consequence is, that in a state of nature every one has a perfect right to repel violence and injury by force, and to extort from others by violence whatever they owe him by perfect obligation; but not to extort from any one the offices of humanity and beneficence (l. 1. §84.) unless he hath voluntarily bound himself by pact to do them (l. 1. §386), or extreme necessity forces one to seize something belonging to another, and to convert it to his own use (l. 1. §170); especially if the good offices be of such a kind, that one might perform them without any detriment to himself, were he not quite devoid of all humanity (l. 1. §216).*
Pacts are chiefly necessary in this state.But seeing, in a state of nature, none can be compelled to the good offices of humanity and beneficence, and therefore he who would be sure of them, must secure the performance of them to himself by pacts (§9), it follows, that all we have said about pacts, and the duties of those who make compacts or contracts, as likewise of the rights of commerce, hath place, or at least may have place in a state of nature; nay, that men ought, in this state, frequently to stipulate to themselves even the performance of what is due to them by perfect right, by intervening pacts; and therefore that there is no stronger tie to hold men together in this state than the religious regard to pacts, which failing, or being contemned, all friendship and correspondence must cease.
Whether the misery of this state be so great as it is commonly represented.Now, these things being premised, it is obvious, that tho’ this state be represented as most miserable by Hobbes, and even by Pufendorff, yet many things which seem to them to be wanting in it, and of which they seem so much afraid, ought not to be attributed to this state itself, so much as to the wickedness of mankind; and that some things for which they reproach this state, as solitude, poverty, weakness, barbarity, and perpetual strife, might be avoided in a state of nature, as well as in a civil state, if men would follow right reason,* and are equally unavoidable in a civil state as in a natural one, if men will not act conformably to right reason, Titius obs. ad Pufend. de offic. hom. & civ. 2. 1. 9.2
Why men have preferred the civil state.Therefore it was not the extreme misery of a state of nature (§11), but partly the hopes of greater convenience and security, and partly the malice of men that made them form themselves into societies, as shall be shewn afterwards. But since there is no stronger tie or bond for holding men together than pacts and conventions, the consequence is, that societies were constituted by pacts and conventions; and because a few more easily consent in the same end than many, it is probable that men first formed more simple, and then more complex societies.*
What society and a social state is.Here we understand by society the consent of two or more persons in the same end, and the same means requisite to obtain that end; wherefore, while such consent lasts, there is society. And so soon as they who had formerly consented in the same end and means, begin to propose and pursue each his own end, that society is broke and dissolved, and each begins to have his own to himself.† Whence a state in which men live in society is called a social state.
Societies in respect of their ends are of very different kinds.But since every society proposes or tends to a certain end (§13), but the ends may be very different; hence it follows, that if the end be just and lawful, (l. 1. §398). Wherefore societies of pyrates, robbers, and such like societies, are most base and flagitious. Societies must be judged of by their ends;* and hence means must be judged of by their ends, and the laws, rights and duties of persons united in a society, must be inferred from the end of that society.
