The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

Chapter XVIII

The Duty of Subjects

I.Twofold. L. N. N. l. 7. c. 8. §10.The Duty of Subjects is either General, arising from the Common Obligation which they owe to the Government as Subjects: Or Special, upon the Account of some particular Office and Imployment, that the Government imposes upon them.

II.General.Their General Duty respects the Demeanour of themselves severally, towards their Governours, the Common-wealth,76 and one another in particular.

III.Towards their Governours.To their Governours they owe Honour, Fidelity, and Obedience. Beside that, they ought to entertain good and honourable Thoughts of them and their Actions, and speak accordingly; to acquiesce with Patience and Content under the present State of Things, not suffering their Desires to wander after Innovations; not adhering to any Persons, or admiring and honouring them, more than they do the Magistrates that are set over them.

IV.The Common-wealth;In Reference to the Common-wealth, their Duty is, to prefer the Happiness and Safety of it to the dearest Things they have in the World: To offer their Lives, Estates and Fortunes with Chearfulness towards its Preservation, and to study to promote its Glory and Welfare by all the Powers of their Industry and Wit.

V.One another.Towards one another, their Behaviour ought to be friendly and peaceable, as serviceable, and as affable as they can make it; not to give Occasion of Trouble by Moroseness and Obstinacy, nor envying the Happiness of any, or interrupting their lawful and honest Injoyments.

VI.Their special Duties.And as for their peculiar Duties, as Officers, whether they influence the whole Body of the Nation, or are employed only about a certain Part of it, there is this one general Precept to be observed for all; That no Person affect or take upon him any Imployment, of which he knows himself, by the Sense of his Disabilities (whether Want of Strength, Skill, Courage, &c.) to be unworthy and uncapable.

VII.The Duty of Privy-Counsellors.Particularly, let those who assist at the Publick Counsels, turn their Eyes round upon all Parts of the Common-wealth; and whatever Things they discover to be of Use, thereupon ingenuously and faithfully, without Partiality or corrupt Intentions, lay open their Observations. Let them not take their own Wealth and Grandure, but always the publick Good, for the End of their Counsels; nor flatter their Princes in their Humours to please them only. Let them abstain from Factions and unlawful Meetings or Associations; dissemble not any thing that they ought to speak, nor betray what they ought to conceal. Let them approve themselves impenetrable to the Corruptions of Foreigners; and not postpone the publick Business to their private Concerns and Pleasures.

VIII.The Clergy.Let the Clergy, who are appointed publickly to administer in the Sacred Offices of Religion, perform their Work with Gravity and Attention; teaching the Worship of God, in Doctrines that are most true, and shewing themselves eminent Examples of what they preach to others; that the Dignity of their Function, and the Weight of their Doctrine, may suffer no Diminution by the Scandal of their ill led Lives.

IX.Publick Readers.Let such who are publickly imployed to instruct the Minds of the People in the Knowledge of Arts and Sciences, teach nothing that is false and pernicious; delivering their Truths so, that the Auditors may assent to them, not out of a Custom of hearing, but for the solid Reasons that attend them: And avoiding all Questions which incline to imbroil Civil Society; let them assure themselves, that whatever human Science or Knowledge returns no Good to us, either as Men or Subjects, the same deserves their Censure as impertinent Vanity.

X.Lawyers.Let those Magistrates, whose Office it is to distribute Justice, be easie of Access to all, and ready to protect the Common People against the Oppressions of the more mighty; administring Justice both to Rich and Poor, Inferiour and Superiour, with a perfect Equality. Let them not multiply Disputes unnecessarily; abstain from Corruption; be diligent in trying of Causes, and careful to lay aside all Affections that may obstruct Sincerity in Judgment; not fearing the Person of any Man while they are doing their Duty.

XI.Officers of the Army.Let the Officers of War diligently Exercise their Men on all Occasions, and harden them for the enduring the Fatigues of a Military Life, and inviolably preserve good Discipline among them. Let them not rashly expose them to the Danger of the Enemy, nor defraud them of any of their Pay or Provisions; but procure it for them with all the Readiness they are able, and keep them in the Love of their Country, without ever seducing them to serve against it.

XII.Soldiers.On the other Hand, let the Soldiers be content with their Pay, without plundering, or harrassing the Inhabitants. Let them perform their Duty couragiously and generously, in the Defence of their Country; neither running upon Danger with Rashness, nor avoiding it with Fear: Let ’em exercise their Courage upon the Enemy, not their Comrades: And maintain their several Posts like Men, preferring an Honourable Death before a Dishonourable Flight and Life.

XIII.Ambassadors and Envoys.Let the Ministers of the Common-wealth in foreign Parts, be cautious, and circumspect; quick to discern Solidities from Vanity, and Truths from Fables; in the highest Degree, Tenacious of Secrets, and obstinately averse to all Corruptions, out of their Care of the Good of the Common-wealth.

XIV.Officers of the publick Revenues.Let the Officers for Collecting and Disposing of the Publick Revenue have a Care of using needless Severities, and of increasing the Subjects Burthen for their own Gain, or through their troublesome and petulant Humours. Let them misapply nothing of the publick Stock; and satisfie the Persons who have Money to be paid out of it, without Delays unnecessary.

XV.The Continuance of the Duties aforesaid. L. N. N. l. 8. c. 11.All these Particular Duties of Subjects, continue during the Time of Employment: And when that ceases, the other expire also. But their General Duties are in Force, so long as ever Men continue to be Subjects; that is, ’till by either the express or tacit Consent of the Nation, they depart thence, to fix the Seat of their Fortunes elsewhere; that they are banished and deprived of the Rights of Subjects for their Crimes; or, being overcome in Battle, they are forced to yield to the Disposal of the Conqueror.

The END

two discourses and a commentary by jean barbeyrac

Note on the Translation

The eighteenth-century dissemination of Pufendorf’s Latin works owed not a little to the French translations, notes, and commentaries of Jean Barbeyrac. These had some impact, for instance, on the English editors of the 1716/35 edition of The Whole Duty of Man. Publicist and apologist that he was, Barbeyrac nonetheless had a mind of his own on certain key issues in the intellectual debate generated by postscholastic Protestant natural law. The three writings here, translated into English for the first time—the celebrated defense of Pufendorf against Leibniz in the Judgment of an Anonymous Writer, together with the Discourse on What Is Permitted by the Laws and the Discourse on the Benefits Conferred by the Laws—contribute both to Barbeyrac’s status as Pufendorf’s publicist and to his own standing as a natural law thinker. These three writings, which appeared as appendices in the fourth edition of Barbeyrac’s translation of the De officio, Les Devoirs de l’Homme et du Citoien, published in Amsterdam in 1718, are thus reunited in the present volume with Pufendorf’s text.

The reader will note that the Judgment of an Anonymous Writer constitutes a triangular exchange among Leibniz (the “Anonymous Writer”), Pufendorf (“our author”), and Barbeyrac (in his own first-person voice). In fact, Leibniz’s words have already been made available in English, in Patrick Riley’s 1972 translation from the original Latin.1 However, the continuous uninterrupted prose of that translation was not at all the form in which Barbeyrac’s readers encountered the exchange. As Barbeyrac informed them at the start of his translation of the German philosopher’s attack, he had broken Leibniz’s prose into twenty paragraphs, to each of which he then provided an appropriate response (some directly contradicting Leibniz, some conceding ground, some revising Pufendorf ). Whereas Barbeyrac indicated Leibniz’s words by use of quotation marks, we have thought it more convenient to print them in italics. Also, we have translated Leibniz’s critique as it was presented in Barbeyrac’s French, to capture the integrity of the latter’s triangulation of positions in this early modern debate on natural law.

The Discourse on What Is Permitted by the Laws and the Discourse on the Benefits Conferred by the Laws were originally delivered in French by Barbeyrac in his official capacity as Rector of the Lausanne Academy, in 1715 and 1716, respectively. Unusually for academic orations, each was published (and republished) in the year of its delivery before being included in the 1718 edition of Les Devoirs.2 It might seem to contradict the very point of his translation of the Latin of Pufendorf (and of Leibniz) into French for a spreading Protestant Francophone readership, but, as the reader will see below, Barbeyrac loaded the Discourses and the Judgment with Latin quotations, especially in the notes. His purpose was both practical and symbolic: to provide the Latin original as a means for readers to check the accuracy of his rendering (of both classical sources and of Leibniz), and to display the towering humanistic erudition of a natural law scholar whose library would grow to contain ten thousand volumes. In fact, for the most part, the Latin texts cited in Barbeyrac’s notes have their translation or paraphrase in the body of his text (which is here translated into English). However, in the fewer instances in which lengthy and interesting Latin notes do not have this English accompaniment, we have included an English translation.3

The Judgment of an Anonymous Writer on the Original of This Abridgment
With reflections of the translator, intended to clarify certain of the author’s principles

[379] There fell into my hands, a year or so ago, a Latin letter in which an anonymous writer1 gives his opinion on this abridgment, De Officio Hominis et Civis. The letter, which appeared in print in 1709, forms part of an academic program in which Justus Christoph Böhmer, a professor at Helmstadt,2 gave notice of twelve public disputations on the system of natural law that our author, Samuel Pufendorf, publishes in this short book. Anonymous, who is described as an “Illustrious Man,” doubtless had reasons for not revealing his identity. He feared, perhaps, that he would be suspected of wanting to denounce, as if out of [380] personal envy, a work that has enjoyed such general esteem. Perhaps for this same reason he preferred to publish his thoughts only within the context of an academic program, in other words in a printed form that has rather a limited dissemination. Or perhaps he never even thought that such a use would be made of the letter that the Helmstadt professor has released without seeking permission.3 Whatever the case, since his name has now been published, I trust there will be no offence to its author’s modesty if I give it a yet wider dissemination,4 not just by another reprint but by translating the work into one of the best known of modern languages. I shall not seek to draw aside the curtain behind which the anonymous writer is hidden, but leave each reader free to conjecture.

I shall do no more than record how, in reading his letter, I discerned the marks of a penetrating mind, one that was far from allowing itself to be swayed by the judgment of other men. I congratulated myself on the happy chance which had brought such a [381] tract to me, from such a distance, a tract of which not only had I heard no mention, even when I was living much nearer to the place where it appeared, but which must still be as rare as it is little known. Since I already knew that I would shortly have to deliver to the printer the abridgment, Les Devoirs de l’Homme et du Citoien, I resolved to adorn this new edition of my translation with the anonymous writer’s Judgment of the original, attaching to it my comments. This could contribute, it seemed to me, to a greater awareness that, if the work he criticizes is not without fault, since few are, it is all things considered nonetheless a good work.

I will confess once more the pleasure I had in discovering that I had anticipated the anonymous writer in respect of certain matters concerning which I had already written that I too was not entirely pleased with my author’s thinking. This led me to hope that it would not be taken amiss were I to defend him on other matters. If I so succeed, I take no great pride in it. Nor [382] do I in any way set myself alongside this “Illustrious Man” who, it appears, is a great genius. If, as he tells us, he had not read for a considerable time the work he is examining, and if it was doubtless just as long since he had read my author’s other works, it should come as no surprise that he had not understood my author’s principles as well as I, who have committed such labor to winning understanding for them. I shall therefore translate the letter in question, not in a continuous form but by interposing my reflections, to the extent that I shall have occasion. However, there will be no confusion. The separate elements of this little piece, that I shall number for the convenience of references and quotations, will be clearly distinguished by [italics], thanks to which it will be easy to recombine these elements should one wish to read the entire letter without interruption. I shall attempt to express the anonymous writer’s thoughts with the utmost exactitude; and I shall record in the margin, or in footnotes, the exact terms of his original, whenever I fear I might not have caught the sense, or for some other reason. Here follows the preamble.

It would surely be a grave fault, or rather a fault that would render the work in question inappropriate to its author’s purpose, if it was nothing but a kind of rhapsody, scopae dissolutae, arena sine calce, as it seems to be represented here. But I leave it to the public to judge whether, for all the faults one may find in the system of natural law outlined here and now known throughout most of Europe, one does not in general discern in it both fairly sound principles and a fairly clear link between the fundamentals of each particular topic and these principles. I admit that the whole is not arranged in the manner of the geometers, with Issues, Definitions, Axioms, Corollaries, etc., but their dry method is in no way necessary in every field of knowledge, and less so in those fields concerning manners than in any other. To bring to bear a geometric mind is enough, that is to say a precise mind,7 and this does not always depend on [384] a deep study of the abstract sciences: an orderly mind, precise and sharp, attentive to following the plan that has been adopted without admitting any major principle that is either false or doubtful or drawing a wrong consequence that cannot be traced back, from principle to principle, to the most general. I hope to demonstrate clearly, in examining what our anonymous writer says below against the principles expounded by my author, that, all in all, these principles are indeed well-grounded. And as for the consequences, let us take what chapter we will, and I dare say that we shall quickly be convinced—if we read him carefully—by our author’s breadth of reasoning on some truth that follows, directly or indirectly, from the general principles informing the work as a whole. It would be easy to show this by a full analysis: but that would go beyond the scope of my reflections, and be superfluous, given the book itself, where those who read the work can undertake the analysis for themselves.

For myself, I would wish that Anonymous was himself willing to give us a work such as he conceives a good system of natural law to be. He is without doubt more capable than anyone of fulfilling the program that he has proposed. My only fear, with regard to the “actions and exceptions in accord with nature” of which he appears to insinuate there are many, is that he may be confusing the subtleties of the civil law of the Romans with the simplicity of the natural law. We must take care lest we repeat here what happens when someone, offended by a few irregularities in a building that is otherwise solid and well-conceived, rather than seeking to remedy as best they can the inconsiderable faults, chooses instead to demolish the whole edifice and draw up a new plan, which in various ways could turn out to be far more defective.

I am not sufficiently acquainted with the last of these authors to judge whether he deserves the praise accorded to him; [386] nor do I know whether what he published on Grotius could lead us to attribute to him the capacity for something like the work at issue.8 As for Grotius, it must be recognized that he is the first to have systematized a science that, prior to him, was nothing but confusion and, more often than not, impenetrable darkness. With the result that it was scarcely possible this great man should have done more, above all in the times in which he lived. It can thus be said that his excellent work, Droit de la Guerre et de la Paix, provided a wealth of starting points sufficient to guide all who have subsequently worked, or who will do so in the future, to produce something more exact and complete.

[387] Grotius, in the book of which we have just spoken, and Pufendorf, in his great work De Jure Naturae et Gentium, frequently drew the comparison that Anonymous finds so useful. But I fail to see that it is so necessary in a system such as that in question, which must be designed for the needs of beginners and, as a result, should contain only the elements of the science. The admixture he proposes might rather be harmful, to the extent that it confused the picture, there being few civil laws that do not add something to natural law or otherwise change it. When one learned of natural law only those elements that appeared, piecemeal, in the civil law of the jurisconsults’ books, the ideas that one formed whether of natural law or civil law were anything but accurate. The truth of the matter is that before undertaking a comparative study, one must first gain a solid knowledge of natural law alone, only then proceeding to a comparison with the civil law, through study of the laws particular to each country. In this way there is no fear of confusion: it is simply a case of recalling and applying principles that one has already learned. This is the reason behind our author’s project of constructing a kind of Index on the books of Roman law, to distinguish that which belongs to natural law [388] from that which belongs to positive law. And we can only wish death had not prevented him from executing this project, as well as certain others, of which he speaks in the Preface to the second edition of his major work. If the jurisconsults and theologians make little use of natural law in deciding the particular cases with which the affairs of life confront them, this is scarcely because in studying natural law they did not compare it with the civil law of all peoples on earth. Rather, truth be told, it is because most of them never studied natural law or, if they did, they studied it wrongly.

Here revealing himself as German, Anonymous could have added that it is not only in Germany that the work which he finds so defective is considered one of the best or even the very best of its genre. Elsewhere, it is regarded [389] similarly, including among nations that are somewhat too liable to discount what comes from abroad, especially from certain countries. I shall not speak of the manner in which the French translation was received: but I can confirm that prior to this fourth edition, there was a fourth edition of the English translation,9 which was in fact a fifth, since from what I learn this little work was included in its entirety in an abridgment of the De Jure Naturae et Gentium that has just appeared.10

I had already observed in the first edition of my translations both of the major work, De Jure Naturae et Gentium [Book II, chap. iii, §.21, note 6 of 1st Edit., note 7 of 2nd and 3rd Edit.] and of its abridgment De Officio Hominis et Civis [note 1, §.6 of Preface], that all consideration of the life to come must not be excluded from natural law. In order to show this, I adopted the same argument that Anonymous uses, following others. Our author has never denied the principle on which this argument rests: far from it, he recognizes it himself, in that part of his major work where, concerning the choice of advantageous things [De Jure Naturae et Gentium Book I. chap. iii. §.7],15 he cites a passage from Arnobius [In my translation these passages were transposed to note 5] and refers to Pascal’s fine chapter on the issue.

I do not examine here whether the proofs that human reason alone offers of the immortality of the soul, and of the rewards and punishments of another [393] life, have demonstrative force, as Anonymous submits. Nor do I examine whether the contrary might not appear with the instance of the wisest heathens, who could only speak of this important truth without full knowledge, even though they had discovered the very reason which is asserted here, and which is indeed the strongest of all.16 It suffices for me to observe that Anonymous proceeds to argue in such a manner as to reveal that he lacks accurate and consistent ideas as to the nature and force particular to duty. Whereas our author’s slight omission can be excused on the grounds that he was led to it by his noble conception of the impressions surely made by the mere sight of law on the heart of any reasonable person. Anonymous evidently confuses duty and the effects or the motivations that observing obligation produce; that is, he confuses the immanent force of duty and the impact that it has on men’s spirit, given the make-up of the majority. Absent consideration of reward and punishment in the life to come, so he claims, one would have no reason not only to “expose oneself to loss of property, honor or even life itself on behalf of those who are dear to us, or on behalf of country, or state, or to uphold law and justice,” but one could even “be at one’s ease, and live among honors and riches, at the expense of others’ prosperity,” or by doing whatever harm one can to others so as to destroy their business and bring them to despair. For that is what [394] is entailed by the expression in the original, eversis aliorum rebus, far stronger than that of my translation. Without the prospect of a happy immortality after this life, so he supposes, one’s practical conduct could measure up to one’s duty only through desire for an illusory immortality. According to our author’s principles, one is obliged not only not to harm others, in order to procure some benefit to oneself, but also sometimes to sacrifice one’s property, one’s honors and even one’s life, regardless of the prospect of rewards and punishments in the life to come,17 and for the simple reason that these are duties imposed on us by the wise author of natural law, by the sovereign leader of the universe. Which of these two moral codes, I beg you, is the purer, the more noble? Which most conforms to the ideas of the heathen wise, who distinguished so well between the virtuous and the useful? But how can we reconcile Anonymous’s argument with his statement that there is a “degree of natural law valid even for an atheist”? Or with what he further maintains below, in section 15, namely that “there would still be a natural obligation even were one to allow that there is no God”? If ever there was a palpable contradiction, this is it. For, once you postulate that there can be some obligation, properly so-called, some indispensable necessity to act or not to act in a certain manner, independently not only of the life to come but also of the existence of God, then all duties—excepting those directly concerning God Himself—are in place, since, as Anonymous recognizes (section 13), they all have a real foundation “in the very nature of things.” See my comment on section 15.

So in seeking to pick our author up on a simple omission, Anonymous has put himself into difficult straits. There are clearly two different questions: Why is one obliged to do or not to do certain things? And: What is the motive best able to drive men to practice what they recognize as their duty? As to the latter question, we easily recognize that the motive of utility—above all, the punishments and rewards of the life to come—is what determines the greatest number of people. From this we see how greatly men needed a clear and certain revelation of the state of the life to come. A revelation, nonetheless, whose goal is not to bring men to virtue or to turn them from vice solely on consideration of their interest, but rather to lead them in this way little by little to fulfil their duty for a nobler motive: to find in the practice of virtue this profound pleasure, of which Anonymous speaks, the pleasure that is produced not by the prospect of rewards or less still by the prospect of punishments in the life to come, but by long and deep reflection on the sheer beauty of virtue. For there are wicked persons who are struck by the fear of ills and the hope of good to come, but who for all that remain insensible to the pleasure of the practice of virtue, or to the horror of vice. They desire [396] eternal happiness, yet remain far from loving that which alone can lead them there, and which for its own sake merits our love.

