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Hugo Grotius, The Rights of War and Peace (1625)

The Enhanced Edition of Hugo Grotius, The Rights of War and Peace (1625)

This “Enhanced Edition” of Grotius’s famous work on the law of war contains a number of supplementary essays and a selection of chapters from Grotius’s book which are designed to help the reader get a better understanding of this important political and legal theorist. The supplementary material includes two introductions to different editions of his book, a biographical essay by his 18th century translator Barbeyrac, and the “Liberty Matters” online discussion forum on Grotius’s views. This is followed by Grotius’s “Preliminary Discourse” on natural law and a selection of chapters from the book which deal with the nature of war, when it is just to go to war, when it is unjust to go war, and how war might be moderated once it has been declared.

Ebook versions of this title in PDF, epub, and Kindle formats can be downloaded from here.

See other Classics of Liberty: The Enhanced Editions in the OLL collection in HTML or ebook formats </titles/2639>.

Introduction

Hugo Grotius’s Rights of War and Peace is a classic of modern public international law which lays the foundation for a universal code of law and which strongly defends the rights of individual agents – states as well as private persons – to use their power to secure themselves and their property. Wrtitten while the Thirty Years War was being fought, it is a thinly veiled plea for moderation in the behaviour of the states which were involved in the conflict. Grotius does this in several way. One is to provide a detailed description of historical practice in order to show how states, monarchs, and military leaders had conducted war in the past, and how some rules had arisen to regulate (or not as the case may be) behaviour in wartime. He combines this with his own theory of natural law and natural rights (as set out in the "Prolegomena" or "Preliminary Discourse" which defines how wars should be fought.

Liberty Fund's edition is based upon that of the eighteenth-century French editor Jean Barbeyrac and also includes the "Prolegomena" to the first edition of Rights of War and Peace (1625); and an Introduction by the historian of political thought Richard Tuck.

This ebook anthology does not contain the entire text of the Rights of War and Peace as it is a very long 3 volume work. It is comprises some Supplemantary Material such as essays, biographies, introductions, and discssions of his work, along with several extracts from the book. These essays discuss Grotius's view about the laws governing war and how it might be limited in practice. It is hoped that the combination of the two will assist those who wish to deepen their knowledge of this important political and legal theorist.

Grotius' "Prolegomena" or "Preliminary Discourse" is a concise summary of his thinking about natural law which he inserted at the beginning of his much longer treatise on the laws of war and peace. As the scholars who participated in the "Liberty Matters" online discussion forum (included in this anthology) noted there is a tension between what Grotius the legal historian says about the actual historical practice of the laws which have governed declaring and waging wars and what the principles of natural law and natural rights say should be the practice.

The selection of chapters from the book deal with the nature of war, when it is just to go to war, when it is unjust to go war, and how war might be moderated once it has been declared. They come from Liberty Fund's edition The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). 3 vols. </titles/1877>. The sources of the other material is indicated below.

The footnoting and pagination of the book is rather complex. The typesetters preserved the original pagination of the 1738 English translation and we have retained the pagination of the LF edition as well. There are three layers of footnotes - Grotius's, Barbeyrac (the French transator and editor), and the LF editor's. There is also extensive use made of marginalia. Given the restrictions of the ebook format we have done our best to keep as much of this apparatus as possible. However, please refer to the online or the print editions if this becomes confusing.

Contents

This enhanced book includes the following material:

 

About the Author: Hugo Grotius (1583 - 1645)

Nationality: Dutch

Historical Period: The Early Modern Period

Hugo Grotius (1583-1645) was a Dutch scholar and jurist whose legal masterpiece, De Jure Belli ac Pacis (On the law of war and peace) (1625), contributed significantly to the formation of international law as a distinct discipline. In addition to that work, Grotius wrote a number of literary pieces of lasting merit, including Sacra (a collection of Latin poems) and the drama Christus Patiens. Like Erasmus, Grotius sought to end the religious schism and urged the papacy to reconcile with the Protestant faiths.

To read more by and about Grotius go to his page in the Online Library of Liberty.

Groups:

  • 17th Century Natural Rights Theorists </groups/39>

Topic: The Laws of War </groups/62>

Subject Area:

Liberty Fund Collection: Natural Law and Enlightenment Series </groups/59>

About the Text

Edition Used

Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). 3 vols. </titles/1877>.

About this Title

Grotius’s Rights of War and Peace is a classic of modern public international law which lays the foundation for a universal code of law and which strongly defends the rights of individual agents – states as well as private persons – to use their power to secure themselves and their property. This edition is based upon that of the eighteenth-century French editor Jean Barbeyrac and also includes the Prolegomena to the first edition of Rights of War and Peace (1625); this document has never before been translated into English and adds new dimensions to the great work.

Copyright Information

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair Use Statement

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

 

Supplementary Material

1. Richard Tuck, "Introduction"

Source

Richard Tuck, "Introduction" to vol. 1 of Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). </titles/1425#lf1032-01_head_001>.

 

INTRODUCTION

In the famous dedication of his Discourse on the Origin of Inequality to the Republic of Geneva, Jean-Jacques Rousseau drew a vivid picture of his father sitting at his watchmaker’s bench. “I see him still, living by the work of his hands, and feeding his soul on the sublimest truths. I see the works of Tacitus, Plutarch, and Grotius, lying before him in the midst of the tools of his trade. At his side stands his dear son, receiving, alas with too little profit, the tender instruction of the best of fathers....” Rousseau’s reminiscence is testimony to the authority which Grotius’s De Iure Belli ac Pacis had come to possess in the century since it was first published in 1625; in the eyes of both father and son, the book had the same standing as the great works of classical antiquity. Rousseau was to devote much of his life to a complicated and subtle repudiation of Grotius, but he never lost his sense of the book’s importance, describing Grotius in Emile as “the master of all the savants” in political theory (though he added that, nevertheless, he “is but a child, and, what is worse, a dishonest child,” and that “true political theory is yet to appear, and it is to be presumed that it never will”).1 The same sense of Grotius’s importance, without any of Rousseau’s reservations, had led the Elector Palatine in 1661 to endow a chair in the University of Heidelberg for the express purpose of providing a commentary on the De Iure Belli ac Pacis, a fact which is noted in the Life prefaced to this edition; as the Life also notes, the book was issued as a full edition with notes by [x] various commentators,2 “by which means our Author, within 50 Years after his Death, obtained an Honour, which was not bestowed upon the Ancients till after many Ages.” The idea that the book represented something new and important for the modern age was repeatedly voiced in the “histories of morality,” which began to appear in the late seventeenth century; Grotius was described as “breaking the ice” after the long winter of ancient and medieval ethics.3 By the end of the seventeenth century there had been twenty-six editions of the Latin text, and it had been translated into Dutch (1626, reissued three times in the century), English (1654, reissued twice), and French (1687, reissued once). Its popularity scarcely slackened in the eighteenth century: there were twenty Latin editions, six French, five German, two Dutch, two English, and one Italian (and one Russian, circulated in manuscript).4

However, for many eighteenth-century readers the definitive version of the book had appeared in Latin in 1720, when Jean Barbeyrac issued a new edition, followed by a French translation in 1724 with elaborate notes.5 Barbeyrac was a leading figure in the French Protestant diaspora, the network of scholars whose families had been driven out of France following the revocation of the Edict of Nantes by Louis XIV in 1685. He worked tirelessly to put his own version of modern natural law before the European public, and his editions of Grotius built on the success of a similarly elaborate edition which he had produced of Samuel Pufendorf’s De Iure Naturae et Gentium in 1706. The notes to these editions [xi] keyed their texts into all the relevant discussions of natural law from antiquity down to the 1720s, and the two works together quickly became the equivalent of an encyclopedia of moral and political thought for Enlightenment Europe. The French version of De Iure Belli ac Pacis was reprinted steadily through the middle years of the century, and it found an audience beyond the French-speaking polite world in an English translation of 1738, which is reprinted in this edition, and which seems to have been produced in a large print run.6 Copies of it are very common, and are found in most academic and private libraries of the period—for example, General Washington, like most well-educated English gentlemen, possessed a copy, which is now in the Houghton Library at Harvard. An Italian translation appeared in 1777.

As this publishing history in itself illustrates, it would be hard to imagine any work more central to the intellectual world of the Enlightenment. But from the late eighteenth century onward, the stream of new editions dried up, and the book came to be treated not as the formative work of modern moral and political theory but as an important contribution to a different genre, “international law” (a term coined by Jeremy Bentham in 1780). Many intellectual developments of the period contributed to this shift, including the criticisms of Grotius found (alongside his admiration) in Rousseau, and the contempt expressed by Kant for the “sorry comforters” such as Grotius and Pufendorf, whose works “are still dutifully quoted in justification of military aggression, although their philosophically or diplomatically formulated codes do not and cannot have the slightest legal force, since states as such are not subject to a common external constraint.”7 William Whewell, professor of international law at Cambridge and translator of Grotius, tried in the mid-nineteenth century to restore Grotius as a major moral thinker, but with limited success; by the time of the post–First World War settlement, Grotius was regarded almost exclusively as the founder of modern civilized interstate relations, and as a suitable tutelary presence for the new [xii] Peace Palace at The Hague. As we shall see, in some ways that was to radically misunderstand Grotius’s views on war; he was in fact much more of an apologist for aggression and violence than many of his more genuinely pacific contemporaries. It was also and more seriously to ignore the genuinely innovative qualities of his moral theory, qualities that entitle him to an essential place in the history of political theory.

Hugo Grotius was born on 10 April 1583, to one of the wealthy ruling families in the Dutch city of Delft. The De Groots (“Grotius” is the Latinized version of his Dutch name—in common with intellectuals all over Europe, Grotius spoke and wrote to his fellow writers in Latin, and gave himself an appropriately Latin name) were regents of the city; that is, they were members of the self-selecting oligarchy which governed Delft, like many other Dutch cities. The generation before Grotius’s birth, his relatives had fought in the great struggle that established the freedom of the northern provinces of the Netherlands from the rule of the Spanish Crown, and many of Grotius’s writings display the intense patriotism engendered by that struggle. In Grotius’s case, his patriotism was as much focused on what he called his “nation,” the province of Holland and Zeeland, as it was on the wider United Provinces, which had collectively asserted their independence, and which form the modern kingdom of the Netherlands. All his life, Grotius remained wedded to the oligarchic republicanism of cities such as Delft, and somewhat wary of bigger states.

His family had not merely fought in the war of independence; they were also participants in one of the great sources of Dutch wealth and power, the overseas trading and military activity of the Dutch East India Company. Formed out of a union of various smaller companies in 1602, the East India Company was the first of the enormous corporations that were to dominate the European overseas expansion in the seventeenth and eighteenth centuries; in its first year of operation its gross income already exceeded the ordinary revenue of the English government, and (like the English East India Company a hundred years later) it sent out military forces as well as trading vessels in order to overawe its rivals and offer help to dissident groups all over the Far East. The De Groots were [xiii] shareholders in the company and sat on the board of one of its “chambers” in Delft. The fact that one of the principal actors in international politics at the beginning of the seventeenth century was not a state but a private corporation was to be of enormous significance in the formation of Grotius’s political thought.

The young Grotius was educated as a humanist, in the tradition going back to the Italian Renaissance in which the study of classical texts provided an entire education, and in which the ability to write and speak persuasively, using all the ancient arts of rhetoric, was prized above all things. Although Grotius frequently cited philosophical texts written in a more “scholastic” style (that is, the style of the “schoolmen” of the Middle Ages, in which moral or legal issues were discussed in a kind of Aristotelian terminology, with little regard for literary elegance), his own writing was always essentially humanist in character. The De Iure Belli ac Pacis is full of literary and historical material from antiquity, and Grotius would have been delighted that a Genevan watch maker should think that his book was a natural companion to the works of Tacitus and Plutarch. Grotius was a prodigy within this education system and quickly made his reputation as a Latin poet and historian. For these rhetorical skills he was picked (as well-trained humanists always hoped to be) as an adviser and secretary by a leading politician, Jan van Oldenbarnevelt, who was in effect prime minister of the Dutch Republic. Grotius quickly became caught up in the political struggles of the new republic, an involvement that was ultimately to prove personally disastrous for him.

Technically, the United Provinces was a kingdom with a vacant throne: the King of Spain had been driven out but had not been replaced. In his absence, and pending the appointment of a new monarch (which was seriously considered for the first fifty years of the republic’s existence), government was divided between the old royal governors of the seven provinces, the Statholders, and the old representative assemblies for the provinces, the Estates. The assemblies sent delegates to an Estates General of the Union at The Hague, while most of the provinces had come to appoint the same man as their Statholder, the Prince of Orange. The Union thus possessed both a monarchical and a republican element in its constitution, though the constitutional basis for the powers of the [xiv] different elements was far from clear; in practice, the Statholder possessed military authority as the commander in chief of the republic’s armies, while the Estates possessed the power of taxation and finance. Each element also had a different range of supporters: broadly speaking, the Calvinist Church and its ministry looked to the princes of the House of Orange to secure its power over the population, while other more heterodox religious groups looked to the oligarchical urban rulers for their protection.

During the first two decades of the seventeenth century, the religious antagonisms within the republic reached the point where civil war was threatened. Many people (including to some extent Grotiushim self) felt that there had been little point in throwing off the tyranny of Spain if it was to be replaced by the tyranny of an organized and intolerant Calvinist Church. Oldenbarnevelt and Grotius worked tirelessly on behalf of the Estates to try to protect the more liberal theologians (in particular, the ministers who agreed with Jacobus Arminius’s denial of the Calvinist doctrine of grace) from the attacks of the Calvinists; Grotius also circulated privately a theological work of his own in which he argued for a minimalist and irenic version of Christianity.8 But in the end, both Oldenbarnevelt and Grotius seem to have concluded that the only way to secure religious toleration in the republic was in effect to mount a military coup against the Statholder and thereby to remove the principal weapon in the hands of the Calvinists. There is a close parallel with events thirty years later in England, when the representatives of heterodox religious groups in the House of Commons also came to the conclusion that only a coup against their prince would destroy the power of the church that he supported. In England, the Commons won, though only after a long and bloody civil war; in the United Provinces, Oldenbarnevelt and Grotius lost. Prince Maurice arrested them both and had them arraigned for treason; Grotius gave evidence against his old friend [xv] and was sentenced to life imprisonment, while Oldenbarnevelt was publicly beheaded in May 1619.

Grotius was taken in the winter of 1618 to his prison, Louvestein Castle, in the south of the United Provinces. He lived there until March 1621, when he escaped in famous and romantic circumstances: his wife arrived with a basket of books; Grotius (who was quite a small man) hid in the empty basket and was carried out of the castle. He succeeded in crossing the border to the Spanish Netherlands undetected, and took refuge in France, where he lived for most of the rest of his life. He returned to the United Provinces under a false identity in October 1631, hoping that Maurice’s successor as Statholder, Frederick William (who had always been personally sympathetic to Grotius), could arrange for him to be rehabilitated; but in the end Frederick William could not deliver an annulment of the original conviction, and Grotius slipped out of the country again in April 1632. As we shall see, these six months in his native land had an important effect on the received text of De Iure Belli ac Pacis, since Grotius issued a second edition of the work during this period in which some of his more disturbing claims were modified in order to win over his Dutch opponents. For the next three years he moved around Germany, until at the beginning of 1635 the government of Sweden appointed him as their ambassador to France, a post that allowed him to play a major role in the complex diplomacy surrounding the last years of the Thirty Years’ War. There was always a certain amount of unease in Sweden about using him in this important position, however, and in 1645 Grotius visited Sweden to defend himself against criticism; he passed briefly through the United Provinces on his way, without molestation. He failed to persuade the Swedes to renew his appointment, and left the country; his ship was caught in a storm in the Baltic and wrecked on the coast near Rostock. Grotius collapsed on shore after being rescued, and died in Rostock on 28 August 1645. His body was returned to Delft and given an honored burial by the same Dutch authorities who had kept him in exile for twenty-four years.

Though it was not published until four years after his escape, De Iure Belli ac Pacis really grew out of Grotius’s time in prison. Political prisoners [xvi] in the sixteenth and seventeenth centuries enjoyed full access to their books and papers, and unlimited time to write: Sir Walter Raleigh, for example, wrote his massive History of the World while awaiting execution in the Tower of London. His two years in Louvestein allowed Grotius to revisit old projects; as he wrote to his old friend G. J. Vossius in July 1619, “I have resumed the study of jurisprudence [iuris studium] which had been interrupted by all my affairs, and the rest of my time is devoted to moral philosophy [morali sapientiae].”9 He told Vossius that to help his work in moral philosophy he was giving a Latin dress to the ethical passages in the Greek poets and dramatists collected by the Byzantine anthologist Stobaeus,10 and the effect of this approach to the subject is visible on every page of the De Iure Belli ac Pacis. Rousseau was to remark sardonically that Grotius’s use of quotations concealed the fundamental similarity between Grotius and Hobbes: “The truth is that their principles are exactly the same: they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same.”11 Grotius also turned his attention to rewriting and expanding his earlier work on theology, and it was this which he brought to fruition first after his escape;12 but once settled in France he concentrated on his juridical and moral project and wrote De Iure Belli ac Pacis between the autumn of 1622 and the spring of 1624, partly while staying as a guest at the country house of one of the presidents [xvii] of the Parlement of Paris, Henri de Mesmes, at Balagny near Senlis.13 Printing took place slowly and inefficiently from January to March 1625;14 copies were rushed to the Frankfurt Book Fair in March in order to catch the eye of the European public, 15 and in May Grotius was at last able to give a presentation copy to the book’s dedicatee, King Louis XIII of France.16

Among the papers to which he must have turned while in prison was a long manuscript which he had written in 1606, before the practical requirements of Dutch politics came to occupy all his time and attention. It was a defense of the military and commercial activity of the Dutch East India Company in the Far East, and in it the central themes of De Iure Belli ac Pacis were already adumbrated. He had begun to circulate the manuscript among his friends, no doubt with a view to publishing it, but in the end only Chapter XII of the manuscript had appeared in print, as the famous Mare Liberum (1609); clearly, Grotius decided that his enforced leisure at Louvestein was an ideal opportunity to rewrite this early draft and finally put it in a publishable form.17 The manuscript lay unknown among Grotius’s papers until 1864, when it was discovered and published; its first editor gave it the title De Iure Praedae, The Law of Prizes, but Grotius himself referred to it more loosely as his De Indis, and its real scope was expressed by the subtitle of Mare Liberum, “a dissertation on the law which covers the Hollanders’ trade with the Indies.”18 Dutch expansion in the Far East was a peculiarly fertile context for Grotius’s political theory to develop, since (as I said earlier) it was essentially driven by a private corporation, interacting with local rulers [xviii] such as the sultan of Johore and offering them military protection and beneficial trading arrangements. The Indian Ocean and the China Sea were an arena in which actors had to deal with one another without the overarching frameworks of common laws, customs, or religions; it was a proving ground for modern politics in general, as the states of Western Europe themselves came to terms with religious and cultural diversity. The principles that were to govern dealings of this kind had to be appropriately stripped down: there was no point in asserting to a king in Sumatra that Aristotelian moral philosophy was universally true, and not much more point in telling the admiral of the Dutch East India Company’s fleet that he had to wait for some judicial pronouncement by an appropriate sovereign before making war on a threatening naval force. The minimalist character of the principles that emerged from this setting caught the imagination of modern Europe, for they seemed to offer the prospect of an understanding of political and moral life to which all men—the poor and dispossessed and religiously heterodox of Europe as well as the exotic peoples of the Far East or the New World—could give their assent.

Grotius boldly stated his central argument as follows:

God created man αὐτεξούσιον, “free and sui iuris, ” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own. Moreover, this view is sanctioned by the common consent of all nations. For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will? And liberty in regard to actions is equivalent to ownership in regard to property. Hence the saying: “every man is the governor and arbiter of affairs relative to his own property.”19

Grotius remained committed to this view in De Iure Belli ac Pacis, remarking in one of its most striking passages that “there are several Ways of living, some better than others, and every one may chuse what he [xix] pleases of all those Sorts.”20 He thus presupposed the naturally autonomous agents familiar to us from later seventeenth- and eighteenth-century political theory, who constructed their political arrangements through voluntary agreements. Though he did not have precisely the concept of the “state of nature,” which was so central to Hobbes and his successors, and which they always contrasted with “civil Society” (the product of agreement among naturally free men), he did use the terms in somewhat similar ways;21 and of course the domain of foreign trade and war was in itself the best example of such a state, and was always used as such by later writers.

The principles governing these autonomous natural individuals were also stated very plainly in De Iure Praedae. The Prolegomena to the work began with two fundamental laws of nature:

first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life. Moreover, no member of any sect of philosophers, when embarking upon a discussion of the ends [of good and evil], has ever failed to lay down these two laws first of all as indisputable axioms. For on this point the Stoics, the Epicureans, [xx] and the Peripatetics are in complete agreement, and apparently even the Academics [i.e., the Skeptics] have entertained no doubt.22

The last part of this passage emphasizes Grotius’s concern that whatever one’s ethical commitments, his minimalist principles should be acceptable; in De Iure Belli ac Pacis he made the same point by selecting Carneades, the leader of the Skeptical Academy, as the person whom he needed to defeat in argument. Grotius termed these “laws” of nature, but since they were permissive in form they might be better termed “rights”; and this is what he duly did in De Iure Belli ac Pacis, where the “Right of recurring to Force, in defence of one’s own Life” (I.II.3) and the right “of innocent Profit; where I only seek my own Advantage, without damaging any Body else” (II.II.11) are the basic rights which recur throughout the book.

The right to defend oneself, Grotius always believed, extends beyond merely responding to an immediate attack. It also includes what we would normally think of as punishment, that is, the exercise of violence against a third party by whom we are not directly threatened. He was aware that this was an extremely disturbing idea, as traditionally this right was the special prerogative of civil sovereigns.

Is not the power to punish essentially a power that pertains to the state [respublica]? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement.... Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law [xxi] of nations, is the source from which the state receives the power in question.23

This last argument is of course identical to the one used later by Locke and described by him as “a very strange doctrine.”24 Intriguingly, he would not have found this particular point in De Iure Belli ac Pacis, though he would have found a clear statement of the general claim, for example at II.XX.3.1.

The Subject of this Right, that is, the Person to whom the Right of Punishing belongs, is not determined by the Law of Nature. For natural Reason informs us, that a Malefactor may be punished, but not who ought to punish him. It suggests indeed so much, that it is the fittest to be done by a Superior, but yet does not shew that to be absolutely necessary, unless by Superior we mean him who is innocent, and detrude the Guilty below the Rank of Men, and place them among the Beasts that are subject to Men, which is the Doctrine of some Divines.

These natural rights of self-defense are balanced, in both De Iure Praedae and De Iure Belli ac Pacis, by two laws, properly so called. In the earlier work he specified the laws as “Let no one inflict injury upon his fellows” and “Let no one seize possession of that which has been taken into the possession of another.” However, he was at pains to stress that the rights of nature took precedence (as they were to later in Hobbes):

the order of presentation of the first set of laws and of those following immediately thereafter has indicated that one’s own good takes precedence over the good of another person—or, let us say, it indicates that by nature’s ordinance each individual should be desirous of his own good fortune in preference to that of another....25

[xxii]

In the later work, he most clearly listed the basic laws of nature in a passage in the Preliminary Discourse, § VIII:

the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.

And he made clear in his long defense of violence, Book I, Chapter II, that these laws did not supersede our natural right to defend ourselves: “The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say, that we are obliged to this by the Law of Nature[?]” (I.II.6.2).

The natural state of man was thus one of wary defensiveness: men should not unnecessarily injure one another, but they need not actually help one another. Only if they formed civil associations, with the express intention of improving one another’s lives and creating something richer than the state of nature, would principles such as mutual aid apply. In a “city,”

First, Individual citizens should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole....26

In De Iure Belli ac Pacis he said the same, in his discussion of the difference between “corrective” and “distributive” justice. Distributive justice, he argued, was concerned with

a prudent Management in the gratuitous Distribution of Things that properly belong to each particular Person or Society, so as to prefer sometimes one of greater before one of less Merit, a Relation before a Stranger, a poor Man before one that is rich, and that according as each Man’s Actions, and the Nature of the Thing require; which many both [xxiii] of the Ancients and Moderns take to be a part of Right properly and strictly so called; when notwithstanding that Right, properly speaking, has a quite different Nature, since it consists in leaving others in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand. (Preliminary Discourse, X)

Aristotle (the most relevant “Ancient” referred to) was therefore wrong: it was not part of basic justice to think about the needs of others. Justice properly understood involved merely a commitment not to injure other people, unless doing so was necessary in order to protect one’s own rights.

In both De Iure Praedae and De Iure Belli ac Pacis, Grotius presented these principles of natural law as themselves derived from some fundamental metaethical commitments, and the character of these commitments occasioned extensive controversy, both in his own time and later. Although the Prolegomena to De Iure Praedae began with the simple statement “What God has shown to be His Will, that is law,” even in that work Grotius refused to derive the laws of nature from “oracles and supernatural portents.”27 Instead, they were to be deduced solely from “the design [intentio] of the Creator” as manifested in the generally recognized constitution of the natural world. Self-defense was the first and most basic of all principles: all individuals (not just men, but also animals, and even inanimate objects) possessed a fundamental drive to preserve themselves. Grotius was even prepared to say (quoting Horace) that to this extent “expediency [utilitas, “profit” or “self-interest”] might perhaps be called the mother of justice and equity,” though he acknowledged that only part of justice was based on self-defense. Once their preservation was secured, individuals had other goals; in the case of men (and to a degree far exceeding that of other creatures), they were endowed with a desire for a social life with other individuals of the same kind. Grotius more than once in De Iure Praedae described this trait as “ homini proprium, ” “special to men,”28 and from it he derived the remaining part [xxiv] of natural justice, the laws obliging us to abstain from injuring our fellow men. But in his discussion of this part he always insisted on its subordinate status to the right of self-preservation and on its minimal character—mutual aid and distributive (as distinct from corrective) justice were not part of this natural “ cognatio29 but appeared with cities and civil society.

In the Prolegomena to De Iure Belli ac Pacis, Grotius set out a very similar theory, though its similarities to the earlier work were appreciably clearer in the first edition than in the edition he produced while attempting to return to the United Provinces. Just as in De Iure Praedae he had restricted the derivation of natural law to what all men agreed on as the basic physical principles governing all beings, so in the Prolegomena to De Iure Belli ac Pacis he asserted that it “necessarily derives from intrinsic principles of a human being.”30 He was now even more blunt about the exiguous role of God, declaring in the most famous remark of the book that “what I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him.”31As in De Iure Praedae, Grotius accepted that God had indeed created the world and peopled it with beings constituted along these lines; but one did not need to think about the divine character of the creation to apprehend what the constitution of the physical world was, and all peoples at all periods of history, irrespective of their religious commitments, had agreed on the principles of natural law. Self-preservation was still the first of these principles: “nature drives each animal to seek its own interests [utilitates],” and this was true “of man before he came to the use of that which is special to man [antequam ad usum eius quod homini proprium est, pervenerit].” But this was balanced by the same ideas as in [xxv] the earlier work, that what is proprium or special to man is a desire for a much richer social life than is possessed by any other animals, and in particular for a social life governed by rational principles. This desire is the basis for our respect for one another’s rights, and is “the source of ius, properly so called, to which belong abstaining from another’s possessions, restoring anything which belongs to another (or the profit from it), being obliged to keep promises, giving compensation for culpable damage, and incurring human punishment.” Anything further, involving distributive justice and the recognition of merited distinctions between people, might arise from this natural justice but was not, strictly speaking, part of it. Grotius now denied that Horace had been right in saying that utilitas was the mother of justice, but since he had qualified his endorsement of the remark in De Iure Praedae, his new comment on the passage did not represent a major repudiation of his old view.

It is clear that both Grotius’s derogation of the role of God and the priority he gave to self-interest were alarming to many of his contemporaries, particularly among the Calvinists who surrounded the Prince of Orange. In order to accommodate the book more to their views when he produced the second edition, Grotius toned down his argument. Thus he cut out the claim that man was driven purely by self-interest “before he came to the use of that which is special to man” and replaced it with the emphatic assertion that “ the Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted. ” Similarly, he contrived to widen the scope of God’s authority. For example, in 1625 the very first sentence of the Prolegomena included the claim that “few people have tackled the law that mediates between different countries or their rulers, whether that law stems from nature itself or from custom and tacit agreement, and so far no one at all has dealt with it comprehensively and methodically.” In 1631, this read “ that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introduced by Custom and tacit Consent, few have touched upon, and none hitherto treated of universally and methodically ”—Grotius now allowed that the law of nature might be “instituted by Divine Commands.” Similarly, he [xxvi] dropped the word “necessarily” from the sentence where he had said that the natural law “necessarily derives from intrinsic principles of a human being” and added to his discussion at that point the thought that

God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning, and has forbid us to give way to those impetuous Passions, which, contrary to our own Interest, and that of others, divert us from following the Rules of Reason and Nature;32 for as they are exceeding unruly, it was necessary to keep a strict Hand over them, and to confine them within certain narrow Bounds. (Preliminary Discourse, XIII)

So he now conceded that the natural law might properly be deduced not from the necessary constitution of the physical world, but from the records of God’s pronouncements about the law directly to mankind.