Societies in respect of consent are either voluntary or forced.But since society cannot be understood without consent (§13), which is either voluntary or extorted by force, which we call forced consent, and which may become valid by ratification (l. 1. §345); hence it follows, that some societies are voluntary and cordial, and others are forced; but that the latter ought not to be pronounced unjust, because they had a vitious or faulty origine, if those who were at first forced to enter into society do afterwards expresly or tacitly ratify their consent (l. 1. §381).†
They are formed either by express, tacite, or presumed consent.Besides, consent being either express or tacite, which is inferred from some deed, of which kind is even patience (l. 1. §391), it follows, that societies may be formed either by express or tacite consent: and it is the same as if persons had consented, when they afterwards live with others in society, and pursue the same end with them by the same means; nay, seeing sometimes we judge one to have consented from the very nature of the thing, (l. 1. §391), it is plain that society may arise from presumed consent.*
Some societies are simple, and some are more compounded.Sometimes it happens, that not only individuals, but also whole societies intend the same end, and agree upon the same means for obtaining it. But such consent or agreement being society (§13), the consequence is, that not only individuals, but that whole societies may coalite into society; and therefore societies are either simple, such as are those formed by individuals; or they are more complex, such as those entred into by simple socie-ties, which are then considered as associates. In the same manner, it is evident that complex societies may become larger and more compounded; so that some societies may consist not only of many thousands, but of myriads.*
Some are equal, and some are unequal.In fine, those who consent in the same end and means, are either equal or not equal. The former, as equals, by common consent consult about, and find out the means necessary to a common end, and thus equal society is formed. In the latter, the business of finding out the end and means is intrusted or committed to one or more, and then society is unequal, and this society is likewise called Rectoreal. Now, it is plain, from the nature of the thing, and from human temper and disposition, that the larger a society is, the less practicable is it, that so great a multitude of associates should find out necessary or proper means by common consent and suffrage; and therefore the larger the society is, the more necessary it becomes that it be rectoreal and unequal.*
Every society is one moral person.But of whatever kind society be, it is plain, from the description of it, that it is designed in order to obtain an end by certain means (§13). But since to consent in this manner is to will the same thing, the consequence is, that the understanding and will of every society are to be considered as one will and one understanding (l. 1. §32), and therefore every society constitutes one person, which, in contradistinction to a physical person, is called a moral one.†
Therefore the laws and duties of societies, and of individuals are the same.Now, if every society be, as it were, one person (§19), it must, by consequence, be subject to the same laws as individuals or physical persons;* and therefore all the duties which the law of nature prescribes to particular persons, ought likewise to be religiously observed by all societies greater or lesser. In like manner, the same rights which belong to particular persons, belong also to societies, and associated persons have the same common things and rights; yea, all the affections or properties of bodies and persons may justly be attributed to societies; and thus they, by very elegant metaphors, are said to flourish, or to be sick; nay, to die and perish. See Koehler. spec. jur. gent. 1. §20. & seq.3
The obligations of associates or members with regard to society, and of society with respect to them.From the same principle we may justly conclude, that every associate, or member of a society, is obliged to adjust his actions to the common end of that society; and therefore that he injures his fellow-associates, who seeks his own advantage at their detriment, or who does any thing contrary to the end of the society of which he is a member, or hurts any one of its members. For which reason, no injustice is done to him, if he be forced, by what is called punishment, to repair the injuries he has done, and to behave better with regard to his society for the future, (l. 1. §211). And it is no less evident, that an associate cannot be blamed if he separates such a bad associate from himself, or if he leave a society in which no regard is paid to its common end, nor to the means requisite to that end.
The obligations of one society with respect to the others.Hence likewise it is perspicuous, that society ought to hurt no person, but to render to every person his own; but is not obliged to prefer the interest of any private person, or of any other society to its own. For since every society constitutes a moral person, (§19), and hath the same rights with physical persons (§20), and no person is obliged to love another more than himself (l. 1. §94), or to perform to another the offices of humanity, which would be hurtful to himself, or to his friends, to whom he is under special obligations (l. 1. §218); hence it follows, that no society is bound to render such offices to another society, or to prefer the interest of another society to its own.*
With respect to larger societies.In like manner it is demonstrable, that in more compounded societies, the interest of the lesser is not repugnant to that of the larger, but ought to submit to it; because, in this case, the lesser societies are considered as individuals (§17); but individuals ought to consent to the same end and means, (§13), and not to prefer their private interest to the common end of the society (§21); and therefore lesser societies, which have coalited into a larger, or more compounded society, can do nothing which is manifestly contrary to the interest of that larger society, without injustice.*
General axioms concerning the duties of associates.To conclude; since the duties of the members of societies must be inferred from the end of the society (§14), it is plain that this is, as it were, the sum and substance of all the laws of societies; “That all the members of a society are bound to do every thing, without which, the end proposed by that society cannot be obtained; and therefore the happiness of society is justly said to be the supreme law of all its members.”
[2. ] The edition used here is presumably Strabo, Rerum geographicarum libri XVII (Amsterdam, 1707).
[1. ] The nature of law has to be derived from human nature.