Considering utility alone, we would still have good reason to commit ourselves to virtue, and to flee from vice, regardless of the rewards and punishments in the life to come. Of itself, virtue is certainly more fitted than vice to render us happy in this world. And in the normal course of things, there is far more evidence that we gain a solid advantage from living a good life, rather than letting ourselves lapse into disorder, as our author judiciously remarked in his major work [Book II, chap. iii, §.21], where I included a very fine passage from Isocrates on this topic [note 4]. The question has been discussed very fully by various authors.

But softly, please. Parcius ista viris tamen objicienda memento, etc. When it is a question of a person whose merit is undeniable, we should—it seems to me—before accusing him of advancing absurdities be sure to have examined thoroughly whether there is not a way to give a positive turn to his thoughts. I am myself astonished that [398] Anonymous, in transcribing so many passages, failed to take note of something essential which lies between two of those he quotes and which would have forced him to step back from his astonishment and to moderate his zeal. In paragraph 9 (paragraph 7 in my translation) it is explicitly stated that “natural law is concerned in large measure to form men’s external actions.”18 What is more, in one of the passages that Anonymous actually cites, does not our author say that the rules of the divine tribunal, whose jurisdiction is over internal actions, “are principally the concern of moral theology”?19 According to our author, then, there is some other science, a natural science, which does not neglect these rules governing internal actions. Note should also have been taken of what our author says in his major work (Book I, chap. viii, §.2) and in this present abridgment (chap. ii, §§.11 and 12). It should have been recalled that he treats the issue of conscience and its different kinds (Book I, chap. i, §.5 et seq.). But this only serves further to show decisively just how unfounded is Anonymous’s censure. Only the author of an action can know and judge for sure whether that action is morally good internally, as well as externally. On this no other person ever has anything but signs to go on, and these are notoriously equivocal. Now one learns natural law in order to judge the actions of others, as well as one’s own. In consequence, the application of the rules of natural law [399] most often has to be limited to the external act.

As is clear from the very passages that Anonymous cites, our author’s wish is to speak of this application to actions whose principle we can penetrate only through some effect or some external sign. His wish is to speak of those things that the human tribunal can know. Moreover, is it not true that the greatest number of natural laws turn on what men have a right to require one of another? Now this right does not extend beyond the external act. Once one has done in this regard all that one was required to do, whether the internal act was as vicious as you please, nobody can ask any more of us, nor, finally, must they do so, even though the internal principle of the action by which one has acquitted oneself of what was required had something about it that the divine tribunal and our own conscience would condemn. The author does not exclude from the ambit of natural law that judgment which each can and must exercise over their own actions, to assure oneself that they are good and innocent in all respects. Rather, he simply generalizes this judgment as the application of the rules of natural law to particular cases, in consideration of the morality of this or that action on some person’s part.

These reflections are all as ill-directed as they are commonplace, and they remain inseparable from an invective based entirely on the false assumption of which I have just spoken. Has Anonymous forgotten that, in the Chapter “On duty to oneself,” our author seeks above all to have us see that natural law [401] wants each of us to work at forming his mind and his heart by filling the former with true and useful knowledge, and by ruling the inclinations of the latter? The passage that we are offered from Cicero is not taken here in its proper sense.21 For Cicero it is a question neither of purely internal acts nor of external actions considered as being or not being the effect of a good internal disposition, but simply of certain injustices or certain more sophisticated frauds unpunished by the civil law, despite being outwardly manifest, as well as other cruder ones. This is clear from all the prior and subsequent arguments and examples. Immediately before the formulation in question, the Roman orator had just spoken of those who do not reveal in good faith to a buyer the faults they know to exist in the thing they are selling.

This remark appears to have been added subsequent to the composition of the letter as a whole, and is therefore badly placed, interrupting the flow of the argument, as anyone can see. Anonymous continues to assume, mistakenly, that according to our author consideration of acts internal to the soul in no way falls within the ambit of natural law. Yet, surely, do not oaths [402] essentially embrace an exterior as well as an internal act? The force of the exterior act, I admit, derives from the disposition of the one who swears the oath. But, aside from the fact that this disposition, by very virtue of being internal, remains hidden from other men who can only presume as to its nature, is one not obliged to keep an oath that has been sworn as to something neither illicit nor invalid, even though one did not intend to swear? And would it not be very bad form to swear to an illicit subject, even though one only mouthed the oath?

This is called singing the same song, eadem oberrare chorda. One has only to look at what our author says in this abridgment (Book II, chap. iii, §.2 and chap. xi, §.4), not to mention his major work, where he expands considerably on this topic. Then one will be amazed to find so many wasted words in so slight a piece as is this letter by Anonymous.

[404] There is nothing more arbitrary than the division of the sciences. Provided that everything belonging in those sciences which have some common relationship finds a place in one or another of them, and provided that in treating a particular science whose boundaries have been specified nothing essential has been omitted from the scope as prescribed, no one can ask more. Now here is our author’s own response, one that he gave long ago. From this it will be clear that, in what Anonymous calls a “rectification” of Pufendorf’s opinion, the latter’s partisans have simply followed his ideas: “Whosoever has read my book De Jure Naturae et Gentium with a fair mind,” he says in Specimen controversarium (chap. v, §.25), “and not with an intent to quibble or to defame me, will easily recognize that the principal task I set myself was to explain the mutual duties men have to one another and the law that exists among them. On this matter, it is clear, no more fitting principle could be found than sociability. And therefore, in this work, there is no chapter on natural religion, which belongs to the natural science that concerns divinity, a science that some attach to the first philosophy, others to natural theology, since it is the part of the natural sciences that concerns divinity. Later, however, when I had to offer for the young an abridgment of De Jure Naturae et Gentium, I borrowed from natural theology or, if you will, from first philosophy, a chapter on natural religion for inclusion in this short work.” Given such a declaration, which was not made yesterday, our author should be well protected against the arrows of a less than temperate critique. [405]

Divine justice and human justice indeed have something in common, and never stand in opposition one to the other. But there is nonetheless so great a difference between them, in respect both of their origin and also of their reach, that one cannot say—to put it precisely—that divine justice is the source and measure of human justice. God is by His nature just; He can neither act, nor wish to act, other than justly. It is in Him a happy impossibility, and a glorious necessity, that comes purely from His infinite perfection. Men, by contrast, are far from being naturally just. Justice is a quality that they have to acquire, and this [406] obligation is imposed on them by some external principle, that is to say, by the will of God Himself, and not by His justice, as we shall see shortly. It is human justice that is recognized, rather than divine justice, as I have said, echoing our author, in Droit de la Nature et des Gens (Book II, chap. iii, §.5, note 5). Concerning the question of reach, the sheer excellence of God’s nature entails that there are certain acts of human justice which absolutely could not relate to Him, a point that our author also makes in his polemical works at the places to which I refer in my note as cited. Anonymous, who should have read and refuted all this, will be obliged according to what he recognizes at the end of this paragraph at least to find our author not guilty of the charge he laid against him, namely of advancing a “dangerous error.” The passage I have cited in relation to the previous paragraph makes it clear that our author in no way excluded the “consideration of internal probity” from the philosophical sciences.

What Anonymous here terms, in scholastic style, the “efficient cause” of natural law is nothing other than the reason why one is obliged to conform to the maxims of the natural law. Our author recognizes (and we must not fail to say this) that these maxims, considered in themselves, are grounded in the very nature of things, such that God could prescribe nothing to the contrary without contradicting Himself. [408] (See Droit de la Nature et des Gens, Book I, chap. ii, §§.5 and 6, and what I have cited from his other works in chap I, §.4, note 4.) But, he maintains, it is not consideration of the nature of things that properly and directly imposes the necessity of acting in one particular manner rather than another. It is here that Anonymous believes he is criticizing our author most tellingly. However, if the reflections we shall offer on what he says above are carefully considered, I hope there will be agreement that he is perhaps nowhere more ill-founded than here.

First, let me observe that the whole paragraph is beside the point since, as Anonymous himself recognizes (section XV), according to our author all men, no matter what their state, have a superior in common, namely God. Why create monsters for oneself, just in order to fight them? Why draw an odious parallel with Hobbes’s principles, which are so diametrically opposed to those of our author?

Those who reject, correctly, the voluntary law of nations that Anonymous along with the [409] run of scholastic jurisconsults accepts, do not base their argument on the fact that nations, having no superior in common, cannot make a valid reciprocal pact. Rather, they say, as is the case, these pacts are not laws properly speaking, since they are made between equals, whereas every law is imposed by a superior. They maintain, moreover, (and no one has proved or will prove the contrary) that there is no general pact among all peoples with respect to purely voluntary things over which this supposed law of nations should have jurisdiction. The whole extent of obligation that there can possibly be with respect to the matters brought before it, and it is indeed truly voluntary (for some of the articles attributed to the law of nations are found to be based in natural law and thus are not contingent on the agreement of peoples) [see Droit de la Nature et des Gens, Book II, chap. iii, §.23], the whole extent of obligation, I say, that there can be with respect to truly voluntary things derives, to my mind, from the fact that custom having established these things little by little among the majority of peoples, without there being any general agreement between them, one is and can be assumed to want to conform to them, as long as in any such matter, one gives no clear sign that one does not wish to follow the custom, as anyone is free to do. This remark, whose application will be seen in my notes on Grotius, serves to dispel even the most specious claims of the partisans of a voluntary law of nations.

Anonymous begins very weakly here, representing as the effect of a favorable judgment an apparent softening of view, whereby he insinuates that our author, out-of-step with himself, now foresaw the danger of certain consequences. One would think it was almost only by chance, and certainly not planned, that our author speaks of God as the supreme sovereign of all men [quod etiam subinde fit ab Auctore &c.]. Yet isn’t this precisely a principle that provides the great foundation of his whole system?26 It angers me to say this but, finally, nothing is truer, and it would be useless to hide what I am obliged to point out: Anonymous has undertaken to criticize our author [413] without sufficiently understanding his principles, and this explains why he does not really grasp the question as it now stands.

Our author does not claim that all we call law or justice derives from will, still less from the free will of a superior. He speaks of law and justice as these apply to dependent subjects; he seeks the rule of human actions. He has said again and again that God is supremely just;27 that He follows inviolably the rules of justice that conform to His infinite perfections, such that He neither wills nor could will to act otherwise. Likewise, because of His independence, no one has the right to require Him to act in such and such a manner, nor to call Him to account for His conduct. Regarding men, our author has also recognized that, though they are subjects in the empire of the Creator, it is not God’s free will that makes law and justice; and that God could not, without shattering His perfections and contradicting Himself, prescribe for men rules other than the rules of justice, which are founded in their nature. But, this withal, he maintains that the proper and direct reason why men are obliged to follow the rules of justice, and which imposes on them the moral necessity to conform to those rules, is the will of God who, as their sovereign lord, has complete right to curb their natural liberty, as He judges fit.

In this way we dispose of the “dangerous consequences” that Anonymous, over-eager to second the prejudices and passions of certain [414] scholastic theologians who attacked our author during his lifetime, wants to draw from an innocent opinion, concerning which we had sufficiently rebuffed sinister interpretations. So the question reduces to this: whether it is the will of God itself, or some other thing, that constitutes the near and immediate ground of that indispensable necessity whereby men are to do that which God surely wants them to do?

Anonymous is inconsistent in his principles: he says too much, or he does not say enough. He grounds the obligation to observe natural law in the “very nature of things, and in the maxims of right reason that conform to it” (section XIII), maxims which consist in “certain rules of equality and proportion” (section XV). Indeed, he posits that “there would still be a natural obligation even were one to allow that there is no God.” However, his view requires that “a law derived from this alone would be far from perfect” and limited to what “the concern of each for his survival and advantage” demands. Now these “rules of equality and proportion, these maxims of reason conforming to the nature of things,” surely occur in all duties, no matter what? Anonymous makes and can make no exceptions. He must therefore recognize that, with the exception of those duties that directly concern God, all others will retain their full force, even were it granted that there was no divinity. For when all is said and done, the nature of things remains the same, and while the writer speaks of “the ideas of the divine mind,” it is not in these ideas that we contemplate the nature of things and the relations deriving from them, just as it is not in a rarified metaphysics that we [415] must seek sound principles of natural law and morality. But here too, Anonymous (as he already did above, in section VI) patently confuses the honest with the useful, something which is also evident in the example he proposes of a “group of bandits.” For is it a principle of honesty that sees these rogues divide up the booty in equal shares? Does anyone believe that, occasion permitting, they would conscientiously not make off with more, or that we should grant them this scruple, as if it was a duty they had fulfilled?

There is thus no middle point: either obligation to the rules of justice among men is absolutely independent of the divinity, and grounded solely in the very nature of things, like the “principles of arithmetic and geometry”; or it is no way grounded in the nature of things. Now, of itself, the nature of things could not impose an obligation upon us, properly speaking. That there is such and such a relation of equality or proportion, of propriety or impropriety, in the nature of things, of itself commits us only to recognizing that relation. Something more is required in order to constrain our liberty of action, in order to command us to govern our conduct in a certain manner. Nor can reason, considered in itself and independently of the Creator who granted it to us, absolutely compel us to follow these ideas, although endorsed by them, as founded in the nature of things. For:

1. The passions counter these abstract and speculative ideas with ideas that are sensuous and palpable. In many actions where there is some relation of impropriety, the passions reveal to us [416] a much more vital relation, a sense of pleasure that comes with these actions at the point where we commit to them. If the intelligence of our mind diverts us from actions of this sort, the inclination of our heart draws us all the more strongly on. Why then would we follow the former rather than the latter, if there is no external principle, no superior being that compels us? In this supposition, is not the inclination of the heart as natural as the ideas of the mind? Reason, you will say, clearly shows us that by observing rules of propriety founded in the nature of things we shall be acting in a way more fitting to our interests than if we allow ourselves to be led by our passions. But, without speaking of what the passions could say to counter this advantage, it is not a question here of utility, it is a question of duty and obligation. I agree, as I have already indicated, that if we weigh the matter as we should, we shall convince ourselves that, everything considered, our interest requires that we follow what reason dictates. Yet is not each of us free to renounce our advantage, as long as nothing prevents us from doing so, as long as there is no other person with an interest in our doing nothing contrary to their interests, and who has a right to require that those interests be met? Thus in not conforming to the ideas of propriety, founded on the nature of things, one would merely be acting imprudently, and imprudence is not here opposed to a duty, properly speaking, because we are still asking whether duty as such exists.

2. But what must be addressed above all, [417] and what is enough to destroy the thought I am fighting, is the fact that our reason, considered aside from any dependence upon the Creator from whom we receive it, is finally nothing other than ourselves. Now no one can impose on himself an unavoidable necessity to act or not to act in such or such a manner. For if necessity is truly to apply, there must be absolutely no possibility of it being suspended at the wish of him who is subjected to it. Otherwise it reduces to nothing. If, then, he upon whom necessity is imposed is the same as he who imposes it, he will be able to avoid it each and every time he chooses; in other words, there will be no true obligation, just as when a debtor comes into the property and rights of his creditor, there is no longer a debt. In a word, as Seneca long ago put it, no one owes something to oneself, strictly speaking. The verb “to owe” can only apply between two different persons: Nemo sibi debet … hoc verbum debere non habet nisi inter duos locum (De Benefic., Book V, chap. viii).

I conclude, then, that even the maxims of reason impose no obligation, no matter how conformable they are to the nature of things, until this same reason has revealed to us the Author of the existence and the nature of all things. The question now is to see from where obligation therefore derives, whether from the will of God, or from some other thing that is in Him.

It seems to me that here there is little ground for hesitation. For from the moment that one has [418] a just idea of God, one cannot but recognize His right to set whatever limits He pleases to the faculties He has granted us. Nor could one prevent oneself thinking that He surely wishes men to follow the light of their reason, as that which is best in them, and which alone can lead them to the destiny of their nature. Moreover, in His will is found all that is required as the ground of obligation, since it is the will of the master of all men, a will always in harmony with the every perfection of the divine nature. Why then go in search of some principle other than this, which lies within reach of everyone, and which follows so naturally from the relation between Creator and creature?

Take whatever other attribute of the Divinity you please, detach it from His will, and you will not find a more solid foundation for obligation than in the very nature of things. If, to do the impossible, one could conceive in the manner of the Epicureans a God quite unconcerned with whether or not men acted in a manner that accorded with the nature of things and with their own nature, the vision of such a Divinity, even granted all its infinite perfections, would at the most constitute only an example. And the example alone cannot impose an absolute necessity to imitate it. Or again, if you do not suppose that God wishes men, and all intelligent creatures, to observe among themselves the rules of justice, what then becomes of justice? Towards whom will justice be exercised? What use will be made of it? Will it be holy and just, if it [419] is indifferent to Him whether or not men observe the rules of justice, or if He does not absolutely oblige them to do so?

To say that He obliges them, although they were already obliged before He willed them, would be to say that this will is here reduced to a sort of accessory which, at the most, serves only to strengthen the obligation. It would be to diminish the reach of His supreme authority, to reduce it to directing things indifferent in themselves. It would be to attribute to the will of God, in respect of the rules of justice, no greater force than that of a prince, a father, a master or any other superior here below, who wishes his subordinates to be good people. Finally, is there anything more basic in Holy Scripture than to express the practice of duty, of attachment to virtue, by “doing the will of God”? If sometimes God proposes His example to be followed, it is to show that He asks of men nothing that he does not do Himself, insofar as His supreme perfections require or allow it [Matt. V, 48; Luke VI, 36], and that He is not a cruel master [Matt. XXV, 24].

These reflections, some of which miss the present point, in no way contradict our author’s principles. Although one grounds the obligation (properly so-called) to practice the rules of justice in the will of God, who, as our sovereign lord, imposes this unavoidable necessity upon us, it in no way follows that one must obey God only [421] as one obeys a tyrant, or from a pure motive of fear. Frankly, Anonymous is too liberal in drawing odious consequences from those principles that have the misfortune to displease him. Whoever has a true idea of God knows that He is good, as well as great, and that His will necessarily conforms with His perfections; wise and holy, He can will nothing that is not just and which, moreover, is not for our good. It follows, then, that even when God wishes us to do things indifferent in themselves, one must obey Him as one obeys a good father, not as one obeys a tyrant. To conform to this wholly good and sacred will, on which we recognize that we depend, is to act according to duty; this is what imposes moral necessity on all men, regardless of any other consideration. Hope or fear are only motives to encourage us to practice duty, to overcome the resistance we may find within us, and to sustain us in the midst of strong temptations.

It does not advance matters to pose the question of which is acting more justly, whether it is the man who commits himself to his duty from motives of hope or fear, or the man who practices duty from the inclination of his heart. This happy inclination, to be worthy of praise, must surely have to be informed and, in this respect, produced by a precise idea both of duty itself and of God, in whom one can reasonably [422] distinguish the relation of Creator and master of humankind from His will that men observe the rules of justice, in keeping with their nature.

In order to say something substantial against our author’s principles, it would require asking which of the two is the more just, whether it is the man who commits himself to virtue because he believes that the holy will of God imposes this obligation on him, or the man who, without knowing or thinking that he depends on God, and that God wishes him to follow the maxims of virtue, would observe these as simple rules of propriety, founded in the nature of things, or, if you will, in the “eternal truths which are the objects of the divine mind”? It is for Anonymous to answer the question.

I shall comment à propos of what he says concerning the impulse to good conduct, that in God it is truly a great perfection not to be able to act otherwise than in keeping with His nature; when it comes to men, however, essentially imperfect as they are and subject to a certain law, it is good fortune rather than merit to have whether by birth or education the happy disposition that makes us commit ourselves easily to duty.29 In this way, it is the man who, encountering great obstacles, whether in his temperament or in the bad habits he has been allowed to acquire since childhood, works to overcome them and in the end succeeds, is without contradiction more just and praiseworthy than another, for whom being a man of virtue has cost almost nothing.