Almost all these changes are found in the Prolegomena; the remainder of the book continued to lay out the same case that Grotius had advanced in the first edition. The result of this was to throw many of his later readers, including Barbeyrac, into some confusion; Barbeyrac consistently sought to emphasize the wider character of Grotian sociability and to bring him in line with Pufendorf (whose main aim was to attack the account of man’s narrow and self-interested natural life found in Hobbes).33 But anyone who read the first edition (as Hobbes himself [xxvii] probably did), or who could see through the confusion artfully introduced by Grotius (as Rousseau seems to have done), would be a ware that Grotius’s theory of the law of nature was more like Hobbes’s than Pufendorf and Barbeyrac were ever prepared to acknowledge. When Rousseau said of Grotius and Hobbes (in the passage I quoted earlier) that “their principles are exactly the same,” he may well have been surprisingly close to the mark.

I now want to turn to the practical implications of Grotius’s ideas. The first and most obvious implication was that private war was legitimate. The East India Company, though legally a private individual, could indeed make war as if it were a state when it encountered any people with whom it did not already have some kind of civil association. Grotius was still an adviser to the company when he wrote De Iure Belli ac Pacis, and he continued to assert its right to engage in this kind of activity. The second implication, though less obvious, was even more far-reaching: the kind of war that private individuals could make included acts of punishment —that is, it encompassed much more than the limited violence which almost all moralists (other than the radically Christian ones) had allowed individuals to use in their own immediate self-defense. Grotius permitted the company, and anyone else dealing with the complicated power struggles and internecine violence of the world in which the European traders found themselves, to make judgments about the morality of the various parties and to punish those who seemed to be violating other people’s rights, even if there was no immediate threat to the Europeans themselves. Grotius was quite clear in De Iure Belli ac Pacis about the interventionary character of his theory, arguing in his great chapter on punishment (Book II, Chapter XX) that

We make no Doubt, but War may be justly undertaken against those who are inhuman to their Parents, as were the Sogdians, before Alexander persuaded them to renounce their Brutality; against those who eat human Flesh,... and against those who practise Piracy....And [xxviii] so far we follow the Opinion of Innocentius [Pope Innocent IV], and others, who hold that War is lawful against those who offend against Nature; which is contrary to the Opinion of Victoria, Vasquez, Azorius, Molina, and others, who seem to require, towards making a War just, that he who undertakes it be injured in himself, or in his State, or that he has some Jurisdiction over the Person against whom the War is made. For they assert, that the Power of Punishing is properly an Effect of Civil Jurisdiction; whereas our Opinion is, that it proceeds from the Law of Nature....

(II.XX.40)

As Grotius said, this view was very contentious, and had usually been associated with enthusiasts for the medieval crusades, such as Innocent IV; modern writers, such as the principal theorist of the Spanish conquest of Mexico and Peru, Francisco de Vitoria, had expressly denied that the conquest was a crusade against immoral barbarians.

Many practices of non-European peoples, in Grotius’s view, could count as grounds for intervention in order to punish breaches of the natural law. Perhaps the most surprising and historically important was any refusal by hunter-gatherers, such as the aboriginals of North America, to let agriculturalists settle on their land. To understand this, we have to consider the most striking of all the implications that Grotius drew from his guiding principles, namely his theory of property. The basic right of self-preservation, according to the theory, entitled one to seize the necessities of life, even at the cost of another person’s survival; but it did not entitle one unnecessarily to take from someone else what one needed. If we were to insist on our ownership of any commodity that we did not need and that someone else might make good use of, we would be indirectly injuring them. In De Veritate Religionis Christianae, which (as we have seen) also came out of the period of reflection allowed to Grotius in the early 1620s, he summed up his views as follows:

our natural needs are satisfied with only a few things, which may be easily had without great labour or cost. As for what God has granted us in addition, we are commanded not to throw it into the sea (as some Philosophers foolishly asserted), nor to leave it unproductive [inutile], nor to waste it, but to use it to meet the needs [inopiam] of other men, either by giving it away, or by lending it to those who ask; as is appropriate [xxix] for those who believe themselves to be not owners [dominos] of these things, but representatives or stewards [procuratores ac dispensatores] of God the Father....34

Throughout his discussion of property, especially in Book II, Chapters II and III of De Iure Belli ac Pacis, but also in Mare Liberum (which was the relevant portion of De Iure Praedae), Grotius made clear the extremely weak character of private property. In a state of nature, all commodities were in common, in the sense that each man took what he needed from the common store of nature and left what he did not need for other people to use; allocation of resources was simply on the basis of “first Occupancy” (II.III.1). The introduction of private property gave the owners merely a presumptive right to first use, entitling their own needs to be met by the commodity that they owned, before those of anyone else (II.II.8); but once the owners’ needs had been met, Grotius always argued, the surplus could be claimed by the genuinely needy. A regime of private property did not give people a moral right to more extensive possessions; it merely changed the method by which they laid claim to the necessities of life.

Thus the sea could not be owned, as he insisted throughout Mare Liberum and in II.II.3 of De Iure Belli ac Pacis, because use of the sea itself (as distinct from the fish taken from it) could not be regarded as answering a basic need. The same was true of the original wastelands of the world, over which wild animals roamed. Agricultural land, on the other hand, could be owned, since (Grotius believed) only settled possession enabled the farmers to plant seed and harvest crops unmolested, and thereby to produce new commodities that could be used to fulfill basic needs. The paradoxical consequence was that, according to Grotius, it was not the European settlers who were guilty of any injurious actions when they took hunting grounds away from the primitive peoples of the world; it was the primitive peoples themselves who were behaving [xxx] badly when they tried to resist the settlements, and who could be punished for their conduct.35

However, one practice that could not be used as justification for the conquest of primitive peoples was their religion. It had occasionally been argued that “infidels” could rightly be conquered by Christians, but Grotius was always adamant that war could never be made against any theists on the grounds that their religion was false. As he said in II.XX.46, “That there is a Deity, (one or more I shall not now consider) and that this Deity has the Care of human Affairs, are Notions universally received, and are absolutely necessary to the Essence of any Religion, whether true or false,” and “those who first attempt to destroy these Notions, ought, on the Account of human Society in general, which they thus, without any just Grounds, injure, to be restrained, as in all well-governed Communities has been usual.” So atheism was a moral crime, as it was to be for Locke (though not for Hobbes). But any religion that corresponded to this minimal definition should be tolerated, and Christianity could not be forced on its adherents (II.XX.48), though Christianity itself had to be tolerated by nonbelievers on pain of international punishment (II.XX.49).

A third and equally surprising practical implication of Grotius’s minimalist political principles was that he sanctioned certain kinds of slavery. As he said in his discussion of the issue in chapter V of Book II,

perfect and utter Slavery, is that which obliges a Man to serve his Master all his Life long, for Diet and other common Necessaries; which indeed, if it be thus understood, and confined within the Bounds of Nature, has nothing too hard and severe in it; for that perpetual Obligation to Service, is recompensed by the Certainty of being always provided for; which those who let themselves out to daily Labour, are often far from being assured of....

(II.V.27)
[xxxi]

The fundamental right to preserve oneself naturally (on Grotius’s view) led to the legitimacy of voluntary slavery, if one’s circumstances were such that only such a course of action would keep one alive. Similarly, parents could reasonably sell their children into slavery (II.V.29). But of course, the master of a slave could have no right to kill the slave, since such a right would defeat the object of the relationship from the point of view of the slave (II.V.28). This—to our eyes—disconcerting consequence of Grotius’s minimalist liberalism was a common feature of the rights theories of the seventeenth and eighteenth centuries, and it was of course one of the primary reasons why Rousseau was to turn in disgust from the Grotian tradition.

These implications of Grotius’s theory, all in various ways, relate to his defense of individual rights, including the private right to make war. But De Iure Belli ac Pacis also contains an influential account of the nature of a state. As we have seen, Grotius believed that all its rights “come to the state from private individuals;... the power of the state is the result of collective agreement.”36 Individuals agree to pool their rights of self-preservation, and in addition to help their fellow citizens in ways that they would not think of doing in a state of nature. As he said in De Iure Belli ac Pacis I.I.14, “The State37 is a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit” (the last phrase expressing what is added by civil association) (I.III.7). As long as this “body of free persons” was independent of any other such body, it was itself free and sovereign: “we... exclude the Nations, who are brought under the Power of another People, as were the Roman Provinces; for those Nations are no longer a State, as we now use the Word, but the less considerable Members of a great State, as Slaves are the Members of a Family.”

But Grotius had to tread very carefully over the question of how such [xxxii] a body might be governed. He used the subtle analogy of the human eye:

As the Body is the common Subject of Sight, the Eye the proper; so the common Subject of Supreme Power is the State; which I have before called a perfect Society of Men....The proper Subject is one or more Persons, according to the Laws and Customs of each Nation.

I see with my eyes, and cannot see without them, but it is not my eyes that see: it is me. Similarly, Grotius argued, we cannot have a state without a government of one or more persons, but it is not the government that acts and creates political identity. The state, properly speaking, continues to be the whole association acting through its rulers. But that does not mean that the association can dispense with its particular rulers, any more than I can dispense with my eyes. After the passage just quoted, Grotius immediately went on to make one of his most famous claims, that

here we must first reject their Opinion, who will have the Supreme Power to be always, and without Exception, in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds of People are fully possessed with it, every wise Man sees. I shall refute it with these Arguments. It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal, to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without reserving any Share of that Right to themselves? Neither should you say this is not to be presumed: For the Question here is not, what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers. (I.III.8)

Since the civitas, the civil association or civil society, was an individual with the rights of any other individual, it simply followed on Grotius’s [xxxiii] account that it must be free voluntarily to enslave itself in the interests of its own survival. Only if it amalgamated with another association, or was treated as no longer a separate entity, would it destroy itself; any such union was tantamount to suicide by the state and could not be justified by the principle of self-preservation.38 “Cases of extreme Necessity, by which all Things return to a mere State of Nature” (II.VI.5) might lead individuals to break up their own state and seek security in another, but this could not be an act of the civil society itself.

Whatever their different views about what he had done, Grotius’s readers in the seventeenth and eighteenth centuries were united in their praise for his originality, for in De Iure Belli ac Pacis we have indeed found many of the central themes of modern political theory. Grotius’s men are born free, under no authority but that which all men will recognize, the authority of a minimal kind of natural law. They are equal, for the essence of Grotius’s natural justice (as distinct from the distributive justice characteristic of civil societies) is that it treats all men as equal and does not recognize distinctions of rank or even of merit; furthermore, in nature our property is extremely exiguous, and no one can claim property rights at the expense of the poor. And yet, on the other hand, his men are competitive and censorious, eager to conquer new territories if that will promote the rational use of the world’s resources, and eager to intervene in the internal affairs of other nations if they see injuries being suffered by the innocent. The world Grotius depicted is indeed recognizably our world, for good or ill.

Richard Tuck

Endnotes

1.

For the dedication, see The Social Contract and Discourses, trans. G. D. H. Cole, revised ed. J. H. Brumfitt and John C. Hall (Everyman 1973), 34; for Emile, see Rousseau, Political Writings, ed. C. E. Vaughan (Oxford: Oxford University Press, 1915), 2:147.

2.

This was the edition that appeared in 1691 from a press at Frankfurt-on-Oder, with commentary by Gronovius, Boecler, Henniges, Osiander, and Ziegler, names that will become familiar from Barbeyrac’s notes in this edition.

3.

See Barbeyrac’s remark in his An Historical and Critical Account of the Science of Morality, prefaced to his edition of Pufendorf, The Law of Nature and Nations (London, 1749), 67.

4.

This information is from J. ter Meulen and P. J. J. Diermanse, Bibliographie des écrits imprimés de Grotius (The Hague, 1950). For an exemplary modern edition of the Latin text, see B. J. A. De Kanter–van Hettinga Tromp’s 1939 edition, reprinted with extensive additional material by R. Feenstra and C. E. Persenaire (Aalen: Scientia Verlag, 1993).

5.

Both the Barbeyrac Latin and French editions were from Amsterdam; the French version was dedicated to George I of England.

6.

For full details, see “A Note on the Text” at the end of the introduction.

7.

Immanuel Kant, Political Writings, ed. Hans Reiss, trans. H. B. Nisbet, 2d ed. (New York: Cambridge University Press, 1991), 103.

8.

His Meletius sive De iis quae inter Christianos convenit epistola, written in 1611; edited by G. H. M. Posthumus Meyjes (Leiden: Brill, 1988). See also his writings from 1614 onward on ecclesiastical power, discussed by H. J. van Dam in his edition of Grotius’s De Imperio Summarum Potestatum circa Sacra (Leiden: Brill, 2001).

9.

Grotius, Briefwisseling, ed. P. C. Molhuysen, vol. 2 (The Hague, 1936), 15 (no. 590).

10.

In 1623 he published these translations, with an introduction that broaches some of the themes later developed in De Iure Belli ac Pacis, in a volume entitled Dicta Poetarum quae apud Io. Stobaeum exstant. The book was published in Paris by Nicolas Buon, the same printer who was to produce De Iure Belli ac Pacis; Grotius had been staying at Buon’s house since he arrived in Paris.

11.

Rousseau, Political Writings, 2:147.

12.

In 1622 he published Bewys van den waren godsdienst, the Dutch forerunner of his later De veritate religionis Christianae, which he had composed in prison; five years later he produced the Latin version. In 1622 he also published his Disquisitio an Pelagiana sint ea dogmata quae nunc subeo nomine traducuntur, picking up on the themes in debate between the Arminians and their opponents; and his Apologeticus eorum qui Hollandiae ex legibus praefuerunt, defending his conduct in the attempted coup of 1618.

13.

See among other references Briefwisseling, 2:254, 260, 283, 296, 327, 358.

14.

See, for example, Briefwisseling, 2:409, 417, 422, 426.

15.

Ibid., 31 (no folio numbering).

16.

Ibid., 449.

17.

Even as the De Iure Belli ac Pacis was being printed, Grotius was thinking about a new edition in which the work would appear alongside Mare Liberum and his essay on the Dutch constitution, De Antiquitate Batavicae Reipublicae of 1610 (Briefwisseling, 2:426). He clearly did not suppose then that De Iure Belli ac Pacis had superseded the earlier work. De Iure Belli ac Pacis and Mare Liberum did appear together in an Amsterdam edition of 1632, though this may not have been authorized.

18.

De jure quod Batavis competit ad Indicana commercia dissertatio.

19.

De Iure Praedae Commentarius, trans. Gwladys L. Williams and Walter H. Zeydel (Carnegie Endowment for International Peace, Oxford University Press, 1950), 1:18.

20.

I.III.8. As its context illustrates, of course, this stress on fundamental moral liberty is compatible with a voluntary renunciation of civil liberty—I.III.8 is the famous defense of absolutism. The term αὐτεξούσιον also occurs three times in De Iure Belli ac Pacis, with the same meaning as in De Iure Praedae. See, for example, his description of a child who has grown up and left home as “altogether αὐτεξούσιος, at his own Disposal ” (II. V.6), and also II.XX.48.2 n. 6 and II.XXI.12.

21.

See in particular II.VII.27.1, which contrasts “the State of Nature” with civil “Jurisdiction.” II.VI.5, which in the English translation also refers to “a meer State of Nature” in opposition to civil society, in the original Latin refers to ius naturae. Other references to the state of nature, in the Latin as well as the English texts, occur at II.V.9.2 and II.V.15.2, though they contrast nature with grace, in a more traditional fashion. Grotius uses the term civil society: see, for example, I.IV.2.

22.

De Iure Praedae Commentarius, trans. Williams and Zeydel, 2:10–11.

23.

De Iure Praedae Commentarius, trans. Williams and Zeydel, 1:91–92. For the Latin text, the easiest source (since the Carnegie Endowment text is a photocopy of the manuscript) is still the original edition by H. G. Hanaker (The Hague, 1868), 91. See also Peter Borschberg, Hugo Grotius: “Commentarius in Theses XI” (Berne, 1994), 244–45, for an early statement of this idea, in the manuscript which seems to be part of the working papers for the De Indis.

24.

Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), 272 (II.9).

25.

De Iure Praedae Commentarius, trans. Williams and Zeydel, 1:21.

26.

Ibid., 21.

27.

Ibid., 8.

28.

De Iure Praedae Commentarius, ed. Hanaker, 12; see also page 13, “ mediam justitiam, quae humano generi propria est.

29.

That is, “relationship” or “similarity.” DeIure Praedae Commentarius, ed. Hanaker, 13.

30.

See my translation of the Prolegomena in the appendix to Book III.

31.

This is the notorious etiamsi daremus clause, so called from the Latin for “even if we were to suppose.”

32.

This is a translation of the sentence “& in diversa trahentes impetus, qui nobis ipsis, quique aliis consulunt, vagari vetuit,” which appears in all the editions seen through the press by Grotius. Barbeyrac supposed that aliis consulunt should read male consulunt, but that seems to me to be a misrepresentation of what Grotius was saying. Grotius’s point was that our self-interested and benevolent impulses did in principle keep us on the right road, though they might (as he claimed in 1631) need some sort of control by God to make sure that they did so. A better translation would read, “God has made these same principles more conspicuous by giving laws, even to those whose powers of reasoning are feeble: and he has forbidden those powerful impulses which attend to the interests of both ourselves and others from straying into the wrong courses, by strictly restraining the more vehement of them and by coercing them in both their ends and their means.”

33.

See for example what he did to Grotius’s remark at I.I.10, that ius naturale is “a dictate of right reason, indicating of any act whether it possesses moral turpitude or moral necessity, from its congruity or incongruity with rational nature itself, and consequently whether it was forbidden or permitted by God the author of nature” (my translation). Barbeyrac inserted at his own initiative the words “and social” (ac sociali) after the word “rational” in this passage—are vealing attempt to make Grotius more of a theorist of sociability than in fact he was.

34.

Grotius, Opera Omnia Theologica (London, 1679),3:43(II.14)(my translation). The last sentence is a reference to 1 Tim. 6:17, 18. The similarity to Locke’s sentiments in Chapter V of the Second Treatise is obvious and unaccidental.

35.

See II.II.17. Grotius there and elsewhere distinguished between “Property” and “Jurisdiction”: Just as a fleet at sea can claim the right to regulate the use of the sea in its neighborhood (always allowing for the moral rights of other people to use surplus resources), so an aboriginal nation could regulate the use of its territory. But if it failed to allow settlement under its aegis, the land could be taken from it as punishment for its breach of the law of nature.

36.

De Iure Praedae Commentarius, trans. Williams and Zeydel, 1:91.

37.

In the Latin original, he used the word civitas or “city,” the word which continued to be used by, for example, Hobbes and Pufendorf in their Latin writings to mean “state.”

38.

“Nor let any Man pretend to tell me, that the Sovereign Power is lodged in the Body, as in its Subject, and may therefore be alienated by it, as a Thing that properly belongs to it. For if the Sovereignty resides in the Body, it is as in a Subject which it fills entirely, and without any Division into several Parts; in a Word, after the same Manner as the Soul is in perfect Bodies” (II.VI.6). Interestingly, the idea that sovereignty is like the soul (rather than the head) is precisely the analogy used by Hobbes. We should also remember in this context Grotius’s strong conviction that the United Provinces was an alliance of independent states and not a full union.

 

2. Jean de Barbeyrac, "The Life of Hugo Grotius" (1738)

Source

Jean de Barbeyrac, "The Life of Hugo Grotius" (1738) in volume 1 of Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). </titles/1425#lf1032-01_head_008>.

 

THE LIFE OF HUGO GROTIUS[i]

To look into the Manners of Antiquity, and recover the Memory of preceding Ages, is an Entertainment of the highest Pleasure and Advantage to the Mind, it establishes very lasting Impressions of Virtue in us, enlarges the Soul, and moves our Emulation to follow and excel the leading Characters before us; when we are tracing the Exploits of some Worthy of Old, with what Delight do we pursue him in every Circumstance of Action, we admire the Example, and transmit the Beauties of his Life into our own Conduct by Practice and Imitation; for the Mind of Man is of a searching Nature, very wide and extensive in her Speculations; and as she is blind to the Transactions of Futurity, so she receives a greater Lustre from the Reflection of Instances that are past, than from the Rules of Wisdom, or the Determination of the Schools: ϕιλοσοϕία ἒκ παραδειγμάτων, Philosophy from Example, in the Opinion of the Historian,[Thucydides.] advances human Life beyond the Power of Precept, or the Distinctions of Morality, it opens a large Scene for Observation, it displays all the Occurrences and Revolutions of Providence, how far Application and Industry improve the Abilities of the Soul, and offer us to the Notice of Mankind, and the Wonder of Posterity.

This Life of GROTIUS is not writ with a Design to enlarge upon his Merit, or to adorn his Character, who has left such Illustrious Testimonies of his Learning, Zeal, and Piety, that the Letter’d World submits to his Authority, and reveres his Judgment so much,[ii] that his Name will be venerable to latest Ages: Our present Aim is only to reduce the Circumstances of his Life into such a Method as will shew us by what Steps and Degrees he attained to so high an Esteem, as to derive an Honour upon the Century he lived in, and to recommend him as a Pattern to succeeding Ages.

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HUGO GROTIUS, in Dutch, de Groot, one of the greatest Men in Europe, was born at Delft the 10th of April, 1583; where his Family had been Illustrious between Four and Five Hundred Years. He made so early a Progress in his Studies, that he writ some Verses before he was nine Years of Age; and at Fifteen he had a great Understanding in Philosophy, Divinity and the Civil Law; but he was still better skill’d in Philology, as he made it appear by the Commentary he writ at that Age upon Martianus Capella, a very difficult Author. So prodigious was his Memory, that being present at the Muster of some Regiments, he remembered the Names of every Soldier there. In the Year 1598 he accompanied the Dutch Embassador, the famous Barnevelt, into France, where Henry IV gave him several Marks of his Esteem; he took there his Degree of Doctor of Law, and being returned into his Country, he applied himself to the Bar, and pleaded before he was Seventeen Years of Age; he was not Twenty four Years old when he was made Advocate-General; he settled at Rotterdam in 1613, and was Pensionary of that Town; he would not accept of that Employment, but upon Condition that he should not be deprived of it; for he foresaw that the Quarrels of Divines about the Doctrine of Grace, which formed already a thousand Factions in the State, would occasion many Revolutions in the chief Towns; he was sent into England in the same Year, by reason of the Misunderstanding between the Merchants of both Nations; he wrote a Treatise upon that Subject, and called it Mare Liberum, or a Treatise shewing the Right the Dutch have to the Indian Trade. He found himself so far engaged in the Affairs which undid Barnevelt, that he was arrested in August 1618, and condemned to perpetual Imprisonment the 18th Day of May 1619, and to forfeit his Estate; he was confined to the Castle of Louvestein the 6th of June in the same Year, where he was severely used for above 18 Months; from whence, by the Contrivance of Mary de Regelsberg his Wife, he made his Escape, who having observed that the Guards, being weary of searching a large Trunk full of Books and Linnen to be washed at Gorcum, a neighbouring Town, let it go without opening it as they used to do, advised her Husband to put himself into it, having made some Holes with a Wimble in the Place where the forepart of his Head was, that he might not be stifled. He followed her Advice, and was in that manner carried [61] to a Friend of his at Gorcum; from whence he went to Antwerp in the usual Waggon, after he had crossed the publick Place in the Disguise of a Joyner, with a Ruler in his Hand. That good Woman pretended all the while that her Husband was[iii] very Sick, to give him time to make his Escape into a Foreign Country: But when she thought he was safe, she told the Guards, laughing at them, that the Birds were fled. At first there was a Design to Prosecute her, and some Judges were of Opinion she should be kept in Prison instead of her Husband; but by a Majority of Votes she was released, and praised by every Body, for having by her Wit procured her Husband’s Liberty. Such a Wife deserved not only to have a Statue erected to her in the Commonwealth of Learning, but also to be canoniz’d; for we are indebted to her for so many excellent Works published by her Husband, which had never come out of the Darkness of Louvestein, if he had remained there all his Lifetime, as some Judges appointed by his Enemies designed it.

He retir’d into France, where he met with a kind Reception at Court, and had a Pension assigned him; the Dutch Embassadors endeavoured to prepossess the King against him, but that Prince did not regard their Artifices, and gave a glorious Testimony to the Virtue of that Illustrious Refugee, and admired the Virtue of the Man, who being so ill used in his Country, never omitted an Opportunity to advance its Interest, and encrease its Grandeur. He applied himself very closely to Study, and to compose Books. The first he published after he settled in France, was An Apology for the Magistrates of Holland, who had been turned out of their Places. The contrary Party was very much displeased with this Treatise, they thought GROTIUS made it appear that they had acted against the Laws, and therefore they endeavoured again to ruin and defame him, but the Protection of the French Court secured him against their Attempts.

He left France after he had been there Eleven Years, and returned into Holland full of Hopes, by reason of a kind Letter he received from Prince Frederick Henry, who succeeded his Brother in that Republick; but his Enemies prevented the good Effects of that Letter, and therefore he was forced once more to leave his Country; he resolved to go to Hamburg, where he stayed till he accepted the Offers he received from the Crown of Sweden, in the Year 1634. Queen Christina made him one of her Counsellors, [62] and sent him Embassador to Lewis XIII. Having discharged the Duties of that Employment about Eleven Years, he set out from France to give an Account of his Embassy to the Queen of Sweden; he went through Holland, and received many Honours at Amsterdam; he saw Queen Christina at Stockholm, and after he had discoursed with her about the Affairs he had been entrusted with, he most humbly begged of her, that she would grant him his Dismission. The Queen gave him no positive Answer when he asked leave to retire, which displeased some great Men, who were afraid that she would keep him in her Council: He perceived their Discontent, and was so pressing to obtain his Dismission, that it[iv] was granted him at last. The Queen, upon his Departure, gave him several Marks of her great Esteem for him. The Ship on Board which he embarked was violently tost by a Storm on the Coasts of Pomerania; GROTIUS being sick, and uneasy in Mind, continued to travel by Land, but his Illness forced him to stop at Rostock, where he died in a few Days, on the 28th of August 1645. His Body was carried to Delft to be buried among his Ancestors; he left behind him three Sons, and one Daughter. The Daughter was married to a French Gentleman called Mombas, who was very much talk’d of, on Occasion of a Trouble he was brought into soon after the French had passed the Rhine in the Year 1672. The eldest Son and the youngest pitched upon a Military Life, and died without being married. The second, whose Name was Peter de Groot, made himself illustrious by his Embassies. The Elector Palatine being restored to his Dominions by the Treaty of Munster, appointed him his Resident in Holland: He was made Pensionary of the City of Amsterdam in 1660, and discharged the Duties of that Place with great Ability for the Space of Seven Years. He was sent Embassador to the Northern Crowns in the Year 1668. At a Year’s End he went into France with the same Character, and acquitted himself in that Employment with great Dexterity and Wisdom. When the War was kindled 1672, he returned into his Country, and was deprived of his Office of Pensionary at Rotterdam, which he had enjoyed ever since his Return from his Embassy into Sweden: He was deprived of it during the Popular Tumults, which occasioned so many Alterations in the Towns of Holland. He retired to Antwerp, and then to Cologne, whilst the Peace was treating there, and [63] acted for the Good of his Country as much as ever he could; and yet when he returned into Holland he was accused of a State Crime; the Cause was tried and he was acquitted: He retired into a Country-House, where he died at 70 Years of Age.