[* ] Thus it is by regulations arising from the will of the Creator, that men are male and female, that some have well formed, and others distorted bodies; that some have a strong and robust, others a weakly and feeble constitution; that some are beautiful, and others deformed; and which is more, that some have a very quick and vigorous apprehension, an universal penetrating genius, while others are exceeding slow and dull, and have no capacity almost for any thing. All these differences, it is plain, belong to the physical or natural state of man, as it is called by the civilians. On the other hand, the free actions of man are differently limited, if he be a husband, from what they are, if he live in celibacy; differently according to the different personages or characters one bears, as of a parent, or a child, a master or a servant, &c. For which reason, all these differences are referred to the moral state of man, which is called by civilians his civil state. But let it be observed, that the moral state of man extends a little farther than what they call the civil state, to which they only refer the state of liberty, citizenship, and a family state.
[* ] And in consequence of these limitations, both states give men certain rights, and oblige them to certain duties: Thus certain duties belong to those who live in a state of nature, and other duties belong to husbands and wives, others to parents and children, others to masters and servants, and others to citizens. And therefore our definition of a state comes to the same with that of Pufendorff, of the duties of a man and a citizen, 2. 1. 1. where he defines that state to be in general, “a condition in which men are understood to be placed in order to a certain course of action, and which is accompanied with certain rights.”
[† ] From this state of mankind, by which their Creator hath so far exalted them above the brute creation, Pufendorff deduces certain duties of mankind, ibidem, §3. “As that man ought to acknowledge his Creator and worship him, contemplate and admire his works, and live in quite a different manner from the brutes.” Simplicius ad Epictet. c. 79. seems to have entertained much the same sentiments, when he prays to God, “to keep him in mind of the dignity given to human nature, by his distinguishing favour.” [[Simplicius, On Epictetus’ Handbook, “Epilogue,” vol. 2, p. 127. But we are obliged to all these duties, not because we have received endowments superior to those bestowed on the brutes, but by the will of God, the sole source of all moral obligation (l. 1. §62), and consequently, we have deduced all these duties from that principle (l. 1. §126. §149).]]
[* ] Merillius observ. 1. 15. observes, that all this is taken from the Stoics. And indeed many such sayings are to be found in their writings. See Arrian. ad Epict. 1. 13. Seneca, ep. 47. and of benefits, 3. 22. which passages are quoted by Merillius. But this principle was rather common to all philosophers and poets, because none could choose but admit it, who had considered human nature with any attention. To this purpose is that of Euripides in Hecuba, v. 291.Lex enim vobis & liberis aequaEt de servili sanguine natis lata est.
[[“Lo the same law is stablished among you for free and bond as touching blood-shedding”: Euripides, Hecuba, ll. 291–92 (see Euripides, Euripides, vol. 2, trans. Way).
And that fragment of Varro apud Nonium Marcell. 2. 98. “Natura in humanis omnia sunt paria.” Marcellus, Nonii Marcelli nova editio, chap. 2, “De honestis at nove veterum dictis, per literas,” p. 81. Not to mention many other testimonies of ancient authors to the same purport.]]
[† ]Liberty is the faculty of acting according to our own will and pleasure, and for our own advantage. And it is either political or civil, when one acknowledges no superior, according to whose will, and for whose interest he is obliged to regulate his actions: Or of the law of nations, which they enjoy who are under the power of no master, to whose will they are bound to conform, and for whose interest they are obliged to act. To the first, which we called political liberty, subjection is opposite. To the other, which we called, of the law of nations, servitude is opposite. Thomasius has added a third species of liberty, viz. natural, which is defined, §2. Instit. de jure person. [[Thomasius, Notae ad singulos institutionum et pandectarum titulos varias juris Romani antiquitates imprimis usum eorum hodiernum in foris Germaniae ostendentes. But we shall not here take any notice of it, since it belongs rather to the physical than the moral state of mankind.]]
[* ] And this is the chief argument by which we above exploded that first principle of sociality, laid down by Pufendorff (l. 1. §75). This learned author derives the law of nature from our obligation to sociality, to which men are compelled by necessity itself. But man would be under obligation to perform duties to God and to himself, tho’ he were not united by any ties with other men, and every man lived apart and independently. With what shew of reason then can one set about to derive duties from our obligation to sociality, the greater part of which would have place, tho’ there were no social state?
[1. ] See Hobbes, On the Citizen, 1.10.