What I have just said wholly cancels the advantage that Anonymous claims for his own doctrine, at the expense of our author’s, in respect of the “practice of true piety.” We, on the contrary, in arguing against him, can claim a very real advantage that lies manifestly with us. It is that we equally avoid the two vicious extremes to which men have been drawn on this question: one is the false thinking of the philosophers and theologians, who have maintained that justice depends on an entirely free divine will whereby God could, were He so to wish, render the unjust just; the other is the opinion of those who, conceiving justice to be independent of the will of God, and founding it purely in the nature of things, have also depicted virtue as independent of religion, and atheism as a doctrine that retains morality and natural law in all their force. Monsieur Bayle, as we know, in pleading for atheists, has made great efforts to show that “they can believe themselves obliged to conform to the ideas of reason as a rule of the moral good, as distinct from the useful” (Continuation des Pensées sur la Comète, art. clii).

Having thwarted the attempt to draw false consequences from my author’s principles, and having shown that these are, instead, the soundest of principles, I may—so it seems to me—regard the conclusion of Anonymous as null and void. On the contrary, I declare that, without detriment either to the state or to youth, [425] this abridgment, Les Devoirs de l’Homme et du Citoien, may be placed in hands of all who wish to study natural law. If it is not free from all shortcomings, it nonetheless poses no dangers. Its principles are in general excellent, and it would be easy for me to show that one may correct that which is not wholly exact by changing a handful of lines here and there. Let us be fairer, and more reserved, when it comes to criticizing the works of others because of a few faults that we detect in them. Whoever undertakes to write for the public has an interest in this.

But I am weary with having to repeat that Anonymous still confuses propriety with obligation, and interest with duty. Let us see if the comment on the different usage of the Latin word officium has led to some great discovery, as we are promised in the following paragraph.

What Anonymous proffers here as a thought original to himself, and consequently unknown to our author, is nothing but an idea of the ancient Stoic philosophers.32 And our author was so far from not knowing this idea, that he speaks of it explicitly as an idea that he does not reject, but rather treats as popular: “If it was fitting,” he says, “to employ popular ideas, one could say that this world is like a great state, of which God is the sovereign.”33 So it is with the doctrine of Anonymous, as with those of many other moderns who, seeking to say something new, have done little more than change the language, with the result that they end up coming back essentially to our author’s doctrine. Indeed, this “universal justice” in “the whole society of men,” under the empire of God, what is it other than the laws that God prescribes to men as their master? Consequently, natural law draws all its force from the authority and the will of this supreme legislator. As for the regulation of our internal “sentiments” and the need to gain for oneself the “friendship with God,” it suffices to refer back to what was said above, on sections VI–XI and XVI.

The vicious circle imputed to our author disappears, I have no doubt, in the sight of those who have read what I said above regarding section XV. Every superior, below God, bears an authority founded on reasons, the justice of which derives from some law of nature, being related to the rules of that justice whose obligation truly emanates from the will of a superior, or from the will of the king of kings and the lord of lords. But this supreme being’s right of command is founded in reasons whose justice is immanent, such that they do not need to draw their force from elsewhere. Before knowing God, or when taking no account of His existence, we perceive nothing so great as to merit the homage of our submission of our will, nothing so just as to be a rule that we believe we cannot dispense with. Our liberty of action, that noble faculty at the root of our nature, cannot find in the nature of things anything with sufficient force to constrain that liberty: the relations of propriety, order, beauty, honesty, relations to which justice reduces, remain so many speculative notions until we understand that He who is the author of the nature of things and of the reason that reveals them to us, approvingly, wants [431] us to conform our external and internal acts to these relations. At this point duty begins: the will of the supremely perfect being is the rule of our will, and, beyond doubt, He who made us in all that we are can require that we do not do all that we might wish to do. Once we have recognized in His will the ground of obligation, we then find in His goodness and His Strength the greatest practical motives to encourage us and to enable us to fulfill our duty. I leave it to the reader to judge whether this doctrine contains anything that is not dependable and consistent.

As to what our author says concerning force linked to reasons, note should have been taken of the words “with impunity” that appear in the passages cited, because this is the key to his thinking. If the superior, he writes, “has good reasons for requiring my compliance, but lacks the force necessary to make me suffer some ill should I refuse to obey him with good grace, I can then with impunity disregard his authority, unless, etc.” He does not say: “I can then with reason disregard his authority.” He does not claim that duty ceases at this point, and that “just reasons” here lose their force; he speaks of the impression that these reasons could then have on the disposition that characterizes most men. This is enough to discredit all the arguments that Anonymous advances on this matter.

I nonetheless admit that our author’s thinking is not sufficiently clear at this point, since he should have drawn a sharper distinction between that which correctly gives the superior the right to command and, on the other hand, that which enables him to command effectively. I indicated this in a short note, [432] the first note on the paragraph in question. I am not one to be dazzled by authority, or to find justifications for someone at any price; as will be clear from the longer note that follows in the same place, I picked out other shortcomings that Anonymous either did not notice or for which he excused our author. But all these little faults do not mean he has not shown the right way or that his doctrine, overall, is not well founded. Though I may, it seems, have developed some points a little better than did our author and rectified some details, I am concerned not to claim the glory that is due to him, and not to attribute to him my own thoughts, for which I remain in his debt.

I will offer just one further remark, with respect to the example that Anonymous proposes of the Christian invalid who falls under the power of a Turkish doctor. Just as it is not as an invalid that this prisoner is a prisoner, so it is not as a doctor that the doctor has command over the other’s body. The relations are different. Thus I do not see what is the point of comparing the remedies of this doctor, as doctor (or, rather, the content of these remedies, for one can scarcely suppose, as we would have to, that he composed these remedies before the invalid was taken prisoner, but only that the invalid knew beforehand the utility of the things prescribed), what is the point—I ask—of comparing these remedies as to whether they were made before or after the invalid’s captivity? Both before and after, in prescribing [433] things beneficial for the sick man’s health, the doctor always acts as a doctor, not as a master. Or if he wishes to use force to oblige the invalid to take the remedy, he no longer acts as doctor. But whether the doctor orders the remedy as doctor or as master, the obligation to follow the remedy comes from elsewhere, or from that natural law whereby each works to conserve the life that God has granted, and consequently adopts to this end all legitimate means, no matter who brought them to his knowledge. What Anonymous has to say about the “chance to escape,” like the example as a whole, is irrelevant. So let us come to the conclusion.

The reader will draw for me the opposite conclusion, one that follows from what I have said. Suffice it for me to add a word on the principles that Anonymous wishes to substitute for those of our author.

For my part, I admit that I find only great vagueness here. What Anonymous proffers as the “efficient cause” of natural law and with which we should begin is the general principle of all the natural sciences. For is there any of the true natural sciences that does not emanate from this “light of eternal reason that God has kindled in our spirit”? The object (or, to speak more precisely, the matter of natural law, for the object is more correctly those who must observe this law), the object as Anonymous establishes it, given his preference for remaining at the level of generality, is reduced to the principle of sociability; for I cannot think that Anonymous, in the words quidquid aliorum interest, seeks [435] to include God himself, and thus to imply, or give us reason to believe, that it is the concern of God that we should pay Him our homage, or that He who is sufficient to Himself has need of His creatures and can find some utility in what they do. Finally, the end of natural law—which Anonymous would have lie in “the good of those who observe it”—offers us nothing that is not common to the practical sciences, all of which propose a certain good, a certain advantage. It remains to be seen which good is particular to natural law. Are these really the “rich and illuminating definitions” for which we have been waiting?

At Lausanne, this 1st of October, 1716.

Discourse on What Is Permitted by the Laws
In which it is shown that what is permitted by the laws is not always just and moral

Magnificent and most honored Lord Bailiff, most honored Lords of the Council of this City, learned and respected members of the Academy, my most honored colleagues, listeners of no matter what rank, sex and age.

The subject I have chosen will be for many a great paradox, both in itself and coming from me. It is usual to set the probity and the duties of a good citizen squarely within the frame of what the [438] laws of the land require.1 It is an equally common assumption to imagine that knowledge and observation of the laws must constitute the entire scope, indeed the non plus ultra, of the studies of a jurisconsult, a man of law, an advocate and, in general, all who are involved in work that has some relation to the laws. But the great masters of the art, the wise inventors of the most famous and the most widely received laws, in other words the jurisconsults of Ancient Rome, were of a different mind. They professed a substantial philosophy that embraced the whole extent of justice and equity; they proposed to turn men into good persons, not only through fear of punishment but also through love of virtue, which carries its own reward;2 they drew a careful distinction between the rules of law, that determine the findings of the judge (see Monsieur Noodt, Julius Paulus, chap. x), and the precepts of right, that determine the conduct of a good man. As their maxim, they proposed: “Not everything that the laws permit is just and moral.”3

It is this same maxim that I want to set down and develop. If, on an occasion such as this, one can discuss matters more appealing to those whose only wish is for amusement, there is [439] scarcely any matter that could be more useful for everyone. After all, why should discourses of this sort not be designed in such a way that each person can take from them something amusing and something that can be put to profitable use? So let us try to convince those who either do not know, or who do not pay adequate heed to the fact, that, setting aside even the imperatives of Christianity, for something to be judged innocent, it is not enough that it is permitted or authorized by the laws. There are two different ideas here, each of which opens up a vast field for our considerations: the idea of a tacit permission, and the idea of an explicit entitlement. Sometimes the laws pass in silence over certain bad actions that they consequently permit; and sometimes the laws positively authorize performance of such actions. Today, we shall limit ourselves to the first of these two headings.

The question reduces to knowing whether the civil laws are the sole rule of citizens’ conduct. For if they are not, if there is another rule, prior and higher, it is clear that something is in no way rendered innocent by the mere fact that the laws of the land do not forbid it, either directly or indirectly, either expressly or by implication.

Now, as to there being another rule, prior to and thus the very measure of all civil laws, [440] this is what the wisest and most enlightened persons among the civilized peoples have always agreed.4 There have always been ideas—more or less distinct, more or less far-reaching, more or less accurate—of a law founded in men’s very nature, taught by reason, and fitting the true interests both of human society in general and of each state in particular, a perpetual and irrevocable law that is the same in Rome, in Athens, in every country and in every century, a law from which no one can have dispensation, a law that no authority has the right to abolish or amend, in whole or in part.5

Therefore all legislators have claimed to establish nothing that is contrary to this law.6 Never has a sovereign, no matter how unreasonable, dared to attribute openly to himself the power to make laws purely according to his whim, with no regard to the natural principles of just and unjust, at least to the extent that these were known to peoples. Where they wished to establish laws themselves, peoples have often sought and followed the counsel of philosophers, these being men they believed most versed [441] in the study of the maxims of reason that are to be taken as the ground of every civil law. [See Mr Perizonius, on Elien., Var. Hist., Book II, chap. 42, note 6.] And legislators, to enhance reception of laws they proposed or wished to establish, have sometimes pretended that they brought the laws down from heaven, a device they imagined all the more effective because they knew that, in some respects, God is regarded as the power of the rules of justice. [See what one has said on Pufendorf’s Droit de la Nature et des Gens, Book II, chap. iv, §.3, note 4.]

Given all that, it was indeed difficult to avoid some unjust laws slipping in among the many that were just. From the records of Antiquity, it seems that the first laws had their origin largely in custom, which all too often is a very poor master.7 What enters the laws in this way usually does so with little analysis or reflection. Ignorance, prejudice, passions, instances, authority, caprice have all clearly played a bigger part than reason. Custom is the opinion and the decision of a blind multitude, rather than of the wise.

When later it came to the making of explicit laws, published in standard written forms and thus rendered fixed and unalterable, the established usages [442] that had for so long had the force of law could not but be retained for the most part,8 only taking on a new form that gave them weight and durability.9 As for the other laws of which notice was taken, whether their establishment derived from the will of the people, the will of the state aristocracy, or the will of a single man, no matter what the precautions, the ideas of justice and equity were not always or adequately known for people to have been able to keep to them everywhere and in everything, nor were people sufficiently committed to these ideas to consult them and to follow them exactly. The philosophers themselves were not always such good advisers in this matter, as the following example shows. [See Elien., Var. Hist., Book II, chap. 42, and Diogen. Laert., Book III, §.23.] The Arcadians begged Plato to come and teach them the laws that he judged necessary for a new city they wished to establish, at the persuasion of their allies, the Thebans. Flushed with this honor they did him, the famous Athenian prepared to set out. However, he quickly changed his mind when, through an interview with the Arcadian representatives, he realized that this people was in no mood to allow introduction of the community of wealth and women that the philosopher regarded as a rare secret of government, one that he established in his imaginary republic, in the absence of a real state that was willing to introduce it. If the great Aristotle had been called to a place on a similar commission, he would not have been concerned with proposing such community, [443] having rejected the idea in his writings. But he would nonetheless have advised something just as bad: I mean that no child born with some bodily defect would be raised or that pregnancies to women having already given birth to a certain number of children would be aborted. This is one of Aristotle’s political maxims. [See Politics, Book VII, chap. xvi.]

Yet no matter how the laws were introduced and no matter what the intellectual capacities of those who played the major part in their establishment, it is a certainty that in various times and various places there were laws that were unjust. Among the Egyptians, a people once so celebrated for their wisdom, it fell to daughters alone to support their father and mother, if need arose, sons being spared this duty. [See Herodotus, Book II, chap. xxxv.] A law of the Persians imposed the identical fate, for certain capital crimes, on those who had committed the crime and on those who had no part in it: the innocent children and all the relations of a guilty father [see Herodotus, Book III, chaps. 118, 119. Amm. Marsellini, Book XXIII, chap. vi, p. 416, Ed. Vales. Gron.]. This was the practice too, not only among the Carthaginians [see Justinian, Book XXI, chap. iv, no. 8] and the Macedonians [see Q. Curt., Book VI, chap. xi, no. 20, and Book VIII, ch. vi, no. 28], but remains so still today, among some peoples of Asia [for example in Japan: see Varen, Descript. Jap., chap. xviii; Ferdin. Pinto, chap. 55]. In Taprobane, the island in the great Indian ocean, there was a law against living beyond a certain age, at which point it was necessary—with a light heart—to lie upon a poisonous herb which brought a gentle death [Diod. Sic, Book II, chap. 57. Today this is the island of Ceylon]. At Sardinapolis, in Lydia, when a father became aged, his children themselves had to slaughter him [Elien., Book IV, chap. I]. The pitiless severity of an [444] Athenian legislator, who had decreed the death penalty for the least offence as for the most enormous crimes, caused it to be said, with good reason, that his laws were written in blood [Dracon. See Aristotle, Politics, Book II, chap. xii; Plutarch, Solon, p. 87; Aulus Gellius, Book XI, chap. xviii]. Established among the same people, ostracism threatened with exile the most honest persons of that state, for no reason other than their merit. The Spartans permitted theft as an exercise of skill [Aulus Gellius, as above; Xenophon, De Rep. Laced., chap. ii, §.7 et seq. Ed. Oxon.; De exped. Cyri. Book IV, ch. vi, §.11, &c.], and adultery in order to produce healthy children [Xenophon, De Rep. Laced., chap. I, §.7; Plutarch, in Lycurg., p. 49, Vol. I, Ed. Wech]. Roman law, beyond the obvious inclusion of persons liable for punishment for various sorts of crimes [see Pufendorf, Droit de la Nature et des Gens, Book VIII, chap. iii, §.25], condemns to the maximum penalty every slave who happened to be under the same roof as their master at the time when the latter was assassinated, even though there exists no proof that they were accomplices to the murder [see Tacitus, Annal., Book XIV, chap. 42; Digest, Book XXIX, title 5, De Senatus-consulte Silanien. &c.]. If, wherever it was able to reach, Christianity finally saw such laws abolished, this did not prevent other laws, no less bad, from being introduced in respect of other things. Look at the Theodosian and Justinian Codes and there you will find numerous laws, thoroughly inhumane and utterly unjust, against people whose only crime consisted in not sharing the opinion of the more powerful party in respect of speculative matters. Did paganism produce anything more tyrannical and more abominable than those tribunals of the Inquisition which, to the shame of religion and of humanity itself, handed over to the secular authorities innocent people condemned by rogues, whilst granting full indulgence [445] for every sort of crime before the judges of this order, with the authority of the laws of various countries? In light of this, it comes as no surprise that in a Christian state [Poland], where this religion is dominant, the political law-makers judged it appropriate to permit cut-price homicide: in Poland a gentleman who has killed a peasant pays just ten écus.

That, I think, is more than enough of what is needed to indicate the extent to which civil laws are liable directly to contradict the clearest laws of nature. And to indicate, in consequence, how very insecure it is to consider civil laws as infallible interpreters of the laws of nature, or as embodying all that is required to provide a model of conduct. In truth, one must not lightly tax with injustice the laws established in the country where one lives; indeed, it is the case that, where doubt arises, the presumption must be in their favor.10 But meanwhile one must be alert, one must always be open as far as is possible to the ideas of justice and equity, ideas of which we each carry the seeds within us. For in the end, the instant that the most genuine laws of the most legitimate sovereign conflict in any way whatsoever with these immutable laws written in our heart, there is no question of seeking a balance, because it is absolutely necessary, cost what it may, to disobey the former in order not to do damage to the latter. Men’s submission [446] to civil government does not extend, and never could extend even when they wished it, to the point where a human legislator is set higher than God, the author of nature, the creator and supreme legislator of men. As for things indifferent, it is entirely reasonable if, beyond the mountain or the river, something is considered just, while as a result of the contrary wills of the legislators of two different states, on this side it is considered unjust. But when it is a question of that which is clearly commanded or forbidden by the universal law of humankind, all the laws in the world can no more render just what is unjust than they can render healthy what is toxic for our bodies.11 Thus in relation to such things, the conduct of the good man is everywhere the same. He never believes himself bound to obey manifestly unjust laws, and even less does he believe himself authorized to exploit the most explicit permission in the world when it conflicts with moral good.

It is even clearer that the silence of the laws is not, of itself, a warrant for the innocence of actions concerning which the laws say nothing, actions that are not embraced within their valid scope. The examples here are infinite in number: travelers’ reports, ancient and modern, are little more than a tissue of things, as vicious as they are excessive, that can be observed openly practiced [447] and adopted as custom among one people or another. Let us do no more than cite two or three instances capable of shaking the best secured mind from a false and erroneous idea of its duties. Were not the greatest impurities, the most infamous sins against nature, formerly so much to the liking of the Greeks and Romans that even the wise men gave in to them without any shame? [See Grotius on Romans I, 27.] Did not Roman women quite publicly abort their pregnancies, until a rescript of Severius and Antonius forbade them so to do, under pain of banishment for a given time [Digest, Book XLVII, title xi: de extraord. crim. Leg. IV; see Mr Noodt’s Julius Paulus, chap. xi]? Throughout the Roman Empire, as well as among the majority of the Greeks, that is, among the most enlightened and civil of peoples, could not a father and mother expose or kill their own children with impunity—I am horrified at the thought—if they did not wish to raise them?12 And was not this barbaric custom preserved—who would believe it?—under Constantine the Great and some of his successors? [See generally on this, Mr Noodt’s Julius Paulus, where the whole matter is fully considered.] Among the Christians of past centuries, was not the rage for duels so extreme that the laws required to suppress it are counted as the most hard-won and celebrated achievement of certain states?

[448] Notwithstanding this, let us not condemn the civil laws more than they deserve. It is not always the fault of these laws if they do not forbid unjust or dishonest things. Doubtless they must rectify vice up to a certain point; but beyond that, it is absolutely outside their jurisdiction. Since they are, as it were, secondary laws, their sphere too is correspondingly restricted.13 Once proven, this principle will serve not only to undermine in their entirety the foundations of the illusion which we are challenging, but also, if we pursue the consequences, to dissipate false ideas on other important points.