The Calumnies, maliciously dispersed by the Enemies of GROTIUS, about his Death, are irrefragably confuted by the Relation of the Minister who attended upon him when he was dying. The Minister, called John Quistorpius, was Professor of Divinity at Rostock. His Relation imports, “That he went to GROTIUS who had sent for him, and found him almost dying; that he exhorted him to prepare for Death, in order to enjoy a more happy Life, to acknowledge his Sins, and to repent of them; that having mentioned to him the Publican, who confessed himself a Sinner, and begged God’s Mercy, the sick Man answered, I am that Publican; that he went on and told him he should have Recourse to Jesus Christ, without whom there is no Salvation, and that GROTIUS replied, I place all my Hopes in Jesus Christ alone; that he repeated in a loud Voice a Prayer in High-Dutch, and that the sick Man said it softly after him with his Hands joined; that having ended, he asked him whether he understood[v] him, and his Answer was, I understood you very well; that he continued to repeat to him some Passages of the Word of God, which dying People are usually put in Mind of, and to ask him, Do you understand me? and that GROTIUS answered, I hear your Voice, but I do not understand every thing that you say; that with this Answer the sick Man lost his Speech, and expired soon after.” It were an absurd thing to call in Question the Sincerity of Quistorpius, nothing could move him to be false in his Account, and it is certain that the Lutheran Ministers were no less displeased than the Calvinists with the particular Opinions of GROTIUS, and therefore the Testimony of the Professor of Rostock is an authentick Proof; and if such Evidence is not sufficient in Matters of Fact, we make way for Scepticism, and it will be difficult to prove any thing. It is therefore an undeniable Case that GROTIUS being a dying, was affected like the Publican mentioned in the Gospel, he confess’d his Faults, he was sorry for them, and implor’d the Mercy of his heavenly Father; that he placed all his Hopes in Jesus Christ alone; that his last Thoughts were those that are contained in the Prayer of dying People, [64] according to the Liturgy of the Lutheran Churches. The Result of which is, that those who say he died a Socinian, would be too gently used if they were only told, that they are guilty of a rash Judgment; they are Persons prejudiced against the Character of this Great Man, and therefore very unworthy of our Belief. Several People have wondered that his Grand-Children did not ask Satisfaction for this Injury done tohis Memory, and that they appeared less sensible in this Point, than Jansenius’s Relations upon slighter Calumnies; but some Persons highly approve their waving all Juridical Proceedings. There is a solid Answer to that Reflection upon our Author made by a Book entitled l’Esprit de Mr. Arnauld; and since the Accuser made no Reply to it, it is a plain Sign he has been convicted of Calumny. The Apologist for the Character of GROTIUS begins thus, “ But, Sir, what that Author and Father Simon say of GROTIUS, is nothing, if compared to what the nameless Author of the scandalous Libel intitled l’Esprit de Mr. Arnauld says of him; it is true, he slanders every Body in that Book, and the manifest Lies that are in it, ought to make one disbelieve every thing else; but because some are so weak, as to be imposed upon by his bold way of speaking, because some of those to whom you shew my Letters, entertain an ill Opinion of GROTIUS upon that Account, you will give me leave to undeceive them. Perhaps they will not be displeased to find an Author, for whom they have so great an Esteem, guilty of the most horrid Calumny that ever was; this will teach them, that one ought to suspect those who appear so zealous for Truth, and that sometimes a prodigious Malice and Detraction are concealed under the zealous Pretence of defending the Church of God. Afterwards the Apologist examines the four Accusations one after another; I shall not dwell on what[vi] he says upon the first Head, viz. That GROTIUS was a violent Arminian. GROTIUS, says our Author, in the second Place, was a Socinian, as appears from his enervating the Proofs of Christ’s Divinity. Sir, desire your Friends to read GROTIUS’s Annotations upon the Passages of St. Mark and St. John which I have mentioned to you, and if they do not say that it is an abominable Calumny, I am willing to be accounted a most wicked Calumniator. See also the DXLVIIIth Letter among the Literae Ecclesiasticae & Theologicae.” I should be too long should I mention what he says upon the third Head, I shall only set down this Passage out of it, “When Mr. Arnauld says [65] something that is injurious to the Reformed, the Author of the Libel exclaims violently against him, and Mr. Arnauld is then an unsincere Man, an unfair Accuser, an Infamous Calumniator; but when he says something that may serve this Satyrical Writer to inveigh against those whom he hates, every thing is then right, it serves him to fill up his Page, and to prevent his being placed among the little Authors.

I must not forget that Mr. Arnauld blames the Lutheran Minister for not asking GROTIUS in what Communion he would die, this is a material Thing, says Mr. Arnauld, “with respect to a Man who was known to have had no Communion a long time with any Protestant Church, and to have confuted in his last Books most of the Doctrines that are common to them. Whereupon the Apologist says, that Mr. Arnauld and the Author of the Libel do wrongly fancy, that a Man has no Religion when he joins with none of the Factions that condemn Mankind, and each of which pretends to be the only Church of Christ. GROTIUS abstained from communicating with the Protestants, as well as with the Papists, because the Communion, which was appointed by Christ as a Symbol of Peace and Concord among his Disciples, is accounted in those Societies a Sign of Discord and Division. ”—Quistorpius acted the Part of a wise Man in not asking him what Communion he would die in, since he saw him dying in the Communion of Jesus Christ, by Virtue of which we are saved, and not by Virtue of that of the Bishop of Rome, or of the several Protestant Societies.

Without enquiring whether Quistorpius was in the Right or the Wrong for not asking such a Question, we observe, that a Man who believes the Fundamental Doctrines of Christianity, but forbears receiving the Communion, because he looks upon that Action as a Sign that one damns the other Christian Sects, cannot be accounted an Atheist, but by one who has forgot the Notions of Things or Definitions of Words; nay, we go farther, and maintain it cannot be denied that such a Man is a Christian; we allow you to say, that his believing all the Sects that receive the Gospel to be in the way to Salvation is an Heresy; we allow you to assert, that it is a pernicious and dangerous Doctrine; notwithstanding which, can it be said that[vii] those who believe that Jesus Christ is the Eternal Son of God, coessential and consubstantial with the Father, that he died for [66] us, that he sits at the right Hand of God his Father; that Men are saved by Faith in his Death and Intercession; that one ought to obey his Precepts, and repent of one’s Sins, &c. we say, can it be affirmed that such People are not Christians? No Man of Sense can affirm it; but none would be more unreasonable in affecting such a thing than the Author of l’ Esprit de Mr. Arnauld, since he published another Book, wherein he shews that all those who believe the Fundamental Points, belong to the true Church, whatever Sect they may be of. We omit several other Maxims advanced by him, whereby it appears, that one may be saved in all Religions; we only mention such Doctrines as he cannot deny, and according to which he ought to acknowledge, that GROTIUS, who believed the Fundamental Doctrines, without approving Calvinism or Popery, &c. in every thing, was a Member of the true Church.

We suppose that what has been delivered may be of sufficient Force to overthrow the Calumnies that have been raised against our Author, in respect to his Principles in Religion; we shall now take a short Survey of the most eminent Books that were published from him.

During his Stay at Paris, before he was Embassador of Sweden, “he translated into Latin Prose his Book concerning the Truth of the Christian Religion, which he had writ in Dutch Verse, for the Use of the Seamen who travelled into the Indies, that they might have some Diversion in singing such a pious Poem.” Thus du Maurier speaks of it; but he is very much to blame for giving such a mean Notion of the Author’s Design, for GROTIUS aimed at a nobler End; he had a Mind to enable the Dutch, who travel to the Indies, to promote the Conversion of the Infidels; this is the Character he gives of it himself, My Resolution was to do something of Advantage to all my Countrymen, but especially for Seamen, that in all their Leisure they have Aboard, they may use their Time with Profit to themselves, and not loiter away their Hours as some do. And therefore beginning with a Panegyrick upon my own Nation, which infinitely excels all others in this Art; I encouraged them, that they would improve their Art, not only for their Benefit and Gain, but that they would regard it as the Mercy of Heaven, and use it for the propagating of the Christian Religion. It is an Excellent Work, and the Notes upon it are very learned. It was translated into English, French, Dutch, German, Greek, Persian, and [67] Arabick; but we do not know whether all those Translations have been published; the Greek was not printed in the Year 1637. In the Year following GROTIUS mentions the Persian Translation only, as a Book which the Pope’s Missionaries had a Mind to publish. My Book, says he, concerning the Truth of the Christian Religion, that is accounted Socinian by some, is so far from having that Character here, that it is to be turned by the Pope’s Missionaries into the Persian[viii] Tongue, to convert, by the Favour of God, the Mahometans who are in that Kingdom. In the Year 1641, an Englishman, who had translated that Book into Arabick, was desirous his Translation should be printed in England. There came a very learned Englishman to me within these few Days, says he, who lived a long time in the Turkish Dominions, and translated my Book of the Truth of the Christian Religion into Arabick, and will endeavour, if he can, to have it published in England: He thinks no Book more profitable, either to instruct the Christians of those Parts, or to convert the Mahometans that are in the Turkish, Persian, Tartarian, Punic, or Indian Empire. That Translation made by the famous Dr. Edward Pocock, was printed at London in the Year 1660. There are three German Translations of that Work, two in Prose, and one in Verse, and two French Translations in Prose.

GROTIUS writ an History of the Low-Countries; it contains an Account of what happened in the Netherlands from the Departure of Philip II. It is divided into Annals and History, the Annals comprehend five Books; the History contains eighteen, and begins in the Year 1588. Casaubon, who had read something of it in the Year 1613, speaks well of it in a Letter written from London to Thuanus. The Judgment of the Author of the Parrhasiana runs thus, “ We may add to Polybius, a famous Historian among the Moderns, who though he had been a Sufferer by the Injustice of a great Prince, relates his noble Actions as carefully as any other Historian, and speaks of him according to his Merit, without saying any thing, whereby it may appear that he had Reason to complain of him; I mean the incomparable HUGO GROTIUS, who speaks in his History of the Netherlands of Prince Maurice de Nassau, as if he had never been ill treated by him; this is a remarkable Instance of Impartiality, which shews that it is not impossible to overcome one’s Passion, and speak well of one’s Enemies, as several People fancy, who judge of others by themselves. ” The [68] Author who observes this fine Passage in GROTIUS’s History, did it not out of Flattery, for he blames him afterwards for a thing that deserves to be blamed; he does not approve GROTIUS’s Style, and shews thereby that he is a Man of a good Taste. “None,” says he, “of those who spoke well at Athens, and at Rome, expressed himself so obscurely in Conversation, as Thucydides and Tacitus did in their Histories; doubtless they had a Mind to raise themselves above common Use, and thereby they fell into that Obscurity for which they are justly reproved. It cannot be denied they have an affected Style, and that they hoped to recommend their Histories as it were by a manly Eloquence, whereby it seems that many things are expressed in few Words, and raised above the Capacity of the Vulgar; I cannot apprehend why some learned Men undertook to imitate them, as HUGO GROTIUS, and Dionysius Vossius in his Translation of Rheide’s History, and[ix] how they could relish such a Style; for certainly good Thoughts need not be obscure to be approved by good Judges; and when a Reader is obliged to stop continually, in order to look for the Sense, he does not think himself in the least obliged to an Historian who gives him the Trouble; this is the Reason why some Histories, though excellent as to the Matter, are read by few People; whereas if those Historians designed to write for the Instruction of those who have a sufficient Knowledge of the Latin Tongue to read a History with Pleasure, they should endeavour to make themselves easily understood, and useful to as many People as ever they could. The more a History deserves to be read by reason of the Events contained in it, the more it deserves to be of a general Use; the Authority of the Ancients who neglected the Clearness of the Style, cannot justify the Moderns, who have imitated them contrary to the Reasons I have mentioned, or rather contrary to good Sense. There is nothing in Tacitus that less deserves to be imitated, than his too concise, and consequently obscure Style; I am sorry GROTIUS was one of those who did not avoid it, it makes the Translation of his Writings more difficult, and his Thoughts more obscure.”

But his Book Of the Rights of War and Peace was the Masterpiece of his Works, and therefore deserves a more particular Account; it was printed at Paris in 1625, and dedicated to Lewis XIII. “King Gustavus of [69] Sweden having read and admired it, resolved to make use of the Author, whom he took to be a great Politician by reason of that Work; but that Prince having been killed at the Battle of Lutzen in the Year 1632, Chancellor Oxenstern, according to his own Inclination, and the Design of the late King Gustavus, nominated him to be sent Embassador into France.Colomies says, “It is believed that GROTIUS exhausted his Parts upon that Book, and that he might have said of it what Casaubon said of his Commentary upon Perseus, in a Letter to Mr. Perillan his Kinsman, which is not printed, in Perseo omnem ingenii conatum effudimus; and indeed that Work of GROTIUS is an excellent Piece, and I do not wonder that it has been explained in some German Universities.”—Here follows the Judgment which M. Bignon, that unblamable Magistrate, makes of that Book in a Letter to GROTIUS, dated the 5th of March, 1633. “I had almost forgot,” says he, “to thank you for your Treatise De Jure Belli, which is as well printed as the Subject deserves it; I have been told that a great King had it always in his Hands, and I believe it is true, because a very great Advantage must accrue from it, since that Book shews, that there is Reason and Justice in a Subject, which is thought to consist only in Confusion and Injustice; those who read it will learn the true Maxims of the Christian Policy, which are the solid Foundations of all Governments; I have read it again with a wonderful Pleasure.” They did not make the[x] same Judgment of it at Rome, where it was placed among prohibited Books the 4th of February 1672. M. Chauvin’s Memorial concerning the Fate and Importance of that Work is so curious, that we cannot forbear transcribing some things out of it. It informs us that GROTIUS undertook to write that Book at the Solicitation of the famous Peireskius. He himself says so, in a Letter he writ to him, when he presented him with the Copy of that Work. “The Subject of it was thought to be so important and useful, that it gave Occasion to make a particular Science of it; for the Explication of which, some Professors have been appointed on purpose in the Universities. Charles Lewis, Elector Palatine, did so highly value that Book, that he thought fit it should serve as a Text to the Doctrine concerning the Right of Nature, and the Law of Nations, and in order to teach it he appointed M. de Puffendorf in the University of Heidelberg; and in Imitation of that Prince, the like Settlements [70] have been made in other Universities. It does not appear that any Body criticized upon this Work of GROTIUS during his Lifetime”; but when he was dead it occasioned many Disputes, and was published over all the World of Letters, and commented upon by the most learned of all Nations. It came out at last, cum Notis Variorum, by which means our Author, within 50 Years after his Death, obtained an Honour, which was not bestowed upon the Ancients till after many Ages.

Thus have we given the History of this great Man, taken from the best Accounts that have contributed to derive his Memory to our Times; but as an Improvement of his Character receive the Testimony of Salmasius, one of his Enemies, in a Letter to him, You have laid but a small Obligation upon the Cardinals, and upon myself likewise, by bestowing a Title upon me, which is peculiar to the most eminent GROTIUS; for why should I not call him so, whom I had rather resemble, than enjoy the Wealth, the Purple, and Grandeur of the Sacred College?[xi]

 

3. David J. Hill, "Introduction" (1901)

Source

David J. Hill, "Introduction" to Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations, translated from the Original Latin of Grotius, with Notes and Illustrations from Political and Legal Writers, by A.C. Campbell, A.M. with an Introduction by David J. Hill (New York: M. Walter Dunne, 1901). </titles/553#lf0138_head_003>

 

INTRODUCTION BY DAVID J. HILL

The Work and Influence of Hugo Grotius.

The claims of the great work of Grotius, “De Jure Belli ac Pacis,” to be included in a list of Universal Classics, do not rest upon the felicity of style usually expected in a classic composition. His work is marked by frequent rhetorical deformities, tedious and involved forms of reasoning, and perplexing obscurities of phraseology which prevent its acceptance as an example of elegant writing. Notwithstanding these external defects, it is, nevertheless, one of the few notable works of genius which, among the labors of centuries, stand forth as illustrations of human progress and constitute the precious heritage of the human race.

If it is not literature in the technical sense, the masterpiece of Grotius is something higher and nobler,—a triumph of intelligence over irrational impulses and barbarous propensities. Its publication marks an era in the history of nations, for out of the chaos of lawless and unreasoning strife it created a system of illuminating principles to light the way of sovereigns and peoples in the paths of peace and general concord.

I. The Reign of War.

The idea of peaceful equity among nations, now accepted as a human ideal, though still far from realization, was for ages a difficult, if not an impossible, conception. All experience spoke against it, for war was the most familiar phenomenon of history.

Among the Greek city-states, a few temporary leagues and federations were attempted, but so feeble were the bonds of peace, so explosive were the passions which led to war, that even among the highly civilized Hellenic peoples, community of race, language, and religion was powerless to create a Greek nation. It was reserved for the military genius of Alexander the Great, at last, by irresistible conquest, to bring the Greek Empire into being, to be destroyed in turn by superior force.

The Roman Empire almost achieved the complete political unity of Europe, and bound parts of three continents under one rule, but the corruption of the military power which held it together led to its inevitable dismemberment.

After the conflicts of the barbaric kingdoms which followed the dissolution of the Western Empire were ended by the predominance of the Frankish monarchy, the world believed that the Pax Roman was to be restored in Europe by the hand of Charles the Great; but the disruptive forces were destined to prevail once more, and the Holy Roman Empire never succeeded in reviving the power of ancient Rome. And thus the dream of a universal monarchy, of a central authority able to preside over kings and princes, adjusting their difficulties, and preserving the peace between them, was at last proved futile.

In each of the great national monarchies that had already risen or were still rising on the ruins of imperial dominion, particularly in France, England, Holland, and the States of Germany, a continuous internal conflict over questions of religion complicated the bitterness and destructiveness of foreign wars until Europe was reorganized by the Peace of Westphalia, in 1648.

It was in the midst of these wars that Grotius was born. He saw his own country rising from a baptism of blood and all Europe rent and torn by the awful struggle of the Thirty Years’ War, in the midst of which his great work was written and to whose conclusion it served as a guide and inspiration. The Empire, dismembered, had been reduced to almost complete impotence, the Church had been disrupted, and no international authority was anywhere visible. Amid the general wreck of institutions Grotius sought for light and guidance in great principles. Looking about him at the general havoc which war had made, the nations hostile, the faith of ages shattered, the passions of men destroying the commonwealths which nourished them, he saw that Europe possessed but one common bond, one vestige of its former unity,—the human mind. To this he made appeal and upon its deepest convictions he sought to plant the Law of Nations.

II. The Predecessors of Grotius.

It is historically accurate to say, that, until formulated by Grotius, Europe possessed no system of international law. Others had preceded him in touching upon certain aspects of the rights and duties of nations, but none had produced a system comparable to his.

The earliest attempt to formulate recognized international customs was the formation of the early maritime codes, rendered necessary by the expansion of mediæval commerce from the end of the eleventh to the end of the sixteenth century, such as the “Jugemens d’ Oléron,” adopted by the merchants of France, England, and Spain, and reissued under other names for the merchants of The Netherlands and the Baltic. “The Consolato del Mare,” a more elaborate compilation, was made, apparently at Barcelona, about the middle of the fourteenth century, and accepted generally by the traders of the chief maritime powers. It was in the cradle of commerce, therefore, that international law awoke to consciousness.

As the Church was often intrusted with the task of pacification, it is but natural to look among her representatives for the earliest writers on the laws of international relations. It is, in fact, among the theological moralists that we find the first students of this subject. As early as 1564, a Spanish theologian, Vasquez, conceived of a group of free states with reciprocal rights regulated by jus naturale et gentium, without regard to a world-power, either imperial or ecclesiastical. In 1612, Saurez pointed out that a kind of customary law had arisen from the usages of nations, and distinctly described a society of interdependent states bound by fundamental principles of justice.

At the close of the fifteenth and the beginning of the sixteenth centuries, a series of circumstances arose necessitating the extension of jurisprudence beyond its ancient boundaries, and thus tending to produce a group of international jurists. Among the juristic writers of this time are Balthazar Ayala, a Spanish jurisconsult, who died in 1584, having written in a historico-judicial spirit on the subject of war in his “De Jure et Officiis Belli”; Conrad Brunus, a German Jurist, who wrote of the rights and duties of ambassadors in his “De Legationibus,” published in 1548; and pre-eminent above all, Albericus Gentilis, an Italian professor of jurisprudence and lecturer at Oxford, a writer of force and originality, who published his “De Legationibus” in 1583 and his “De Jure Belli” in 1589.

III. The Life and Personality of Grotius.

HUGO GROTIUS, to use the Latin form of his name by which he is best known, or Hugo de Groot as he is called in Holland, descended from a race of scholars and magistrates, was born at Delft, on April 10th, 1583. His family history has been related with much detail by De Burigny, in his “Vic de Grotius,” published in French at Amsterdam in 1754; and by Vorsterman van Oyen, in his “Hugo de Groot en Zijn Gesclacht,” a complete genealogy in Dutch, published at Amsterdam in 1883, which gives the descendants of Grotius down to the present generation. His origin is traced from a Frenchgentleman, Jean Cornets, who took up his residence in The Netherlands in 1402. His descendant, Cornelius Cornets, married the daughter of a burgomaster of Delft on condition that the future children of this marriage should bear the name of their mother’s family, in order to perpetuate the distinction which it had achieved. The maternal name imposed by Cornelius Cornets’s Dutch father-in-law, Dirk van Kraayenburg de Groot, was de Groot, meaning the Great, and is said to have been bestowed for signal services rendered to his country by the first who had borne it four hundred years before. From this marriage sprung a Hugo de Groot, distinguished for his learning in Greek, Latin, and Hebrew and five times burgomaster of his native city. His eldest son, Cornelius, was a noted linguist and mathematician who studied law in France and received high office in his own country, afterward becoming a professor of law and many times rector of the University of Leyden. Another son, John de Groot, the father of Hugo Grotius, studied there under the famous Lipsius, who speaks of him with the highest commendation. Four times burgomaster of Delft, John de Groot became curator of the University of Leyden, a position which he filled with great dignity and honor.

In his earliest years the young Hugo gave evidence of marked and varied ability. At eight he wrote Latin verses which betrayed poetic talent; at twelve he entered the University where he became a pupil of that prince of scholars, Joseph Scaliger, who directed his studies; and at fifteen he defended “with the greatest applause” Latin theses in philosophy and jurisprudence. His fame as a prodigy of diversified learning spread far and wide, and great scholars declared they had never seen his equal.

Grotius had won celebrity even in foreign lands when, in 1600, at the age of seventeen, he was admitted to the bar. The youthful prodigy had already accompanied the Grand Pensionary, John of Oldenbarneveld on a special embassy to France, where he was presented to Henry IV., who bestowed upon him his portrait together with a gold chain, and graciously called him “The Miracle of Holland.” At Orleans he was made a Doctor of Laws.

Married in 1609 to Marie van Reigersberg, whose devotion was worthy of his deep affection, and loaded with public honors, having been named the official historian of the United Provinces and the advocate-general of two provinces, Holland and Zeeland, Grotius set his hand to a work entitled “Mare Librum,” in which he defended the freedom of the sea and the maritime rights of his country against the arrogant pretensions of the Portuguese in suppressing the commerce of other nations in Eastern waters,—a treatise destined to become still more celebrated in the history of international law by Selden’s reply, “Mare Clausum,” written in 1635. Next, turning his attention to the history of The Netherlands, he devoted himself for a time to his “Annals of the War of Independence.”

In 1613, Grotius added to his laurels as poet, jurist, and historian by entering the field of politics, and he was appointed Pensionary of Rotterdam upon the condition that he should continue in office during his own pleasure. It was during a visit to England upon a diplomatic mission in this same year that he met the great scholar Isaac Casaubon, who said in a letter to Daniel Heinsius: “I cannot say how happy I esteem myself in having seen so much of one so truly great as Grotius. A wonderful man! This I knew him to be before I had seen him; but the rare excellence of that divine genius no one can sufficiently feel who does not see his face and hear him speak. Probity is stamped on all his features.”

Closely related by personal friendship as well as by his official duties to the Grand Pensionary, John of Oldenbarneveld, Grotius was destined to share with that unfortunate patriot the proscription and punishment which Maurice of Orange visited upon the two confederates in the defense of religious tolerance. Risking all as the apostles of peace, they were soon condemned to be its martyrs. Oldenbarneveld, having incurred the bitter hatred of the Stadtholder, was condemned to death by decapitation on May 12th, 1619. Grotius, less offensive to Maurice on account of his youth and his gracious personality, was sentenced six days later to perpetual imprisonment. On the 6th of June, 1619, he was incarcerated in the fortress of Loevestein.

Rigorously treated at first, his docility and resignation soon won the respect and affection of his keepers. Writing materials and books were in time accorded him, and finally, on condition that she would continue to share his captivity, he was granted the presence of his wife. The studious prisoner and his devoted companion completely disarmed all suspicion of an intention to escape, and the ponderous chest in which books came and went continued to bring periodic consolation to the mind of the busy scholar. A treatise on the truth of the Christian religion, a catechism for the use of his children, a digest of Dutch law, and other compositions served to occupy and alleviate the weary months of confinement, until one day when the time seemed opportune Madame Grotius secretly inclosed her husband in the great chest and it was borne away by two soldiers. Descending the stone steps of the prison the bearers remarked that the trunk was heavy enough to contain an Arminian, but Madame Grotius’s jest on the heaviness of Arminian books smoothed over the suspicion, if one was really entertained, and the great jurist was sent in the chest safe to Gorcum, attended by a faithful domestic, where in the house of a friend the prisoner emerged without injury and in the guise of a stone mason hastened to Antwerp. From Antwerp he took refuge in France, where he arrived in April, 1621, and was joined by his faithful wife at Paris in the following October.

The bitterness of exile was now to be added to the miseries of imprisonment, for Grotius was not only excluded from The Netherlands, but in extreme poverty. His letters reveal his anguish of spirit at this period, but a generous Frenchman, Henri de Même, placed his country house at Balagni at his disposition, and there, supported by a small pension, which Louis XIII had graciously accorded him, though irregularly and tardily paid, Grotius commenced his great work, “De Jure Belli ac Pacis,” in the summer of 1623.

Much speculation has been indulged in regarding the causes which led to the composition of this masterpiece, but a recent discovery has rendered all this superfluous, as well as the ascription of special merit to the Counselor Peyresc for suggesting the idea of the work. It is, indeed, to the pacific genious of Grotius more than to all other causes that the world owes the origin of his great work; for it sprang from his dominant thought, ever brooding on the horrors of war and the ways of peace, during more than twenty years, and never wholly satisfied till its full expression was completed.

In the winter of 1604, there had sprung out of his legal practice the idea of a treatise entitled “De Jure Praedae,” fully written out, but never printed by its author. The manuscript remained unknown by all his biographers until it was brought to light and printed under the auspices of Professor Fruin at The Hague in 1868. This interesting document proves that not only the general conception but the entire plan and even the arrangement of the “De Jure Belli ac Pacis” were in the mind of Grotius when he was only twenty-one years of age. The difference between the earlier work and the later is chiefly one of detail and amplification, the difference which twenty years of reading, experience, meditation and maturity of faculty would inevitably create.

The curious may find in his letters the almost daily chronicle of his progress with his book to the time of its publication after excessive labors lasting more than a year. In March, 1625, the printing of the first edition, which had occupied four months, was completed and copies were sent to the fair at Frankfort. His honorarium as author consisted of two hundred copies, many of which he presented to his friends. From the sale of the remainder at a crown each, he was not able to reimburse his outlay. In the following August he wrote to his father and brother that if he had their approbation and that of a few friends, he would have no cause for complaint but would be satisfied. Louis XIII, to whom the work was dedicated, accepted the homage of the author and a handsomely bound copy, but failed to exercise the grace customary with monarchs by according a gratification. At Rome, the treatise was proscribed in the index in 1627. Almost penniless and suffering from his protracted toil, Grotius seemed destined to neglect and oblivion, yet from his exile he wrote to his brother: “It is not necessary to ask anything for me. If my country can do without me, I can do without her. The world is large enough….”

Invited to enter the service of France by Richelieu, Grotius would not accept the conditions which the Cardinal wished to impose,—such at least is the inevitable inference from his letters. His pension was not paid and his circumstances became so serious that one of his children had but a single coat. At length, pushed to the utmost extremity of want and instigated by his energetic wife, Grotius resolved to return to Holland. Driven from Rotterdam to Amsterdam, where he hoped to settle down as a lawyer, the States General twice ordered his arrest and named a price for his delivery to the authorities. The new Stadtholder, Frederick Henry, who, before succeeding his brother Maurice, had written kindly to Grotius after his escape from imprisonment, now approved his proscription. Abandoned by his prince as well as by his countrymen, Grotius once more turned his face toward exile and set out for Hamburg.

IV. The Work of Grotius.

It may be of interest at this point in the career of Grotius to describe briefly the character of the great work which was soon to win for him a new celebrity, and materially change his prospects in life.

The inspiration of his “De Jure Belli ac Pacis” was the love of peace, yet he was far from being one of those visionaries who totally condemn the use of armed force and proscribe all war as wrong and unnecessary. On the contrary, he seeks to discover when, how, and by whom war may be justly conducted.

His plan of treatment is as follows:—

In the First Book, he considers whether any war is just, which leads to the distinction between public and private war, and this in turn to a discussion of the nature and embodiment of sovereignty.

In the Second Book, the causes from which wars arise, the nature of property and personal rights which furnish their occasions, the obligations that pertain to ownership, the rule of royal succession, the rights secured by compacts, the force and interpretation of treaties, and kindred subjects are examined.

In the Third Book, the question is asked, “What is lawful war?” which prepares for the consideration of military conventions and the methods by which peace is to be secured.

From the authority of the Empire and the Church, no longer effectual as an international agency, Grotius appeals to Humanity as furnishing the true law of nations. Beginning with the idea that there is a kinship among men established by nature, he sees in this bond a community of rights. The society of nations, including as it does the whole human race, needs the recognition of rights as much as mere local communities. As nations are but larger aggregations of individuals, each with its own corporate coherence, the accidents of geographic boundary do not obliterate that human demand for justice which springs from the nature of man as a moral being. There is, therefore, as a fundamental bond of human societies, a Natural Law, which, when properly apprehended, is perceived to be the expression and dictate of right reason. It is thus upon the nature of man as a rational intelligence that Grotius founds his system of universal law.

As this law of human nature is universally binding wherever men exist, it cannot be set aside by the mere circumstances of time and place, whence it results that there is a law of war as well as a law of peace. As this law applies to the commencement of armed conflicts, war is never to be undertaken except to assert rights, and when undertaken is never to be carried on except within the limits of rights. It is true that in the conflict of arms laws must be silent, but only civil laws, which govern in times of peace. Those laws which are perpetual, which spring from the nature of man as man, and not from his particular civil relations, continue even during strife and constitute the laws of war. To deny these, or to disobey them, implies a repudiation of human nature itself and of the divine authority which has invested it with rights and obligations. To disavow the imperative character of these perpetual laws, is to revert to barbarism.