[* ] Thus a natural state is described by Cicero, pro Sext. Roscio, cap. 42. So Horace, Serm. 1. v. 99.Quum processissent primis animalia terrisMutum & turpe pecus: glandem atque cubilia propterUnguibus & pugnis, dein fustibus, atque ita porroPugnabant armis, quae post fabricaverat usus.Donec verba, quibus voces sensusque notarent,Nominaque invenere, dehinc absistere bello,Oppida coeperunt munire, & condere leges,Ne quis fur esset, neu latro, neu quis adulter.
[[Horace, Satires I, 99–106: “When animals crawled forth on the first earth, a dumb and base creation, they used to fight for their acorns and places to sleep with claws and fists, then with clubs and so step by step with the weapons which need had later forged, until they found words, with which they could signify their cries and feelings, and names: from this time on they began to refrain from war and to fortify cities and to lay down laws that no-one should be a thief, nor a robber nor an adulterer.”
Many such passages are to be found among the ancients, which are collected by Pufendorff of the law of nature, &c. 2. 2. 2. But all this is fiction, and highly improbable. For tho’ we should grant, that in a state of nature men would be very brutal; and tho’ we find that in former times, and even now, several nations are not very far removed from the brutes; (such an account is given of the Hunni by Ammian. Marcell. 31. 2.) Marcellinus, Ammianus Marcellinus, vol. 3, bk. 31, chap. 2, 381–87 yet it does not follow from hence, that in a state of nature, the law of nature cannot at all be known, nor does at all oblige.]]
[* ] Wherefore, the violence with which David menaced Nabal upon his refusing him certain offices of beneficence, would not have been excusable, even in a state of nature, 1 Sam. xxv. 21, 22. For Nabal was only obliged by the law of gratitude to supply David. But to such offices none can be forced, unless the ingratitude be pregnant, and attended with injustice (l. 1. §227). Extreme necessity would have excused force, but not such revenge as David threatened, while Nabal had not yet resisted him, but had only denied his request, which it is plain he had a right to do, especially, as he was not yet convinced of the justice of the cause.
[* ] For solitude can only be conceived amongst a few, and for a short space of time. Indigence, hunger and cold could not oppress men more in a state of nature, than they may do in a civil state, since nothing hinders men to possess themselves of necessaries, and carry on commerce in a state of nature as well as in civil states, that inequality of dignities which begot luxury, the mother of poverty, being unknown. Barbarity and ignorance are cured by the culture of reason. But why might not men have improved reason, as well in a state of nature as in a civil state? Nay, are not simplicity and candour often misrepresented as rudeness; and on the other hand, is not an affectation of elegancy too often set forth as politeness? Besides, since even in civil states the only remedy for the weakness of particulars, is by pacts and covenants, why may not the same be done in a state of nature? In fine, if strife and war be reckoned amongst the evils of a state of nature, a civil state will not be found to have much preeminence above it in this respect, since in consequence of the latter, whereas in ancient times, particulars tried their strength one with another to the hazard of a few, now whole nations wage war to the destruction of myriads. Let any one therefore pronounce a state of nature worse than a civil state if he can, when it is evident that the latter is liable to all the same inconveniencies as the former; and that is not subject to some to which this is obnoxious.
[2. ] Titius, Observationes in Samuelis L. B. Pufendorfii De officio hominis et civis juxta legem naturalem.
[* ] Sacred history sufficiently confirms this. For first, we find Adam and Eve in the matrimonial state, the most simple of all societies, Gen. ii. 22, 23. Then children are born to them, and thus a new society was produced, Gen. iv. 1, 2. somewhat more complex, between parents and children. None could then be born slaves, unless you say that our first parents reduced their children and grandchildren into slaves. Nay, since Noah was saved by the ark with his wife, his sons and his sons wives only, it is probable that pious men then had no slaves in their families, Gen. vi. 18. Tho’, on the other hand, it is evident, from what is said of the posterity of Cain, Gen. vi. 4 that some men then oppressed others, and reduced them into servitude. Again, we have an instance of the most complex sort of society, Gen. iv. 17. So that it appears very certain, that the progress was gradually from more simple to more complex societies, and from these to the most compounded of all, which is commonly a civil state or republic.