Let us therefore briefly consider the nature and the end of the civil laws. What does a human legislator as such propose? What must he propose? Is it to bring men to practice the full range of all their duties? Surely not. There are some duties of a kind that their very nature requires that they be left entirely free, like those of beneficence, which is no longer beneficence, from the moment when for some purposes coercion is involved. Should the human legislator act solely to prevent a man committing some irregular and morally bad action? In vain would a mortal man set his mind on this. It is simply beyond human nature. As long as there are men there will be vices; and these vices will always create internal agitations, some external effects of which [449] may well be stifled by the fear of some great ill, but not all of them could be, not even most of them. I will go further and maintain that the end of the civil laws, in themselves, is not to render truly virtuous those on whom the laws are imposed. [See the Discourse of Mr Noodt on Liberté de Conscience, p. 159 and following p. 194, p. 215 of the third edition, Vol. 1 of his Recueil de Discours, published in 1731.] For that, the laws would have to be able to regulate men’s interior; but since they cannot reach this, they have no business in meddling with what happens there; this is the preserve of the infinite scrutineer of hearts. As for the external signs, it would be very difficult, not to say impossible, to isolate what is bad in an infinity of equivocal actions, where vice often masks itself with the appearances of virtue. Nor are the means available to the laws such that, through a principle of virtue, they can achieve compliance with what they require as most just and moral. The laws do not take the path of the heart; they do not work to persuade, nor do they reason; rather, they command, they forbid, they intimidate, they threaten: he who does such and such a thing will be punished in such and such a manner. This is their language, this is their sole and common rationale: it all comes down to fear of the coercive power with which ministers and those who execute the laws are armed.

Now, note this well, whatever partakes of force is of itself incapable of winning over the mind and, it follows, of softening the heart. Force does not enlighten, it shocks. It [450] may assist in holding a man to his duty, but force does not incline him to practice his duty willingly, and as a duty. When one is constrained only by fear, one is all the more ready for a bold evasion the instant that fear ceases or a way is glimpsed of avoiding the effect of the threats. Coercion even serves to inflame desire the more. And this is why those who seek to persuade have to take care to do nothing that might encourage the suspicion that their aim is to coerce. Men like to act freely for themselves; and they enjoy a sense of doing so when they heed only those reasons they find convincing. The great secret of persuasion consists in appearing to be oneself persuaded without meanwhile displaying any great wish to persuade others. This zeal to possess others’ spirits passes for an attempt on their freedom; the overly zealous doctor is considered one who seeks to take control or who is unsure that his own reasoning is sound. In a word, to the extent one has recourse or appears to have recourse to coercion, so to that same extent impressions that reach the heart will be rejected. The slightest air of authority renders almost useless whatever an orator, sacred or profane, might say. If force sometimes contributes to forming good people, it is only insofar as it disposes them to turn away from certain largely involuntary aberrations, and to return to one’s self, to reflect, examine, and discipline oneself, in this way allowing that which alone is capable of forming virtuous sentiments to act. But this happens very rarely, and only when one is already favorably disposed to virtue. For in those whose heart and mind are astray, in them fear produces only forced actions that are nothing but external.

[451] Such is the ordinary effect of the civil laws, which speak only by threatening. Mosaic law itself, for all its divinity, no matter what the beautiful precepts that come with it, obtained from the Jews a purely servile obedience that remained unreliable, corresponding only to the impact of fear [see Romans VIII, 15]. Thus no matter how virtuous a legislator is or should be, the proper and natural end of his laws is not to raise men to virtue. So then what is it? Here is the answer. For the civil laws, the end is to prevent citizens from doing each other some considerable harm, whether in their persons or in their property; and with this aim, to curb the external actions of vice which tend towards such wrong, to the extent that society’s peace demands and permits. Now, to achieve this, repression of the grossest excesses and the most palpable injustices is sufficient. Indeed, sometimes prudence requires that these are suffered in order to avoid more onerous risks. Those whose ill-doing harms only themselves are sufficiently punished by their own actions; no one has an interest in having them punished further by the public authorities. As to injustices, if these cause victims minor harm, or if they are so subtle and hidden that it is difficult to determine their authors, or if they are so common that most people could accuse each other of committing these harms, the law suits they entailed would be beyond count, and would occasion an interminable debate that exhausted the most constant patience. What is more, the impact of the inquiries would generate greater disturbances than would connivance or toleration. There are even times and places in which one would be openly jeopardizing the authority of the laws and the magistrates if [452] an untimely attack was made on some enormous iniquity that was backed by all the forces of custom. In general, it is in light of the circumstances that a legislator takes steps to proscribe more or fewer bad actions, and to punish them with more or less severity.

However, no matter what limits the legislator sets to vice when he proscribes vicious things, it is not specifically as immoral that he proscribes and punishes them, but as harmful to the public or to individuals. And, conversely, when he prescribes things that may be linked to some virtue, it is not specifically as so many acts of virtue, but as so many necessary means to achieving the ends of civil government; it is not as praiseworthy things, but as useful things. Therefore he does not concern himself with the principle or motivation by which one obeys his laws. Whether one believes them to be just or unjust; whether one observes them consciously or unconsciously; whether one regards them as a duty or as an impediment, provided that one does externally what the law demands, the legislator has what he wants: the effect that his laws can produce has been produced, and society is no less calm than if obedience had derived from a sense of virtue. It is only indirectly, and as it were in another persona, that the legislator can and must work toward the true interests of virtue, by furnishing the citizens with solid instruction and such other means as are appropriate to achieving that which he could not himself achieve, even with all the force at his disposal.14 For the rest, the office of legislator and [453] the office of moralist are always quite distinct; the latter complements the former, and the legislator leaves a vast field of action to the moralist. The legislator, as legislator, permits many things which he condemns in others and which he severely forbids to himself as a man and, more strongly still, as a Christian. Legal permission does not always presuppose that the legislator finds what he permits to be just and moral: often it is a mere permission of impunity and not a permission of approval. Or rather, legal permission must always be viewed on this basis, no matter what the legislator’s ideas about the nature of the things that are not forbidden.

It has even been necessary, in order to prevent abuse of the legislative power, for the authority of legislators not to be extended to the point of forbidding, under pain of sanction, all that they might judge to be contrary to some moral virtue. For, not all being sufficiently enlightened, under such a pretext they could easily punish entirely innocent things. There are only too many examples of this. Suspicious-minded princes have sometimes made something a crime on the basis of a dream that had upset them. [See Tacitus, Annales, XI, 4; Amm. Marcellin, XV, 3.] There was a time when people of distracted mind were burned, like sorcerers, and for this purpose one saw nothing but pyres burning everywhere. In certain places marionettists came close to being mistaken for magicians, and were punished accordingly. On the basis of the false ideas that uninformed ecclesiastics had given him on the subject of interest on money loans, a Christian emperor (Basil the Macedonian), not content with reducing interest to an equitable rate, forbade it altogether as an [454] illegal contract, both in its nature and in the light of the rules of the Gospel. Thanks to this vain scruple and this ill-informed piety, he ruined commerce and reduced a multitude of people to wretchedness, with the result that his son and successor, Leon known as the Philosopher—and more of a philosopher in this respect than his father—was forced to constantly raise the defenses and to permit interest, as previously, on a modest scale [see Leon’s Novelle, LXXXIII]. But do we not still see today, in various places, supremely unjust and inhumane laws which, under the fine pretext of advancing the glory of God and repressing vice, directly persecute virtue? Though they are doing no more than fulfil the essential obligation, as is only natural for each individual, to follow the light of one’s conscience, people are being punished, and punished cruelly, because others wish to believe them guilty either of wilful and rectifiable errors, or of a malicious and unbending stubbornness.

This last example would suffice to demonstrate the importance of establishing that the laws must not punish something simply because it is morally bad and, following from this, that impunity does not here win out over innocence. Such impunity, therefore, does not prevent certain things of a vicious nature from sometimes being known to be vicious, in the very countries where they are nonetheless permitted. Civil laws leave to the forces of ill-reputation the task of punishing that which deserves punishment, if [455] in the general opinion of citizens the thing is considered morally bad,15 while the judgment of the wise at least conserves its rights. Under the Roman laws, a mere false oath, which causes harm only to the person who swore it, remains unpunished [see Cujas, Obl., II, 19];16 nevertheless, there has at all times been outrage at whosoever rendered himself guilty, no matter in what way, of a crime such as this that directly impugned the divinity.17 Ingratitude, a vice as shameful as it is common, was punished only among a few ancient peoples [see on Pufendorf, Droit de la Nature et des Gens, Book III, chap. iii, §.17, note 3]: but, as Seneca tells us, it is condemned by all.18 The trades of courtesan, gaming-house keeper and others such are nothing less than honest in the actual places where they are publicly exercised. It was allowed to the ancient philosophers to utter lofty censures on the mores of the times, even when, without great risk, they could not have raised their voice against the idolatry and superstitions of the vulgar.

The civil laws and the laws of virtue thus form as it were two distinct jurisdictions, which may well converge up to a certain point, but beyond this point virtue alone remains, and commands absolutely. Or rather virtue is always the supreme mistress. No human ordinance can in any way exempt anyone whomsoever from the natural empire that virtue holds over men: whatever virtue calls for is always indispensable, [456] whether or not the civil laws lend it their authority; whatever virtue forbids is always illicit, whether or not it is permitted by the civil laws, the wisest and most perfect of which necessarily leave to each person’s freedom and conscience no small number of vicious and immoral things. Of this I offer another and final proof, but a proof that is irrefutable. When He gave laws, God Himself as temporal legislator allowed such things. The law of Moses certainly punished false oaths [see Leviticus V, 1 and VI, 3], but not vain and foolhardy oaths [see Matthew V, 33 et seq.]. Among the Jews there was no action in respect of insults [Ibid., verse 22]: that nation’s rough and gross temperament made abstinence from crude speech and from outbursts of uncontrolled anger too difficult. Likewise it was to accommodate the untamed savagery of a husband, that the law permitted him to divorce his wives as often and whenever he wanted, for no other reason than his aversion and his own good pleasure [Deuteronomy XXIV, 1; Matthew XIX, 8]. There were places designed to receive and shelter those men whose misfortune it was to have killed someone accidentally and without intent; but if the involuntary homicide, having been declared such by the judges, happened to stray outside the limits of the asylum, whether by imprudence or by chance, and if once outside he was killed by the closest relative or the heir of the deceased, the latter was not held to be guilty of murder. Such was the privilege granted to the vindictive spirit of the blood avenger [Numbers XXXV, 27]. Nevertheless, all this was later clearly forbidden by Him who was the true end of the law, by Jesus Christ the perfect doctor, the infallible preacher of virtue [Romans X, 4]; and even had the Jews [457] taken note of it, they would also have found the condemnation of things of this sort within the precepts of their own law, precepts that are in essence the same as those of nature and of the Gospel.

I have thus proved quite decisively, so it seems to me, that mere permission or impunity under the laws does not always authorize before the tribunal of conscience and reason that which the laws permit. And what would it be, if I were now to go into the detail of the many things that, though permitted almost everywhere, are clearly contrary to the essential duties of man in general, or of a good citizen, or of the different statuses of life? But to do that would require a complete account of the manners of our times, and the limits of the present discourse allow scarcely enough space to give a few samples.

There have been laws against idleness, among the Egyptians, the Athenians, the Spartans and the Lucanians. [See Ménage, on Diog. Laerce., Book I, §.55; and Mr Perizonius, on Elien., Var. Hist., II, 5; IV, 1.] There everyone was obliged to declare to the magistrate his means of livelihood and his occupation; and those who found themselves without a profession were punished, to the extent that in Egypt and at Athens, under the rules of Dracon, it was a matter of paying with one’s life. But today, if one excepts Persia, where it is said this ancient regulation has been kept in force [J. Cartwright, in J. de Laet., Descript. Pers., p. 260], I know of no country in which one may not be idle with impunity, and in which one believes one cannot be idle without fear, once one has the wealth to do so, or is satisfied with what one has. In certain countries, it is true, one is more subject to regulation than in others, but everywhere there is a multitude of people who even [458] boast that they pride themselves on spending their days calmly doing nothing but drinking, eating and amusing themselves. Yet is there anything more unworthy of man, naturally endowed with so many faculties of body and mind, than to waste them in feeble indolence? Is there anything more insulting to the generosity of the Creator and Supreme Master, from whom men received these talents, some in greater number and strength, others less, but all wonderful and useful of their kind; all fitting to give us a high idea of His power, His goodness and His wisdom; all fruitful in productions that tend of themselves to render human life happier and more comfortable? Is there anything more contrary to the duty of man, and a fortiori to the duty of the citizen who, as such, beyond the general obligation to be good for something in this world, still has a concrete commitment to make himself as useful as he can to the civil society of which he is a member? If there was not a great number of people, reduced by their condition to the necessity of working assiduously, and some small number who do so for the love of work and out of duty, what would become of the others, who wish to shirk it? Where would they find what they need to provide for their pleasures, or even for the necessities of life? Most of them believe they are not obliged to work, because they have no need to do so, that is to say, because they would be in a position to choose the occupation which most pleased them, and to which they would be most suited, and which they would therefore exercise with more success than so many others who are not masters of their time, and who cannot employ their time as they would wish [459].

What a mental reversal, to seek to justify idleness precisely in terms that make the obligation to busy oneself even stronger! The freedom allowed by the laws on this account does not provide any more valid an excuse. If they do not prescribe anybody’s style of life, if even in the shadow of their protection one can live idly, the laws do not for all that relieve nor can they ever relieve anyone, no matter whom, from a duty imposed by nature, or rather by the author of nature, by the great protector of society. The laws do no more than lay on the conscience and the honor of each individual the responsibility for busying oneself in the most fitting and advantageous manner. The impunity the laws grant is no more capable of disculpating those who embrace no useful and honest profession or occupation than of justifying those who with impunity seek exercise or employments for which they neither are nor wish to become competent. The latter case is, perhaps, more common than the former; but neither is excusable. While more harm comes from involving oneself in that which one does not understand, with the result that one does damage to the public and to many individuals, more than enough harm follows from involving oneself in nothing, and living a wholly inactive life.

But I am mistaken. No, idle ones, yours is not a wholly inactive life: try as you might, you could never bear the crushing burden of total idleness. Nature, which has granted you so many talents, talents that you seek to neglect, has refused you this one that you often sigh for. And please to God that you may always be as motionless as statues; or that you may do nothing but drink, [460] eat and sleep like swine; or that you may only seek to end your boredom like that emperor who spent hours in his room, catching flies [Domitian, see Suetonius on his life, chap. 3]. But you have too much time left, when you would be a burden to yourselves if, in the absence of any honest or useful occupation, your passions did not provide you with a thousand shameful and damaging amusements. Debauchery, malign gossip, gaming, criminal plotting and other such things, these are your stock in trade, for in the end you have one. But these are also a deadly source of quarrels, disorder, public and private ills, which combine to earn you the titles of scourges and plagues of the state, and no-goods and useless deadweights of the earth.

Is it possible that one can lead such a life, and still believe that one is a moral person, and be so regarded by many people who do not have a more reasonable idea of true probity and authentic honor? Yet such is, shall I say, the glory or the shame of virtue, that everybody approves it, praises it, admires it in general, yet nevertheless the respect that is its due is most times given to vain phantoms, or rather to the opposite of virtue, to its mortal enemy, to vice itself. In the commerce of life, how many instances of bad conduct do we not see, how many falsehoods, sometimes even gross, which walk as it were with head held high, and whose authors, under cover of the fact that the laws take no notice, even pride themselves on evading public censure? You are someone’s friend, or at least you pretend to be. As long as there is no [461] conflict of interest, all is well; yet when a conflict arises, not only will you not make it your duty and pleasure to give way, whether right is on your side or not, but, not content to claim honestly the rights you believe are yours, you will have recourse to a thousand secret manoeuvres, a thousand tricks, to outdo your friend; you will try to darken his reputation, cost what it may, and sometimes spare no effort in defaming him. You are not going to lie in wait for travelers on the highway, in order to rob them, you are not directly taking someone else’s property, that is true; but you seek out hidden ways to get it, to draw it towards you. Sometimes you take advantage of someone’s penury, of the sad state of his affairs, of his negligence or his ignorance, in order to get at a very low price things that he could have sold elsewhere for much more. Sometimes you provoke a thousand disagreements, a thousand difficulties, a thousand problems, a thousand complications for some poor Naboth, to force him, willing or unwilling, to strip himself of his father’s inheritance. Sometimes you conceal the faults, well known to you and of which you are often yourself the author, in something that you wish to dispose of at a better price than you should. A creditor, in return for a good service that he has provided, finds himself reduced either to suffering or to losing part of his money, when an urgent need forces him to seek repayment. A workman is deprived of benefit of his wages by the delays by which you keep him waiting and purchase his labor.

It would take too long just to note all the deviousness and injustices of this sort which, favored by impunity under the laws, are practiced daily by innumerable [462] so-called moral men, sometimes even by those who claim to be devout. What a shame for them that they were not born in some country where legal permission extended further still! Ah! They would have known how to exploit that situation! But let us not be surprised that they make such ill use of the freedom that the laws allow them. Let us not be surprised that they explain this to the gross disadvantage of virtue’s inviolable rights. They no longer respect the sacred authority of the clearest, the most explicit, the most just laws, when the negligence of those who should ensure respect for the laws makes impunity almost as certain as it is with regard to those actions on which the legislator in fact maintains a complete silence. It is futile for the laws to forbid pulling of strings and bribery: these are the only ways for many good people to improve their situation. A thousand means are found to elude these and many other laws. Pulling of strings, in particular, is so common in every country that those with rectitude and a sufficient competence are reduced to seeking out friends and patrons to compensate for their not having on display a merit which alone should speak for them, but which on its own is usually quite ineffective. Such is the life of these good people, in coarse grain, that it would still be a great deal for them, and for the public, if the civil laws, imperfect though they are, were the constant rule of their conduct.

So here “it is long since we lost the true names of things,”19 to express myself in the words of an Ancient, who himself gave the lie to his speech [463] by his actions, but from whom the force of truth drew some fine moralizing, whether in the mouths of others or uttered by his own lips. So and so is a good man; such and such a thing is permitted; equivocal words if ever there were, poorly understood and misapplied most of the time! A palpable example of the usefulness of that neglected art of distinguishing the different ideas attaching to the one term! A sad proof of the fatal consequences that sometimes flow from neglecting grammar! Yes, by dint of saying and hearing others say “This is permitted, who is going to stop me?,” we unconsciously get used to confusing impunity with innocence; we almost cease distinguishing these two kinds of permission, so often diametrically opposed one to the other. All my preceding reflections aim to lay bare this unfortunate ambiguity, and, it seems to me, they leave no doubt about it. But let me be permitted to add one word more, to underscore the ambiguity, and for this purpose to address some of those people who seem to recognize it the least, or to abuse it the most.

Where shall I begin? To whom shall I speak? So many different characters crowd into my mind that I have difficulty choosing. Let us take whatever by chance comes first. Whoever you may be that I omit to mention, or that I shall pass over, learn from what I say to others the true sense of a word, a word on which it is no less important for you to have some accurate ideas.