It is necessary, however to distinguish between Natural Law, that principle of justice which springs from man’s rational nature, and Conventional Law, which results from his agreements and compacts. Natural Law remains ever the same, but institutions change. While the study of abstract justice, apart from all that has its origin in the will or consent of men, would enable us to create a complete system of jurisprudence, there is another source which must not be neglected, since men have established the sanctity of certain rules of conduct by solemn convention.

The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon consent; and it is this system of voluntarily recognized obligations which distinguishes international jurisprudence from mere ethical speculation or moral theory. There are customs of nations as well as a universally accepted law of nature, and it is in this growth of practically recognized rules of procedure that we trace the evolution of law international—jus inter gentes—as a body of positive jurisprudence.

It is evident that the mind of Grotius is continually struggling to establish a science upon this positive basis, and it is this which gives a distinctive character to his effort. The great writers of all ages are cited with a superfluous lavishness, not so much to support his claims by an aggregation of individual opinions— still less to display his erudition, as his critics have sometimes complained—as to give a historic catholicity to his doctrine by showing that the laws he is endeavoring to formulate have, in fact, been accepted in all times and by all men. For this purpose also, he makes abundant use of the great authorities on Roman Law, whose doctrines and formulas were certain to carry conviction to the minds of those whom he desired to convince.

It is needless, perhaps, to point out that the work of Grotius is not and could not be a work of permanent authority as a digest of international law. His own wise appreciation of the positive and historical element—the authority derived from custom—should exempt him from the pretense of absolute finality. It is the Book of Genesis only that he has given us, but it is his indefeasible distinction to have recorded the creation of order out of chaos in the great sphere of international relationship, justly entitling him to the honor accorded to him by the spontaneous consent of future times as the Father of International Jurisprudence.

It is not difficult after more than three centuries of thought and experience to point out the defects in his doctrine. If he justifies slavery, it is not without ingenuity; for, he argues, if a man may sell his labor, why not his liberty? and if the conqueror may impose his will upon the property of the vanquished, why not also upon his person? If he identifies sovereignty with supreme power without any adequate conception of its ethical basis, he is at least as advanced in his thinking as the conceptions of his time, which had not yet grasped the idea of the state as a moral organism. If he has no adequate notion of neutrality, believing it to be the duty of a nation to enlist its energies for what it deems the right side, rather than to disavow all responsibility for actions foreign to its own interests, he is at least supported in this by the opinion of the multitude even at the present time; and even among jurists the modern conception of neutrality is hardly a century old. If the new schools of jurisprudence make light of Natural Law as a foundation of public and private rights, it is not certain that Grotius may not yet be vindicated as representing a doctrine at least as clear as any other which has been substituted for it. But, finally, to all these criticisms it may be answered, that no great thinker can be justly estimated except in relation to his predecessors and contemporaries. Measured by these, Grotius stands alone among the jurists of his century for originality of thought and power of exposition.

V. The Influence of Grotius’s Work.

It was during his sojourn in Hamburg in 1633, eight years after the publication of his “De Jure,” and while he was still suffering from painful pecuniary embarrassment, that Europe suddenly awoke to a sense of his importance; and, almost at one time, Poland, Denmark, Spain, England, and Sweden all extended friendly invitations urging him to enter into their public service. His fame as a jurist had become international and, rudely repelled by his native Holland, he became the center of European interest. Gustavus Adolphus had placed the work of Grotius along side his Bible under his soldier’s pillow, as he prosecuted his campaigns in the Thirty Years’ War. The first edition of that work, written in Latin, the cosmopolitan language of learned Europe, had been quickly exhausted and widely scattered. Another had soon been called for at Paris, but the death of Buon, the publisher, created obstacles to its appearance. A second edition had appeared at Frankfort in 1626, another at Amsterdam in 1631, and still another with notes by the author in 1632. The book had aroused the thought of kings as well as of scholars, and in the circles of high influence everywhere in Europe the name of Grotius had become well known. His book had excited the most opposite sentiments and awakened the most contradictory judgments, but among lawyers and statesmen its reception was from the first generally marked by admiration. In spite of exile, poverty, and misfortune, Grotius had become a European celebrity and was about to enter into the reward of his labors. He had created a code for war and a programme of peace, and henceforth no statesman could afford to neglect him.

Gustavus Adolphus, the king of Sweden, before his death on the battlefield of Lützen, had commended Grotius to his great Chancellor, Oxenstiern. By the death of Gustavus the Chancellor had, in 1633, recently come into the regency of the kingdom at a critical moment when a retreat from the bitter contest with the Empire seemed to be foredoomed unless prevented by the support and friendship of France. Recalling the commendation of the late king, Oxenstiern sought and found in Grotius an ambassador of Sweden to negotiate a new Franco-Swedish alliance. Accepting this appointment in 1634, Grotius arrived at Paris on his diplomatic mission on March 2d, 1635.

Richelieu, having failed to draw the great jurist into the orbit of his influence as a satellite, resented his appearance in a character so influential and honorable as that of ambassador of Sweden, and Grotius made little progress in his negotiation. Preoccupied with literature, he took more interest in the composition of a sacred tragedy on “The Flight into Egypt” than in reminding France of the existing treaty of Heilbronn or consolidating the new Franco-Swedish alliance. Where Grotius the theorist failed, Oxenstiern, the practical statesman, by a few dexterous strokes of diplomacy during a brief visit to Paris, easily succeeded; and the ambassador’s mission was simplified to the rôle of a mere observer and reporter of occurrences.

By taste, nature, and training, Grotius was a jurist and not a diplomatist, and he soon realized that the two vocations, if not diametrically opposed, are at least separated from each other by a vast interval. His diplomatic correspondence betrays the keen observer and the conscientious moralist rather than the accomplished negotiator. Among the observations recorded in his dispatches, one may be quoted as an example of his penetration and his humor. Speaking of the Dauphin, the future Louis XIV, he says: “His frightful and precocious avidity is a bad omen for neighboring peoples; for he is at present on his ninth nurse, whom he is rending and murdering as he has the others!”

It is painful to behold the great father of international jurisprudence descending in his dispatches to petty details of precedence and alienating from himself the sympathies of his colleagues by ridiculous ceremonial pathies of his colleagues by ridiculous ceremonial pretensions. He would no longer visit Mazarin, because the Cardinal insisted on calling him Eminence instead of Excellence; Grotius considering this distinction of terms a slight upon his rank as ambassador. So persistent was he in these follies and so rancorous were the feuds that the apostle of peace elicited that, in December, 1636, less than two years after his arrival at Paris, he advised Sweden to send to France a simple Chargé d’Affaires, instead of an ambassador, in order to restore diplomatic relations.

His quarrels concerning precedence, which rendered him an object of ridicule at the French Court, were not the only griefs of the ambassador of Sweden. Inadequately recompensed, he was obliged to wait two years for his salary and finally, being reduced to a condition in which he could no longer maintain existence otherwise, he was compelled to demand of the royal treasury of France a part of the subsidies promised to the army of his adopted country. Weary of his importunities, the France government repeatedly requested his recall. Disgusted with his mission, Grotius at last abandoned the duties of his office to the intriguing adventurer, Cerisante, who was sent to aid him, and buried himself in his books until his return to Sweden at his own request in 1645.

Queen Christina of Sweden, a patroness of scholars, desirous of aiding Grotius and of retaining him in the service of her kingdom, made many offers and promises, but their execution being deferred, he became impatient of his lot, refused a position as counselor of state, and resolved to leave the country. His plan to abandon Stockholm secretly was prevented by a messenger of the queen who followed him to the port where he intended to embark and induced him to return for a farewell audience. With a handsome present of money and silver plate he took passage on a vessel placed at his disposition to convey him to Lübeck. Off the coast near Dantzic a violent tempest arose. On the 17th of August, 1645, the vessel was driven ashore and Grotius, overcome by his trying experiences, was taken ill at Rostock, where a few days later he passed away.

The later years of his life had been chiefly devoted to plans for the establishment of peace in the religious world, whose dissensions gave him great distress of mind.

The country of his birth, which had so long denied him citizenship, received him at last to the silent hospitality of the tomb. His body was taken to Delft, his native town, where his name is now held in grateful reverence.

At the time when Grotius left Stockholm, the last of the plenipotentiaries had arrived at Münster and Osnabrück to attend the great European congress convoked to terminate the hostilities of the Thirty Years’ War. It is a tradition, but incapable of satisfactory proof, that it was with the purpose of being present at the councils of this congress that the author of “De Jure Belli ac Pacis“ left Sweden for Germany. However this may be, it is certain that the mediation of the king of Denmark at Osnabrück and of the papal legate at Münster, though unsuccessful, was in accordance with the idea of Grotius expressed in the words: “It would be useful, and indeed it is almost necessary, that certain congresses of Christian powers should be held, in which controversies that have arisen among some of them may be decided by others who are not interested.” The immediate establishment of an international tribunal, evidently contemplated in this suggestion, was not in harmony with the temper of those times; but it cannot be doubted that the Peace of Westphalia, whose treaties were to form a code of public law for Europe, was to a great degree an embodiment of the principles which Grotius was the first to enunciate.

His “De Jure Belli ac Pacis“ had already become a classic even before the author’s death, and special professorships were soon founded in the universities to expound its principles. It would be tedious to name the numerous editions, translations, and commentaries which have given it an exceptional place in the literature of Europe. This task has been in part performed, however, by Dr. Rogge in his “Bibliotheca Grotiana,“ published at The Hague in 1883, and intended to be a full bibliography of Grotius’s works. The whole number of titles included is 462, but they do not comprise the writings of the generations of jurists who have been inspired by the great master or of the critics and biographers who have discussed his life and work.

Tardily, but with full contrition for the bitter wrong done to one of her greatest and noblest sons, the memory of Grotius has received from his native land abundant recognition and commemoration. The appropriate tomb that marks his resting place in the Nieuwe Kerk at Delft, symbolical of his learning, genius, and renown, was erected in 1781. On the 17th of September, 1886, a noble statue of the great jurist was unveiled in the public square of his native town in front of the church which contains his tomb. Thus, more than a century after his death, and again still another century later, Holland has paid her tribute of respect to her illustrious citizen.

The later years have also brought new honors to Grotius’s feet. At the recent Peace Conference at The Hague was completed the great structure of international comity whose corner stone was laid by him in 1625. It was most fitting that an international congress called in the interest of peace should blend with the negotiation of conventions for the pacific settlement of disputes between nations by a permanent tribunal, and for the amelioration of the laws of war, a celebration of the distinguished writer whose great thought had at last borne such precious fruits. In pursuance of instructions received from the Secretary of State, the United States Commission invited their colleagues in the congress, the heads of the Dutch universities, and the high civic authorities to join with them in observing the 4th of July by celebrating the memory of the great jurist. With appropriate exercises in the apse of the old church, near the monument of Grotius and mausoleum of William the Silent, the representatives of twenty-six nations gathered to do him honor. A beautiful commemorative wreath of silver was laid upon Grotius’s tomb bearing the inscription:

to THE MEMORY OF HUGO GROTIUS in Reverence and Gratitudefrom the United States of Americaon theOccasion of the International Peace ConferenceatThe Hague July 4th, 1899.

An eloquent oration by the Honorable Andrew D. White, Ambassador of the United States to Germany, and the head of the Commission, followed by other appropriate addresses, recalled the debt of mankind to the author of “De Jure Belli ac Pacis” and thus the plenipotentiaries of the nineteenth century did homage to the exile of the sixteenth who had taught the world that even in the shock and storm of battle humanity cannot escape the dominion of its own essential laws, and that even independent states are answerable before the bar of human nature for obedience to principles imposed by a Power higher than the prerogatives of princes or the will of nations.

David J. Hill

 

4. "Grotius and the Natural Law Tradition" (1978)

[Jacques Callot, "Plundering and Burning a Village" from The Miseries and Misfortunes of War (1633)]

Source

This essay first appeared as an Editorial in the journal Literature of Liberty: A Review of Contemporary Liberal Thought, vol. 1, no. 4 October-December 1978 published by the Cato Institute (1978-1979) and the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio. </titles/910#lf0353-04_1978v4_head_009>.

"Grotius and the Natural Law Tradition"

The uniqueness of Greek and Roman culture is important in accounting for the crucial difference between European and non-European civilizations. Whatever the status of the debate over "the Ancients and the Moderns" (the classicists claim the pygmy Moderns are standing on the shoulders of the giant Ancients), European civilization has been profoundly influenced by the perfections and faults of the classical world. The concept of natural law is the heritage from the Ancients which has had the most profound impact on the flowering of liberty.

Natural Law flourished in the Hellenistic period under the Stoics from the Greeks Zeno of Citium and Chrysippus to the Romans Cato the Younger, Seneca, and Marcus Aurelius. The Stoics posited an identification of physis and nomos, nature and law. The wise man lived in harmony with nature; he was not dragged in the train of events. The Stoics emphasized the "common. law" of all peoples, jus gentium, the law of nations against each state's civil or public law. Chrysippus, "a philosopher learned in history, delighted in collecting examples of historical relativism; but like all the Stoics he was undisturbed by the diversity of the phenomena, for behind all the variety there is agreement at least about the basic issues, the agreement of reasonable men of all times and countries".1 Thus, although Chrysippus' historical knowledge caused him to regard all human laws as mistaken, this did not lead him to the disorder of government by man over man as it did with the Sophists. This knowledge led him instead to praise the order of the universality of natural law and each person's equality before that law.

The law of nations, which the Stoics viewed as the shadow of natural law, was derived from principles of private law as developed by Roman law-finders. Hayek has compared the persistence of private law, rooted in spontaneous social relations, to the ephemeral character of public law, based on political, imposed relations.2 Hayek relates the achievement of some degree of individual liberty to societies like ancient Rome and England, where private law was in the hands, not of the government (legislators and executives), but of private law-finders (jurists and judges). Hayek's and the Stoics' analyses are complimentary.

Stemming from the Stoics and Thomas Aquinas and reaching down to Adam Smith and Thomas Paine, natural law has been the basis for the development of modern liberalism. However, the writings of Hugo Grotius (Huig van Groot, 1583-1645), especially De jure belli et pacis (1625), constitute a watershed in the history of ideas because Grotius completed the process of founding natural law in human nature. F. J. V Hernshaw,3 has emphasized that the origins of Grotius's exposition can be found in the then great debate over whether obedience should be paid to political authority. Juan de Mariana, S. J. (1536-1624), Spanish historian and theologian, argued in De rege et regis institutione (1599), that it was lawful to overthrow a tyrant.4

Grotius inherited his opposition to tyranny. His father was the curator of the University of Leyden, center both of commercial Holland's Republican opposition to the militarism of the Princes of Orange as well as of the anti-Calvinist and bourgeois Arminianism. Grotius devoted himself to expounding the Arminian view of tolerance; his religious writings emphasized that the truths of Christianity, which were held in common by Catholics, Calvinists, Lutherans, and Arminians, were fundamentally more important compared to the peripheral points on which they felt they differed.

Grotius's appetite for learning and his encyclopedic knowledge were recognized at age twenty when he was appointed Historiographer of his province, Holland. Historical research continually engaged Grotius's attention, and his historical writings included De antiquitate reipublicae Batavae and the Annals of the Low Countries, on which he worked until his death.

In 1609 Grotius published one of his most significant works, Mare Liberum. To the question of whether the seas could become state property, he answered a resounding no! No government had the right to exclude other nations' merchant ships from any seas. Soon England sought to claim the exclusive use of the North Sea and English Channel, and the master historian of English law, John Selden (1584-1654) in Mare Clausum (1632) vainly attempted to rebut Mare Liberum.

Grotius, as Pensionary of Rotterdam, wrote an edict of toleration which was issued by the States General of the United Provinces of the Netherlands. Religious toleration was opposed by the Prince of Orange, the military commander, who sided with the Calvinists against the Arminians. In part, the prince reacted to the Dutch bourgeoisie (the Arminians) who insisted upon acceptance of the favorable peace offered by Spain in order to concentrate on commercial activities. The prince, rural gentry, and Calvinist clergy saw peace as undermining discipline while introducing luxury based on commerce. In 1618, the privileged, military Calvinists struck at the capitalist Arminians. By a coup d'état, the prince's army disarmed the militias of the Dutch cities. The Republican leaders, Johan van Oldenbarneveldt and Grotius were arrested. The former was executed and Grotius condemned to life imprisonment. Rescued by his wife's efforts, Grotius escaped in a chest which was supposed to contain his Arminian books; he was given refuge in Paris (1621).

The beginning of the Thirty Years' War (1618-1648) with its pillaging, violation, and massacre of civilian populations horrified Grotius. Aided by the researches of his brother, William, and his own unrivaled memory, Grotius wrote De jure belli et pacis (1625) in one year. Basing himself on the Stoics, Roman jurists, and medieval scholastics, Grotius drew most heavily from the sixteenth century Spanish philosophers of law-Francisco de Vitoria (1483-1546), Luis de Molina (1536-1600), and Francisco Suarez (1548-1617).

Grotius, in his Prolegomena to The Law of War and Peace, states that man is characterized by a strong sociability, by a desire to spend his life together with his fellow men, "and not merely spent somehow, but spent tranquilly and in a manner corresponding to the character of his intellect. This desire the Stoics call the domestic instinct, or feeling of kindred." Grotius denied the universality of "the assertion that every animal is impelled by nature to seek only its own good" since some animals "restrain the appetency for that which is good for themselves alone, to the advantage now of their offspring, now of other animals of the same species." Sympathy for others develops spontaneously among children, and increases with maturity "together with an impelling desire for society, for the gratification of which he alone among animals possesses a special instrument, speech. He has also been endowed with the faculty of knowing and acting in accordance with general principles."

Grotius derived from this sociability the concept of law. "To this sphere of law belong the abstaining from that which is another's, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfill promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts." Finally, Grotius emphasized the scholastic concept of time-horizon: man's power of discrimination between "what things are agreeable or harmful (as to both things present and things to come), and what can lead to either alternative, in such things it is meet for the nature of man, within the limitations of human intelligence, to follow the direction of a well-tempered judgment, being neither led astray by fear or the allurement of immediate pleasure, nor carried away by rash impulse. Whatever is clearly at variance with such judgment is understood to be contrary also to the law of nature, that is, to the nature of man."

The pressures of the Thirty Years' War created the conditions for revolutions throughout Europe. The most famous were the Republican movements in the English Civil War and the Fronde in France. But Grotius did not live to see his vindication in the restoration of Republican rule to the Netherlands. The Peace of Westphalia (1648), which ended the Thirty Years' War, was concluded by the pacific Dutch capitalists and was opposed by the Prince of Orange. Finally, the Republicans gained dominance and established a decentralized constitution with each province controlling the army and religion within its own borders.

This history was well-known to the fathers of the American Revolution. Likewise, the impact of Grotius's jurisprudence was transmitted to them via Samuel Pufendorf (1632-1694), through Locke, Rousseau, Barbeyrac, Burlamaqui, Blackstone, and Montesquieu.5

Endnotes

[1] L. Edelstein, The Meaning of Stoicism (1966).

[2] F. A. Hayek, The Confusion of Language in Political Thought (1976).

[3] F. J. V Hernshaw, The Social & Political Ideas of Some Great Thinkers of the Sixteenth and Seventeenth Centuries (1926).

[4] Oscar Jaszi & John D. Lewis, Against the Tyrant (1957).

[5] Forrest McDonald, "A Founding Father's Library," Literature of Liberty 1 (January/March 1978].

 

Liberty Matters: “Hugo Grotius on War and the State” (March 2014)

Source

This was an online discussion which appeared in “Liberty Matters: A Forum for the Discussion of Matters pertaining to Liberty” on Liberty Fund’s Online Library of Liberty website during the month of March, 2014.

The online version of the discussion can be found at < /pages/lm-grotius > and ebook versions at <oll.libertyfund.org/titles/2590>.

The place that Grotius holds in the history of international law and the laws which regulate war and peace is one that has been recognized at least since the 18th century, but more especially in the treaties and international agreements which emerged out of the major conflicts of the 20th century. In this discussion, Fernando R. Tesón, the Simon Eminent Scholar at Florida State University College of Law, explores what Grotius thought about the proper relationship between the laws of nature and the laws of nations, the limits (if any) which can be legitimately and rightly placed on the conduct of states engaged in war, and asks whether Grotius' insights have any relevance today. Tesón's essay is commented upon by Hans W. Blom, visiting professor in the history department of Potsdam University (Germany); Paul Carrese, professor of Political Science at the U.S. Air Force Academy; and Eric Mack, professor of philosophy at Tulane University and a faculty member of the University’s Murphy Institute of Political Economy.

Other "Liberty Matters" discussions can be found at </pages/liberty-matters>.

 

The Debate

Lead Essay: Fernando R. Tesón, “Hugo Grotius on War and the State” [Posted: march 3, 2014]

Responses and Critiques

  1. Eric Mack, "Grotius on the Law of Nature, the Law of Nations, and the Rights of Peace versus the Rights of War" [Posted: March 5, 2014]
  2. Hans W. Blom, "Liberty and the Law" [Posted: March 7, 2014]
  3. Paul Carrese, "The Moderation of Grotius" [Posted: March 9, 2014]

The Conversation

  1. Fernando R. Tesón, "Was Grotius Just an Advocate?" [Posted: March 11, 2014]
  2. Eric Mack, "Grotius on the Right of Resistance" [Posted: March 13, 2014]
  3. Paul Carrese, "Grotius and Philosophical Moderation" [Posted: March 18, 2014]
  4. Hans W. Blom, "Ius Gentium, the Law of Nations, and the Law of Nature at the Birth of Liberalism" [Posted: March 18, 2014]
  5. Paul Carrese, "The Radical Grotius Hypothesis: Why Not a Philosophical Middle Ground?" [Posted: March 19, 2014]
  6. Eric Mack, "Another Shot at the Law of Nations" [Posted: March 20, 2014]
  7. Paul Carrese, "Liberty and International Order: The Truth of the Law of Nature and the Primary Law of Nations" [Posted: March 26, 2014]

About the Authors

Fernando R. Tesón is the Simon Eminent Scholar at Florida State University College of Law. Known for his scholarship relating political philosophy to international law (in particular his defense of humanitarian intervention), and his work on political rhetoric, Professor Tesón is author of Humanitarian Intervention: An Inquiry into Law and Morality (3rd ed. fully revised and updated, Transnational Publishers 2005); Rational Choice and Democratic Deliberation (Cambridge University Press 2006; with Guido Pincione); A Philosophy of International Law (Westview Press 1998); and many articles in law, philosophy, and international relations journals and collections of essays. He has served as a professor of law and affiliate professor of philosophy at Arizona State University, where he taught for 17 years prior to joining Florida State University’s faculty. Before entering academia, Professor Tesón was a career diplomat for the Argentina Foreign Ministry in Buenos Aires for four years. He resigned from the Argentine foreign service in 1981 to protest against the human rights abuses of the Argentine government. He has served as visiting professor at Cornell Law School, Indiana University School of Law, University of California Hastings College of Law, and the Oxford-George Washington International Human Rights Program, and is Permanent Visiting Professor, Universidad Torcuato Di Tella, Buenos Aires, Argentina.

Hans W. Blom is visiting professor in the history department of Potsdam University (Germany), in the section of intellectual history. He was previously at Erasmus University Rotterdam (The Netherlands), with visiting research positions at King’s College, Cambridge, the RSSS-ANU in Canberra, the University of Buenos Aires, and the Institute for Research in the Humanities at the University of Wisconsin-Madison. His research focuses on the history of political thought with special attention to the interaction between the world of ideas and that of institutions. Professor Blom believes that economic thought and ideas are part and parcel of politics, and is particularly interested in tracing the presence and handling of economic issues in the period before Adam Smith, and their significance for the construction of classical political economy. Hans Blom has published widely on this and related topics: Causality and Morality in Politics (1995) and edited volumes on Monarchisms in the Age of Enlightenment: Liberty, Patriotism, and the Public Good (2007), and Property, Piracy and Punishment: Hugo Grotius on War and Booty in De iure praedae (2009). Presently he is editing Pieter de la Court’s Interest of Holland (1662) for Liberty Fund.

Paul Carrese is professor of Political Science at the U.S. Air Force Academy, and co-founder and former director of its great-books honors program. He holds a doctorate from Boston College in political science, and master’s degrees from Oxford University in theology and in philosophy & politics. He has been a Rhodes Scholar, a research fellow at Harvard, a Fulbright Scholar at University of Delhi, and a Visiting Fellow in the James Madison Program, Politics Department Politics, Princeton University; he taught at Middlebury College before coming to the Academy in 1998. He teaches, researches, and publishes in political philosophy, constitutionalism, American political thought and constitutional law, and American foreign policy and grand strategy. He is the author of The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago, 2003; paperback, 2013), and his manuscript on the philosophy of moderation in constitutional democracies, Democracy in Moderation: Montesquieu, Tocqueville, and Sustainable Liberalism, is under review. He is co-editor of John Marshall’s The Life of George Washington: Special Edition (2001); of Constitutionalism, Executive Power, and Popular Enlightenment (SUNY Press, forthcoming 2015); and, of American Grand Strategy: War, Justice, and Peace in American Political Thought, just contracted with Johns Hopkins University Press.

Eric Mack is professor of philosophy at Tulane University and a faculty member of the University’s Murphy Institute of Political Economy. His many scholarly essays focus on moral individualism and the moral foundations of rights, the nature of natural and acquired rights, property rights and economic justice, the legitimate scope of coercive institutions, and the history of classical liberal and libertarian theory. He is the author of John Locke (Bloomsbury 2013). Eric has also written other essays and annotated bibliographies on 17th-century political theorists such as John Locke, James Tyrrell, Robert Filmer, and Thomas Hobbes for the Online Library of Liberty and was the lead author for the first installment of Liberty Matters, viz., “Locke on Property.”

Additional Reading

 

LEAD ESSAY: Fernando R. Tesón, “Hugo Grotius on War and the State”

In his monumental treatise, De Jure Belli ac Pacis (The Rights of War and Peace (1625), Dutch jurist and diplomat Hugo Grotius lays down not only the principles of international law, but also theories of property and punishment, and even a rudimentary sketch of social-contract theory. In this essay I examine Grotius’s views on war and the state, with a special emphasis on jurisprudential method.  Many writers value Grotius because he was the first thinker to explore some of the themes of the Enlightenment. His work is located at the precise moment when the new ideas start to pull away from their medieval roots – a philosophical evolution that would culminate in the great works that cement the social-contract tradition. Grotius is, then, a transitional figure, and maybe for that reason it may seem unfair to compare him to the intellectual giants who came after him. Yet he deserves to be judged on his merits. I attempt to do so in this essay.

I. The Question of Method

Like many of his contemporaries, Grotius was a natural-law thinker. But the natural law he endorsed differed from that of his great predecessor, St. Thomas Aquinas.  The differences are many, but two are salient. First, while Aquinas thought rational creatures accede to natural law by participating in the divine will, Grotius believed that natural law is discovered by human reason alone.  For Grotius, God’s commands are binding because they comport with the Law of Nature (PD, 89-90).[1] The second and more important difference is that Grotius’s version of natural law is less robust than Aquinas’s.  To Grotius, natural law only commands us not to act contrary to Right; it does not command virtue, as in the Christian tradition.  He divides the Law of Nature into two subsets. The first reflects our instincts (“First Impressions of Nature”), especially our impulse to survive. The second reflects our higher faculties of sociability and rationality (“Decorum”) (I.II. III, 188 ff.). Grotius thought that this second part of the Law of Nature was the more important because it urged us to restrain our instinctual behavior for the sake of sociability. Accordingly, natural-law rules are basic: we must refrain from behavior “repugnant to society.” More specifically, natural law enjoins us to abstain from that which is another’s, to restitute that which belongs to another, to fulfill our promises, to compensate damage we’ve caused, and to administer criminal punishment (PD, 86).

This brings us to the central methodological problem that Grotius faces throughout the book: the relationship between natural law and positive law.  According to Grotius, the Law of Nations, i.e., the laws that are “common to many nations and rulers of nations,” has three components. The first one is derived from natural law; the second is decreed by divine will; and the third one is created by custom (PD, 75). As we saw, natural law consists of a few prohibitions.  A straightforward natural-law account, then, would be that the Law of Nations harbors moral norms derived from reason and positive norms enacted by human beings. Grotius’s natural-law ancestors thought that human law could not overrule natural law; arguably, that is what it means to hold a natural-law view.  But this is not Grotius’s view. He says, reasonably enough, that the Law of Nations may not command what the Law of Nature prohibits (II.II.V, 493). But the Law of Nations may permit what the Law of Nature prohibits (III.IV.XV, 1290). For example, the Law of Nations may permit killing noncombatants in war, an act presumably prohibited by the Law of Nature.  But while this new customary permission is inconsistent with natural law, Grotius, contrary to his fellow natural lawyers, insists that it is binding. By this Grotius does not mean the tautology that the new permission is legally binding. He means that the permission (for example, to kill noncombatants) is morally binding, so that others may not validly interfere with the agent’s acting on the permission (killing noncombatants).  This is because pacta sunt servanda  (“agreements must be kept”) is a central principle of the Law of Nature. The Law of Nature enjoins us not only to respect possessions but also to honor our agreements (PD, 86). Since the newly introduced permission is an agreement, it overrules the prior prohibition.