[† ] I would not be understood to mean, that the pact by which society is formed becomes null by the dissent of any one of the parties. This opinion I have already confuted (§382): But that such a one can no longer be considered by the rest as an associate, who does not concur with them in the same end and means, and shews that disposition by incontestible signs and evidences. For in that case, the others continue to have a right by the convention to force him to fulfil his pact, and all the terms and articles of his agreement; or if that can’t be done, to repair their damage, and to make them satisfaction. But such a person can no longer be said to be an associate, because the definition of an associate no longer agrees to him from the moment he perfidiously breaks the bond of union and society.
[* ] This we have already seen with respect to the contract of partnership, the end of which is common gain (l. 1. §379). But matrimonial society has another end; a society of masters and servants has another end; and in fine, that most complex of all societies, which we call a republic, has yet another end. Therefore, as many different ends as there are, so many different kinds of society there are, and so many societies so many different ends must there be. Aristotle begins his political work with a remarkable observation to this purpose. “Because we see all communion or society is constituted for the sake of some good (for all things are done with a view to something that appears good to the agent) it is evident that all societies have some good as their proposed end.” (Politic. 1. 1.)
[† ] Thus was matrimony ratified between the Romans and the Sabines; and between the Benjamites and the daughters of Shiloh, Judg. xxi. 21. tho’ its origine in both cases was unjust, being violent; because the ravished afterwards confirmed the deed by their consent, and adhered to their marriages, tho’ they had been forced, Dion. Hal. antiq. Rom. l. 2. p. 110. [[Dionysius of Halicarnassus, Roman Antiquities, vol. 1, bk. II, chap. 30, p. 401. In like manner, the society between masters and their slaves taken in war, is originally forced: And yet sometimes, the mildness and humanity of masters has engaged the slaves to serve with good will, and to say seriously, what in Plautus, Capt. 2. 2. v. 21, one says with great grief,Quamquam non fuit multum molesta servitus:Nec mi secus erat, quam si essem familiaris filius.
Plautus, The Captives, lines 272–73, in Plautus, vol. 1: “[B]ut being a slave hasn’t bothered me much, though: I wasn’t treated any differently than if I’d been a son of the house.”
See Exod. xxi. 5.]]
[* ] Such is the consent between parents and children. For so far are children from consenting directly to that society at the time they enter into it, that they are then absolutely incapable of consenting. And tho’ coming afterwards to understand the nature of the thing, they might consent if they would; yet so far are all of them then from testifying this consent by words and deeds, that many more dissent and rebel. But this society is not therefore dissolved, because the education of children requires this society, and it is presumed that children cannot but consent to live with their parents in such society, without which they can neither be conveniently preserved nor educated.
[* ] Experience confirms and illustrates all this. The most simple societies are those of persons joined in marriage, of parents and children, masters and servants. Of these societies coalited among themselves, is formed a larger society, which we call a family. Of many families are formed hamlets, villages, towns. Of many villages, &c. are formed whole states or republics; of many republics are formed systems of republics, such as were the Greek republics. See Cicero’s offices, 1. 17. that is, if lesser and more simple societies are not sufficient to obtain a certain end, it is necessary to form greater and more complex societies by the consociation of many little ones. Hence Justin, hist. 1. 1. observes, that in the beginning kingdoms were confined within the narrow bounds of particular counties. [[The reference is to Turnbull’s own translation of Marcus Junianus Justinus, Justini Historiae Philipicae, which appeared in 1742 and in a second edition in the same year as his Heineccius translation, 1746, under the title Justin’s History of the World, Translated into English (bk. I, chap. 1, p. 4). And this is plain from the examples of the Canaanites, the Phoenicians, the Greeks, the Gauls, the Germans, the Britons, whose provinces were originally split into several different states, kingdoms, or governments, Gen. xiv. 1. Jos. xii. 7. Judg. i. 7. Strabo, Geograph. 16. p. 519. and other writers. Strabo, Geography, vol. 8, bk. 16, chap. 2.14 (p. 257) and chap. 4.3 (p. 311). It is not clear who the “other writers” are. But by degrees, several states being oppressed by violence, coalesced with others into a larger state; and many states being in danger from their neighbours, formed a still larger system or confederacy of republics. Thus the Amphyctionian confederacy shook the power of the Medes; and the Greeks, tho’ otherwise very inconsiderable, became strong merely by their union and consociation. See Jo. Henr. Boecler. de concilio Amphictyonum. Boecler, Synedrion Amphyktyonikon.]]