What strikes me immediately is that man of vanity, he who is also seeking always to have himself noticed; in him I see his like. Men of ambition, you are thus permitted to consider nothing as above your reach, to seek out [464] with the utmost zeal the most frivolous marks of distinction, to deploy every sort of trick to achieve your ends. Misers, you are permitted to make your money your idol, to enrich yourselves by deceptions and frauds that are too subtle to be discovered or punished by the laws. Hedonists, you are permitted to live like little lords, to sacrifice everything to your appetites as far as you can do so, without fear of public stigma. Men of influence, credit and authority, you are permitted to misdirect your patronage, to listen only to reasons of interest, kinship or recommendation. Men of justice, you are permitted to judge according to fortuity, or to base your judgments on any reason whatsoever other than those of law and equity. Men of the sword, you are permitted to sell your services and your life to the highest bidder, without even thinking to examine the justice of the cause. Men of commerce, you are permitted to subtly falsify your merchandise, to make it appear what it is not by presenting it in a false light, to exploit the naivety and ignorance of the buyer. Barkeepers, gaming-house keepers, publicans, you are permitted to offer youth every occasion and means for debauchery. Artisans, workmen, you are permitted to promise to several clients what you wish to provide to none, to offer bad work for good, to apply yourself negligently to the task. Husbands, you are permitted to behave toward your wives like real brutes and petty tyrants. Wives, you are permitted to try the patience of your husbands to breaking point. Masters, you are permitted to mistreat your servants for no reason, [465] feeding them poorly and paying them poorly. Servants, you are permitted to take no care for the interests of your masters, and to serve them only so far as they can see you. Fathers, you are permittedto give your children only bad lessons and the worst of examples, to think at most of amassing wealth for them, without troubling yourself to make them truly virtuous and capable of the employments that you plan for them. Children, you are permitted not to respond to the rare diligence of a father who overlooks nothing and who spares no effort for the sake of making you worthy members of human and civil society. People of no matter what age, rank or sex, you are permitted to do a thousand similar things. But the same applies to you as it did under an ordinance of the Spartan magistrates regarding the outrages committed in their country by some young foreigners: Clazomenians are permitted to be without shame [Elien., Var. Hist., Book II, chap. xv].

It is for each of us to see whether he wishes still to profit from so disgraceful a privilege. I leave it to the legislators to examine whether they could not, without undue complications, define more sharply the limits of what their laws permit, or at least arrange indirect yet appropriate means to make more citizens willing to renounce voluntarily the right that most believe they have under this poorly understood permission. Nor do I wish here to draw on the help of religion; I shall not put before your eyes this plea by an apostle: “that whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, [466] whatsoever things are lovely, whatsoever things are of good report, if there be any virtue, and if there be any praise, think on these things” [Philip. IV, 8]. By which he gives us to understand that we must not be satisfied simply with doing nothing that is against the laws. Indeed no, I do not call you to the school of Jesus Christ, I call you to the school of your own reason. I do not cite you before the tribunal of Him who will judge the living and the dead in the last instance, I cite you before the natural tribunal of your consciences. We must be human, before being Christian; and whoever does not listen to the voice of nature will no more listen to the voice of the law or that of the Gospel. Pride yourselves only on having ideas and sentiments as reasonable as those of the wise of antiquity, I ask no more. This is what they said, and on which you will reflect at your leisure: “Is it not an insufficient thing, to conduct oneself well only to the extent that the laws require it? How much further does the rule of our duties extend, than that of the law? How many duties flow from natural affection, humanity, liberality, justice, good faith, on which the civil laws are silent?” These are Seneca’s words.20

Young men, (for it is concerning you that I must finish, since you are the occasion of this my discourse), are you too permitted to neglect those duties that are yours, and to abandon yourselves to dissolute behavior? Ah! if your parents, [467] if those who are most concerned with directing your conduct, are sadly willing to grant you such a fatal freedom, may it not please God should you find any support in us on this matter. May it not please God should we neglect any of our responsibility for stopping the heat of youth from overcoming you, and for forming in you early those good dispositions that will give you immunity from the pernicious lures of the bad things that the laws, or your parents, may permit. But it is not possible constantly to oversee your every action; and you know only too well how to hide them from the most intense vigilance. Beware of yourself, each time you are tempted to do something without your superiors’ knowledge or approval; you are not yet at a stage to be able to govern yourself, and you must question your desires. You prefer by far the trivial to the substantial, the pleasant to the useful; and if the ideas of the good touch you just a little, when they are put to you in a certain way, they still have infinitely less power over you than the ideas of your passions. Keep in mind, therefore, that nothing you do when you follow your inclinations alone is permitted to you. Take care not to imitate the bad examples of older people, and pride yourself on actually being smarter than those who would always be by comparison less smart than you, were you to act like them. Follow the precepts of your superiors, who are wise and committed [468] to your well-being (you will easily know who they are), and do nothing that might displease them. Love them in your turn; fear them too; take heed of the effects of their justified indignation. We have to take you as best we can; and at a time when reason is still weak, it is often necessary to bring in some appropriate constraint to overcome the obstacles that would end by making you unreceptive to reasonable sentiments. If nothing can be obtained from you by kindness, you will nonetheless be made to obey by fear, such that we shall have nothing with which to reproach ourselves.

But this is not the time for punishment or censure; this is the day for praise, the day for rewards. We give them with the greatest pleasure in the world, even to those who have barely merited them. May this encourage them, and encourage others, to give us day by day ever greater proofs of their commitment to study, and to all their duties generally!

Discourse on the Benefits Conferred by the Laws
In which it is shown that a good man should not always take advantage of the benefits conferred on him by the laws

Magnificent and most honored Lord Bailiff, most honored Lords of the Council of this City, learned and respected members of the Academy, my most honored colleagues, listeners of no matter what rank, sex and age.

If to have commenced is to have done half the work, as an antique saying puts it,1 to have done half is to have finished. Yet [472] in taking up today the topic half of which I treated a year ago on a similar occasion, I fear that I face no fewer obstacles to overcome, no fewer—and perhaps more—prejudices to confront, than if I was still at the starting point. I am like one who easily agrees to a principle based on reasons to which he sees no objection, then at other times just as easily contradicts himself when he recognizes certain consequences arising from his agreement that he had not noticed. One should abandon the clearly contradictory maxims to which one adhered without knowing why, but which in practice one has become used to following with a certain pleasure. One then looks for what is needed in order to question or, rather, entirely to reject certain awkward truths, which have emerged to dispel our easy error. If anyone followed what I previously said, I would like to think that some will have been almost persuaded that mere legal permission—the mere silence of the laws—which is finally nothing but an impunity, does not prevent many things permitted by the laws from being truly bad and dishonest. But when you hear me roundly condemn the exercise of certain positive privileges granted by the laws, privileges of which virtually no one hesitates to take advantage, I do not know whether you will at once decide this is a folly, no matter how clear its links to what you recognized were sound principles, [473] and then rebel, without more ado, against arguments which you had found striking.

Whatever the case, it will not deter me from following my plan, or from taking my ideas as far as they will go. Men’s fickleness, whims and prejudices must not prevent us from following our argument through, nor from proposing some important truths when there is the opportunity. We would deem that we had done all too little, were we to leave things standing as they were in our previous discourse. To do so would be to content oneself with having attacked only the most obvious prejudices, leaving the more subtle ones undisturbed, that is, those which are the most difficult to dispel. Thus today, in completing my functions as Rector for this solemn occasion, let us—if it is possible—finally disabuse those who, under the shelter of human laws, believe themselves authorized to ride roughshod over the laws of God and of nature. Let us show, for this purpose, that in good conscience one cannot always take advantage of benefits conferred by the most explicit civil laws.

There are some totally unjust laws from which, it follows, only injustices can flow. There are laws, in themselves quite just and created for sound reasons, but that confer benefits from which the interested parties sometimes cannot profit without injustice. There are laws the benefits of which we can always enjoy without doing harm to anyone; yet what strict justice then allows, some other virtue in certain cases forbids. Such will be the order and structure of this discourse.

I

[474] I repeat, first, that there can be, that there have in fact been, and that there are still some totally unjust laws. Such laws, in consequence, always lack the virtue of rendering just and equitable the enjoyment of the benefits they confer. It was long believed that among the ancient Romans a law of the Twelve Tables, that is, one of those famous laws developed with such care and circumspection, expressly permitted the creditors of an insolvent debtor to kill and dismember him, each taking a part of the debtor’s body.2 This is a clear example of a law as cruel as it is absurd, one that is contrary even to the interests of those whom the legislator intended to favor. However, some years ago, a famous Dutch jurisconsult [Mr de Bynkershoek, Observ. Jur. Civil, Book I, chap. I] restored the honor of the Decemvirs of Ancient Rome. With critical advantage over the wise men of Roman Antiquity themselves, for whom the archaic terms of the Twelve Tables could not but remain obscure, even though the Latin of those times was their native tongue, he demonstrated to us in an entirely plausible manner that in the law in question, the legislator had sought to permit not the killing of the debtor, but his sale at auction, [475] such that the creditors could share the price of his freedom amongst themselves. Nevertheless, it remains that distinguished scholars, philosophers no less than jurisconsults—whether a Quintilian [Instit. Orat., Book III, chap. vi, p. 261] or a Cecilius, whether a Favorin [see Aulus Gellius, Noct. Att., Book XX, chap. i], an Aulus Gellius or a Tertullian [Apologet., chap. iv]—found nothing strange in the supposition of civil laws created in such a style as to afford inhuman privileges, contrary to the most evident laws of nature, as Quintilian gives us to believe.3 And this was not the only instance that they had noticed.

Here is another example, well attested, even if it went unnoted until recently, and which, if not of the same kind, nonetheless has something very harsh about it.4 Among these same Romans, up until the time of Praetor Cajus Aquilius Gallus, in other words for more than three centuries following the establishment of the laws of the Twelve Tables, one had to take every care not to use—even in jest—the consecrated terms of stipulations or formal promises. Suppose one father had said to another, in conversation or at a festival, when nothing was further from the issue than discussion of serious business: “Do you want to marry your daughter with my son?,” if the other person had responded, by [476] way of joking and banter: “I so wish,” then the former had only to take him at his actual word. The party for his son was found. It was futile for the girl’s father to claim that he had neither intended nor given reason to believe that he had any such marriage in view; it was futile for him to prove that the words by which he had supposedly committed himself meant nothing more, in the circumstances in which they were uttered, than if he’d spoken them in his sleep. No joking was tolerated, and the judge would without further trial find against him. It was obligatory to go through with what an impertinent plaintiff wanted, one who under the pretext of an apparent agreement, extorted an imaginary promise as unjustly and with all the violence of a highway robber. Such was, for some centuries, the superstitious attachment of the Roman courts to the letter of the law and its formulas, and this despite a manifest intention to allow these words a usage quite other than that which they had at law. Even when the Praetor, of whom I spoke, had recognized the injustice and the need for a remedy, he dared not act directly; he contented himself with avoiding the plea by allowing an exemption from fraud for the party whom the other was bold enough to summons to fulfil a promise that had not in fact been made.

Since then, on other matters, we still find laws no less contrary to equity. Judge for [477] yourselves, whether the following law does not deserve to be described in this way. A man purchases some wine that he must measure and collect within a certain limit of time. This he fails to do within the time. The seller, who wishes to use the barrels, can then, according to Roman law, pour the wine away; nothing more is asked of him than that he warns the purchaser. The jurisconsult Ulpian, whose opinion was authority on this matter, openly admits that it would be better not to go to this extreme; that there would be other courses of action more fitting in order not to deprive one of the two persons of the use of his goods, and at the same time conserve the other’s goods; that the barrel owner could hire other barrels, at the expense of the person who owns the wine, or sell the wine for his own account as profitably as possible.5 Nonetheless, Ulpian dispenses with all this, and grants the owner of the barrels complete freedom to empty them, without regard for the loss of the wine, and without concerning himself as to whether the one to whom the wine belongs has encountered obstacles that prevented him from coming to collect it.

Let us leave the Romans there, and pass on to other peoples. Here we shall see, beyond doubt, some no less palpable examples of laws that scarcely conform to justice and equity, the maxims of which these peoples, all things considered, have not cared to consult. First to be presented is that supremely barbarian law or custom [478] concerning the goods of those who have been shipwrecked. Imagine two vessels driven by a furious storm and about to go down. The men on one of these vessels, to avoid drowning, discharge the cargo as quickly as possible, jettisoning their most valuable goods into the sea. The others do not have even this chance, their vessel suddenly being smashed on a reef. However, the storm abates, and the former’s vessel arrives at safe harbor, without further ill than the loss of cargo; the others, whose vessel has perished, manage to survive by swimming, or in a skiff. By a fortunate chance, the effects of both are washed up on the shore. They lay claim to these, justifying their right. There is no room for doubt that what has come ashore is truly what they had on board their vessels. But the ruler of that coast, more cruel than the winds and the waves, seizes or allows certain people to seize this sad collection that the ocean seemed to have delivered to him only so he might have the pleasure of restoring it to the rightful owners. In the circumstance where humanity should be moved to console these wretched men, indeed to aid them with one’s own goods, instead they are stripped of what was left of their [479] own. [See what I have said on Pufendorf, Book IV, chap. xiii, §.4, note 2, third Edition.] If we do not distinguish here between the subject or citizen and the foreigner, what has become of the bond of the civil pact that called for protection and special assistance? What if we indulge in robbing foreigners, by withholding that which the ocean had restored to them? Is not this a relic of the savagery of those ancient times when all those who were not fellow citizens believed they were right to treat one another as enemies; when it was no affront to ask unknown travelers: “Are you bandits, sirs? Are you pirates?,” and no dishonor for them to reply: “Indeed we are”?6 Perhaps you imagine that this was an established custom only among pagans and infidels. [See Grotius, Droit de la Guerre et de la Paix, Book II, chap. vii, §.1, note 3; and Selden, Mar. Claus, Book I, chap. xxxv, in fin.] But no, it is under Christianity that we see it most generally adopted.7 And whilst the Siamese have a law explicitly forbidding it [see in Moteri’s Dictionary, under “Siam,” the article “Manners and customs of the Siamese”], there are as yet few Christian states in which consideration has been given to limit the rights of the State Treasury over things that have escaped shipwreck, such that those who have lost their goods have time enough to come and reclaim them.8 What is more, we learn of certain places along the Baltic Sea, where Protestant preachers pray [480] to God in his temple that He may please bless the right of shipwreck, as they call it.9 What strange prayers, no matter how one views them, and scarcely worthy of a minister of this holy doctrine, which breathes only justice and charity!

Do you want another similar example? It is easy to provide one. A man has been robbed. The thief is arrested, together with the stolen goods. It is known from whom he stole them; he admits everything. The owner asks for return of the goods. But, instead of returning them to him, the Treasury or the judges seize the goods. This custom, still practiced in some places, was explicitly authorized under a law of the Saxons [Specul. Saxon., Book II, artic. 25 and 31]. And, even though it was modified by allowing the owner of the stolen goods a year and a day to come and reclaim them, the Emperor Charles-Quint was right to abolish this law [Ordin. Crim., arts. 207, 218], together with that other law of which we spoke. The injustice of it is no less evident [see Pufendorf, Book III, chap. i, §.2, with note 3]; and though some color could be found to disguise it, nothing is more contrary to good policy than such a usage. Of itself, it tends to unsettle certainty [481] of possession with respect to all movable property, and virtually assures impunity to rogues. For, in the end, who would pursue a thief from whom he has small hope of snatching back his goods, save with help from the public forces, when—in the event that the thief is caught—all the owner can expect is the distress of seeing his recovered goods pass irretrievably into the hands of another, who has no more right to them?

Shall I add, to broaden the range of examples, that there have been countries where the princes and great lords had acquired over their vassals the right—was it infamous or grotesque?—to take the place of the newly-married husband on the wedding night? This was once established in Scotland by an explicit law, one that was abolished only after a long space of time;10 and even then, they changed the privilege into a kind of tribute,11 which is still in existence, like a perpetual monument to the ancient usage, of which proofs are found elsewhere, even among the canonicate.12

We shall also note that in England (so difficult is it even under the best ordered governments to rescind bad laws once they are established) [482], a husband who in the sight and knowledge of all, has been away from his home for several years, provided that he has not been outside the realm or the island as a whole, is obliged by the laws to recognize as his own a child born to his wife during this long absence. [See Eduard Chamberlayn, Notit. Angl., Part I, chap. xvi; and Meteren, Hist. des Pais-Bas; in the description of the Laws and Police of England, Book III, fol. 271, of the French Translation.] This undeniably favors, on the basis of groundless presumptions, the unfaithful mother and the actual father, to the prejudice of the husband who has suffered a savage outrage at their hands. It does legitimate children a visible wrong by allowing the bastard child to compete with them for the succession.

If these examples do not suffice, I do not know what more is needed to persuade you that laws or received customs sometimes accord rights and privileges that are always unjust. All those found to be of such a nature (and perhaps more than we might expect will be uncovered, if everyone examines the laws and customs of his own country), all those which appear such, no matter how well authorized by human tribunals, are surely the result of a shameful indulgence, exploitation of which could be approved neither before God, nor before men who have sound ideas of justice and equity.13 This much is self-evident; and what I said in the previous discourse excuses me from pausing here to prove it.

II

But there is more. It can happen, and often does, that laws directly [483] or indirectly conferring certain benefits contain nothing unjust in themselves, and yet to enjoy those benefits would be unjust. This proposition, which at first sight seems contradictory, will become crystal clear once we have drawn attention to the principles on which it rests.

Not everything that is just is susceptible, by its nature, of being prescribed by the civil laws, as we have sufficiently established in the preceding discourse. But even regarding what lies within the ambit of the civil laws, things cannot always be regulated in the manner most conforming to the immutable laws of justice that apply to everything and everywhere. A law has no point if it is not implemented; but far beyond this, such an unimplemented law is then harmful, because it provides grounds for disregarding the legislator’s authority even with respect to other laws. Now, if we wished to take this to the last detail, if it was necessary to recognize the very least injustices and to eliminate them by public authority, it would be very difficult, not to say impossible, ever to complete the task. Moreover, it is very important to reduce the number of law suits as far as we can; their multiplication remains a real problem, more so than the freedom that allows the rules of justice to be observed only up to a certain point. Danger also follows from allowing the slightest exception to certain laws, and above all from granting those judges having authority to pursue cases in their own right the power to allow exceptions. Rather, these laws must be let stand [484] in all their force, even when particular circumstances might place the present case beyond the sphere intended by the legislator. The diversity of characters and manners, times, places and other circumstances, requires laws sometimes to accord their authority to certain just things, and sometimes to withhold it. Every legislator generally proposes, or should propose, like Solon the famous Athenian,14 to make laws that are not necessarily the best laws in themselves, but the best that the citizens, or the subjects, are capable of receiving. And no matter how wise the lawmaking, it is always true to say, with the Roman orator, that the laws redress injustices in one way, but the philosophers correct them in another. The laws restrict themselves to that which is crude and palpable, as it were; the philosophers (and each person must be his own philosopher, as each can be) dissect everything, to the very limits of an attentive and penetrating reason.15 It is thus the duty of each person to make good the unavoidable imperfection of the most excellent laws, the authors of which could not, even had they wished to, exempt whomsoever it might be from observing that part of justice and equity which they were constrained to leave outside their jurisdiction. For the rest, they force no one to take advantage either of the impunity the laws allow [485] or of the benefits they confer in this respect; they do not prevent you renouncing these.16 And there are many cases where men have publicly renounced their impunity or benefits, although the public interest and the end of the laws do not allow such acts of renunciation to be cited in the regular course of justice. In short, the civil laws are themselves most often just, but they do not embrace all that is just. If they sometimes refuse their protection to those who suffer injustices, if indeed they seem to accord a certain right to those who commit injustices, this is without prejudice to what each person must do willingly, in compliance with the inviolable rules of virtue, and independently of the authority of human legislators.

Examples are not lacking that let us appreciate the truth of what I have just said, and by means of which one will easily judge like cases that will present themselves in relation to other matters.