Grotius is correct that a mere permission that derogates from an antecedent prohibitory norm does not offend that norm as much as a command to do that which the norm prohibits.  Again, assume the Law of Nature prohibits killing noncombatants.  If custom subsequently authorizes such killing, then it logically contradicts the prohibitory norm, since the latter says that sparing noncombatants is obligatory. The new permission defeats the purpose of the antecedent prohibition, which made the negation of the behavior in question (sparing noncombatants) obligatory. But it would be even worse if the Law of Nations commanded such killing, because in that case sparing noncombatants would be prohibited. That the Law of Nationspermits that which the Law of Nature prohibits means that people are authorized to comply with the Law of Nature if they so desire.

The Law of Nature, then, is a complicated moral system. It prohibits rights violations unless people agree to violate rights, because there is a meta-norm, pacta sunt servanda, that controls the other norms in the system. In the absence of agreement the Law of Nature provides default rules that enjoin rights violations. The resulting normative system (the new permissions plus whatever default rules remain) is itselfobligatory by application of pacta sunt servanda. Only then can Grotius avoid the obvious implication that these permissions are morally invalid.

If this reading is correct, then Grotius’s initial statement that the Law of Nations consists of divine commands, rationally accessible natural law, and human law, all coexisting peacefully, is inaccurate.  Rather, Grotius’s real view is that in the Law of Nations consent reigns supreme, and only in the absence of consent do natural-law norms govern by default, except that consent cannot validly command what the Law of Nature prohibits.  One may perhaps offer a (kind of) libertarian interpretation of Grotius’s claim, namely, that individuals can waive the rights that natural law accords them. The problem with this interpretation is that in Grotius’s examples the right-holders donot alienate their rights; rather, the monarchs agree among themselves to violate the rights of others. If the Law of Nature prohibits killing civilians, then (on any plausible libertarian account) only those civilians have standing to waive their rights not to be killed. So Grotius’s view cannot be read in this way. Rather, for him the derogations from the Law of Nature are agreed upon by governments. The Law of Nature, now via pacta sunt servanda, enjoins us to respect these agreements. This move saves Grotius from inconsistency, but it certainly undermines his natural-law credentials and his (presumed) commitment to individualism.

Aside from this problem, Grotius’s method is quite messy because it does not allow us to tell when a rule belongs to the Law of Nature and when it belongs to the Law of Nations.  The standard way to distinguish them is to make a philosophical argument in support of a moral rule and a legal argument in support of a legal rule.  Grotius’s uses neither.  In fact, he uses the samemethod throughout: he appeals to the opinions of the wise, the more ancient the better. To prove that a rule exists (in either the Law of Nature or the Law of Nations) Grotius cites a multitude of ancient authors, philosophers, poets, playwrights, biblical texts, and opinions by old monarchs as referenced by ancient historians. (See Grotius’s justification for this method at PD, 108-111.) For example, he sets out to prove the permissibility of war (against pacifists) by resorting to biblical account (I.II.185 ff.). Even conceding that this method may be suitable for ascertaining morality, it is unsuitable for ascertaining the law. The Law of Nations, as Grotius correctly says, is diplomatic practice, that is, custom and treaty. Yet Grotius cites virtually zero diplomatic practice in support of international-law rules, notwithstanding the fact that there was plenty of practice circa 1625. In the end, Grotius’s method is unsatisfying because he eschews philosophical argument to prove morality and eschews legal argument to prove international law.

II. War

a) Ius ad Bellum

Here we should distinguish between international wars and civil wars (revolutions). With respect to international wars,Grotius follows the just-war tradition both by rejecting pacifism and by requiring a just cause for waging war.  At the beginning of the treatise, Grotius is concerned with establishing the permissibility of war against pacifists.  Maybe for that reason, he initially formulates the just-cause requirement in negative terms: a war that does not infringe on the rights of other nations is permissible (I.II.I, 184).  This may create the impression that the default rule is the permissibility of war. On closer examination, however, this is not so. Later in the treatise he accurately distinguishes between reasons and motives for war (II.I.I, 389). Reasons are proper justifications, moral reasons; motives are prudential reasons. Only the former can constitute just cause: all wars should be “founded on the substantial basis of truth and justice” (II.I.I, 391). While most sovereigns wage war for a mix of motives and reasons (II.XXII.III, 1099), a war is just only if it is a reaction against an injury received (II.I.I.393). (Luban 2011: 306) Contrary to initial appearances, the default rule is not that war is permissible. Wars for reasons otherthan righting wrongs are disallowed.

This reading is confirmed by Grotius’s listing of just causes for war. There are only three: self-defense, the recovery of what is ours, and punishment (II.I.I, 395). Grotius not only disallows self-interested reasons, such as territorial aggrandizement or national glory, he likewise rejects the “security dilemma” as a just cause: fear of a neighbor’s power is not enough. And he rejects paternalistic reasons:  that possessors are “fools” is not enough reason to dispossess them (II.XXII, 1102-1113).  His standard for national-self-defense is quite high: the force used must be necessary to defend ourselves against unjust attacks.  And presciently, Grotius warns against self-delusion. A ruler may persuade himself too easily that he has a just cause and plunge into war on bad motives even if he has ostensibly good reasons (II.XXII, 1113). Grotius’s views here are quite visionary and announce the international-law developments of the late 20th century.  But it would be a mistake to equate Grotius’s view with the current legal position: Grotius thinks that recovery of one’s lawful possession is a just cause for war, whereas modern international law generally forbids this, at least when the unjust taking does not constitute an armed attack.

Grotius’s views on humanitarian intervention deserve separate comment. (For a full treatment, see Tesón 2005.) The default rule is that humanitarian intervention is impermissible because established governments have a “certain” right to rule (II.XXV. VIII, 1159). But then Grotius writes, famously, that when princes abuse their authority in a way that “no Good Man living can approve,” then armed intervention can be justified (II.XXV. VIII, 1161).  He warns against the dangers of abuse, and says that humanitarian intervention may not be undertaken if the intervener’s own subjects are unduly burdened. (See Holzgrefe 2003: 25-27.)

The most remarkable feature of this view is that humanitarian intervention is permissible even where revolution is not. Grotius’s view that even if the subjects themselves may not revolt “others might … do it for them” runs against the modern view that the threshold for foreign intervention should be higher than the threshold for domestic revolution. (See Dobos 2012: 73-99.)

Grotius takes quite a restrictive view of the right to resist authority. To be sure, he says that if the sovereign commands something against natural law, the subjects need not obey (I.IV.I, 337).  This statement must be qualified in view of Grotius’s claim, already discussed, that law or custom may amend the Law of Nature by introducing enabling permissions. Suppose that the Law of Nature prohibits sovereigns from enslaving their subjects. If custom subsequently allows slavery, then the antecedent natural-law prohibition does not hold, and rulers are free to enslave. It is true that, strictly speaking, the law does not command slavery, but this is not much consolation to the slave.

But what if the sovereign injures the subjects?  They, Grotius tells us, must patiently endure the injuries and not resist them by force (I.IV.I, 338). Civil disobedience is fine; violent revolution is not.  An unlimited right to resistance would undermine the end of the state, which is to secure “peace and good order.” He even says that if subjects had a right to resistance, there would be no state. (Compare with Kant 1996: 95-98.) And as a matter of practice, the right of resistance “is looked upon as unlawful, according to the Usage of all States” (I.IV.I, 340). So the argument is two-fold: as a matter of principle, the right to revolution is inconsistent with the end (and maybe the very idea) of a state, and as a matter of law, such right is unrecognized. Grotius veers dangerously close to upholding the divine right of kings as a justification of government.  He quotes the scriptures for the view that God wanted us to endure iniquity at the hands of rulers. We must give to Caesar what is Caesar’s, and in this way we will be rewarded for that patience in the afterlife by the greatest of all sovereigns (I.IV.I, 344-45).

Severe as Grotius’s principle of nonresistance is, it is not absolute.  He concedes that subjects may forcibly resist the sovereign in cases of extreme necessity, when their own survival is threatened. He gives a hypothetical-consent argument: subjects are deemed to have agreed to civil authority to secure order and peace, but they are not deemed to have consented to their own extermination (I.IV.VII, 356 ff.).  We saw that the threshold for revolution is higher than the threshold for foreign intervention, yet it is unclear what the difference may be. For intervention, the standard is “visible injustice … which no Good Man living can approve”; for revolution, the standard is survival. So in spite of what Grotius says, the two do not seem that different after all.  And for Grotius this right to resist in extremis is not individually held. The historical examples he gives suggest that groups, not individuals, may legitimately revolt to prevent their own extermination – in modern words, to prevent genocide.

b) Ius in Bello

Book III examines the laws of war. Grotius’s treatment is important because at the time he wrote, these laws were in their formative period. He first vindicates the morality of war against the adage inter arma enim silent leges (for among [times of] arms, the laws fall mute).  When undertaken, war ought not to be carried “beyond the Bounds of Justice and Fidelity” (PD, 101).  But Grotius’s approach is unusual. He first tells us what the Law of Nature requires. Simply put: we are allowed to kill the enemy because the enemy threatens us (III.I, 1185 ff.). We can also take his property, but only to the extent necessary to our security. These rights are independent of the enemy’s culpability or innocence.  This right to use force includes punishment, but only “within the bounds of Equity,” so we are not entitled to kill or destroy in a manner disproportionate to the offense received (III, I, 1187). This approach to ius in bello (right conduct in war) is eminently reasonable, and it is generally followed in the modern literature and international conventions.

But after laying down these reasonable natural-law principles, Grotius reports what the Law of Nations really says. The result is alarming. In rapid succession we are told that the subjects’ goods and bodies are owed for the Prince’s debts (III.II.II, 1232-34); that all, including women and children, who are found in the enemy’s territories may be killed or hurt (thus there is no principle obligating armies to discriminate between combatants and noncombatants) (III.IV.VIII-IX, 1281-84); that it is permissible to kill those who surrender (III.IV.X-XI-XII, 1284-88); that it is fine to waste and plunder (III.V.I-IV, 1303-12); and that prisoners of war and their families may be enslaved (III.VII.I, 1360-65). These are dramatic instances of the principle, already discussed, that positive law may permit that which the natural law prohibits. But here the permissions are so many and so inhumane that they virtually overrule the moral principles that Grotius defends at the beginning of Book III. The law of war circa 1625 (if we are to believe Grotius) was deeply immoral.

Aware of this, Grotius invites his readers (sovereigns included) to set aside the horrible practices he just described and exercise moderation. In chapters XI to XXV Grotius essentially reverses many of the permissions introduced by the consent of states.  He intends to “take away from those who make War almost all the Rights which I seem to have granted them; but which in Reality I have not” (III.X.I, 1411). Honor and conscience, he says, often forbid what the Law of Nations permits. Honor is not so much other-directed, but rather consists of the agent’s own search for equity and justice (III.X.I, 1413). This turnaround is welcome, of course, but conceptually puzzling.  Are these moderate rules grounded in honor and conscience the same as the Law of Nature? Are these recommendations mere exhortations or, to the contrary, true descriptions of moral duties? If the latter, how is this new position consistent with Grotius’s view that custom may validly derogate from natural law? (See Forde 1993: 646-47.) It is hard to tell.  What is clear is that Grotius believed that the practice of war fell far short of the standards of justice. If so, his recommendations are exhortations addressed to the powerful to humanize war, rather than a full-fledged philosophy of war.

III. The State and Property

There is considerable scholarly disagreement about Grotius’s theory of the state. But this much can be said: Grotius thought that human institutions derived ultimately from human nature. Human beings have an “exquisite desire for Society” (PD, 84). This sociability is the “fountain of all Right” (PD, 86) that leads people to establish political institutions. But these institutions are manmade; they are the result of human will, of an agreement (PD, 93; II.II.II, 426-27). This social contract is morally binding in an indirect way. The Law of Nature, via sociability, leads individuals to arrange their affairs by enacting civil laws. (See Rabkin 1997: 297-98.) These civil laws are then binding on subjects because they agreed to them, whether or not the laws contradict some precept of the Law of Nature. Nowhere is this clearer than in Grotius’s discussion of private property. He thinks that God gave all men dominion in common of all things (II.II.II, 420-21). But over time, this idyllic state of affairs could not endure; for a variety of reasons, it was necessary to assign lands to families (II.II.II, 426-27). The institution of private property thus became the core of the civil laws, that is, the centerpiece of the state. The social contract determines mine and thine, and thus provides the substance for the operations of the Law of Nature itself. Recall that the Law of Nature enjoins us to respect rights. For Grotius, these rights are essentially property rights.

It is worth noting that Grotius did not think that people would create political institutions only out of self-interest. He thought that individuals were capable of acting out of altruistic motives, and this partially altruistic disposition made the social contract possible. (See de Araujo 2009: 355-56.) There is a tension also between Grotius’s claim that things belonged originally to all men in common and his vindication of the right of original occupation (II.II.II, 421). Is this right also part of the Law of Nature, or is it a feature of the social contract? And does the right of occupation grant all the features of property or only the right to use? (See Salter 2001.) Finally, while Grotius is quite modern in his conception of the Law of Nature as resting on rights, he does not come close to endorsing a modern theory of constitutional rights – let alone endorsing any redistributive function of the state (understandably, given the period). Yet it is possible to formulate an updated liberal Grotian theory of the state. If the principle of self-ownership is accepted, then all rights invasions will constitute trespass and all modern constitutional rights may be conceived, in Grotian fashion, as property rights.

IV. Conclusion

Almost a century ago, a British commentator opined that Grotius “imitated the brevity and terseness of style of Tacitus without exhibiting the insight and penetration of his model. His philosophy of history is of the simplest and crudest nature.” (MacDonnell 1919: 18) And Thomas De Quincey blasted De Jure Belli ac Pacis: “Take away the Greek and Latin seasoning, which (in conjunction with the laconic style) has kept the book from putrefying, all the rest is pretty equally divided between empty truisms, on one hand, and time-serving Dutch falsehoods, on the other.” (Cited in MacDonnell 1919: 19.) While certainly Grotius’s scholarly stature pales in comparison to Hobbes, Locke, Kant, or Rousseau, these judgments are too harsh. Grotius prefigured, albeit in an embryonic fashion, some of the themes that came later. And if his views on war were intended for princes, this should be commended, not criticized.  His central message to the powerful was imbued with a humanist spirit: international law (then as today, I might add) had not yet caught up with the demands of justice.

End Notes

[1.] All references are to Hugo Grotius, The Rights of War and Peace, 3 vol., edited by Richard Tuck (Liberty Fund, 2005). Following custom, the references are to the Preliminary Discourse (PD) or Book, as the case may be, chapter, section, and page.

 

RESPONSES AND CRITIQUES

1. Eric Mack, "Grotius on the Law of Nature, the Law of Nations, and the Rights of Peace versus the Rights of War"

Fernando Tesón makes a good case for each of his readings of Grotius’s doctrine in The Rights of War and Peace.  His readings may indeed be the best readings of the text.  As an amateur reader of Grotius, I have no rational confidence that any of my alternative readings are better.  Nevertheless, with that major caveat, I want to present very briefly a somewhat different vision of Grotius on the Law of Nature and the Law of Nations.  In general I want to highlight features of Grotius’s doctrine that make Grotius an important forerunner of classical-liberal thought.  Here I address only some of the ways in which Grotius is a herald of liberal theory.

1. The Law of Nature

Grotius begins The Rights of War and Peace by saying that, rather than wanting to discuss the Civil Law, which differs from one nation to another, he wants to provide an account of “that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introduced by Custom and Consent…” (I. PD. I).  Tesón reads Grotius to be announcing that he wants to study the Law of Nations and that Grotius takes the Law of Nations to consist of “divine commands, rationally accessible natural law, and human laws.”  I disagree. 

To begin with, the “instituted by Divine Commands” was inserted by Grotius into the 1631 edition – apparently to placate the conservative officials who Grotius hoped would allow him to return to Holland from exile.  Also, there are two distinct bodies of Law that are “common to many Nations or Rulers of nations.”  There is the Law of Nature (which is “derived from Nature”) and there is the Law of Nations (which is “introduced by Custom and Consent”).  So, at the beginning of The Rights of War and Peace, Grotius is saying that he wants to study the Law of Nature and the Law of Nations; moreover, Grotius is not taking the Law of Nature to be a constituent of the Law of Nations. 

In fact, the rest of the opening chapter, “The Preliminary Discourse,” is almost entirely about the Law of Nature (and not the Law of Nations).  For Grotius’s immediate concern is to refute those – like Carneades – who reject the existence of the Law of Nature.[2]   We cannot here attempt to go through the details of this refutation.  We can only note that Grotius holds that the foundation of Carneades’s challenge to the Law of Nature – i.e., to the idea of natural justice – is the proposition that the sole motive for all human action is the promotion of personal advantage.  Grotius attacks this foundation by maintaining that there is a further important motive for human action, viz., “the Desire of Society,” which is “a certain Inclination to live with those of his own Kind, not in any Manner whatsoever, but peaceably, and in a Community regulated according to the best of his Understanding…” (I. PD. VI).

The Desire of Society turns out not to be some generalized empathy but, rather, a disposition to live in accordance with rules, general compliance with which sustains mutually beneficial social order.  We can discover through reason what the rules are that must generally be abided by if a mutually advantageous social order is to exist.  Those rules, discovered by reason in light of the character of human beings and the circumstances of their existence, are the Laws of Nature.  Or, somewhat more specifically, these rules are the Laws of Nature properly and strictly speaking.  There are other rules that are guides to living well that are also part of the Law of Nature, though in an extended and less proper sense.  

The Desire of Society does not displace but, rather, exists alongside of the desire for personal advantage. The Laws of Nature do not displace the “first Duty” of nature which is for “every one to preserve himself in his natural State, to seek after those Things which are agreeable to Nature, and to avert those which are repugnant” (I. II. I.1).  Rather, the Laws of Nature that arise through “the Knowledge of the Conformity of Things with Reason” (I. II. I.2) constrain the pursuit of personal advantage. 

According to Grotius, “Right properly so called” requires,

the Abstaining from that which is another’s, and the Restitution of what we have of another’s or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit [i.e., justification] of Punishment among Men. [I. PD. VII]

Right, properly speaking … consists in leaving others in quiet Possession of what is already their own, or in doing for them what in Strictness [by way of reparation or agreement] they may demand. [I. PD. X]

So, e.g., Grotius cites Cicero citing Chrysippus to the effect that “There is no Injustice in seeking ones [sic] own advantage; but it is contrary to Equity to take away from another” (I. I. X.4. note 8).

Although the Law of Nature constrains individuals in their pursuit of personal advantage, general compliance with those constraints makes mutually advantageous social interaction possible; moreover, one is admitted to that social interaction on the basis of one’s being compliant with the Law of Nature.  Thus, according to Grotius, compliance with these constraints on how one pursues personal advantage is the key rational strategy for promoting one’s personal advantage.  Thus, in a sense, Grotius seeks to hoist Carneades with his own petard. 

Yet, intriguingly, Grotius seems to argue that individuals will only get the payoff of mutual personal gain if they abide by the Law of Nature constraints for their own sake and not merely for the sake of those personal gains.  “Right has not Interest merely for its End….” and “the Moment we recede from Right, we can depend upon nothing” (I. PD. XXIII). If we did not have the alternative motivation supplied by the Desire of Society, we would never fulfill the desire for personal advantage.

2. The Law of Nature vs. the Law of Nations

The Law of Nations, like the Civil Law of particular nations, is the product of will rather than nature and reason.  In ways that do not seem to me to fit very well with the traditional notion of the Law of Nations (jus gentium), Grotius writes as though the Law of Nations is a code of conduct that governs only the interactions of States or the rulers of States.  It is said to be beneficial to States (or their rulers?) in some way that parallels the Civil Law of a given State being beneficial to that State (or the members of that State?). 

But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general.  And this is what is called the Law of Nations, when used in Distinction to the Law of Nature. [I, PD. XVIII]

Rather than being a component or aspect of or handmaiden to jus naturale, the Law of Nations appears as an autonomous normative code that at most is slightly constrained by the Law of Nature. 

As Tesón indicates, the Law of Nature specifies the moral default position.  If the Law of Nations does not speak to a matter – e.g., whether prisoners in war may be killed – the Law of Nature stance that war prisoners may not be killed holds.[3]   But if the Law of Nations speaks, its voice will sometimes override or displace the voice of the Law of Nature.  As Tesón points out, according to Grotius, the Law of Nations can make permissible actions that are forbidden by the Law of Nature  (III. IV. XV.1).  So, e.g., the Law of Nations can (and does) make the killing of prisoners in war permissible.  Indeed, the Law of Nations underwrites the whole of the doctrine of “Solemn War” that Grotius lays out in Book III of The Rights of War and Peace.

A State is engaged in Solemn War if (and only if) it publically deliberates about and declares that war against a State or it becomes an “enemy” of another State through the other’s deliberation and declaration.  There is a sense of “just” in which a war is just as long as it is Solemn.  In this sense of “just,” all parties to a declared war are engaged in a just war.  This stands in sharp contrast to the Law of Nature teaching that the only just wars are those conducted to defend against, to attain reparations for, or to punish natural injustices.  Moreover, almost all the Law of Nature prohibitions on how war may be conducted, are overridden or displaced by permissions granted by the Law of Nations to engage in those naturally unjust modes of war-making.  Also, these permissions concerning the conduct of war apply to all the States contesting in a Solemn War – even the State whose cause is unjust in the eyes of the Law of Nature.

…in this [Solemn War] Sense, it is lawful for one Enemy to hurt another, both in Person and Goods, not only for him that makes War on a just Account, and does it within those Bounds which are prescribed by the Law of Nature. . . but on both Sides and without Distinction…  And in this Sense we are to take Sallust, By the Laws of War all Things are lawful to the Conqueror. [III. IV. III]

The result, as Tesón says, “is alarming.”  Indeed, it seems that Grotius is eager to emphasize the barbarity of warfare in accordance with the Law of Nations.   And, as Tesón also notes, we then get a remarkable reversal.  For Grotius declares that on reflection, he must “take away from those that make War almost all the Rights, which I may seem to have granted them; which yet in Reality I have not” (III. X. I.1). 

Tesón rightly notes that it is not clear where this leaves Grotius.  In the name of what – honor, charity, virtue, reason – are we to turn away from the dictates of the Law of Nations?  Does this turn involve a general repudiation of the Law of Nations?  If it does, why does Grotius expend so much time and space laying out the dictates of the Law of Nations?

I like the radical hypothesis that Grotius does want us to jettison the Law of Nations as having prescriptive power.  On this hypothesis, Grotius’s attention to the Law of Nations is attention to what he recognizes to be (part of) the positive law but not part of the prescriptively valid law.  For there is a “double Meaning of the Word lawful, the one being taken for that which is really lawful in itself, the other for that which is only lawful externally” (III. X. I.3).  The Law of Nations is to be denied prescriptive force primarily (at least) because it is or has come to be nothing but the Carneades-like sanctioning of unconstrained personal advantage.  And that is precisely what Grotius has set out to rebut and cast aside in the name of the Law of Nature.   (Note that Sallust’s proposition quoted as a summation of the Solemn War doctrine could as readily appear at the outset of Grotius’s treatise as an expression of the Carneadesian view.)  Moreover, the primary values that Grotius invokes in support of his reversal against the Solemn War doctrine are precisely the Law of Nature values of Equity, Justice, and Reason (III. X. I.2 & II.1 & III.1 & VI.1).  So, my wild hypothesis is that in the end, the Rights of Peace (which include the rights of naturally just war and naturally just conduct in war) vanquish the Rights of War.

Endnotes

[2.] The attack on Carneades must be entirely on behalf of the Law of Nature because, according to Grotius, Carneades does not discuss and, hence, does not challenge the Law of Nations (I. PD. XVIII).

[3.] Assuming the Law of Nature is not overridden or displaced within a particular State by the Civil Law (II. II. V).

 

2. Hans W. Blom, "Liberty and the Law" [Posted: March 7, 2014]

Fernando Tesón reminds us of the crucial importance of the distinction between the law of nature and the law of nations when it comes to the cause of liberty in the modern world. I agree with most of what Fernando has written on Grotius’s natural law, yet I would put some emphases different, and propose a divergent reading of Grotius. I believe that by constructing Grotius as a proponent of a deliberative theory of justice we can better understand both Grotius himself as well as the great impact he enjoyed in the 17th and 18th century.

Fernando has proposed four main theses: 1) the law of nations makes the law of nature impotent, partly through a mechanism provided by the law of nature itself: pacta sunt servanda; 2) the right of resistance against the government, which is denied citizens because resistance would dissolve the state, is only allowed in extreme necessity; 3) warfare is to be humanized, and the appeal is to monarchs (governments) to do what is morally recommendable (the decorum); 4) private property might be the foundation for constitutional rights.

Let us start with the right of resistance. In the chapter from The Rights of War and Peace (1625) that deals with war of citizens against their government, we find an intriguing sentence:

The praetor renders justice, even when he pronounces an unjust sentence [IPB I.4.3 (p. 344)].

The ambivalent use of “just” here suggests that the social function of rendering justice does not necessarily agree with everyone’s idea of what is just. Yet it renders justice because this praetor was the Roman official to whom citizens would bring their complaints against fellow citizens in order to resolve their disagreements. Precisely in negotiating divergent ideas of what is just in a particular case the rendering of justice consists. Four actiones, or legal remedies, could be sought from the praetor: concerning property, debt, recompense for incurred injury, and punishment. For Grotius this represents justice in its core sense. And he then postulates what will be central in his law of war and peace: 

Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of a Loss that is apprehended; and other Things included in the Decrees of the superior Judge, which prohibited any Violence. For the Second, that Reparation may be made, or Punishment inflicted; two Sources of Obligation, which Plato, and before him Homer, have judiciously distinguished. As for Reparation, it belongs to what is or was properly our own, from whence real and some personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law. To which also we may refer those Things which are said to be due by a  Sort of Contract, or a Sort of Default: From which Heads all other personal Actions are derived. The Punishment of the Injury produces Indictments and publick Judgments. [The Rights of War and Peace, II.1.2.1 (p. 394-6).]

By property Grotius naturally meant: life, liberty, and estate:

The Right which a Man has to his own, which contains 1. Power over ourselves, which is termed Liberty. 2. Property, which is either compleat or imperfect. 3. The Faculty of demanding what is due. [ (I.1.5 (p. 138-9): ius, sub quo continentur Potestas, tum in se (libertas), tum in alios, Dominium plenum sive minus pleno (usufructus, creditum). The English translation is rather free.]

Thus, justice is that which the praetor as the representative of the society provides, and war is the continuation of defending our claims in the absence of justice. But then what is a civil war? It is either a war among individuals, after the state has been dissolved, or it is a war between civil society and the political incumbents. The first case is well-known from Hobbes; the second case from Locke. Dutch followers of Grotius would argue that violent resistance against an incumbent who trespasses people’s constitutional rights (and thus in older parlance becomes a tyrant) is allowed, because this incumbent has become an enemy of the citizens. That is to say: either the government provides justice (even if by an unjust sentence) and thus cannot be attacked, or it stops providing that justice and becomes a private enemy. One might say that Grotius distinguishes – like Albert Hirschmann – “voice” and “exit.”

The Rights of War and Peace is mainly about war, and war is connected to justice by at least two strands: 1) the good of humanity and 2) the laws of war. Therefore both the law of nature and the law of nations apply to warfare. Hobbes and Pufendorf have famously argued that there is no law of nations in international law: each sovereign nation pursues its own interests on the authority of the law of nature. Grotius apparently doesn’t share that point of view. He sees – like an anthropologist – customs, practices, and regulations among (most, or the most advanced) nations, partly in the form of treaties, partly in the form of agreement among jurists: the water in wells ought not to be poisoned, ambassadors should be granted safe-conduct, etc. It is true that some of these customs are hair-raising: killing, robbing, and destroying was already prominent in the Old Testament, and hasn’t stopped since. Yet one might also try to find ways to escape the fate of war, by pursuing one’s rightful claims by legal means, and attempting when warfare is unavoidable to promote the common values of humanity that are shared among the nations. This is the famous Grotian Quest that went into the founding ideology of the Peace Palace in The Hague.

Notwithstanding this, Grotius was a political realist, who agreed with Machiavelli that it is more important to describe politics as it is than to build a Utopia in the air. There is a strong element of reason of state in his writings in general, and in an intriguing way, in his natural law as well. The justice that is central to his concept of sociability and that of war is a minimal justice of property rights, but otherwise politics, including the civil laws that politicians legislate, is about utility.