[* ] Hence experience teaches us, that the more extensive empires are, the less liberty they have; and empire daily extending itself and enlarging its dominions, necessity often obliges men, otherwise great lovers of liberty, to bear subjection with patience. For in a large but free and equal society, because the greater number will overpower the better part, bad councils must often take place and be pursued; and liberty degenerating into licentiousness, must create disorders, and rend the state into factions. In which cases, there is often no other remedy but subjection to one head, as it happened in the Roman republic, when Augustus usurped the sovereign power, according to the opinion of the most prudent among them. (Tacitus. annal. 1. 9.)
[† ] Cicero de off. 1. 17. observes, “that by every kind of union and friendship, many persons become one, and that because all think and will the same thing.” [[See Cicero, De officiis 1.17.59. Add. Catilin. 4. 7. So Apuleius de habit. doctrin. Platon, l. 2. p. 25. “A state,” says he, “is a conjunction of many persons, in which some govern, and others are governed, formed by concord for mutual assistance; and who being ruled by the same good laws, and having thus the same manners, constitute one body, every member of which hath the same will.” Apuleius, “On the Philosophy of Plato,” bk. 2, chap. 24, p. 288, in Apuleius, Apuleius’ Golden Ass or The Metamorphosis, and Other Philosophical Writings. We may learn the nature of a moral person from Seneca likewise, Ep. 102. as also from l. 30. D. de usurp. & usucap.]]
[* ] And hence appears the truth of what was said above (l. 1. §21.), that the law of nations is nothing else but the law of nature applied to a social state, and the affairs of societies and whole political bodies. Wherefore, it is justly called by Koehler, ibidem, “Jus naturale societatum, the natural law of societies.” [[Koehler, Juris socialis et gentium ad ius naturale revocati specimina VII. And hence likewise it is evident how sadly they reason, who, as it were, absolve empires and states from the obligation of natural law, and pronounce all things lawful to emperors which are for their private interest, or that of their empires. It was therefore a most accursed saying of Caesar (in Cicero de off. 3. 21.)Si violandum est jus, regnandi gratiaViolandum est, aliis rebus pietatem colas.
Cicero, De officiis 3.21.82: “If wrong may e’er be right, for a throne’s sake were wrong most right—be God in all else feared!” This is a Latin translation from Euripides’ play Phoenician Women, lines 524–25, in vol. 3 of Euripides.
Hertius has said a great deal to excellent purpose on this execrable doctrine, Polit. paed. §13. p. 22. & seq. It is not certain which work by Johann Nikolaus Hertius is being referred to here.]]
[3. ] Koehler, Juris socialis et gentium ad ius naturale revocati specimina VII.
[* ] Therefore the consociates in a mercantile society are not inhuman when they refuse a share in their monopoly to a private person, or another society. For that would be a detriment to themselves. Nor will any one say the Cimbri, Teutones and Helvetians, who seeking a new habitation to themselves, desired, as by their right, that the Romans would turn out in their favour, and leave them certain tracts of land they possessed. For that the Romans could not grant to them without manifest detriment to their republic. For as Florus says, “Quas enim terras daret populus, agrariis legibus intra se dimicaturus?” (3. 3). [[Florus, Epitome of Roman History, trans. Forster, bk. I, chap. 38, p. 169: “But what land could the Roman people give them when they were on the eve of a struggle amongst themselves about agrarian legislation?” And Caesar gave a very just answer to the Tencteri and Usipetii, who demanded much the same thing, “That there were no vacant lands in Gaul which could be given, especially to such a multitude, without doing injustice” (de bello Gallico, 4. 8). See Caesar, Gallic War, bk. IV, chap. 8, p. 189.]]
[* ] Thus, for example, it would be no small advantage to a family to be exempt from certain imposts and taxes; but because such an exemption would be detrimental to the republic; none will say its governors act unjustly, when they refuse it to a family that asks it. On the contrary, magistrates and princes would be justly blamed, if they should thus cut the nerves of a republic, in order to promote the private interest of certain families; and therefore, when Nero thought of taking off all the taxes, and making a glorious present to the people of a total immunity from them, the senate interposed, pronouncing it a dissolution of the empire to diminish the revenues by which it was to be supported, Tacit. Annal. 14. 50.