If there is some duty that the law of nature prescribes without fail or exception to all men, it is undeniably the duty to keep one’s word, to do exactly that which one has knowingly and freely agreed upon with another, and without there being anything in the matter itself that could annul the agreement. Nonetheless, it has not been judged appropriate always to enforce the word that has been given, and there have been sound reasons for proceeding in this way. It would be bad policy, I admit, to allow no action at law for any sort of [486] promise or contract, as has been the practice in certain countries.17 Given how most men are made, this would have the immediate effect of banishing confidence and commerce from the world. If you entirely remove constraint, there will be few people with whom one wishes, or is safely able, to enter into an agreement other than one that is executed immediately by both parties. But in order to prevent surprises and the remorse of an agreement too casually entered into, one may very well recognize promises and conventions as being valid only when they are made in a certain manner or bear on certain things. It is then for each person to take appropriate precautions; and if one runs the risk of sometimes being deceived, one now at least has a means of knowing those who are capable of deception, and those in whom one must no longer trust. This is the touchstone of a sincere probity. Thus, under Roman law, when it was not a question of contracts having a specific name and whose obligatory nature was fully authorized at law, if you say to someone: “I give you this so that you give me that,” the agreement is sound and valid.18 [See Digest., Book II, title xiv, De Pactis, Leg. VII, §§.1, 2 et seq. Leg. XLV, & Book XIX, title iv, De Permutat. rerum, Leg. I, §.2.] But if one says: “I shall give you this so that you give me that,” it is not sound and valid, whether [487] such a promise is written or spoken. However, if in the form of a question one said: “Will you give me this, and I shall give you that?,” and if the other party, being present, had answered: “Yes,” then there is a promise that has full force. In good faith, are we to think that formerly (for this futile subtlety no longer holds today, even in countries where the Roman law is followed), are we to think that formerly a good man found himself obliged or exempt from keeping his word, depending on whether he had adopted, in giving his word, this or that turn of phrase which, finally, carried the same sense as when one was in fact talking and acting seriously? Such was indeed the view of the sages: Seneca is quite clear on this.19 And is it not apparent that they moved past the pure formalities of the stipulations, and that they renounced the right to exploit a formal error, from the moment when one party counted on the word of the other, and the latter showed that he could count on that word without need for further surety? It is simply that, then, they wished not to be subject to any sort of constraint, but rather to account for any breach of faith only before the invisible tribunal that each had in his heart. Therefore the Roman jurisconsults themselves recognize that, in such a case and [488] others similar, natural obligation retains its full force.20 And, apart from various exceptions which, in those times, involved nullification of agreements on grounds of some formal error,21 agreements of this sort achieved their effect indirectly, according to the Praetorian law, on all occasions when one had undertaken to demand nothing of that which was due, no matter what the reason; because at that time the promise tended to relieve an obligation, which could have given rise to a law suit. This is clear proof that the purpose of these laws, which declared other agreements null and void on the grounds of a formal error, was not to break the sacred bond of the given word, but simply to regulate things in a way that was believed to be best for public utility. The proof is also that the Emperors Diocletian and Maximian fixed the damages incurred when one was relieved in a contract at a level above half the fair price [Cod., Book IV, title xliv, De rescindend. vendit., Leg. II].

The privileges of minors, in relation to the nullity of agreements contracted without the approval of their guardians, are also undeniably very wisely delimited, and it would not have been appropriate for the judges to introduce exceptions. But does not good faith require exceptions? Do we not sometimes see young people who, though not yet at the age of majority fixed by the laws, are no less prudent and competent than many adult persons, and no less so than they themselves will ever be? May they not [489] engage with persons who do not believe them to be still dependent, in their dealings, on another’s will, or who have no reason so to believe? But once they are known to be minors, if no fraud has been used toward them, nor any artifice, and even if they have acted entirely freely and in full knowledge, even if one has dealt with them solely for their pleasure, have they not manifestly renounced their benefit under the laws, by the very fact of seeking to enter a serious agreement while fully aware of their own legal status? Would it not be a signal act of deceit on their part to take advantage of the fact that they had been treated as competent to reason, and had been taken at their word? Have the laws, in order to prevent minors from being deceived, in fact helped them to be deceivers, and given them the means to profit at others’ expense, by granting them full restitution or by providing no form of action against them at law?

The same may be said concerning the agreements contracted by women, without the authorization of husbands or some male relation. This sex, that in various ways we so underestimate in relation to ourselves, is sometimes more intelligent and circumspect in business than those from whom we wish women to take counsel. And the particular virtue, that we have as it were assigned to the sex as its share, requires that women take every care to flee from whatever has the scent of infidelity.

In all this, I do not make exception for certain agreements in which there can be, and often is, [490] something immoral and illicit, but where this is only incidental to the agreement. Thus in gaming, for instance, where the laws allow the misfortunate gambler to demand return of his losses.22 Society sees it as a gross injustice, as it has always been seen, and rightly so, that a man who has played willingly and lost fairly should have recourse to the courts to recover his money or refuse to pay up, on the grounds that he cannot be compelled to do so.

The severity of the laws of the Ancient Greeks and Romans against insolvent debtors was perhaps necessary [see Saumaise, de Modo Usurarum, chap. xvii, xviii], but I am not sure that in recent times we have not relaxed matters too far. Yet it was up to the creditors alone to be less severe; and I will be told that they sometimes needed to make exceptions that the legislator had not judged it appropriate to make. There is certainly a clear difference between a debtor in bad faith and a negligent or imprudent debtor; between a man who has made himself incapable of paying by his bad conduct and a man who is reduced to this incapacity as the result of a misfortune that renders him deserving of sympathy. When one lends to another, especially with interest, one takes or should take account of the possibility that a thousand unfortunate accidents can happen that make it impossible for the debtor to repay the debt. All that can be required of him is that he does not expose himself to such accidents. Is it therefore just, [491] when it is in no way his fault, to clap him in irons, to make him one’s slave, either in perpetuity or (which often comes to the same thing) until he has paid? If the laws permitted it, even in this case, it is not—as Seneca aptly put it—that the legislators had been insufficiently bright to see that one cannot treat as identical, without grave injustice, those who have squandered their fortune in debauchery or gaming, and those who, as the result of a fire, a theft or some other accident, have at the same time lost both their creditor’s goods and their own.23 Rather, to teach men to be true in their commerce, it was thought better that a small number of people should run the risk of being excluded from offering a legitimate excuse, than that everyone should be able to find some specious pretext to avoid guilt.

But let us turn to examples of another kind. The law of prescription provides one that we should not omit. This law, no matter how odious it appears, no matter that it has been taxed with blatant and perpetual injustice by overly rigid casuists, nonetheless has as its fundamental goal—if one takes the trouble to see it—that of securing property in goods, a goal that clearly requires both that a possessor in good faith should, as such, enjoy the full rights of the true owner, and also that he should himself ultimately become the owner.24 [492] Nor do I wish to treat as unjust the Roman laws which at one moment authorized prescription without evidence of good faith, but at another time required good faith only at the outset of possession. [See a dissertation of Mr Thomasius, De perpetuitate debit. Pecuniar., §.32 et seq.] In view of the difficulty that would very often lie in proving that a man knew the property he was acquiring or possessed belonged to someone else, the legislator is quite justified in judging it appropriate not to take this circumstance into account, so as to obviate some vastly tangled law suits. Yet, whether or not the civil laws presume good faith on the part of the possessor, good faith is nevertheless necessary according to natural law, which always requires it, from the outset of possession up to the time when possession becomes ownership. The legislators neither would nor could accord a true right either to retain a property known to belong to someone else, or to appropriate that property to oneself, even if you believed it to be yours, until a considerable time had elapsed, so that the former owner himself, with good grace, could renounce all his claims. If the laws uphold a possessor in bad faith, after expiry of the term of the prescription, they can no more render him the true owner in the sight of the tribunal of reason and conscience than they can so render a man who knows full well that he failed to deliver the sum against which another gave him a promissory note, on which score the latter is nonetheless obliged to make repayment, once the time has lapsed beyond which one loses the legal capacity to prove that the original sum was never accounted for. [See Instit., Book III, title xxii, De litterarum obligat.]

This last case is notable, and merits a separate article. But here is something that [493] is just as striking. Before the Emperor Zeno, who ruled in the East at the end of the fifth century, if in certain cases one had demanded more than was owing, that is, not only if the sum owing was less than what was now demanded, but even if one had sought repayment at another time or place, then no matter how small the difference, under Roman law one lost one’s case, on that ground alone.25 [See Instit., Book IV, title vi, De actionibus, §§.33, 34.] If one had demanded less, and if later one had realized that much more was owing, though the judges doubtless saw this too, they would not adjudge the creditor entitled to anything more than he had first asked. It is undeniably right to stop a false debt from being boldly substituted for a true debt; and every person must take care not to claim repayment greater than he can legitimately require. Yet is it right, for instance, that a man who is recognized as being legitimately owed nine hundred and ninety nine écus should entirely lose them, because he asked for one thousand? Is there ground for presuming that he was willing to risk the entire sum, and so large a sum at that, just to gain one écu? Is it not easy to make a mistake, when the additional amount is so slight? How does the debtor dare to appropriate another’s property, by sheltering behind an accident that would not have befallen the creditor, if the debtor had given satisfaction with good grace, as he was [494] supposed to do? If, because of this accident, the courts did not condemn the debtor to pay, it was because their powers were constrained by the laws, which, in order to avoid certain improprieties, imposed on the judges a scrupulous precision, neither the force nor the aim of which were finally to extinguish the debt. Proof of this is that the creditor, having had his request rejected, did not easily obtain a full restitution from the higher tribunal; if, notwithstanding this, he could cite strong reasons to show that his mistake was one of ignorance and that he had committed no fault, he was relieved just as if he had been a minor.26 But supposing that the surplus of the true debt had been considerable, and that there was ground for presuming bad faith on the part of the plaintiff, was it not compensated by an equal presumption that he could at least raise with no less justification? Was the debtor, who had allowed himself to be cited in the original action, without offering what he truly owed, himself acting in good faith, and had he good grace on which to pride himself, to the detriment of the creditor? The same can be said of an excess demand that advanced the due date or altered the due place.

For those who demanded less than was owed to them, there was no indication that they intended to acquit the debtor of the amount that they had not included in their demand for repayment. A donation cannot be presumed, and must not [495] be presumed, in the absence of clear indications. And when one is in the mood to dispense liberalities, it would not be towards a person who wished to extort from you even greater liberalities by his refusal to pay the balance of that debt, part of which you had been willing for him to discount. Nor, moreover, in the present instance could the plaintiff be suspected of some evil design that would make him deserving of the slightest punishment. If at the very outset he did not state his claims in their full extent, what harm can that be to the debtor? It was for the latter to signal himself the mistake; he would have done so, had he taken care to render to each his own. And on his part it is a huge diversion, and a further injustice, to compel the creditor to commence another law suit.

But this is not the sole example of injustices committed in favor of laws that regulate the process of judgments. At all times and in all countries, there has been much abuse of the advantages that can be derived from formalities generally. These formalities, I admit, have their use and, sometimes, their necessity. They are required in greater or lesser number, depending on the times, the places and the issues: as few as possible, that is always the best. But it is certain that, in many places, by dint of multiplying formalities, the accessory has been made the principal, giving rise to many more problems, some of them considerable, than those to which one sought a remedy. This is a vast field for creating diversionary tricks.27 Here you have a good means of muddling [496] the clearest cases, and of causing the most just of causes to lose; of dragging out trials; of imposing on one another ruinous expenses, from which only the judge and the lawyers benefit, and which often mean that in winning one’s case one is winner of nothing. But let us leave to those whose task it is the responsibility of preventing what was established for the sake of order from degenerating into the occasion for disorder. It is enough to have brought it to your consideration that individuals are profoundly deluded in imagining that the observance or the omission of formalities of the bar, whatever they may be, can ever create a valid right to retain that which one owes, or to appropriate to oneself that which otherwise would legitimately have belonged to another. It is not the legal formalities and the procedures, nor even the judge’s sentence, which make a thing belong to someone or come into their possession; it already belongs to him or has already been acquired by him. The judge neither seeks nor is able to do other than to recognize that person’s right, and to put or keep him in possession of that which was refused him, or about which he was challenged.28 He who is forced to plead in order to have or to hold his property, could not lose it through the sole lack of some incidental thing, established with a view to enabling each more easily to obtain his own, but which, by accident, now impedes instead of serving this end. [497] The effect that the laws have tied to the omission of formalities does not fundamentally make the cause of the one better, nor that of the other worse; and it is not even the intention of the legislator, nor of the judges, to have things regarded in this way. It is no more than a matter of certain preliminaries that were deemed important enough for a case not to proceed further if these preliminaries had not been duly met, and to impose a sanction on whoever had not complied, in some respect or other, by not commencing discussion of the main issue. But since, supposing it well founded, an existing right is simply being recognized, it is recognized in full. If there is any fault on his part, the first and most considerable fault—or rather the only fault that here justifies the parties’ going to law—is wholly that of the other pleader. It was the latter’s duty to warn of the problem, and not to seek to profit from it. Given its inflexibility, the law depended on him, regarding what the legal officers could not themselves do, restricted as they are by the generality of the rules. The law waited for him to come to their aid, as he was required to do. If he had sound reasons to allege, he was to renounce this privilege, which was a separate matter. In short, all the incidentals, all the factors external to the case, everything that does not bear on the essence of the cause, detract so little from the right of the man who has right on his side that he is [498] not truly deprived of right even by a final negative verdict on the principal question.29 It would be in vain should all the courts of the world condemn a man who is not wrong; their error, no matter what its source, could not alter the nature of things. Evil always remains evil; injustice, unjust. If the victorious pleader has in bad faith denied the debt, or even if, no matter how blinded he might have been by self-regard and self-interest, he was sufficiently aware to suspect and, however slightly, to recognize the injustice of his cause, he remains the debtor, and even more so than before. Doubly guilty, doubly responsible, both for the stubborn refusal to restore what belongs to another, and for all the damages and costs of the law suit. His debt only grows from one day to the next.

Sometimes, too, one loses one’s initial case, solely because the actions on which it rests lack certain formalities, which have no relation to the right of the parties and which are established for quite another purpose than to order and assist the course of justice. A sovereign, for example, has need of revenue from taxation. To achieve this simply and imperceptibly, he has a certain imprint made on paper that, as a result, commands quite a high price. He then orders that all contracts should henceforth be written on such paper, failing which they will not be recognized at law. Let us suppose that a man, in making a loan, did not think of this, and makes do with a note written on ordinary paper. Do you believe that, as a result, he has anything less than the full rights of a creditor because in this way he lacks an adequate guarantee of [499] the debt? Will you dare, unfaithful debtor, to deny what you have written; will you violate your word, detain another’s goods, under the pretext that the judges do not constrain you to pay, in order to sanction a neglect of which you are at least as guilty as the man to whose detriment you now seek to enrich yourself? The legislator rightly supposed that there would be low and knavish spirits who would have no scruple in turning this kind of punishment to their own advantage; and it is for fear of having to deal with such people that the legislator hoped to render others circumspect and meticulous in paying the tribute. But for all that, the legislator did not want the debt to be confiscated for your gain, and when it was a case of true confiscation, you would have no right to seek it for yourself.

Here we have some cases, of nearly every sort, in which a manifest injustice arises from enjoying the benefits conferred by a law that in itself is just. The paradox dissolves, and the duty of individuals is easily reconciled with the will of the legislator.

III

This is not yet all. Here is something that will make what I have just established seem less strange. One must sometimes willingly renounce enjoyment of a benefit that is not only conferred by a just law, but also whose enjoyment is always just.

If men are men, if they act as reasonable creatures, if they wish to conform to what their nature demands, if they are of a mind to show themselves worthy members of that universal society of which God is the author and protector, it is absolutely necessary that they be religious observers of justice, but not of justice alone. There are other virtues which, while free from [500] all constraint, nonetheless carry a clear and imperative obligation. Conversely, this obligation is all the stronger for being free of coercion, since the man who imposes it thereby relies more on one’s willingness to fulfil the obligation. Yes, humanity, compassion, charity, beneficence, liberality, generosity, patience, gentleness, love of peace, these are not empty names, nor are they indifferent things; they are not even new commandments contained in the Gospel. Rather, they are sentiments which all reasonable persons in all times have counted among their duties; they are dispositions that one cannot but admire and praise in others, even in an enemy, though one may not feel them in one’s own heart nor wish to make the effort to install them there. Human laws, far from exempting us from such virtues, furnish a thousand occasions for their practice. Let us indicate some of these.

A merchant and man of virtue finds himself reduced by misfortune of circumstances to an incapacity to meet a payment whose term has fallen due. If the creditor forces him, there is no way he can avoid bankruptcy; so here we have a ruined man. If he is given time, there is reason to hope that he will put his affairs to rights. This creditor is rich; he can, without inconvenience to himself, manage without this sum which, compared to what he has at his disposal, is inconsiderable. Were he to lose it, will he be so hard-hearted as to ruin a man whom he can save?

Another wealthy man has had possession for the period required by the law of prescription [501] of a property that he acquired by legitimate title, without ever having the slightest suspicion that it belonged to someone other than the man from whom he obtained it in this way. So his right is established beyond any doubt. The former owner, who has since reappeared, has no claim; and, strictly speaking, nothing is owed to him. The same laws of justice that had given him a right in the property in question to the exclusion of all other claims have transferred this right to the present possessor in good faith by virtue of his length of possession. But notwithstanding this, this new master will not be at ease until he restores the right to the other man who lost it through no fault of his own, and who will benefit greatly from its restitution. If ever there was a time to be generous, this is it. And given that it is generosity towards one who is in dire straits, compassion and charity are now allied with generosity.

A legitimate heir is deprived of an inheritance by a will in which defects are found, by virtue of which he could have it annulled if he wished, something he could indeed do without giving anyone grounds for appeal. No matter how sure he is that this defective document nonetheless expresses the testator’s true and unforced wish, it is not this wish that, of itself, should here be his rule of conduct. The formalities and other conditions without which a will is regarded as null and void were not established only to prevent frauds and trickery; another aim, perhaps the principal one, is to set limits to how one can dispose of one’s estate after death, so that the expectations of those that the laws recognize for the succession are not easily thwarted. The testator could dispose of his estate to their detriment only by an [502] act that conforms to the law, the heirs having done nothing to indicate their renouncing the right to have the will declared invalid. In this way, when they ask for the will to be annulled, no injustice is involved, whether toward the living or toward the dead. But let us suppose that the inheritance is a trifle for the legitimate heir, and that in allowing it to pass to the person specified in the will, he enables the latter to live in comfort, he affords the man and his family a means of serving society far more fully than they could otherwise have done. Will he envy so many human creatures, like him made in the image of the supreme benefactor, refusing them an advantage that he can so easily procure for them, an advantage that he should procure for them by acting in a more direct way than providence might do? If the circumstances do not involve the specified heir, a legatee can find himself in this situation: the legacy will have been made to him on just grounds, say for important services that he rendered to the deceased. So, again, let the will then be annulled, but let the legacy stand, and let justice cede its rights in favor of humanity.

To this point I have supposed persons worthy of the good that is done them when one relinquishes one’s legal right. But there are also cases in which one is called to make this sacrifice even in favor of unworthy subjects.

A person has caused you harm by their gross and inexcusable imprudence. Nothing is more just than to seek reparation, and the imprudence makes this entirely legitimate. But were you to pursue such reparation, or demand it to the full, the man who has to meet the cost would, in so doing, be reduced to the utmost wretchedness; whereas, in [503] acquitting him in whole, or in part, you would be inconvenienced only a little or not at all. Oh man, so often liable to need the understanding of your fellows, on this occasion show some understanding yourself; excuse the fault, forget it, if this is possible; but at least, since it is up to you alone, do not pursue its ruinous consequences for another man. Respect in the other man the fragility of your own nature, and do not fail to exercise gentleness and charity, since these acts will shine all the more and be the more deserving.

You have been maliciously slandered, you have been insulted. Will your first move be to seek satisfaction through the magistrate, satisfaction which often you may not need? If your reputation is sound, if you have nothing with which to reproach yourself, the offender’s barbs will fall back on him alone. The best means of revenge, if revenge were permitted, is scorn. It will at least spare you anxiety and disturbance of mind on account of a harm that in fact is imaginary, when it entails no real damage.