So it might happen that a government decrees that landed property can only belong to the nobility, as it was in Poland and in Brandenburg in the times of Grotius. Such a ruling does not prevent justice from being applied, even while it is unfortunate for the merchant or the farmer in such a country. Grotius would be the first to point out that such a ruling is also very disadvantageous to the well-being of the state, since it will lower agricultural production and chase away tradesmen and other commercial entrepreneurs. Since without a system of justice a state cannot exist, it is in the interest of that state to have a praetorial arrangement, with a concomitant interest in perfecting its system of justice as much as it can. The constitution of the state is the outcome of a historical process of adaptation, in which former agreements are replaced by new interpretations and arguments allow new agreements to arise. The great variety of constitutional forms in his days was ample proof of this historicity of the state. Consequently, Grotius makes the “more advanced nations” the benchmark for the contents of the law of nations, which in this respect is a kind of “secondary law of nature.” As such, this law of nations must be considered to be the “primary law of nations,” while the “secondary law of nations” is the purely volitional part of the law of nations. Pufendorf considered this distinction utterly unhelpful, for the good reason that if one considers all laws to express the will of their lawgiver (whether that is God or the sovereign), there is no place for intellectual exercises like the “consensus omnium.” the considered opinion of the wise.  And that is precisely what a deliberative theory of justice would propose: institutions for public reasoning that allow agreements to appear. Agreements are the hallmark of truth, and to stand by one’s truth is an expression of character.

But in the end, for Grotius there is no objective value, and everyone is the interpreter of his own interests, values, and preferences. It is on that basis that the praetor/judge is essential in any social form as the point at which to negotiate these interests, values, and preferences. It is for this reason that man has ratio and oratio, reason and speech, the two instruments for social deliberation.

God created man autexousion, “free and sui iuris,” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own.… For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will? [Commentary on the Law of Prize and Booty (1604-5), II (p. 33-34)]

There has been something like an ideological war among natural law thinkers in the 17th and 18th centuries – to some extent replicated in present-day histories of natural law – and Grotius has been called as a witness on practically all of the contentious points. Consequently we have many different Grotiuses: Grotius the absolutist, according to Rousseau; the liberal (Adam Smith); the confused thinker (Pufendorf), and so on. Grotius’s natural law equally shows this capacity for multi-interpretability: the last of the Scholastics (Peter Haggenmacher), the first modern (Richard Tuck), or something in between (Annabel Brett). Grotius for sure is himself at least partly responsible since he likes to overargue his case by giving multiple arguments from different philosophical backgrounds (Aristotle, Plato, Stoics, Epicureans, and Skeptics) and from different literary sources (Bible, poets, classical philosophers , Scholastics). Look at how he describes the law of nature. It is “not those written laws, indeed, but the immutable laws of Heaven” (IPC, I, p. 16).  “Baldus, who has wisely ruled that in any controversy arising between claimants of sovereign power the sole judge is natural reason, the arbiter of good and evil.” The laws of nature are ordained by God, but through his creation; they are discovered by the joint intelligence of mankind (the consent of all nations). Moreover, the distinction between the primary and secondary law of nature doesn’t help to clarify. And the law of nature can be known a priori and a posteriori. Grotius clearly misses an awareness of the issues that will become crucial for his successors in natural law.

Yet there is method in this madness. Grotius has a habit of using unlikely candidates to speak in his support. In the Commentary, e.g., Grotius quotes Aristotle to support his notion of subjective rights against the Aristotelian conception of objective value. This type of forensic rhetoric has irritated his more philosophically minded readers, yet it should not distract one from seeing how effective Grotius was with this strategy. He inescapably introduced a legal and political individualism into the intellectual mindset of Protestant countries, together with a reworked cosmopolitanism meant to overcome the disastrous effects of reason-of-state politics. This legal and political individualism was considered to be central to the commercial success of the Dutch Republic, and thus permeated social and political thought all over Europe, sometimes in a more authoritarian fashion (Hobbes, Pufendorf, Rousseau), sometimes in a more libertarian fashion (Locke, Smith). Theologians wrestled with jurists, political thinkers with historians, and grand schemes of natural law took the place of Grotius’s attempts in the early 17th century to salvage justice from European warfare. But his success was more solid as it had become almost invisible.

 

3. Paul Carrese, "The Moderation of Grotius" [Posted: March 9, 2014]

Fernando Tesón’s fine essay on Grotius is provocative on several points.  My response explores his criticisms of the great jurist’s effort to propound a philosophy of international law.  I will seek to question his verdict on Grotius through recourse to another jurist-turned-philosopher, Charles de Montesquieu.  Grotius seems less confused, his philosophy of international right less perplexing and contradictory, if we read his On The Rights of War and Peace (1625) in the spirit of a jurist who seeks not abstract philosophical clarity, but an attractive argument likely to reduce the incidence of conflict – and ameliorate those wars that do occur – by bringing principles of law, thus restraint, into this prevalent mode of human affairs.  Grotius’s complex mode of jurisprudence and philosophy deeply influenced Montesquieu’s efforts, a century later in On the Spirit of Laws (1748), to propound a philosophy of international right that declared principles of right to govern war, to promote peace and commerce, and thus to support the conditions for individual and political liberty.  These jurists in turn deeply influenced the American founders in their effort, during the 1780s and 1790s, to construct a constitutional order and distinctive American grand strategy that would permit war only as part of a larger philosophy of peace, international order, protection of individual rights, and commerce.  These are extraordinary achievements in human civilization, and it was this more complex or seeming paradoxical mode of philosophy that helped statesmen to promote liberty and civility.  

We should praise the lawyers – Hugo De Groot (Grotius) and Montesquieu, not to mention Professor Tesón – for their contributions to reorienting politics away from glory and conquest toward peaceful pursuits of individual rights, individual and communal happiness, and peaceful prosperity.  We tend to take this for granted in the 21st-century world, since many of us hardly remember a time without a global order of liberal commerce and great-power peace.  Moreover, my fellow academics tend to favor the more radical voices in philosophy who announce bright-line doctrines and novel systems, overlooking more moderate intellects who propose complex and balanced philosophies that straddle schools and offer fewer doctrines.  If one extends the Enlightenment to include Grotius, then he and certainly Montesquieu exemplify the moderate Enlightenment – keen to consider the claims of modern philosophers for propounding radically new understandings of reality, truth, and right, but just as keen to temper those claims through awareness of the insights of classical and medieval thought that could not be discarded without impairing our understanding of human nature and political reality. 

Tesón gives credit to Grotius’s effort to restrict the definition of justifiable war, as being “quite visionary” and as prefiguring “the international law developments of the late 20th century,” but insists nonetheless that these achievements rest on an “inaccurate” view of the law of nations.  Indeed, the jurist’s philosophical method is “messy” and “unsatisfying,” given its seemingly contradictory statements on the degree to which natural law governs the law of nations.  At other moments, however, Tesón appreciates Grotius’s achievement more in the spirit in which it was intended, understanding that for Grotius the natural law is (in Tesón’s apt phrase) “a complicated moral system” in its relation to human practice, especially that of war and peace between nations.  He notes that Grotius’s work was “intended for princes” rather than pure scholarly reflection, a decision that “should be commended, not criticized.”  Indeed, Richard Tuck’s introduction to the splendid Liberty Fund edition of The Rights of War and Peace remarks on the work’s widespread influence, reaching beyond scholars to statesmen – noting that “General Washington, like most well-educated English gentlemen, possessed a copy” (Tuck, “Introduction,” xi).  This is the better part of Tesón’s argument, suggesting that Grotius’s complicated, seemingly contradictory analyses of natural law and the law of nations accurately capture the reality of war, peace, and international affairs in a way likely to pull its leading actors toward moderating and ameliorating both thought and action, all with the aim of setting a more humane standard for political conduct.

Montesquieu does not often cite by name the great jurists of international law such as Pufendorf or Grotius in his own influential work, The Spirit of Laws, but his private notes (the Pensées, translated by Henry Clark in a Liberty Fund edition) reveal that he was inspired by the erudition of Grotius.  While drafting Spirit of Laws he wrote:  “I give thanks to Messrs. Grotius and Pufendorf for having so well executed what a part of this work demanded of me, with that loftiness of genius which I would not have been able to attain.”[4]  Montesquieu in turn was the single most important influence on the drafting of the American Constitution and Bill of Rights, rivaled only by one of his protégés, Blackstone.  Moreover, it is telling that voices of the moderate Enlightenment such as Grotius, Blackstone, and Montesquieu are cited throughout The Federalist, but more radical, analytically pure voices such as Hobbes and Locke are not invoked.[5]   If Washington, in his Farewell Address (1796), argued that America’s strategy should be to balance consideration of its interests with the strict guidance of universal principles of justice – and therefore avoid being entangled in Europe’s great power politics while also engaging in international commerce and undertaking temporary alliances as needed – then both Washington and his advisers were echoing the balanced philosophy of international affairs propounded by Grotius and refined by Montesquieu.

Grotius announces a philosophical stance of moderation – of avoiding intellectual and practical extremes in search of a truer, higher, middle ground – from the beginning of De Jure Belli ac Pacis.  He notes that the “monstrous barbarity” and “licentiousness” regarding war even among Christian nations induced some Christian thinkers to endorse pacifism; but this, he says, moves “too much to the opposite extreme.”  His task is to find the golden mean, “as well to prevent believing that nothing, as that all things are lawful” in war (PD, secs. 29-30, 106-7; see Forde 1998, 639 and Zuckert 1994, 123, 343 n. 22).[6]   In a similar vein, Grotius defines human nature as oriented to society, but notes that society serves individual interest; and the same complex, balanced relation holds in the society of nations.  Just as an individual that violates domestic laws with a view to narrow self-interest “thereby saps the foundation of his own perpetual interest,” so a nation that violates the common “reason” inherent in “the laws common to all nations” – found in “the laws of nature and nations” – merely “break[s] down the bulwarks of their future happiness and tranquility” (PD, sec. 19, 94-95).  This balance of self-interest and sociability, indicative of Grotius’s philosophical moderation, informs his entire approach to the law of nations and its grounding in the law of nature. 

Grotius thus announces that a primary means to reducing conflict is to avoid giving grounds for conflict that might arise from strict claims about the linkage of the natural law and the law of nations.  Allowing so many “permissions” by which the law of nations suspends adherence to the law of nature “cuts off infinite disputes” in international affairs ( II.12.26, p. 766; see Forde 1998, 643).  Making strict adherence to natural law the standard for the law of nations “would be dangerous,” for if a third state were to “pronounce on the justice” of a conflict between two other states, “that state might quickly be involved in a war with other people.”  Because “even in a just war it is very hard to judge” what are the right means of ius in bello, “it is far better to leave it to the conscience of the persons engaged in war” to judge such matters and make their case (III.4.4, 1275-77; see also III.9.4, 1386; Forde 1998, 645).  This justification explains why Grotius turns in the last part of De Jure Belli ac Pacis to call for “moderation” regarding the grounds for war and its conduct.  He has prepared for this turn all along.  Beyond the effort to shame Christians in the broader arguments of the Preliminary Discourse and Book I, he invokes “the law of charity” repeatedly in the more detailed analyses of ius ad bellum and ius in bello.  Thus the law of nature might permit us to risk the death of innocents to ensure self-preservation, but “the law of charity … does not permit it” (II.1, p. 398; see also, e.g., III.2, p. 1243).  These occasional references become a refrain once Grotius thematically emphasizes in Book III the importance of moderating, thus elevating, the conduct of states above the minimum standards permitted by the law of nations.  Indeed, the law of love becomes the definition of “humane” conduct expected of civilized, dignified leaders and their peoples (e.g., III.13.4, 1478-79).

It is true that Montesquieu insists upon refining Grotius; the latter’s argument for civility and humanity becomes, in The Spirit of Laws, a requirement of the right of nations.  A pillar of this right, or law, is “the law of natural enlightenment,” which, says Montesquieu, “wants us to do to others what we would want to have done to us” – even in, or especially in, matters of war, security, and conquest (Montesquieu 1989, 10.3, p. 139).  Nonetheless, as Montesquieu noted, he could not have developed this argument – which taught America’s constitutional founders such great respect for the law of nations and high standards of justice in international affairs – but for the genius of Grotius.

Endnotes

[4.] Montesquieu, My Thoughts, ed. and tr. Henry Clark (Liberty Fund, 2012); no. 1537, at pp. 441-42; see also no. 1863, at p. 556; both passages point to the closing remarks of the Preface to Spirit of Laws, as well as to the analysis of the right of nations in Book I, chapter 3 and Book X.  See also Tuck 1999: 184-87.

[5.] Publius invokes Grotius in no. 20 (Madison) and no. 84 (Hamilton); see Hamilton, Madison, Jay, The Federalist:  The Gideon Edition, ed. Carey and McClellan (Liberty Fund, 2001), pp. 96-97, 449.  On Montesquieu’s influence, see Donald Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review vol. 78 (1984): 189-97.  Moderation is explicitly invoked as an intellectual and political virtue in the opening and closing essays of The Federalist (no. 1, p. 2; no. 85, p. 453).

[6.] All references are to Hugo Grotius, The Rights of War and Peace, 3 vol., edited by Richard Tuck (Liberty Fund, 2005). Following custom, the references are to the Preliminary Discourse (PD) or Book, as the case may be, chapter, section, and page.

 

THE CONVERSATION

1. Fernando R. Tesón, "Was Grotius Just an Advocate?" [Posted: March 11, 2014]

The excellent comments by Eric Mack, Hans Blom, and Paul Carrese have taught me a number of interesting things about Grotius and, in passing, have shown how little I know about this intriguing figure. I have no obvious counterpunch, and, like Eric, I suspect that the suggested readings are at least as good as mine, and probably better.

So I will confine myself to a few general remarks. I must confess from the outset that I am one of those who, in the words of Paul Carrese, prefer analytical purity to political moderation. This is in great part adaptive behavior, because I am a bad historian and not particularly good at contextual analyses of philosophical argument.  I learned a lot from Hans Blom’s skillful location of Grotius’s in the contemporary and modern literature. I was likewise marveled at Paul Carrese’s account of Grotius’s influence on the founders of this republic.  And I particularly liked Eric Mack’s radical hypothesis that Grotius was inviting us to jettison the Law of Nations. The comments demonstrate conclusively, if there was any need, Grotius’s historical influence on both the politics and the philosophy of the day. 

Having said this, I’m afraid I’ll stand by my criticism of Grotius’s jurisprudential method. Put succinctly, his arguments are not very good. I mean his arguments, not his conclusions. I concur with Paul that De Jure is a manifesto for moderation, and I particularly like Eric’s and Hans’s suggestion that Grotius is, in different ways, a forerunner of modern liberal thought.  But nothing I read from them has addressed to my satisfaction the conceptual problems that afflict De Jure.

The first and less serious problem, not to repeat myself, is the somewhat arbitrary presentation of the Law of Nations, of international custom. Grotius would not have passed my international law course by quoting Seneca, Tacitus, and Carneades.  One would have expected a leading jurist and diplomat to enlighten us about the international practices of his time.  

But the more serious problem is that his jurisprudential method fails to explain how moral truths bear on legal propositions. Being a natural lawyer is a tough way to make a living. Positivists have it easy: they simply point to social facts (laws, treaties, and custom) and say that they determine the content of legal propositions. But as soon as you summon the Law of Nature you must specify what exactly is a natural-law argument and how you think it treats the social facts of human law. St. Thomas Aquinas and Ronald Dworkin are two illustrious examples of efforts in that direction. But Grotius wavers between one and the other (sometimes, I fear, according to convenience) and in doing so he becomes vulnerable to the charge of arbitrariness. It is not a coincidence that writers see Grotius so differently, as Hans Blom reminds us. Positivists claim Grotius as one of their own because of his vindication of the Law of Nations as binding notwithstanding its demonstrable injustice. Natural lawyers also enlist him in their ranks because of his vindication of the Law of Nature in the Preliminary Discourse and elsewhere. But in my judgment Grotius did not present an intellectually satisfying integrated view, that is, a view that would calibrate the positivist and nonpositivist strands in his argument.

Paul Carrese is absolutely right: Grotius eschews intellectual purity in favor of what works, what can persuade people. I will be the last to deny the importance of advocacy, but an argument’s historical importance or political success does not speak to its truth or quality. Advocacy, I would suggest, is a failure of political discourse, because its aim is to persuade and not to seek the truth. Was Grotius just an advocate? This is surely too harsh: keener minds than mine, including my commentators, have rendered a favorable verdict. But this does not relieve us from subjecting Grotius’s arguments to probing scrutiny. If we like his moderate views, we would want them to prevail in the realm of ideas, and not just in the messy arena of international politics.

 

2. Eric Mack, "Grotius on the Right of Resistance" [Posted: March 13, 2014]

Both Fernando and Hans discuss briefly Grotius’s doctrine concerning a subject’s forcible resistance against his own sovereign.  I want to return to this topic briefly because it provides another occasion on which Grotius seems to take a strongly illiberal and authoritarian stance and yet subsequently reverses that stance.  Is this confusion on Grotius’s part?  Is it moderation?  Is it the inherently anti-authoritarian logic of his normative premises reasserting themselves?  I, of course, would like to believe it is the third of these.

The question that is initially at hand is whether subjects may act against their sovereign when “the civil Powers command any Thing contrary to the Law of Nature or the Commands of God…” (I. IV. I, 337).  Grotius’s immediate response is that subjects may decline to obey such commands.  However, they may not forcibly resist any injury that the civil power sets out to inflict on them in response.  Rather than resist at this point, Grotius says that the subject who has declined to obey the command of the sovereign must patiently submit to the sovereign’s injurious response.  “But if for this, or any other cause, an Injury be done us by the Will of our Sovereign, we ought rather to bear it patiently than to resist by Force” (I. IV.I, 338).  (It is significant that Grotius says “injury” here, for, since an “injury” is a wrongful or unjust harm, Grotius is saying that subjects may not resist even though the civil power’s response is wrongful or unjust.)

Grotius proceeds to give a type of social-contract account for this obligation of nonresistance.  All men begin with “… a Right to secure themselves from Injuries by Resistance….”  But the establishment of the state requires that “the State has a Power to prohibit the unlimited Use of that Right….”  Indeed, the state could not exist if “that promiscuous Right of Resistance” continued to exist (I. IV. II, 338).  Grotius then solidifies the conclusion that resistance against even unjust harm by the sovereign is always unacceptable by assuming that even the limited use of a nonpromiscuous right of resistance must have been surrendered in the establishment of the state.

However, as we move forward in this chapter, we get a striking reversal.  Grotius tells us that “A more difficult Question is, whether the Law of Non-resistance obliges us in the most extreme and inevitable Danger.”  After all, even “some of the Laws of GOD, however general they be, seem to admit of tacit Exceptions in Cases of extreme Necessity…” (I. IV. VII, 356).  And now Grotius tells us that, although those who enter into civil society give up their unlimited (promiscuous) right to resist injuries at the hands of others, they are most plausibly understood as retaining a limited (discriminating) right to resist injuries.

Suppose [those entering society] had been asked, Whether they pretended to impose on all Citizens the hard Necessity of dying, rather than to take up Arms in any Case, to defend themselves against the higher Powers; I do not know whether they would have answered in the affirmative.  It may be presumed, on the contrary, they would have declared that one ought not to bear with every Thing, unless the Resistance would infallibly occasion great Disturbance in the State, or prove the Destruction of many Innocents. [I. IV. VII, 358]

Grotius immediately considers the thought that, if not by contract, at least by “Divine Law,” subjects have a “rigorous Obligation to suffer death rather than at any Time to resist an Injury offered by the Civil Powers”  – and he rejects this thought as well.  Moreover, if I read him correctly, he goes on to say that it is even permissible for a small number of individuals – a small part of society – to forcibly resist such injuries.  Wonderfully, Grotius invokes here the very Barclay – “the stoutest Assertor of Regal Power” – whom Locke later describes as “that great assertor of the power and sacredness of kings” (Second Treatise, §232) and invokes on behalf of resistance.

I dare not condemn indifferently all private Persons, or a small Part of the People, who finding themselves reduced to the last Extremity, have made use of the only Remedy left them, in such a Manner as they have not neglected in the mean Time to take care, as far as they were able, of the publick Good. [I. IV. VII, 358]

 

3. Paul Carrese, "Grotius and Philosophical Moderation" [Posted: March 18, 2014]

Fernando Tesón’s response interprets my view of Grotius as suggesting that the project of De Jure Belli ac Pacis was practical advocacy – seeking to prevent war, or meliorate its horrors – rather than a search for the truth of human affairs.  If I gave that impression, that Grotius had chosen efficacy in the messy political world against understanding the truth about politics, then the error is mine.  I should clarify my view that Grotius saw himself as within the broad Aristotelian tradition of political and moral philosophy, and thus of jurisprudence, in which truth is defined as an understanding that discerns how to practically improve human affairs so that we can better achieve the aims of our nature.  I do not mean to deny, in advancing this view, that Grotius is a liberal and a modern.  Apart from my trepidation at the prospect that Eric Mack and Hans Blom would pounce upon any such suggestion, I tried in my first response to indicate that Grotius – like his progeny Montesquieu and Blackstone – was an intentionally moderate sort of modern, liberal mind.  This strain in the moderate Enlightenment sought to retain or revive elements of classical and medieval thought that would achieve the humane aims of modernity and liberalism more adequately than had the radical philosophies that repudiated the philosophical tradition to a substantial degree.  That repudiation was undertaken both in the name of human progress and in the name of analytical clarity.

When I averred that Grotius as a jurist and philosopher sought “not abstract philosophical clarity” but rather principles that would be likely to meliorate and humanize international affairs, I should have clarified immediately that Grotius did not see this as a binary choice between truth and efficacy.  I did state, perhaps too late, that for Grotius a proper moral-political philosophy would balance the insights of several philosophical schools rather than adhering to strict doctrines of analytical clarity.  This is because, for Grotius, the aim of such philosophy is to accurately capture the reality of war, peace, and international affairs.  I did add that Grotius thought accuracy also would be likely to pull leading actors toward moderating and meliorating thought and action; but I should have clarified that this harmony of truth and humane efficacy is a product of Grotius’s kind of soft teleology about human affairs. 

As Eric Mack noted in his first response essay, Grotius adopts those elements of classical and medieval philosophy that define human nature as both oriented to sociability and interested in individual advantage. (I had cited PD, sec. 19, 94-95; see also, e.g., I.I.III-IV, 136-38, and II.II.XIII, 443-44.)  Unlike Aristotle or Aquinas (to pick two philosophers holding this balanced, complex view of our nature), Grotius seems more to emphasize elements of individual liberty and property rights, and he emphasizes that our natural aim is social harmony, not political order per se.  It is no accident that Aristotle and Aquinas, given their view of a complex human nature, defend private property, but nonetheless each holds that we are oriented to political union.  This view tends to place priority on the political over the social, and thus gives less scope for individual liberty (although, Aquinas might be said to be a bridge from Aristotle to the modern, liberal views of Grotius, given that Aquinas defines our nature as being both social and political). 

My point was that Grotius’s view of a complex or balanced or moderate human nature – avoiding the opposing extremes of an asocial nature or a fully political nature – fit with a larger jurisprudence that sought to avoid the opposing extremes of pacifism or Machiavellism about war, peace, and international affairs.  A proper conception of natural law, and of how it guides any positive law (including the law of nations in all its senses), would see the truth as helping us to achieve the aims of our nature.  Grotius thus perpetuates Aristotle’s view that any science of human affairs (primarily ethics or political science, but also jurisprudence) should strive to attain only the clarity that accords with the subject matter, and therefore a philosopher should not seek the same level of precision in all arguments (Nicomachean Ethics, Book I, ch. 3, 1094b12-28).  Indeed, Aristotle closes the Ethics by calling for a new discipline, political science, because in the practical human sciences it’s not good enough to achieve philosophical clarity in the abstract; one’s clarity has to be an achievable, practical standard both for individuals and political communities (Ethics, Book X, ch. 9, 1179a33ff).

Perhaps what is missing from Grotius is a theoretical or conceptual statement of this philosophical moderation, i.e., avoiding either skepticism or a false analytical clarity; also missing is a clearer conceptual statement (of the sort Tesón seeks) of how he integrates his accounts of positive law (customary law of nations) and natural law (with its normative requirements).  My own view is that if we adopt the Aristotelian conception of appropriate philosophical clarity, we at least can find such statements in Grotius’s work. (I had cited a few such moments.)  His general project seeks a middle path between, on the one hand, a moralism that aims too high for human nature and human affairs and either is dismissed as impossible or unintentionally causes more harm than good, and on the other an immoral or amoral positivism regarding law and politics.

I had cited some passages from Michael Zuckert’s analysis of Grotius, in which he finds moderation to be a central theme, but I close with a more specific conception of Grotius’s philosophical moderation that captures my point:  in Zuckert’s view, “the deepest thrust of Grotius’s thought” is to move toward “both a very determinate and specific standard of right, a standard beyond the vicissitudes of religious and political controversy, and an effective standard, one that can stand up to the sneers of the Machiavellis of the world, who say that the natural law is ‘weak and unarmed’” (Zuckert 1994, p. 148, emphasis added).  Grotius may not meet his own standard; it may be that another conception (more analytically pure) has a better standard of truth; still, it is important to discuss which standard we are using to judge Grotius’s efforts.

 

4. Hans W. Blom, "Ius Gentium, the Law of Nations, and the Law of Nature at the Birth of Liberalism" [Posted: March 18, 2014]

Fernando Tesón rightly insists on a distinction that is part and parcel of modern international law: that between positivism and natural jurisprudence. I say rightly, because it is on these dimensions that modern international law developed. The question is: what has it to do with Grotius? And another: what with liberalism?

The old distinction in Roman law was between ius civile and ius gentium, respectively, the law that applies to citizens of Rome and that which applies to all people indistinctively. For the practice of Roman imperialism, this was a useful distinction, no doubt, but it had nothing to do with international law: the normative cadre of Roman imperialism had its origins in the legal concepts of Roman ius civile. Thus part of the problem is the equivocal expression ius gentium, meaning both that law that is shared by all peoples and (yet only from somewhere around the 17th and 18th centuries) the law that holds between nations. For example, when in 1672 Samuel Pufendorf titled his magnum opus De iure naturae et gentium (On the Law of Nature and Nations) he made it a point of principle to identify the two, criticizing Grotius for failing to do so. About international law Pufendorf had preciously little to say, i.e., because he strongly believed that nations were in a state of nature relative to each other, and thus considered the law of nature sufficient as a normative context. Whatever Grotius and Pufendorf were discussing, it was not the status of international law, but the law of nature.

Now if we agree with Hayek (Law, Legislation, and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, vol. 2 The Mirage of Social Justice [University of Chicago Press, 1976], p. 59.) that the term natural law “ought to be avoided,” then we might want to know what other term to use: human rights? (global) justice? (international) law? The choice is somewhat arbitrary since each of these has good claims to being the heir of natural law. I will opt for the human-rights/global-justice pair, also because historians of international law are canvassing the effects in their field (e.g., Martti Koskiennemi). That Grotius is relevant to human rights seems obvious, and to the second concept as well, if we accept the following definition:

Global public reason is a standpoint “from which positions are to be justified by way of giving reasons people of different moral or political backgrounds could accept.” [Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012), p. 94.]

And this is in the spirit of Grotius, who understood natural law indeed to be a set of normative principles that are valid independent of religious or political preferences. Hayek for good reasons questions the very idea of immutable principles – both the immutability and the principledness, evidently – and I would suggest that it makes best sense of Grotius to see him lean in that direction too.

This issue of global public reason is best developed by drawing attention to a topic very central to Grotius, viz., consensus, that we might translate as agreement, shared judgment, or consent, depending on the precise context. The term is first introduced in his major conjuring trick, by which he removed God from the equation. Natural law, he says, are the moral principles pertinent to man, and naturally these depend on God the Creator of the world. In order to know these principles, however, Grotius does not point towards our religious understanding of God, but to our own understanding of our own nature, as created by God. Our moral principles are those that belong to our nature, and we have to study our own nature in order to find out. German theologians in the 17th and 18th centuries called this derogatorily “naturalism,” as if it was a way of handing over moral responsibility to naked nature. But that was not the case: in order to find out the nature of man and its moral implications, we need to study, and as Alexander Pope said so famously: ‘The proper study of mankind is man.”  And the hallmark of good results is that they can command agreement among the researchers: consensus. As we all know, such a consensus sometimes is a travesty, because based on “political correctness,” on brutal power even, or ideological bias, sometimes on ignorance of true causes. So in the end, “consensus” is a process concept; it has to be amended and corrected; consensus thrives by dissension and debate. Grotius, e.g., points at consensus when showing that his core notion of self-defense is recognized by all philosophical currents, including the Skeptics. (Part of his eclecticism has to do with the importance of consensus in natural-law argument.)

Why do we want to know the moral principles belonging to man? Grotius’s answer was that moral principles that mankind can universally agree on allow us to end and/or prevent wars, since wars are only justified in case of a lesion of these principles. This argument is circular, evidently, but the circle is sufficiently large to make it worthwhile.

It is different with other agreements. People(s) can agree on many things: on religious obligations, on political obligations, on manifest destinies or tax regimes, on international alliances or trade agreements. All these agreements have the force of law implied in their respective agreements, and it is a separate intellectual and/or political game to sort out the precise implications of such arrangements.

The effort to find out what moral principles are inherent in man’s nature is thus based on consensus, on reasons acceptable to all concerned. And here is the great difference with consent. When I consent to something, I am considered obligated because of the act of consenting. But when I agree to a reason, it is not the act of agreeing that has moral force on me, but the content of the reason.

If I agree to become a slave (because I have good grounds to fear that I otherwise might be killed), then I engage in a legal form that is dictated by the polity I live in. In the times of Hobbes (who elaborated on this example from Grotius), slavery was accepted in many parts of the world. (See the discussion between John Cairns and Gustaaf van Nifterik in Grotiana vol. 22/23, 2001-2002, pp. 197-244.) Although one may doubt whether slavery conforms to the moral principles inherent in mankind, there was at that time no consensus that it did not. Besides, in the Grotian example the voluntary slaves are those taken prisoner in a just war and who have forfeited their property and life by unjust warfare. It is the Nuremberg Tribunal version of natural law, not the war of all against all of Hobbes.
But no doubt later, “more advanced” ages have seen new consensus on reasons grow, and the direction of these new developments are in interesting ways in line with Grotian ideas.

In John Rawls’s The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), we find an important attempt to develop a consensus based universal set of moral principles. Mathias Risse’s On Global Justice is a more recent elaboration of a similar set-up. Interestingly, Risse takes recourse to Grotius throughout the book, claiming that especially in the concept of the earth as the common property of mankind, and in the way in which Grotius developed private property out of it, we find ingredients for global public reason. And thus it is all about liberalism as well, especially as it turns out that the basic ingredients that go into the equation are property and trade.

 

5. Paul Carrese, "The Radical Grotius Hypothesis: Why Not a Philosophical Middle Ground?" [Posted: March 19, 2014]

Erick Mack’s reply to Fernando Tesón’s initial essay finds the two in agreement about a conflict in De Jure Belli ac Pacis – namely, that Grotius does not adequately explain how to harmonize his conceptions of natural law and the law of nations.  They further agree that the better philosophical and jurisprudential element in Grotius is the natural law, the higher normative standards for war and peace.  Mack then proposes a hypothesis, admittedly “radical” and “wild,” that Grotius intended to heighten the tension between these two kinds of law so that we would be compelled to jettison the customary law of nations given the moral and philosophical superiority of the law of nature.  I learned from, and agree with, nearly all of Mack’s analysis of the Grotian conceptions of the laws of nature and of nations, and of the rights of peace and war.  However, rather than finding in Grotius an irreconcilable conflict in these pairs – such that he ultimately seeks to discard the law of nations and rights of war in favor of the rights of peace that accord with the law of nature – I again suggest that the Grotian philosophy seeks a sound middle ground between extremes.  It is possible that he seeks a balance or blend of views on the complicated relation between these kinds of law, especially given the analogous senses of “the law of nations” that he employs.

One issue is whether Grotius strictly defines the law of nations as only positive or customary law, as Mack contends, and therefore whether the law of nations exists only in contrast with, or contradiction to, the law of nature.  I reply that for Grotius “the law of nations” is polyvalent.  One sense is, as Mack argues, a positive law that is not derived from nature – the law of nations as “voluntary” or customary law.  Mack cites the Preliminary Discourse defining the customary law that nations adopt “by common consent.”  Still, the phrasing is careful: this “is called the Law of Nations, when used in distinction to the Law of Nature” (PD XVIII, 94, emphasis added; see also II.VIII.I, 634).  Grotius leaves room here for a secondary sense of the law of nations, one not so opposed to the law of nature.  Indeed, the next section suggests that the law of nations reflects the law of nature, which aims at the happiness or fulfillment of our nature.  States that violate the law of nations undermine their own good, since the law of nations manifests the natural law:  “So that people which violate the Laws of Nature and Nations, break down the bulwarks of their future happiness and tranquility,” since violating these related, mutually reinforcing laws is acting contrary to “the impulse and direction of our own nature” (PD XIX, 94-95).  Shortly thereafter Grotius insists that this intrinsic relation between the kinds of law entails that “the society of mankind, or of several nations” requires conduct according to principles of “right” and standards of “just or unjust”  (PD, XXIV, 98-99, including note 3).  He cites both Aristotle and Cicero, but emphatically endorses Cicero on moderation or modesty (temperantia) in human affairs.  That “great orator and philosopher” insists that we must never forsake moderation and the higher requirements of natural law for its lowest requirement of self-preservation, since (quoting Cicero), “there are some things so shameful and criminal, that a wise man will not do them even for the preservation of his country.”

Mack admits that Grotius uses “laws of nature” as polyvalent, with a focal sense and then (as Mack writes) “an extended and less proper sense.” (Mack also cites III.X.1, 1414, on the polyvalence of “law.”)  In Grotius’s deployment of “the law of nations,” some passages emphasize the distinction between the two kinds of law (e.g., PD XLI, 112) – with natural law meaning inferences drawn from nature, while the law of nations derives from universal consent.  Elsewhere he discusses “the right of nations” as considered to be derived from the right of nature (I.I.XIV, 163).  Still elsewhere the law of nations merges with the law of nature:  “By the law of nature then, which may also be called the law of nations, it is plain, that every kind of war is not to be condemned” (I.II.IV, 189).

Upon this basis, I will recapitulate the moderate hypothesis by suggesting that Grotius’s emphasis in Book III of De Jure Belli ac Pacis on moderating and elevating the law of nations – so as to bring it up to the standards of the law of nature, justice, equity, and the Christian law of love (III.X and following) – is not so remarkable or extraordinary a turn.  Throughout the three books he has noticed, and condemned, the gap between the customary law of nations and the law of nature regarding both ius ad bellum and ius in bello.  This also is, for him, a gap between customary law of nations and the more legitimate law of nations grounded in or derived from nature (and thus from justice, equity, and the virtues both strictly rational and Christian).  He seeks to close that gap.  Mack argues that Grotius does so by jettisoning the law of nations with its rights of war, then building a new conception of “the rights of peace” on the proper law of nature.  That would seem to turn Grotius in a pacifist, even Kantian direction that doesn’t comport with the complexity and balance of his philosophy. 

That said, the complexity of Grotius’s analysis, and of his ultimate effort to push the law of nations in a truer and more natural direction, leads us to these interpretative difficulties.  He seeks to persuade elites in the Christian nations, and in nations seeking to be considered civilized, that legitimate reasons and laws must reflect not the minimal sense of the law of nations but the higher standard that pulls together the two laws, of nature and nations.  Perhaps he seeks to demonstrate his encyclopedic understanding of all the reasons – excuses – rulers have for following the lower path of war as injustice, in hopes that this provides him a credible basis for pulling them toward a higher conception of justified, and more limited, war.  Recent events remind us that rulers and diplomats can claim to abide by international law, and principles of democratic consent, while merely citing such scripture for brutal purposes.  Grotius alerts us to the distinction, but in a way that retains a credible or realistic awareness of the presence of brute power in international affairs.

6. Eric Mack, "Another Shot at the Law of Nations" [Posted: March 20, 2014]

Paul discusses and critiques my radical and wild hypothesis – that Grotius’s real message is that we should jettison the law of nations and place our hopes on the law of nature – with marvelous scholarly delicacy.  Someday, when I grow up, I’d like to achieve a slither of that intellectual refinement. (But my hopes are very slim.) And, of course, Paul is correct to point out that Grotius gives different characterizations of the law of nations in different places; and that is a problem for my hypothesis. 

Moreover, there are particular moments in Grotius’s discussion of the morality of conduct in warfare that do not fit my suggestion that, if anything, Grotius seeks to exaggerate the brutality of law-of-nations norms and the nonbrutality of the counterpart law-of-nature norms. For example, had Grotius been dead set on emphasizing the brutality of law-of-nation norms, he would not have paused to say that the law of nations precludes the ravishing of the enemy’s women (III. IV. XIX.1).  I also believe there is one instance in which the law of nations is said by Grotius to be more restrictive of conduct in war than the law of nature.  But I have not been able to locate that instance in the text.

Still, the contrast between what Grotius says the law of nations allows in warfare and what he says the law of nature allows is very striking.  In case after case – e.g., the killing of bystanders, the killing of prisoners, the killing of those who have asked for quarter, the seizure of the property of the enemy’s subjects or the property of those who happen to be in the enemy’s territory, and so on – the law of nations is said to permit the conduct and the law of nature is said to prohibit it.  Equally striking is the fact that Grotius does not say, “Well, there is the law-of-nations teaching and there is the law-of-nature teaching.  We should attend seriously to both and (somehow) come up with stances that give each their considerable due weight.”  Rather, at the beginning of his presentation of the law-of-nature teachings, he says that he must “take away from those that make War almost all the Rights, which I may seem to have granted them [under the law of nations]; which yet in Reality I have not” (III. X. I.1).  So I think I at least want to stick by the claim that Grotius is on the verge of calling for the jettisoning of the law of nations – where this is understood as a body of norms quite distinct from the law of nature.

I did offer, and I re-offer here, a supplementary hypothesis about why we find Grotius giving both law-of-nations and law-of-nature answers to questions about what is lawful in war.  That hypothesis is that he is engaged in both a positive account of the law and a normative account of the law.  I supported that account by citing Grotius’s remark that there is a “double Meaning of the Word lawful, the one being taken for that which is really lawful in itself, the other for that which is only lawful externally” (III. X. I.3).  My thought is that Grotius is engaged in both this descriptive project and this normative project and that he is not clear enough in his own mind about the difference between these projects.

In his initial essay, Fernando criticizes Grotius for not presenting a report of the actually accepted norms of warfare of his time.  Presumably, the real law of nations for his time consisted in those actually accepted norms.  Were those actually generally accepted practices of Grotius’s time less horrendous than what Grotius says is permissible under the law of nations?  I certainly do not know – albeit, Shakespeare’s Henry V suggests less contemporary acceptance of the killing of prisoners than is found in Grotius’s recounting of the law of nations. 

Why do I raise this historical question?  My reason is that, if the actual accepted norms of warfare of Grotius’s time were less horrendous than the law-of-nations norms that he recounts, one might take that as evidence that Grotius was going out of his way to give a horrifying picture of the law of nations.

 

7. Paul Carrese, "Liberty and International Order: The Truth of the Law of Nature and the Primary Law of Nations" [Posted: March 26, 2014]

Hans Blom’s two essays in this conversation argue, as only a renowned Grotius scholar could do, that Grotius is a quite modern thinker about natural law, justice, and war.  Blom also suggests that Grotius points toward postmodern conceptions of moral and political thought.  That is, if postmodernism means the rejection of nature and immutable truth as the grounds for moral and political principles, then Blom seems to read Grotius as a proto-postmodernist.  This interpretative issue has a direct bearing upon war, peace, and international security in our 21st-century world.  This is especially so given the recent demonstration that a great-power state bordering Europe has little regard for international norms about settled international borders, or the illegitimacy of aggressive or revanchist military force.  My practical claim is that if thinking about the law of nations is seen to rest only upon contemporary consensus, ever-revised – rather than resting upon the immutable ground of the law of nature – then international law loses much of its legitimacy and force.  This practical claim in turn rests on an academic one – that, pace Blom, Grotius is not a proto-postmodern, but instead is a modern natural-law jurist who searches for the ground of immutable truth that should guide international conduct.

Having staked the latter claim, I immediately will soften it.  In fact I think my view of Grotius is not diametrically opposed to Blom’s.  Still, if we do disagree, I avail myself of Grotius:  when discussing the authority of Aristotle, Grotius echoes Aristotle’s own view that we must respect great philosophical minds but depart from them if need be “for the sake of finding truth” (De Jure Belli, PD XLVI, 123).  Having cloaked myself with amicus Plato, I proceed to recklessly query a Grotius expert who offers two instructive contributions to our conversation.

Blom argues that Grotius propounds a “deliberative theory of justice” as a constructivist conception of right and law.  No individual or state has access to ground truth, so if we are to have peace and some kind of justice, we must work within institutions that establish “public reasoning.”  These in turn allow peaceful arbitration and development of “agreements” on norms. (In his essay on the ius gentium, Blom emphasizes a contemporary “consensus” on “normative principles” as what Grotius means by natural law.)  Blom declares: “in the end, for Grotius there is no objective value, and everyone is the interpreter of his own interests, values, and preferences.”  Thus the Grotian appeals to “right” and “natural law” really endorse a process of debate, and recognition of institutions for arbitration and reconciliation of views, so as to construct norms for governing conduct. 

I agree with this view to the extent that Grotius is not a Kantian in search of a priori truths known purely by reason, without the corruptions of experience or consequences.  That said, is a postmodern constructivism Grotius’s only alternative to this?  If I were to invoke moderation here, I fear my partners in this dialogue will roll their eyes.  Nonetheless I aver that Grotius held to a philosophical middle position between conventionalism (the opponent he confronts in opening the work) and philosophical absolutism, or a priorism.  He does so as a jurist and theologian who was liberally educated in the Roman civil law as modified by Christian philosophy and jurisprudence.  Central to that complex tradition is the balance between fixed but general principles of natural right on the one hand and, on the other, the individual’s judgment in discerning how to adhere to right in particular or changing circumstances.  Grotius invokes these conceptions of prudence and judgment early in the work, and relies upon them throughout. 

For example, Grotius states that man is endowed by nature with “judgment” and must exercise “a right and sound judgment” in discerning what natural right requires; this in turn will guide a “prudent management” in exercising distributive justice with all its discriminations among competing elements (PD IX-X, 87-88).   In discussing punishments – which are both a domestic matter and provide a rationale for war against offenders – he insists that the virtue of prudence is needed for both civil and international cases of wrong to discern whether and what punishment is due (II.20.IV, 972-75; see also II.20.XLIII, 1026-27).  Aristotle thus was correct to declare prudence as “a virtue peculiar to” rulers (II.26.IV, 1179).

I agree, therefore, that Grotius celebrates the jurist and statesman as arbiter, the embodiment of the distinction between peace and war.  The capacity to reconcile disputes through mechanisms of law is indeed “the social function of rendering justice” (Blom) that we tend to take for granted, perhaps especially when we disagree with a particular verdict.  Several early essays of The Federalist echo this Grotian view, applied to domestic and international contexts.  The lack of courts or executive offices under the Articles of Confederation meant that disputes among states – or, failure of the Confederation to abide by international law for lack of offices to enforce it – exposed Americans to the dilemma of either permitting injustice or having recourse to violence.  In no. 22, Publius (Hamilton) argues that the lack of such capacity is effectively a state of war (see also no. 3, no. 15, and no. 17 – by Jay and Hamilton).

The sticking point is that Grotius employs prudence, and institutions of domestic law and international convention, to mediate between high principle and concrete circumstances – but prudence is guided by the fixed truths discerned by right reason.  In international affairs there are several institutions that statesmen, jurists, and educators use to close the gap between natural law and the practice of the law of nations, seeking to raise the latter toward the former.  These include courts with jurisdiction under the law of nations, and jurists such as Grotius who educate statesmen and jurists about the laws of nature and nations.  There is much “process” here, but I don’t see Grotius elevating process and consensus over the search for immutable truths that rest upon nature.

Liberty for individuals and states depends upon these immutable truths; and, the genius of constitutional regimes is to incorporate a Socratic openness to hear opposing views about what truth is and what it entails in particular circumstances. The defense of principles of liberty requires confidence that these are not just a product of contemporary construction, but are grounded in our nature. This is most especially true because we, or our fellow citizens, might be called upon to kill or be killed to defend these truths. The search for a Rawlsian “global public reason” may be one pillar upon which the Peace Palace in The Hague rests; but among the other pillars is the forcefulness of liberal states, leaders, and citizens to stand for these principles against actors who ignore or repudiate them. Grotius seeks to reduce war, but he also teaches that there come moments when the process of arbitration or deliberation can do no further good and actors must be confident that right reason and law endorse their actions to defend justice.

 

ADDITIONAL READING

Online Resources

Hugo Grotius (1583-1645) - works by Grotius availbale online at the OLL: </people/3775>

Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). 3 vols. </titles/1877>.

Grotius, "THE PRELIMINARY DISCOURSE Concerning the Certainty of Right in general; and the Design of this Work in particular".

Hugo Grotius, Commentary on the Law of Prize and Booty, ed. and with an Introduction by Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006). </titles/1718>.

Collection: Natural Law and Enlightenment Series </groups/59>.

 

Works Mentioned in the Discussion

De Araujo, Marcelo. “Hugo Grotius, Contractualism, and the Concept of Private Property: An Institutionalist Interpretation,” History of Philosophy Quarterly, vol. 26 (2009): 353.

Hans W. Blom, “The Meaning of Trust: Fides between self-interest and appetitus societatis,” in The Roots of International Law / Les fondements du droit international: Liber Amicorum Peter Haggenmacher, Studies in the History of International Law 11/5, ed. by Vincent Chetail. Leiden: Brill, 2013, pp. 39-58.

John Cairns and Gustaaf van Nifterik in Grotiana vol. 22/23, 2001-2002, pp. 197-244.

Stephen Darwall, “Grotius at the Creation of Modern Moral Philosophy,” Archiv für Geschichte der Philosophie 94 (2012), pp. 296–325.

Dobos, Ned. Insurrection and Intervention: The Two Faces of Sovereignty (Cambridge University Press, 2012).

Forde, Steven. “Hugo Grotius on Ethics and War.” 1998. American Political Science Review, vol. 92: 639-48.

Friedrich A. Hayek, Law, Legislation, and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, vol. 2 The Mirage of Social Justice (University of Chicago Press, 1976).

Holzgrefe, J. L. “The Humanitarian Intervention Debate,” in Holzgrefe and Robert O. Keohane ed., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge University Press, 2003): 15.

Kant, Immanuel. The Metaphysics of Morals, Mary Gregor, ed. (Cambridge University Press, 1996). An older translation of this work is available in the OLL: Immanuel Kant, The Metaphysics of Ethics by Immanuel Kant, trans. J.W. Semple, ed. with Iintroduction by Rev. Henry Calderwood (Edinburgh: T. & T. Clark, 1886) (3rd edition). </titles/1443>.

Luban, David. “War as Punishment,” Philosophy and Public Affairs, vol. 39 (2012): 299.

John S. Dryzek, “The Deliberative Democrat’s Idea of Justice,” European Journal of Political Theory, 12/4 (2013), pp. 329-46.

MacDonnell. “Paper Read before the Grotius Society,” Transactions of the Grotius Society, vol. 5 (1919): xvii-xxiii.

Eric Mack, An Introduction to the Political Thought of John Locke

Eric Mack, Locke on Toleration: Locke’s A Letter Concerning Toleration

Eric Mack: Authority and Liberty in the Writings of Robert Filmer and Thomas Hobbes [old OLL]

Eric Mack: James Tyrrell on Authority and Liberty

Eric Mack: Liberty Matters:"John Locke on Property" (January 2013).

Montesquieu, Charles de.  My Thoughts.  1720-1755. Ed and tr. Henry Clark.  Liberty Fund, 2012. 

_____.  The Spirit of the Laws. 1748. Ed. and tr. Cohler, Miller, and Stone (Cambridge University Press, 1989).

Rabkin, Jeremy. “Grotius Vattel, and Locke: An Older View of Liberalism and Nationality,” Review of Politics, vol. 59 (1997): 293.

Rabkin, Jeremy. “Grotius Vattel, and Locke: An Older View of Liberalism and Nationality,” Review of Politics, vol. 59 (1997): 293.

John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999).

Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012).

Salter, John. “Hugo Grotius: Property and Consent,” Political Theory, vol. 29 (2001): 537.

Amartya Sen, The idea of Justice, London: Allen Lane, 2009.

Benjamin Straumann, “Oikeiosis and appetitus societatis: Hugo Grotius’ Ciceronian argument for natural law and just war,” Grotiana (New Series) vol. 24/25 (2003/2004) pp. 41–66.

Benjamin Straumann, “Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius’s Early Works on Natural Law,” Law and History Review 27 (2009), 55-85.

Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (3rd ed. fully revised and updated, Transnational Publishers 2005).

Fernando R. Tesón, Rational Choice and Democratic Deliberation (Cambridge University Press 2006; with Guido Pincione).

Fernando R. Tesón, A Philosophy of International Law (Westview Press 1998).

Tuck, Richard.  1999. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press).

Zuckert, Michael. 1994.  “The Master of Whig Political Philosophy.” In Natural Rights and the New Republicanism.  Princeton University Press.  119-149.

 

Grotius, "The Preliminary Discourse Concerning the Certainty of Right in general"

Source

Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). 3 vols.

The "Prolegomena" or "Preliminary Discourse" comes from Vol. 1 </titles/1425#lf1032-01_head_009>.

 

THE PRELIMINARY DISCOURSE : Concerning the Certainty of Right in general; and the Design of this Work in particular.

[Editor's Note: [Material in Bold] appears as marginalia in the original edition.]

[I.The LAW of Nations.] I. The Civil Law, whether that of the Romans, or of any other People, many have undertaken, either to explain by Commentaries, or to draw up into short Abridgments: But that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introduced1 by Custom and tacit Consent, few have touched upon, and none hitherto treated of universally and methodically; tho’ it is the Interest of Mankind that it should be done.

[Of War and Peace.] II. Cicero1 rightly commended the Excellence of this Science, in the Business of Alliances, Treaties, Conventions between States, Princes, and foreign Nations, and in short, in all Affairs that regard the Rights of War and Peace. [76] And Euripides prefers this Science before the Knowledge of all other Things, whether Divine or Human, when he makes Helen say thus to Theonoe:

  • 2’Twould be a base Reproach
  • To you, who know th’ Affairs present and future
  • Of Men and Gods, not to know what Justice is.

[Some think Interest alone the Rule of Justice.] III. And indeed this Work is the more necessary, since we find some, both in this and in former Ages, so far despising this Sort of Right, as if it were nothing but an empty Name. The Saying of Euphemus in Thucydides is almost in every ones Mouth,1 To a King or Sovereign City, no-[xiv]thing is unjust that is profitable. Not unlike to which is this,2 That amongst the [77] Great the stronger is the juster Side; and, That no State can be governed3 without Injustice. Besides, the Disputes that happen between Nations or Princes, are commonly decided at the Point of the Sword. Now, it is not only the Opinion of the Vulgar, that War is a Stranger to all Justice, but many Sayings uttered by Men of Wisdom and Learning, give Strength to such an Opinion. And indeed, nothing is more frequent than the mentioning of Right and Arms, as opposite to one another. Thus Ennius,4

  • They have recourse to Force of Arms, not Law.

And Horace5 thus describes the Fierceness of Achilles:

  • Laws as not made for him he proudly scorns,
  • And every Thing demands by Force of Arms.

Another Latin Poet6 introduces another Conqueror, who entering upon War, speaks in this Manner,

  • Now, Peace and Law, I bid you both farewell.

Antigonus,7 though old, laughed at the Man, who presented him with a Treatise concerning Justice, at the very Time he was besieging his Enemies [78] Cities. And Marius said8 he could not hear the Voice of the Laws for the9 clashing of Arms. Even the10 modest bashful Pompey11 could have the Face to say, Can I think of Laws, who am in Arms?

IV. Among Christian Writers we find many Sayings of the same kind; let that of Tertullian suffice for all;1 Fraud, Cruelty, Injustice, are the proper Business of War. Now they that are of this Opinion, will undoubtedly object against me that of the Comedian,

  • 2You that attempt to fix by certain Rules
  • Things so uncertain, may with like Success
  • Strive to run mad, and yet preserve your Reason.
[79]

[The Existence of Right asserted against the Objections of Carneades.] V. But since it would be a vain Undertaking to treat of Right, if there is really no such thing; it will be necessary, in order to shew the Usefulness of our Work, and to establish it on solid Foundations, to confute here in a few Words so dangerous an Error. And that we may not engage with a Multitude at once, let us assign the man Advocate. And who more proper for this Purpose than Carneades, who arrived to such a Degree of Perfection, (the utmost his Sect aimed at,) that he could argue for or against Truth, with the same Force of Eloquence? This Man having undertaken to dispute against Justice, that kind of it, especially, which is the Subject of this Treatise, found no Argument stronger than this.1 Laws (says he) were instituted by Men[xv] for the sake of Interest; and hence it is that they are different, not only in different Countries, according to the Diversity of their Manners, but often in the same Country, according to the Times. As to that which is called Natural Right, it is a mere Chimera. Nature prompts all Men, and in general all Animals, to seek their own particular Advantage: So that either there is no Justice at all, or if there is any, it is extreme Folly, because it engages us to procure the Good of others, to our own Prejudice.

VI. But what is here said by the Philosopher, and by the Poet after him,

  • [1.Natural.] 1By naked Nature ne’er was understood
  • What’s Just and Right.
  • Creech.

must by no Means be admitted. For Man is indeed an Animal, but one of a very high Order, and that excells all the other Species of Animals much more than they differ from one another; as the many Actions proper only to Mankind sufficiently demonstrate. Now amongst the Things peculiar to Man, is his Desire of2 Society, that is, a certain Inclination to live with [80] [81] those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the3 Stoicks termed Ὀικείωσιν.4 Therefore the[xvi] Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted.

[82]

VII. For even of the other Animals there are some that forget1 a little the Care of their own Interest, in Favour2 either of their young ones, or those of their own Kind. Which, in my Opinion, proceeds from3 some extrinsick [83] intelligent Principle, because they do not shew the same Dispositions in other Matters, that are not more difficult than these. The same may be said of Infants, in whom is to be seen a Propensity to do Good to others, before they [84] are capable of Instruction, as Plutarch4 well observes; and Compassion likewise discovers itself upon every Occasion in that tender Age. But it must be owned that a Man grown up, being capable of acting[xvii] in the same5 Manner with respect to Things that are alike, has, besides an exquisite Desire6 of Society, for the Satisfaction of which he alone of all Animals has received [85] from Nature a peculiar Instrument, viz. the Use of Speech; I say, that he has, besides that, a Faculty of knowing and acting, according to some general Principles; so that what relates to this Faculty is not common to all Animals, but properly and peculiarly agrees to Mankind.

[Peculiar to Man, properly and strictly called.] VIII. This Sociability, which we have now described in general, or this Care of maintaining Society1 in a Manner conformable to the Light of human [86] Understanding,2 is the Fountain of Right, properly so called; to which belongs the Abstaining3 from that which is another’s, and[xviii] the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.

[87]

IX. From this Signification of Right arose another of larger Extent. For by reason that Man above all other Creatures isendued not only with this Social Faculty of which we have spoken, but likewise with Judgment to discern Things1 pleasant or hurtful, and those not only present but future, and such as may prove to be so in their Consequences; it must therefore be agreeable to human Nature, that according to the Measure of our Understanding we should in these Things follow the Dictates of a right and sound Judgment, and not be corrupted either by Fear, or the Allurements of present Pleasure, nor be carried away violently by blind Passion. And whatsoever is contrary to such a Judgment2 is likewise understood to be contrary to Natural Right, that is, the Laws of our Nature.

[Improperly and more loosely.] X. And to this belongs a1 prudent Management in the gratuitous Distribution of Things that properly belong to each particular Person or2 Society, [88] so as to prefer sometimes one of3 greater before one of less Merit, a Relation4 before a Stranger, a poor Man before one that is rich, and that according as each Man’s Actions, and5 the Nature of the Thing require; which many both of the Ancients and Moderns take to be6 a part of Right properly and strictly so called; when notwithstanding that Right, properly speaking, has a quite different Nature, since it consists in leaving7 others in quiet Possession [89] of what is already their own, or in doing for them what in Strictness they may demand.[xix]

XI. And indeed, all we have now said would take place,1 though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs. The contrary of which appearing2 to us, partly from Reason, partly from a perpetual Tradition, which many Arguments and Miracles, attested by all Ages, fully confirm; it hence follows, that God, as being our Creator, and to whom we owe our Being, and all that we have, ought to be obeyed by us in all Things [90] without Exception, especially since he has so many Ways shewn his infinite Goodness and Almighty Power; whence we have Room to conclude that he is able to bestow, upon those that obey him, the greatest Rewards, and those eternal too, since he himself is eternal; and that he is willing so to do ought even to be believed, especially if he has in express Words promised it; as we Christians, convinced by undoubted Testimonies, believe he has.

[2. Voluntary. 1. Divine.] XII. And this now is another Original of Right, besides that of Nature, being that which proceeds from the free Will1 of God, to which our Understading [91] infallibly assures us, we ought to be subject: And even the Law of Nature itself, whether it be that which consists in the Maintenance of Society, or that which in a looser Sense is so called, though it flows from the internal Principles of Man, may notwithstanding be justly ascribed2 to God, because it was his Pleasure that these Principles should be in us. And in this Sense Chrysippus3 and the Stoicks said, that the Original of Right is to be derived from no other than Jupiter himself; from which Word Jupiter it is probable4 the Latins gave it the Name Jus.

XIII. There is yet this farther Reason for ascribing it to God, that God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning, and has forbid us to give way to those impetuous1 Passions, which,[xx] contrary2 to our own Interest, and that of others, divert us from following the Rules of Reason [92] and Nature; for as they are exceeding unruly, it was necessary to keep a strict Hand over them, and to confine them within certain narrow Bounds.

XIV. Add to this, that sacred History, besides the Precepts it contains to this Purpose, affords no inconsiderable Motive to social Affection, since it teaches us that all Men are descended from the same first Parents. So that in this Respect also may be truly affirmed, what Florentinus said in another Sense, That1 Nature has made us all akin: Whence it follows, that it is a Crime for one Man to act to the Prejudice of another.