I wish there was something more than mere words that the wind carries away in an instant. Let me suppose that someone has stolen from you, or withheld from you, or demanded from you, contrary to all right and reason, something which most legitimately and most incontestably belongs to you. Ah! best let it go, as far as you can without too much trouble, without some irritating inconvenience; give it up, sacrifice something, rather than calling someone before the courts, or letting yourself be called. It is as true for a law suit as it is for war: it is always an [504] evil; necessity alone can justify those who expose themselves to it. When I think of the ease with which so many people go to court, often for trifles, I do not know what it is about them that amazes me most, whether a lack of concern for their duty, or a lack of care for their true interests. What is one who pleads in court? Let us imagine him in the best possible light; let us leave aside the bad faith, the devious mentality, the oblique paths, the tricks, the duplicities deployed to influence or corrupt the judges. Let us, instead, suppose a man who believes his case to be well-founded, as indeed it is, who wishes to uphold or pursue his right but only by legitimate means. So what is a plaintiff considered from this point of view? He is a man who can scarcely be of peaceful mind: the rival party’s bad procedure irritates him; the more he has right on his side, the more he conceives a bitterness toward the other party, toward all who take the other’s side, toward all who have some link, some relation with him. This is a man who has abandoned his business, his most productive and most pleasant occupations, in order to suffer so much distress, so much fatigue, so many rebuffs, so much deviousness, so many disappointments, such great expenses; and all this without knowing how long the case will continue, or whether he will win his case, no matter how just it is, nor whether he will finally obtain damages which, when all is added up, never equal what it has cost him. And if he wins, then he now faces a deadly and constant source of hatreds, animosities and enmities that sometimes persist between families from generation to generation, and from which is born an infinity of evils. A Latin poet put it well: [505] “Is it possible that a person, who has first lost his case, could be so lacking in sense, so great an enemy to himself, as to want to spend twenty years in litigation?”30 Let us say rather: is it possible that one would want to go to court when there is even the slightest chance of avoiding it, by compromising or by giving something up when one is not compelled to proceed by the state of one’s affairs, or by some other pressing and necessary reason?

At this point I seem to hear someone protesting at the upshot of my entire discourse: “If this is so, we should close the law courts and demolish the tribunals of justice; no more judges, no more assessors, no more lawyers, no more procureurs, no more clerks, no more ushers, no more of those whose only occupation is to exploit the freedom people still believe is theirs to enjoy their legal benefits, and to exploit people’s haste to have recourse to law.” The objection appears strong: but the one thing I find annoying here is that this objection is not strongly enough embraced by those very people who silently agree, and so we cannot flatter ourselves that the prospect it envisages could in fact ever arise. Yes, please God that men may grow wise enough to render redundant all those professions, employments and institutions that are based only on men’s follies! Please God that we may see the birth of a golden age in which, each one of us taking care to give offence to none, but on the contrary being eager to do good to whosoever needs it, we may be disposed to forgive the faults of others, to behave toward everyone in the same [506] manner that we would wish others to behave towards us, and to embrace and search out every possible means to avoid disputes, or to resolve them amicably in the shortest possible time! But be reassured, you who are alarmed by the very thought of so happy a revolution that you would regard as fatal for your own fortune. There will always be only too many quarrelsome and devious persons, who reduce the most pacific of men to the necessity of using, despite themselves, the instruments of justice. Egoism, interest, human passions are your good guarantee for your revenues. Only allow that the rare few who take their duty and their tranquillity to heart may avoid, insofar as they find it possible, having any dealings with you. May they be permitted to renounce their advantages.

Christianity prescribes this moderation in terms so strong that they have occasioned overstatement [Matth. V, 39, 40]. “Resist not evil, but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also.” The least one can understand by this, and all that a sound and judicious criticism finds here, is this: that one must not [507] always take advantage of the law of an eye for an eye, a tooth for a tooth; and that, rather than proceeding to court to seek reparation for some trivial insult or to avoid losing some small possession, one must expose oneself to a further insult or to a new loss.

But here the pagans themselves, guided only by the light of reason, thought and acted in a manner that leaves many Christians covered in confusion. Among the pagans this was a common saying: “that right pursued too rigidly is a great impediment and a supreme injustice.”31 Cicero offers the following rule: “that, in many cases, one must give up one’s right; abstain from litigation, to the extent that one can do so without inconvenience, and perhaps somewhat further still.”32 Pliny the Younger missed no occasion to desist from enjoying benefits the law granted to him. We see him at one time making the donations or other charges imposed on him by a codicil that the laws of those times deemed null and void on the ground that it had not been confirmed in the subsequent will;33 at another time, we see him granting freedom and a legacy to a slave, who had no claim to either, because of the defective manner in which the testator had expressed himself;34 [508] at yet another time we see him relinquishing to his country [the city of Como], instituted as inheritor conjointly with himself, his portion of the inheritance, and a considerable portion, that he could have kept to himself as entirely within his right;35 finally we see him allowing even his slaves to make a form of will, and then executing their dispositions with the utmost punctiliousness.36

Let us conclude (for it is time to finish, and we can do so), let us conclude with Aristotle that “it is not exactly the same thing, to be a good citizen and to be a good man.”37 The latter title has a far greater reach than the former. One may do nothing that is against the laws, one may act only in accordance with the laws and, notwithstanding this, still fall short in an infinity of things that true probity demands.

But how to find some link here with the solemnity of the present occasion? How to draw from what we have said what is needed to address a small exhortation to these young people? I glimpse something that will not be too far off our topic.

My children, we prescribe rules for your studies, we teach you lessons, we set you tasks: you have to be assiduous in your exercises, to listen attentively to your masters, to try to retain what they teach you, to do exactly what they command. But that is not enough. If you have it in your heart to acquire all [509] the knowledge that is useful and necessary to you, you have also to work for yourselves, and make time for that in the leisure that you are allowed. Although, at your age, you have a great need to be pushed and guided almost constantly, you can nonetheless take some small steps on your own, should you wish to. And there are some among you, who must be ready to move ahead a little, beyond the master’s gaze. No matter what care is given you, however well you employ the time needed to work in a manner that will please your masters, there will often be more than enough time left for you to relax. And it is very dangerous lest you then become attached to things that are bad and harmful in themselves, or that will turn you against work from which but little is gained, unless you love it. If you study only to complete the set tasks, if you do not early accustom yourself to taking your pleasure in your work, you will never reach the point of exercising with honor the employments at which you aim. As you grow older, sources of distraction will multiply, and temptations will be stronger and more numerous; yet it is then that you will have greater need, from one day to the next, to study under your own discipline, with commitment and eagerness. So we can do no more than [510] point the way. It will then be up to you to walk, to take care not to stop and not to wander. The best teachers in the world will then be able to do no more than introduce you to the sciences, give you some openings, and show the method to adopt. All this amounts to little, if one does not use it to go further by oneself, if one rests content with the basic elements, and with a mediocre routine which has cost you next to no effort but which you follow shamefacedly, to the great detriment of society, whose interests you could and should have furthered. If the rewards that we shall now distribute, according to custom, to those of you who have achieved some distinction, led to no improvement, they would not have been put to good use, and this would be nothing but an empty childish ceremony. May God grant that we have no reason to regret the time we commit to it! May you surpass our hopes, and indeed our wishes, if it is possible!

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[65.]Pufendorf’s restriction of punishment to external acts capable of threatening security is a key means of excluding the church from the state and establishing religious toleration. The “liberal” and absolutist dimensions of Pufendorf’s thought thus both flow from the same source: his restriction of sovereign power to the objective of social peace, over which it has sole disposition.

[76.]In this chapter Tooke uses “commonwealth” rather than “community” to translate Pufendorf’s civitas.

[1.]G. W. Leibniz, Political Writings, P. Riley trans. and ed. (Cambridge, 1972), pp. 64–75. Riley translates the title as “Opinion on the Principles of Pufendorf.”

[2.]Discours sur la Permission des Loix (Fabri et Barillot, Genève, 1715); republished by Pierre de Coup, Amsterdam, 1715. Discours sur le Bénéfice des Loix (Fabri et Barillot, Genève, 1716); republished by Pierre de Coup, Amsterdam, 1716.

[3.]In the following translation of the Judgment and the Discourses, the page numbers given in square brackets refer to Barbeyrac’s text as printed in the 1735 edition of Les devoirs de l’homme et du citoien. The numbered footnotes are Barbeyrac’s.

[1.]That is to say, the late Mr Leibniz. See the postface to the fourth edition of my translation.

[2.]Böhmer was then Professor of Politics and Rhetoric. In 1710 he became Professor of Theology, while retaining his other two chairs. Subsequently, in 1723, he was made Abbot of Loccum, succeeding his uncle Gerhardt Walter van den Muelen. He was neither the brother, nor the relative of the famous Mr Böhmer, Professor at Halle, as I had conjectured he might be.

[3.]This was pure conjecture on my part, given my intention to appear to know nothing of the identity of the writer, although I knew it perfectly well. Leibniz had himself sent this piece, by the post, to one of my friends in the neighbourhood of Lausanne, knowing that it would be communicated to me. Therefore I could scarcely imagine that it had been published without his permission. If Mr Böhmer had paid attention to what I subsequently stated, in my Postface, when, the situation having changed with the death of Mr Leibniz, I believed I could reveal the name of the anonymous writer, the author of this Opinion here translated with my commentary, he would soon have recognised that I had not seriously suspected him of taking the liberty of printing the work without the author’s consent. This was his complaint to me in a gracious letter that he did the honour of writing to me in November 1719, when sending me a second edition of his Academic Programs. In the letter he informed me that, in response to a request, Mr Leibniz had written and conveyed his Opinion to the late Mr Gerard Molan, Abbot of Loccum and Director of the Churches of the Electorate of Brunswick, Mr Böhmer’s own uncle. The piece had been sent on 22 April 1706, with full permission to have it printed under the title Epistola Viri Excellentissimi ad Amicum, qua monita quaedam ad principia Pufendorfiani Operis De Officio Hominis & Civis continentur. But it was three years before Mr Böhmer had occasion to act on the permission. Given this declaration on my part, I hope that Mr Böhmer will not find it displeasing if I do not erase with a “perhaps” what I said here concerning him. To do so would require me to change my plan to leave—for good reasons—the text of my reflections precisely as it was composed.

[4.]I did not know then what I later learned on arriving at Groningen, that the late Mr Alexandre Arnold Pagenstecher had already had Mr Leibniz’s letter printed in 1712, and revealed the author’s identity, having himself found the name indicated in a Flemish journal, the Neuer Bucher-Saal. He published it at the end of Van Velsen’s edition of Pufendorf’s De Officio Hominis et Civis, an edition of which I had not heard.

[5.]The person to whom the letter is written—he too is not named—is addressed here as “most eminent man,” vir summe. It is Mr Abbot Molan, or Molanus. See the note to p. 380.

[6.]“Suo quondam merito celeberrimi.” He is yet more renowned since his death than he was in his lifetime.

[7.]See the fine and judicious Reflexions sur l’Utilité des Mathématiques of Mr de Crousaz.

[8.]Stricturae in Grotium, etc. This work, and its author, are not held in great esteem by judicious scholars even in his own nation. See L’Histoire du Droit Nat. by Mr Buddeus, §.27, at the head of the Selecta Jur. Nat. & Gent. et la Bibliotheca Juris de Mr Struvius, p. 347, 5th Edit. The latter speaks of Felden (or de Felde) on the occasion of a book that he published in 1664 at Frankfurt and Leipzig, under the title Elementa Juris Universi, & in Specie Publici Justinianei. I have since seen this work, and as a result am more than ever convinced that there is no reason to expect from such a mind all that Mr Leibniz promised himself regarding what is required. I wrote further on this in my Preface on Grotius (p. ix), and I do not retract what I said there. What is more, Mr Leibniz’s defender, having never apparently heard of Feldenus, thought to work a miracle in changing this name to that of Seldenus, as if there was a printing error or some inadvertency in the original text. However, the name of Feldenus appears also in the second edition that Mr Böhmer published in 1716. Basically, no-one who knows the works of the English scholar will ever imagine that Mr Leibniz could have judged him likely to provide a system of natural law, according to the concept and plan that he believed this should follow. His good opinion of Feldenus was based, it appears, on the Elementa Juris Universi, to which he refers in his Nova Methodus docendae discendaeque Jurisprud., printed in 1668 at Frankfurt, p. 39.

[9.]By Mr Andrew Took[e], Professor of Geometry at Gresham College, printed at London in 1716. The translator added my notes, but he had seen only my first edition.

[10.]By Mr Spavan who, from what is said, also used my notes on both of Pufendorf’s works. This abridgment appeared at London, in 1716, in two octavo volumes.

[11.]So our anonymous writer has published something else, as it appears also from what he says at the end of his letter. But I am no clairvoyant. This is what I said, speaking as if I did not know the author of this piece. Now I can indicate the work to which he refers. It is the Preface to the Codex Juris Gentium Diplomaticus, pp. 7, 8. See also his Jugement sur les Oeuvres de Mylord Shaftsbury, published after his death, by Mr Des Maizeaux, in the Recueil de diverses Pièces sur la Philosophie, la Religion Naturelle, etc., Vol. II, p. 282.

[12.]In a dissertation of Jo. Ludovici Praschii, entitled Designatio Juris Naturalis secundum disciplinam Christianorum, which appeared in 1689.

[13.]Sit spes fallendi, miscebis sacra profanis. It is a line of Horace, Book I, Epist. xvi, 54.

[14.]Eaque firma ratio est, quâ homines omnem Juris obligationem in factum traduci debere intelligant, si sibi ipsis consulere velint.

[15.]See my comment in this volume, Book I, chap. I, §.11, note 3.

[16.]See a passage from Plato that I cited in my Preface to Droit de la Nature et des Gens, §.21, p. lxxxvi of the second edition.

[17.]See what our author says in Droit de la Nature et des Gens, Book II, chap. iii, §.19, where he maintains that it has not yet been proven, that every good action must necessarily be followed by some external reward.

[18.]Jus quoque Naturale MAGNAM PARTEM circa formandas hominis actiones exteriores versetur. In his 1728 edition of De Offic. Homin. & Civ., Mr Otto here declared himself opposed to Mr Leibniz and his defender.

[19.]See what the author says in his Specimen controversiarum &c, chap. iv, §.19, to which I refer below regarding section XI.

[20.]Compositum jus fasque animi, sanctosque recessus, / Mentis, et incoctum generoso pectus honesto, Haec cedo, ut admoveam templis, et farre litabo. Persius, Satirae II, 73, et seq.

[21.]See the treatise De Officiis: Sed aliter Leges, aliter Philosophi, tollunt astutias Leges, quatenus manu tenere possunt; Philosophi, quatenus rationi & intelligentia. Book III, chap. xvii.

[22.]Our author himself cites a passage from this philosopher, to this effect. Other references have been added in the notes on Droit de la Nature et des Gens, Book VII, ch. ix, §.4.

[23.]Ut adeo etiam parum tuta aut facilis sit hypothesis, animi intus pravi, foris innoxii.

[24.]Sed quum in internis quoque jus & obligationem, peccataque in Deum, & rectas actiones, natura constitui, nemo negare possit &c.

[25.]De Jure Belli ac Pacis, Prolegom., §.11.

[26.]See chap. iii of this Abridgment, §§.10, 11.

[27.]See Droit de la Nature et des Gens, Book II, chap. i, §.3, and chap. iii, §§.5, 20; and in Eris Scandica, Apolog., §§.7, 8; Specimen controver., chap. iv, §§.3 et seq., and chap. V, tot., etc.

[28.]Non nisi spe metuque obligari, & in divina maxima vindictae exspectatione, quam nec morte effugere detur, necessitatem plenam, & in omnes valituram, servandi juris & aequi, posse inveniri.

[29.]Itaque ego illum feliciorem dixerim, qui nihil negotii secum habuit: hunc quidem de se melius meruisse, qui malignitatem naturae suae vicit, & ad sapientam se non perduxit, sed extraxit. Seneca, Epistolae LII. And see preceding.

[30.]Et multa nobis imperat ipsa ratio, ut naturae melioris ductum sequamur, ne nobis vel malum accersamus, etc.

[31.]Hoc rationis praeceptum omne quum simul alios spectat, quorum id refert, ad Justitiam pertinet.

[32.]Duas Respublicas animo complectamur: alteram magnam, et vere publicam, quâ Dii atque Homines continentur; in quâ non ad hunc angulam respicimus, aut ad illum, sed terminos civitatis nostrae cum sole metimur: alteram, cui nos adscripsit conditio nascendi. Seneca, De otio Sapientis, chap. xxxi.

[33.]Si popularia ad rem quid facerent, dici quoque posset, hunc Mundum magnam esse civitatem, cujus supremus Rector Deus est. Specimen Controvers. chap. iv, §.7.

[34.]Et quam, quaeso, vim rationibus ultra se ipsum metus dabit, quam sine rationibus non praestat sibi?

[35.]Finem Juris Naturalis esse bonum servantium: Objectum, quidquid aliorum interest & in nostra est potestate: Causam denique efficientem in nobis esse Rationis aeterna lumen divinitus in mentibus accensum.

[36.]Viris quibusdam acutis nimis obvia visa esse, atque inde paradoxotera quaedam excogitata, quae novitatis specie blandirentur &c.

[1.]Vir bonus est quis? Qui consulta Patrum, qui Leges Juraque servat Sed videt hunc omnis domus & vicinia tota Introrsus turpem, speciosum pelle decora. Horace, Book I, Epist. xvi, line 40 et seq.

[2.]Jus est ars boni & aequi. Cujus merito quis nos Sacerdotes adpollet. Justitiam namque colimus, & boni & aequi notitiam profitemur: aequum ab iniquo separantes, licitum ab illicito discernentes: bonos non solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes: veram, nisi fallor, Philosophiam, non simulatam adsectantes. Digest Book I, title I, De Justitia & Jure, Leg. I, §.i.

[3.]Non omne, quod licet, honestum est, Digest, Book L, title 17, De diversis Regulis Juris, Leg. CXLIV, princ.

[4.]Cicero made the point well: Constituendi vero Juris ab illa summa Lege capiamus exordium, quae saeculis omnibus ante nata est, quàm scripta Lex ulla, aut quàm omnino Civitas constituta. [In determining the truth of justice, let us start with that supreme law that was born centuries before any law was written, or before any state was established.] De Legibus, Book I, chap. vi. Nec, quia nusquam erat scriptum, ut contra omnes hostium copias in ponte unus adsisteret, a tergoque pontem interscindi ju beret, idcirco minus Coclitem illum rem gessisse tantam, fortitudinis lege atque imperio, putabimus: nec si, regnante Tarquinio, nulla erat Romae scripta Lex de Stupris, idcirco non contra illam Legem sempiternam Sextus Tarquinius vim Lucretiae, Tricipitini Filiae adtulit: erat enim Ratio, profecta a rerum natura, & ad rectè faciendum impellens, & a delicto avocans: qua non tum denique incipit Lex esse, quum scripta est, sed tum, quum orta est. [That nowhere was it written that one man should stand at the bridge against all the forces of the enemy and command that the bridge should be torn down behind him, does not mean we should not believe that Horatio did this great deed according to the law and the command of courage. Nor that, because there was in the reign of Tarquinius no Roman written law of rape, the violence used by Sextus Tarquinius against Lucretia, Tricipitinius’ daughter, was not against the eternal law. In fact reason existed, derived from true nature, directing people towards doing good and calling them away from crime, and did not become a law only when set in writing, but when it first originated.] Idem, ibid. Book II, chap. iv.

[5.]This is the description that Cicero offers, in a passage of the Republic that one of the Church Fathers has conserved for us: Est quidem vera Lex, recta Ratio, natura congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a fraude deterreat: quae tamen neque Probos frustra jubet, aut vetat, nec Improbos jubendo, aut vetando, movet. Huic Legi nec obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogare potest. Nec vero, aut per Senatum, aut per Populum, solvi hac Lege possumus. Neque est quaerendus explanator aut interpres ejus alius: nec erit alia Lex Romae, alia Athenis, alia nunc, alia posthac, sed & omnes gentes & omni tempore una Lex & sempiterna, & immortalis, continebit: unusque erit communis quasi Magister & Imperator omnium Deus ille, Legis hujus inventor, disceptator, lator, &c. Lactantius, Book VI, chap. viii.

[6.]On this ground, the same author I have just cited maintains that an unjust law is not a true law: Ex quo intelligi par est, eos qui perniciosa & injusta Populis jussa descripserint, quum contra fecerint, quam polliciti professique sint, quidvis potius tulisse, quam Leges: ut perspicuum esse possit, in ipso nomine Legis interpretando inesse vim & sententiam Justi & Juris legendi. [From which this is to be understood, that those who instituted laws harmful and unjust towards the people, by doing what was contrary to what they promised and proclaimed, brought forth anything but laws; thus it must be clear that the very term “law” carries the sense of choosing that which is just and right.] Cicero, De Legibus, Book II, chap. v. See what Plutarch said on the subject of Stratocles, in his Life of Demetrius, pp. 899, 900, Vol. 1, Ed. Wechil (Vol. V, p. 30, Edit Londin, 1729).

[7.]Hence in Hebrew and in Greek, the same words that signify “law” and “justice” can sometimes also stand for “custom.” See Mr Le Clerc on I Samuel, chap. viii, verse 2.

[8.]See Plato, De Legibus, Book III, p. 681, Vol. II, Edit. H. Steph.

[9.]There is a short discourse of Dion. Chrysostom (Orat. LXXXI), in which this orator shows how men subject themselves more easily to customs than to laws, and how difficult it is to abolish the former and to establish the latter, given this prejudice.

[10.]It is on this basis that one can apply to individuals what Quintilian said of judges, namely that they must not always dissect to an ultimate degree the justice of the laws, these having been established in order to specify the range of judgments on many things about which there was no agreement as to what was just: Interim hoc dico, Judices, Perniciosissimam esse Civitati hanc Legum interpretationem. Nam si apud Judicium hoc semper quari de Legibus oportet, quid in his justum, quid aequum, quid conveniens sit Civitatis supervacuum fuit scribi omnino Leges. Et credo fuisse tempore aliquando, quae solam & nudam Justitia haberent aestimationem. Sed quoniam hac ingeniis in diversum trahebatur, nec umquam satis constitui poterat, quid oporteret; certa forma, ad quam viveremus, instituta est. Declam., CCLXIV.

[11.]Quod si Populorum jussis, si Principum decretis, si sententiis Judicum, Jura constituerentur; Jus esset, latrocinari; jus, adulterare, jus testamenta falsa supponere; si haec suffragiis aut scitis multitudinis probarentur. Quod si tanta potestas est stultorum sententiis atque jussis, ut eorum suffragiis rerum natura vertatur: cur non sanciunt, ut quae mala perniciosaque sunt, habeantur pro bonis ac salutaribus? aut cur, quam jus ex in iuria Lex facere possit, bonum eadem non facere possit ex malo. [If the laws were established by decree of the people, by the order of princes or by the decisions of judges, it would then be lawful to commit robbery, lawful to commit adultery, lawful to fake wills, if this was approved by the popular vote or plebiscite. Because if the views and judgments of fools have such power that they can turn nature upside down by their decree, why do they not confirm that those things which are bad and harmful are to be considered good and healthy for us? Or why, since law is able to make injustice just, can it not make good from evil?] Cicero, De Legibus, Book I, chap. xvi.

[12.]This still happens in China, in Japan, and perhaps in various other countries of the Orient. There is even talk of a law, observed for more than a century in Matamba, according to which fathers and mothers were obliged, under pain of severe sanctions, to expose or kill the male children that were born to them. See the extract from an Italian voyage, in the Bibliothèque Universelle, Vol. IX, pp. 418 et seq. One can also consult the Analecta Sacra of J.= H. Ursinus, Book I, chap. ix.

[13.]Sed nobis ita complectanda in hac disputatione tota causa universi Juris est, ac Legum, ut hoc, Civile quod dicimus, in parvum quemdam & angustum locum concludatur Natura. [But it is for us in this argument to address the whole issue of universal law, such that what we call “civil law” is contained within a small and narrow part of nature.] Cicero, De Legibus, Book I, chap. v. Mr Davies, in his 1727 edition, omits the final word Natura, because, he says, it disturbs the meaning. But by his admission this word is in most manuscripts and it makes, in my opinion, perfect sense. Cicero means to say that the civil law constitutes a very limited part of this universal jurisprudence which, he then explains, is founded in nature itself, as he declares immediately afterwards. The word Natura, which opens the following sentence, has eclipsed Natura in the rare manuscripts in which this final word of the cited sentence is missing.

[14.]See my Traité de la Morale des Pères, published in 1728, chap. xii, §.53.

[15.]On this one may also see Bernardi Henrici Reinoldi, Var. ad Jus Civile fere pertinent., chap. xv.

[16.]As occasionally occurs also in the most corrupt of times. See the Continuation des Pensées sur la Comète, by the late Mr Bayle, pp. 636 et seq., Article CXXX.

[17.]It is in this light that Cicero establishes as one of his proposed laws, in Plato’s manner: Perjurii poena divina, exitium: humana, dedecus, De Legibus, Book II, chap. ix.

[18.]Hoc frequentissimum crimen [ingrati animi] nusquam punitur, ubique improbatur. Neque absolvimus illud: sed, quum difficilis essa incerta res aestimatio, tantum odio damnavimus, & inter ea reliquimus, quae ad Judices Deos mittimus. De Benefic., Book III, chap. vi.

[19.]Jam pridem equidem nos vera rerum vocabula amisimus: quia bona aliena largiri, liberalitas; malarum rerum audacia, fortitudo vocatur. Sallust, Catilin., chap. lv.

[20.]Ut hoc ita sit, quam angusta innocentia est, ad Legem bonum esse? quanto latius Officiorum patet, quam Juris regula? quam multa Pietas, Humanitas, Justitia, Liberalitas, Fides, exigunt, quae omnia extra publicas tabulas sunt? Seneca, De Ira, Book II, chap. xxvii. Mr Schulting has made a commentary on this passage of Seneca, in a speech pronounced on leaving the rectorate at the University of Leyden, and which was soon printed, in 1730, under the title Sermo Academicus Sollennis De angusta innocentia Hominis ad Legem boni.

[1.]As attributed by Lucian to Hesiod, in Hermotim., Vol. I, p. 506, Amsterdam Edit. Plato goes further, saying that to have begun is to have done more than half, De Legibus, Book VI, vol. ii, p. 753, Edit. H. Steph. See Erasmus, Adages, for the proverb: Principium, dimidium totius.

[2.]These are the terms of the law, as Aulus Gellius recorded them: TERTIIS. (inquit) NUNDINIS.PARTIS.SECANTO.SI.PLUS.MINUS.VE.SECUERUNT.SE.FRAUDE.ESTO, Noct. Artic., Book XX, chap. i. In his Preface on Vol. 3 of the Thesaurus Juris, p. 24, Mr Otto sacrifices the humanity and the good sense of the Decemvirs who composed the Twelve Tables to the elevated idea he has of some authors of much later centuries. He could not bring himself to believe that the latter had misunderstood the terms of this law, even though Aulus Gellius recognizes, in the same place, that there were in the Twelve Tables many things the sense of which had long been lost. It is not even the sole instance of ancient authors who, for all their skill, went astray in explaining words in their own language. One has only to see one of the letters of the celebrated Tanneouy Le Fèvre, Book I, Epist. iv.

[3.]Sunt enim quaedam non laudabilia naturae. Sed Jure concessa: ut in XII. Tabulis, debitoris corpus inter creditores dividi licuit, quam legem mos publicus repudiavit. Instit. Orat., Book III, chap. vi, p. 173. Edit. Obrecht.

[4.]It is Mr Noodt who discovered this. See his Julius Paulus, chap. xi, in fin., and his treatise De forma emendandi Doli mali, chap. vi.

[5.]Licet autem venditori vel effundere vinum, si diem ad metiendum praestituit, nec intra diem admensum est. Effundere autem non statim poterit, prius quam testando denunciet emtori, ut aut tollat vinum, aut sciat futurum ut vinum effunderetur. Si tamen, quum posset effundere, non effundit, laudandus est potius, … commodius est autem, conduci vasa, nec reddi vinum, nisi, quanti conduxerit, ab emtore reddatur, aut vendi vinum bona fide, id est quantum sine ipsius incommodo fieri potest, operam dare, ut quam minimo detrimento sit ea res emtori. Digest, Book XVIII, De peric. & commod. rei. vend. Leg. I, §.3. See the dissertation of Mr Brenckman, de Eurematicis &c, chap. xii, §.16, n. 14.

[6.]This is what Thucydides teaches us, taking his proof from the ancient poets. See Homer, Odyss. Book II, verse 71 et seq., Book IX, verse 252 et seq., and Hymn. in Apoll., verse 452.

[7.]Bodin, in his treatise De la République, speaks of this droit de Bris, or of Warech (a word from the German), as of something whose usage was, in his time, “common to all those carrying goods by sea.” And on this he records a response of the Supreme Commander Anne de Montmerency to the Ambassador of the Emperor, Book I, chap. x, p. 247, French Edit., Genev. 1608 (pp. 267, 268 of the Latin Edit., Francf. 1622). Some German authors say that this custom was observed also with respect to shipwrecks occurring on the Rhine, and other rivers. See Hertius, dissert. De Superiorit. Territor, §.56, Vol. I, Comm. & Opusc., and Nicol. Henelius, Otii Vratislav. chap. xxxvii.

[8.]In Holland, one year and six months are allowed. Even when this time has elapsed, the original owners can still easily repurchase their goods at a low price. See Vinnius, on the Institutes, Book II, title I, §.47; and on the practices in other nations, Loccenius, De Jure Maritimo, Book I, chap. vii, §.10.

[9.]Mr Thomasius speaks of this as if it was well known and proven, in his dissertation De Statu Imperii potestate legislatoria &c, §.42; and another German professor names the island of Nordstrand, in the Duchy of Schleswig, as one of the places where this practice has been recorded. See Mr Weber, in a note on Pufendorf, De Offic. Hom. & Civ., Book I, chap. v, §.3, where it appears the author himself had this practice in view.

[10.]It was Evenus III who made this law, as recorded by Buchanan: Ut rex ante nuptias Sponsarum Nobilium, Nobiles Plebejarum praelibarent pudicitiam: ut Plebejarum uxores cum Nobilitate communes essent, Hist. Scot., Book IV, fol. 37, Edit. Edimburg. 1582.

[11.]Milcolumb III (or Malcolm), at the request of his wife, Queen Marguerite, allowed new husbands to buy back the wedding night, by paying their lord half-a- marc of silver: Uxoris etiam precibus dedisse fertur, ut primam novae nuptae noctem, quae Proceribus per gradus quosdam, lege Regis Eugenii (it is the same name as Evenus) debebatur, sponsus dimidiata argenti marca redimere posset: quam pensionem adhuc Marchetas mulierum vocant., Buchanan, Book VII, fol. 74. Polydor. Virgil, Hist. Angl., Book X, p. 223, edit. Lugd. Bat. 1649. Hector Boethius, Hist. Scot. This tribute is still called “marchet” or “maidenrents.” See the Laws of Scotland, Edit. Edimburg., 1609, Book IV, chap. xxxi, with notes, and the Glossary of Du Cange, under the word “marcheta,” where he reports other similar examples.

[12.]The canons of Lyon, and, before them the counts: see Choppin, Ad Leg. And., Book I, De Jurisd. Andegav., chap. xxxi, no. 2; Camil. Boreli, Conf. I, no. 150. This right was called jus luxanda coxae, right of thighage, also known by another more expressive name. See Nicol. Henelius, Otii Vrastislav., chap. xlvii, p. 401.

[13.]Quintilian, the father or grandfather of the rhetorician, introduces a husband who, having killed his wife caught in flagrante delicto, as was formerly permitted among several nations, comes to reproach himself; Quintilian draws out from this the maxim that what the laws permit does not always set the conscience at rest: Mori volo, quia uxorem meam occidi, qualemcumque. Licuit, scio: Sed non semper ad animam pertinent jura. Occidere adulteros lex permittit: ego mihi sit irascor, tamquam nefas fecerim. Declamat. CCCXXXV, p. 691, Ed. Burm.

[14.]Plutarch, in Vit. Solon, Vol. I, p. 86, C. Ed. Wech.

[15.]Sed aliter Leges, aliter Philosophi tollunt astusias: Leges, quatenus manu tenere possunt; Philosophi, quatenus ratione & intelligentia. Cicero, De Offic., Book III, chap. xvii. The poet Persius says that it is not for a Praetor, or a judge, to prefer precise rules of conduct: Non Praetoris erat stultis dare tenuia rerum / Officia, atque usum rapidae permittere vita., Sat. V, vers. 93, 94.

[16.]This is what Pliny the Younger gives us to understand, in a passage of Letter xvi of Book II, which will be cited toward the end of this discourse.

[17.]See Grotius, Droit de la Guerre et de la Paix, Book II, chap. xviii, §.10; and Pufendorf, Droit de la Nature et des Gens, Book V, chap. ii, §.3, note 1.

[18.]Such that whoever gave his word in this way had, with regard to such contracts, the freedom to withdraw his word, before the other party had fully executed his part, even when the latter had committed no fault, and was ready to perform the agreement; an evident inequality, contrary to the end of agreements and natural equity. See what I said on Grotius, Droit de la Guerre et de la Paix, Book II, chap. xii, §.1, note 8. It is also to be observed that a simple agreement (pactum nudum) remained null and without force, even when it had been sworn.

[19.]This philosopher places the breach of an agreement on the same level as the indiscretion of those who reveal the confidences that a friend has shared with them; and he gives these as examples of things which are dishonest, even though permitted under the laws: Sed lex, inquit, non permittendo exigere, vetuit. Multa legem non habent, nec actionem, ad quae consuetudo vitae humanae, lege omni valentior, dat aditum. Nulla lex jubet amicorum secreta non eloqui, nulla lex fidem, etiam inimico, praestare. Quae lex ad id praestandum nos, quod alicui promisimus, adligat? Querat tamen cum eo, qui arcanum sermonem non continuerit, & fidem datam, nec servatam, indignabor. De Benefic., Book V, chap. xxi.

[20.]Puta, quadam earum [usurarum] ex stipulatione, quadam ex pacto naturaliter debebantur, Digest, Book XLVI, Title iii, De Solution. & liberationibus, Leg. V, §.2. Is natura debet, quem jure Gentium dare oportet, cujus fidem sequenti sumus, Book L, Title xvii, Diversis Reg. Juris, Leg. LXXIV, §.1.

[21.]See, on all these matters, the fine treatise of Mr Noodt, De Pactis & Transactionib., chap. x, et seq.

[22.]See my Traité du Jeu, Book III, chap. ix; and what I said in defense of my principles in the Journal des Savans, August 1712, Paris Edit. (October 1712, Amsterdam Edit.), and in December 1713, Paris Edit. (February and March, Holland Edit.).

[23.]Quid tu tam imprudentes judicas majores nostros fuisse, ut non intelligerent, iniquissimum esse, eodem loro haberi eum, qui pecuniam, quam a creditore acceperat, libidine aut alea absumsit, & eum qui incendio, aut latrocinio, aut aliquo casu tristiore, aliena cum suis perdidit? Nullam excusationem receperunt, ut homines scirent, fidem utique praestandam. Satius enim erat a paucis etiam justam excusationem non accipi, quam ab omnibus aliquam tentari. De Benefic., Book VII, chap. xvi.

[24.]See what I said concerning this matter, on Pufendorf, Droit de la Nature et des Gens, Book IV, chap. xii, §.8, note 3.

[25.]In what were termed Stricti. juris, or rigorous law. See the treatise of Mr Noodt, De Jurisdict. & Imperio, Book I, chap. xiii.

[26.]Si quis agens, in intentione sua plus complexus fuerit, quam ad eum pertineat: caussâ cadebat, id est, rem amittebat, nec facile in integrum a Praetore restituebatur, nisi minor erat viginti quinque annis. … Sane si tam magna caussa justi erroris interveniebat, ut etiam constantissimus quisque labi posset; etiam majori viginti quinque annis succurrebatur … Plus autem quatuor modis petitur; re, tempore, loco, caussa. Institut., Book IV, Title vi, §.33.

[27.]Pliny the Younger says that practitioners, such as himself, learn many tricks at the bar, even though they do not approve of them: Mos enim, qui in Foro verisque litibus terimur, multum malitia, quamvis nolimus, addiscimus. Book II, Epist. iii.

[28.]Here one can apply what the jurisconsult Ulpian says regarding a right of servitude that he judges inappropriate: Sive perperam [pronuntiatum est, non debet ei Servitus cedi] quia per sententiam non debet servitus constitui, sed, quae est, declarari. Dig. Book VIII, title viii, Si Servitus vindicetur, Leg. VIII, §.4. The Roman jurisconsults also recognized that a genuine debtor, although absolved by the judge’s verdict, still remained a debtor naturaliter. See Grotius, Droit de la Guerre et de la Paix, Book III, chap. ii, §.5, note 2.

[29.]“It is true, they say, this sum is owed to him, and right is on his side; but I shall lie in wait for him with this little formality; if he forgets it, he will never recover, and in consequence he loses his money, or else is incontestably deprived of his right; so now he will forget this formality. That is what I call a practitioner’s conscience. A fine maxim for the courtroom, useful to the public, imbued with reason, wisdom and equity, it will be precisely the contrary of the maxim that said that form overrides content.” La Bruyère, Caractères, ou Moeurs de ce Siècle, ch. De quelques usages, pp. 216, 217, Vol. II, Edit. Amst., 1731.

[30.]Ah! miser & demens, viginti litigat annis / Quisquam, cui vinci, Gargiliane, licet?, Martial, Book VII, Epigr. lxiv, I, 5.

[31.]Verum illud, Chreme, Dicunt, jus summum saepe est malititia, Terent., Heaut., Act IV, sc. v, verses 47, 48. Ex quo illud, summum ius, summa iniuria, factum est jam tritum sermone proverbium., Cicero, De Offic., Book I, chap. x. See on this the interpreters.

[32.]Convenit autem … aequum & facilem [esse]; multa multis de jure suo cedentum; a litibus vero, quantum liceat, & nescio an paulo plus etiam, quam liceat, abhorrentem. De Offic., Book II, chap. xviii.

[33.]This is what Pliny says to a friend who warned him of the nullity of the codicil: Tu quidem, pro cetera tua diligentia, admones me, Codicillos Aciliani, qui me ex parte instituit heredem, pro non scriptis habendos, quia non sint confirmati testamento. Quod jus ne mihi quidem ignotem est, quum sit iis etiam notum, qui nihil aliud sciunt: sed ego propriam quamdam legem mihi dixi, ut defunctorum voluntates, etiamsi jure deficerent, quali perfectas tuerer? … Nihil est, quod obstet illi meae legi, cui publicae leges non repugnant. Book II, Epist. xvi, num. 1, 2, 4, Edit. Cellar.

[34.]Scribis, mihi Sabinam, quae nos reliquis heredes, Modestum servum suum nusquam liberum esse jussisse; eidem tamen sic adscripsisse legatum: Modesto, quem liberum esse Jussi. Quaeris, quid sentiam. Contuli cum prudentibus. Convenit inter omnes, nec libertatem deberi, quia non sit data; nec legatum, quia servo suo dederit. Sed mihi manifestus error videtur… . Neque enim minus apud nos honestas, quam apud alios necessitas valet. Moretur ergo in libertate, sinentibus nobis, fruator legato quasi omnia diligentissime caverit. Cavit enim, quae heredes bene elegit. Book IV, Epist. x.

[35.]Nec heredem institui, nec praecipere posse Rempublicam, constat. Saturnius autem, qui nos reliquit heredes, quadrantem Reipublica nostra, deinde pro quadrante praeceptionem quadringentorum millium dedit… . Mihi autem defuncti voluntas (verior quam in partem Jurisconsulti, quod sum dicturus, accipiunt) antiquior jure est, utique in eo quod ad communem patriam voluit parvenire. Book V, Epist. vii, num. 1, 2.

[36.]Alterum [solatium] quum permitto servis quoque quasi testamenta facere, eaque, ut legitima, custodio, Mandant, rogantque, quod visum, pareo ocius: Suis dividunt, donant; relinquunt dumtaxat intra domum. Book VIII, Epist. xvi, num. 2.

[37.]Ethic. ad Nicomach., Book V, chap. v, p. 61. Vol. I, Ed. Paris.