XV. Amongst Men, Parents1 are as so many Gods2 in regard to their Children: Therefore the latter owe them an Obedience, not indeed unlimited, [93] but as extensive3 as that Relation requires, and as great as the Dependence of both upon a common Superior permits.

[2. Human.] XVI. Again, since the fulfilling of Covenants belongs to the Law of Nature, (for it was necessary there should be some Means of obliging Men among themselves, and we cannot conceive any other more conformable to Nature) from this very Foundation1 Civil Laws were derived.[Civil of every State.] For those who had incorporated themselves into any Society, or subjected themselves to any one Man, or Number of Men, had either expressly, or from the Nature of the Thing must be understood to have tacitly promised, that they would submit to whatever either the greater part of the Society, or those on whom the Sovereign Power had been conferred, had ordained.

XVII. Therefore the Saying, not of Carneades only, but of others,

1Interest, that Spring of Just and Right.

Creech.

if we speak accurately, is not true; for the Mother of Natural Law is human Nature itself, which, though even the Necessity of our Circumstances should not require it, would of itself create in us a mutual Desire of Society: And the Mother of Civil Law is that very Obligation which arises from Consent, which deriving its Force from the Law of Nature, Nature may be called as it were, the Great Grandmother of this Law also. But to the Law of Nature Profit is annexed: For the Author of Nature was pleased, that every Man in [94] particular2 should be weak of himself, and in Want of many Things necessary for living commodiously, to the End we might more eagerly affect Society: Whereas of the Civil Law Profit was the Occasion; for that entering into Society, or that Subjection which we spoke of, began first for the Sake of some Advantage. And besides, those who prescribe Laws to others, usually have, or ought3 to have, Regard to some Profit therein.

XVIII. But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general. And this is what is called the Law of Nations,1[Of Nations; of all or most States.] when used in Distinction to the2 Law of Nature. This[xxi] Part of Law Carneades omitted, in the Division he made of all Law into Natural and Civil of each People or State; when notwithstanding, since he was to treat of the Law which is between Nations (for he added a Discourse concerning Wars and Things got by War) he ought by all means to have mentioned this Law.

[II.Objections confuted: Justice not Folly.] XIX. But it is absurd in him to traduce Justice with the Name of Folly.1 For as, according to his own Confession, that Citizen is no Fool, who obeys the Law of his Country, though out of Reverence to that Law he must and ought to pass by some Things that might be advantageous to himself in particular: So neither is that People or Nation foolish, who for the Sake of their own particular Advantage, will not break in upon the Laws common to all Nations; for the same Reason holds good in both. For2 as he that violates [95] the Laws of his Country for the Sake of some present Advantage to himself, thereby saps the Foundation of his own perpetual Interest, and at the same Time that of his Posterity: So that People which violate the Laws of Nature and Nations, break down the Bulwarks of their future Happiness and Tranquillity. But besides, though there were no Profit to be expected from the Observation of Right, yet it would be a Point of Wisdom, not of Folly, to obey the Impulse and Direction of our own Nature.

XX. Therefore neither is this Saying universally true,

1’Twas Fear of Wrong that made us make our Laws.

Creech.

which one in Plato expresses thus,2 The Fear of receiving Injury occasioned the Invention of Laws, and it was Force that obliged Men to practice Justice. For this Saying is applicable only to those Constitutions and Laws which were made for the better Execution of Justice: Thus many, finding themselves weak when taken singly and apart, did, for fear of being oppressed by those that were stronger, unite together to establish, and with their joint Forces to defend Courts of Judicature, to the End they might be an Overmatch for those whom singly they were unable to deal with. And now in this Sense only may be fitly taken what is said, That Law is that which the stronger pleases [96] to impose; by which we are to understand, that Right has not its Effect externally, unless it be supported by Force. Thus Solon did great Things, as he himself boasted,

3 By linking Force in the same Yoke with Law.

[Justice brings Peace to the Conscience.] XXI. Yet neither does Right lose all its Effect, by being destitute of the Assistance of Force. For Justice brings Peace to the Conscience; Injustice, Racks and Torments, such as Plato1 describes in the Breasts of Tyrants. Justice is approved of, Injustice condemned by the Consent of all good Men. But that which is greatest of all, to this God is an Enemy, to the other a Patron, who does not so wholly reserve his Judgments for a future Life, but that he often makes the Rigour of them to be perceived in this, as Histories teach us by many Examples.[xxii]

[97]

[Equally concerns private Persons, Nations, and Rulers of Nations.] XXII. But whereas many that require Justice in private Citizens, make no Account of it in a whole Nation or its Ruler; the Cause of this Error is, first, that they regard nothing in Right but the Profit arising from the Practice of its Rules, a Thing which is visible with Respect to Citizens, who, taken singly, are unable to defend themselves. But great States, that seem to have within themselves all things necessary for their Defence and Wellbeing, do not seem to them to stand in need of that Virtue which respects the Benefit of1 others, and is called Justice.

XXIII. But, not to repeat what has been already said, namely, that Right has not Interest merely for its End; there is no State so strong or well provided, but what may sometimes stand in need of Foreign Assistance, either in the Business of Commerce, or to repel the joint Forces of several Foreign Nations Confederate against it. For which Reason we see Alliances desired by the most powerful Nations and Princes, the whole Force of which is destroyed by those that confine Right within the Limits of each State. So true is it, that the Moment we recede from Right,1 we can depend upon nothing.

[98]

XXIV. If there is no Community which can be preserved without some Sort of Right, as Aristotle1 proved by that remarkable2 Instance of Robbers, certainly the Society of Mankind, or of several Nations, cannot be without it; which was observed by him who said,3 That a base Thing ought not to [99] be done, even for the Sake of ones Country. Aristotle4 inveighs severely[xxiii] against those,5 who, though they would not have any to govern amongst themselves, but he that has a Right to it, yet in regard to Foreigners are not concerned whether their Actions be just or unjust.

[100]

[Governs Peace;] XXV. A Spartan King having said,1 That is the most happy Commonwealth, whose Bounds were determined by Spear and Sword; the same Pompey, whom we lately mentioned on the contrary Side, correcting that Maxim said, That is happy indeed, which has Justice for its Boundaries. For which he might have used the Authority of another Spartan King,2 who preferred Justice before3 military Fortitude, for this Reason, that Fortitude ought to be regulated by some sort of Justice: And that if all Men were Just, they would have no Occasion for that Fortitude. The Stoicks defined4 Fortitude itself to be the Virtue that contends for Justice. Themistius, in his Oration to Valens, says very elegantly, that Kings, who conduct themselves by the Rules of Wisdom, take Care, not only of the Nation whose Government they are entrusted with, but of all Mankind; and are, as he expresses himself, not ϕιλομακέδονες Friends to the Macedonians only, or ϕιλοῥωμαίοι to the [101] Romans, but ϕιλάνθρωποι5 to all Men without Exception. Nothing else made the Name of Minos odious to Posterity,6 but his confining Equity within the Limits of his own Empire.

[and War; hence the Laws of War.] XXVI. But so far must we be from admitting the Conceit of some, that the Obligation of all Right ceases in War; that on the contrary, no War ought to be so much as undertaken but for the obtaining of Right; nor when undertaken, ought it to be carried on beyond the Bounds of Justice and Fidelity. Demosthenes1 said well, that War is made against those who cannot be restrained in a judicial Way. For judicial Proceedings are of Force against those who are sensible of their Inability to oppose them; but against those who are or think themselves of equal Strength, Wars are undertaken; but yet [102] certainly, to render Wars just, they are to be waged with no less Care and Integrity, than judicial Proceedings are usually carried on.

XXVII. Let it be granted then, that1 Laws must be silent in the midst of Arms, provided they are only those Laws that are Civil and Judicial, and proper for Times of Peace; but not[xxiv] those that are of perpetual Obligation, and are equally suited to all Times. For it was very well said of Dion Prusaeensis,2 That between Enemies, Written, that is, Civil Laws, are of no Force, but Unwritten3 are, that is, those which Nature dictates, or the Consent of Nations has instituted. This we are taught by that ancient Form of the Romans,4 These Things I think must be recovered by a pure and just War. The same ancient Romans, as Varro observed,5 were very slow and far from all Licentiousness in entring upon War, because they thought that no War but such as is lawful and accompanied with Moderation, ought to be carried on. It was the Saying of Camillus,6 That Wars ought to be managed with as much Justice as Valour: And of Scipio Africanus,7 [103] That the Romans both begin and finish their Wars with Justice. An Author8 maintains, There are Laws of War, as there are of Peace. Another9 admires Fabricius for a very great Man, and remarkable for a Virtue which is extremely difficult, Innocence in War, and who believed that there are some Things, which it would be unlawful to practise even against an Enemy.

XXVIII. Of how great Force in Wars is the Consciousness of the Justice of1 the Cause, Historians every where shew, who often ascribe the Victory [104] chiefly to this Reason. Hence the[xxv] Proverbial Sayings,2 A Soldier’s Courage rises or falls according to the Merit of his Cause;3 seldom does he return safely, who took up Arms unjustly; Hope is the4 Companion of a good [105] Cause; and others to the same Purpose. Nor ought any one to be moved at the prosperous Successes of unjust Attempts; for it is sufficient that the Equity of the Cause has of itself a certain, and that very great Force towards Action, though that Force, as it happens in all human Affairs, is often hindered of its Effect, by the Opposition of other5 Causes. The Opinion that a War is not rashly and unjustly begun, nor dishonourably carried on, is likewise very prevalent towards procuring Friendships; which Nations, as well as private Persons, stand in need of upon many Occasions. For no Man readily associates [106] ciates with those, who, he thinks, have Justice, Equity and Fidelity in Contempt.

[III.The Author’s Reasons for writing this Book.] XXIX. Now for my Part, being fully assured, by the Reasons I have already given, that there is some Right common to all Nations, which takes Place both in the Preparations and in the Course of War, I had many and weighty Reasons inducing me to write a Treatise upon it. I observed throughout the Christian World a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of:[Restraining the Licentiousness in making War.] a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human, just as if from that Time Men were authorized and firmly resolved to commit all manner of Crimes without Restraint.

XXX. The Spectacle of which monstrous Barbarity worked many, and those in no wise bad Men, up into an Opinion, that a Christian, whose Duty consists principally in loving all Men without Exception, ought not at all1 to bear Arms; with whom seem to agree sometimes Johannes Ferus2 and our Countryman3 Erasmus, Men that were great Lovers of Peace both Ecclesiastical and Civil; but, I suppose, they had the same View, as those have who in order to make Things that are crooked straight, usually4 bend them as much the other Way. But this very Endeavour of inclining too much to the opposite Extreme, is so far from doing Good, that it often does Hurt, [107] because Men readily discovering Things that are urged too far by them, are apt to slight their Authority in other Matters, which perhaps are more reasonable. A Cure therefore was to be applied to both these, as well to prevent believing that Nothing, as that all Things are lawful.

[An endeavour to promote the Knowledge of Law, by giving an Example of a Method for it.] XXXI. At the same Time I was likewise willing to promote, by my private Studies, the Profession of Law, which I formerly practised in publick1 Employments with all possible Integrity; this being the only Thing that was left for me to do, being unworthily2 banished my Native Country, which I have honoured with so many of my Labours. Many have before this designed[xxvi] to reduce it into a System; but none has accomplished it; nor indeed can it be done, unless those things (which has not been yet sufficiently taken Care of,) that are established3 by the Will of Men, be duly distinguished from those which are founded on Nature. For the Laws of Nature being always the same, may be easily collected into an Art; but those which proceed from Human Institution being often changed, and different in different Places, are no more susceptible of a methodical System, than other Ideas of particular Things are.

XXXII. But if the Professors of true Justice would undertake to treat of the several Parts of that Law which is perpetual and natural, setting aside every Thing which owes its Rise to Voluntary Institution, so that one for Instance would treat of Laws, another of Tributes, another of the Office of Judges, another of the Conjecture of Wills, another of the Evidence in Matters of Fact, there might at last from all the Parts collected together be a Body of Law composed.

[IV.The Contents and Order of the Work.] XXXIII. What Method we thought fit to use, we have shewn in Deed rather than in Words in this Treatise, which contains that Part of Law, which is by far the noblest.

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[Book I.] XXXIV. For in the first Book, after premising some Things concerning the Origin of Right, we have examined the general Question, whether any War is just; afterwards to discover the Difference between a publick and private War, our Business was to explain the Extent of the Supreme Power, what People, what Kings have it in full, who in part, who with a Power of alienating it, and who have it without that Power. And then we were to speak of the Duty of Subjects to their Sovereigns.

[Book II.] XXXV. The second Book, undertaken to explain all the Causes from whence a War may arise, shews at large, what Things are common, what proper, what Right one Person may have over another, what Obligation arises from the Property of Goods, what is the Rule of Regal Succession, what Rightarises from Covenant or Contract, what the Force and Interpretation of Treaties and Alliances, what of an Oath both publick and private, what may be due for a Damage done, what the Privileges of Embassadors, what the Right of burying the Dead, what the Nature of Punishments.

[Book III.] XXXVI. The third Book treats first of what is lawful in War; and then, having distinguished that which is done with bare Impunity, or which is even defended as lawful among foreign Nations, from that which is really blameless, descends to the several Kinds of Peace, and all Agreements made in war.

[V.The Necessity of Writing.] XXXVII. But I thought this Undertaking still the more worth my Pains, because, as I said before, this Subject has not been fully handled by any Body; and those who have treated of the Parts of it, have done it so, that they have left a great deal for the Labour of others.[Nothing of the ancient Authors extant on this Subject.] There is nothing of this Kind extant of the ancient Philosophers, whether those of the Pagan Greeks, (amongst whom Aristotle had composed a Book intitled, Δικαιώματα Πολέμων,1 [109] The Rights of War,) or those of the Primitive Christians, which was very much to be wished for. Nay, of those Books of the ancient Romans concerning the2 Fecial Law, we have nothing transmitted to us but the bare Name: Those who have made Sums of Cases of Conscience, as they call them, have made only Chapters, as of other Things, so of War, of Promises, of an Oath, of Reprizals.

[The Defects of the Moderns.] XXXVIII. I have likewise seen some particular Treatises concerning the Rights of War, some of which were written by Divines, as1 Franciscus Victoria, Henricus2 Gorichemus,3 Wilhelmus Matthaei, Johannes4 de Carthagena; some by Professors of Law, as5 Johannes Lupus,6 Franciscus Arius,7 Johannes de Lignano,8 Martinus Laudensis. But upon so copious a Subject, they have all of them said but very little, and most of them in such a Manner, that they have, without any Order, mixed and confounded together those Things that belong severally to the Law Natural, Divine, of Nations, Civil and Canon.

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XXXIX. What was most wanting in all those, viz. Illustrations from History, the most Learned1 Faber has undertaken to supply in some Chapters of his Semestria, but no farther than[xxvii] served his Purpose, and only by alledging some Authorities. The same has been done more largely, and that by applying a Multitude of Examples to some general Maxims laid down, by Balthazar2 Ayala, and still more largely by Albericus3 Gentilis, whose Labour, as I know it may be serviceable to others, and confess it has been to me, so what may be faulty in his Stile, in Method, in distinguishing of Questions, and the several Kinds of Right, I leave to the Reader’s Judgment. I shall only say this, that in the Decision of Controversies, he is often wont to follow either a few Examples that are not always to be approved of, or even the Authority of modern Lawyers in their Answers, not a few of which are4 accommodated to the Interest of those that consult them, and not formed by the invariable Rules of Equity and Justice. The Causes, from whence a War is denominated just or unjust, Ayala has not so much as touched upon: Gentilis has indeed described after his Manner some of the general Heads; but neither has he touched upon many famous Questions, which turn upon Cases that are very common.

[I.The Author’s Case,] XL. We have been careful that nothing of this Kind be passed over in Silence, having likewise shewn the very Foundations upon which we build our Decisions, so that it might be easy to determine any Question that may happen to be omitted by us. It remains now, that I briefly declare with what Assistance, and with what Care I undertook this Work.[1.In proving the Law of Nature.] My first Care was, to refer the Proofs of those Things that belong to the Law of Nature to some [111] such certain Notions, as none can deny, without doing Violence to his Judgment. For the Principles of that Law, if you rightly consider, are manifest and self-evident, almost after the same Manner as those Things are that we perceive with our outward Senses, which do not deceive us, if the Organs are rightly disposed, and if other Things necessary are not wanting. Therefore Euripides in his Phoenissae makes Polynices, whose Cause he would have to be represented manifestly just, deliver himself thus:

  • 1I speak not Things hard to be understood,
  • But such as, founded on the Rules of Good
  • And Just,2are known alike to Learn’d and Rude.

And he immediately adds the Judgment of the Chorus, (which consisted of Women and those too Barbarians) approving what he said.

XLI. I have likewise, towards the Proof of this Law, made Use of the Testimonies of1 Philosophers, Historians, Poets, and in the last Place, Orators; [112] not as if they were to be implicitly believed; for it is usual with them to accommodate themselves to the2 Prejudices of their Sect, the Nature of their3 Subject, and4 the Interest of their Cause: But that when many Men of different Times and Places unanimously affirm the same Thing for Truth, this ought to be ascribed to a general Cause; which in the Questions treated of by us, can be no other than either a just[xxviii] Inference drawn from the Principles of Nature, or an universal Consent.[Of Nations.] The former shews the Law of Nature, the other the5 Law of Nations. The Difference between which is not to be understood from the Testimonies themselves (for the Law of Nature and of Nations are Words used every where6 promiscuously by Writers) but from the Quality of the Subject.[2.In distinguishing both of them, and the Civil Law.] For that which cannot be deduced from certain Principles by just Consequences, and yet appears to be every where observed, must owe its rise to a free and arbitrary Will.

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XLII. Therefore these two I have very carefully endeavoured always to distinguish no less from one another, than from the Civil Law: And even in the Law of Nations, I have made a Distinction between that which is truly and in every Respect lawful,[The Species of each.] and that which only produces a certain external Effect after the Manner of that primitive Law; so that, for Instance, it may be lawful to resist it, or that it even ought to be every where defended with the publick Force, for the Sake of some Advantage that attends it, or that some great Inconveniences may be avoided. Which Observation, how necessary it is in many Respects, will appear in the following1 Treatise. We have been no less careful in distinguishing Things belonging to Right properly and strictly so called, whence arises the Obligation of making Restitution, from those which are only said to belong to it, because that the acting otherwise is repugnant to some other Dictate of right Reason: Which Distinction we have already touched upon.

[II.Assistance in the Work.] XLIII. Among Philosophers Aristotle deservedly holds the chief Place, whether you consider his Method of treating Subjects, or the Acuteness of his Distinctions, or the Weight of his Reasons. I could only wish that the Authority of this great Man had not for some Ages past degenerated into Tyranny,[1.Philosophers. Aristotle, his Praise.] so that Truth, for the Discovery of which Aristotle took so great Pains, is now oppressed by nothing more than the very Name of Aristotle. I, for my Part, both in this and in all my other Writings, take to myself the Liberty of the ancient Christians, who espoused no Sect of Philosophers; not that they held with those who asserted that nothing can be known, than which there is nothing more foolish; but were of Opinion, that there was no one Sect that had discovered all Truth, nor any but what held something that was true. Therefore to collect into a Body the Truths that were dispersed in the Writings of each Philosopher and each Sect, they conceived to be nothing else, but1 to deliver the true Christian Doctrine.

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[His Faults.] XLIV. Among other Things, (that I may mention this by the by, as not being foreign to our Purpose,) it is not without Reason, that some of the Platonists and ancient1 Christians seem to dissent from Aristotle in this, that he placed the very Nature of Virtue2 in a Mediocrity of Passions and Actions; which being once laid down, drove him to this, that of Virtues of a different Kind, as for Instance,3 Liberality and Frugality, he made but one; and[xxix] [115] assigned4 to Veracity two Opposites between which there is not an equal Contrariety, viz. Boasting and false Modesty; and imposed the Name of Vice upon some Things, which either are not in Nature, or in themselves are not [116] Vices, as, the5 Contempt of Pleasure and6 Honours,[xxx] and an Insensibility to Injuries, which7 hinders us from being angry against Men.

[117] [118]

[All Virtue has not Vice in Excess.] XLV. But that this Principle of Mediocrity, taken universally, is not rightly laid, appears from the Instance of Justice itself, whose Opposites, too much and too little, when he could not find in the Affections and their subsequent Actions,1 he sought for Both in the Things themselves[xxxi] about which [119] [120] Justice is conversant. Which very thing is in the first Place to leap from one kind of Thing to another, which he deservedly blames in others; and in the next Place, to receive less2 than one’s Due may indeed happen to be a Vice, when the Circumstances of himself or his Family cannot allow of any Abatement; but certainly it cannot be repugnant to Justice, since it consists wholly in abstaining from that which is another Man’s. Like to which Mistake is that of his not allowing3 Adultery proceeding from Lust, and Murder from [121] Anger, to belong properly to Injustice: Whereas the very Nature of Injustice consists in nothing, else, but in the Violation of another’s Rights; nor does it signify, whether it proceeds from Avarice, or Lust, or Anger, or imprudent Pity, or Ambition, which are usually the Sources of the greatest Injuries. For to resist all Temptations of what Kind soever, and that for this only Reason, viz. the preserving of Human Society inviolable, is indeed the proper Business of Justice.

XLVI. To return from this Digression, true indeed it is, that to some Virtues it happens, that they moderate the Affections, yet not for the Reason, that it [122] is the proper and perpetual Office of all Virtue to do so; but because right Reason, which Virtue always follows,1 prescribes a Measure to be followed in some Things; in others it excites us to the utmost we are capable of.[Consists often in the utmost we are capable of.] We cannot, for instance,2 serve God with too much Ardour; for the Crime of [123] Superstition consists[xxxii] not in serving God with too much Ardour, but in serving him perversely. Neither can we too much desire eternal Happiness, nor too much dread eternal Misery, nor too much hate Sin. It is therefore truly said of Gellius,3 there are some Things whose Extent has no Bounds, and which are so much more commendable as they are carried to a higher Pitch. Lactantius,4 after having discoursed largely on the Passions, says, Wisdom does not consist in moderating them, but in regulating the Impressions of the Causes that produce them, for they are excited by external Objects. Neither ought a Restraint to be put principally upon them, because it is possible for them to be very weak in those who commit the greatest Crime, and to be very violent without leading to any Crime at all. Our Purpose is to set always a high Value upon Aristotle, but so as to reserve to ourselves the same Liberty which he himself took with his Masters, for the Sake of finding Truth.

[Histories.] XLVII. Histories have a double Use with respect to the Subject we are upon, for they supply us both with Examples1 and Judgments. Examples, the better [124] 2 the Times and the wiser the People were, are of so much the greater Authority; for which Reason we have preferred those of the ancient Grecians and Romans before others. Nor are the Judgments we meet within Histories to be despised, especially when they agree: For the Law of Nature, as we have already said, is in some Measure proved from hence, but of the Law of Nations there is no other Proof but this.

[Poets, Orators.] XLVIII. The Opinions of Poets and Orators are not of so great Weight: And we often make use of them, not so much for the Sake of building any Thing upon them, as that their Expressions may add an Ornament to what we have a mind to say.

[II.Sacred Books.] XLIX. The Authority of those Books which Men inspired by God, either writ or approved of, I often use, but with a Difference of the Old and New Law.[1.The Old Testament.] Some there are who1 urge the Old Law for the very Law of Nature, but they are undoubtedly in the wrong: For many Things2 in it proceed from the Free Will of God, which yet is never repugnant to the Law of Nature itself; and so far an Argument may be rightly drawn from it, provided we carefully distinguish the3 Rights of God, which God sometimes exercises by the Ministry of Men, from the Rights of[xxxiii] Men among themselves. We have therefore avoided, as much as we could, both this Error, and also another [125] contrary to it, viz.4 that since the Promulgation of the New Testament the Old one is of no Use. We are of a contrary Opinion, both upon Account of what we have said already, and also because the Nature of the New Testament is such, that whatever are the moral Precepts in the Old Testament, the same, or more perfect,5 are enjoined by the New also: And in this Manner we see the Testimonies of the Old Testament made Use of by the Writers among the Primitive Christians.

[The Hebrew Writers.] L. But to understand the Sense of the Books of the Old Testament, the Hebrew Writers may afford us no little Assistance, those1 especially who were thoroughly acquainted with the Language and Manners of their Country.

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[2.The New Testament.] LI. The New Testament I use for this Purpose, that Imay shew, what cannot be elsewhere learned, what is lawful for Christians to do; which Thing itself, I have notwithstanding, contrary to what most do, distinguished from the Law of Nature; as being fully assured, that in that most holy Law a greater Sanctity is enjoined us, than the meer Law of Nature in itself requires. Nor have I for all that omitted observing, what Things in it are rather1 recommended to us than commanded, to the Intent we may know, that as to transgress the Commands is a Crime that renders us liable to be punished; so to aim at the highest Perfection, in what is but barely recommended, is the Part of a generous Mind, and that will not fail of a proportionable Reward.

[3.The Canons of Councils.] LII. The Canons of Councils,1 when they are just and reasonable, are Consequences drawn from the general Maxims of the Divine Law, fitted to particular Cases that happen: These likewise either shew what the Divine Law commands, or exhort us to what God recommends. And this is the Office of [127] the true Christian Church, to deliver to us those Things that are delivered to her of God, and in the same Manner as they are delivered.[4.The Manners and Customs of the first Christians.] But even the Customs2 likewise that[xxxiv] were received or commended amongst those antient Christians, who maintained the Dignity of so high a Title, have deservedly the Force of Canons.[5.Both the Writings and the Consent of the Fathers.] The next in Authority to these, are the Decisions of those who3 were famous in their Times for their Christian Piety and Learning, and were not charged with any gross Error: For even what these assert with great Positiveness, as if they were certain of it, ought to have no little Weight in interpreting the Places that seem obscure in Holy Scripture, and that the more, by how much the more there are that consent in the same Thing, and the nearer they are to the Times in which the Church was [128] most pure, when as yet neither Dominion, nor Faction, was able to corrupt the primitive Truth.

[6.Schoolmen.] LIII. The Schoolmen that succeeded these, give us many Proofs of their great Capacities; but their Misfortune was to live in unhappy Times, when good Learning was entirely neglected. The less Wonder then, that among many Things, in their Writings commendable, there are some that need Indulgence. And yet when they agree in Matters of Morality, they seldom err, as being quick in discerning those Things that are blameable in the Sayings of others; and even in this their prevailing Humour of contradicting, they set us a laudable Pattern of Modesty, as disputing against one another with Arguments, and not, as the Custom of late hath been, to the Dishonour of Learning, with Reproaches, the base Offspring of an impotent Mind.

[III.Lawyers.] LIV. Of those that profess the Knowledge of the Roman Laws, there are three Sorts. The first is of those whose Works appear in the Digest, the Codes of Theodosius and Justinian, and the Novels. The second is, of those who succeeded1 Irnerius, as2 Accursius, Bartolus,3 and many others, that for [129] a long time reigned at the Bar. The third comprehends4 those who joined[xxxv] the Knowledge of the Belles Lettres with the Study of Laws.[1.Ancient.] For the first I have a great Deference; for they both supply us with Reasons, and those often the very best, to demonstrate what belongs to the Law of Nature; and also often give Testimony to it, as well as to the Law of Nations; yet so as that they, as well as others, often5 confound these Words, nay and often call that the Law of Nations, which prevails among some Nations only, and [130] that not by a sort of tacit Agreement, but by Imitation of one another, or even by a casual Consent. But again, those Things which really belong to the Law of Nations, they often handle promiscuously and indiscriminately with those that belong to the Roman Law, as appears from the6 Title concerning Captives and Postliminy. Therefore we took Pains to have these distinguished.

[2.Those of the middle Age.] LV. The second Class, being regardless of the Divine Law and ancient Histories, studied to determine all Controversies between Kings and Nations from the Roman Laws, to which they sometimes joined the Canon Law. But these were likewise hindered, by the Infelicity of their Times, from discovering the true Sense of those Laws, though otherwise sagacious enough in searching into the Nature of Equity: From whence it comes, that they often make very good Overtures for new Laws, at the same Time that they are but bad Interpreters of Laws already made. But they are then chiefly to be attended to, when they give Testimony to such a Custom, as now in our Time passes for a Law of Nations.

[3.Modern.] LVI. The Professors of the third Class, confining themselves within the Limits of the Roman Law, and either never, or but lightly, meddling with this Law common to Princes and Nations, are scarce of any Use to us in our Subject.[Spaniards.] Amongst these, Covarruvias1 and Vasquez,2 two Spaniards, have joined Scholastick Subtilty with the Knowledge of Laws and Canons; so that they could not forbear treating of the Controversies between Nations and Kings; the one with a great deal of Freedom, the other more modestly, and not without some Exactness of Judgment.[Frenchmen.] The French have with most Care attempted [131] to introduce History into the Study of Law, amongst whom Bodin,3 and Hottoman4 are in great Esteem, the one for a continued Treatise, the other for some scattered Questions. Their Decisions and Reasons will often furnish us with Matter for the Search of Truth.

[VII.The Design and Order observed through the whole Work explained.] LVII. In this whole Work there were three Things that I chiefly proposed to myself; to render the Reasons of my Decisions as evident as possible, to dispose the Matters to be treated of into a regular Method, and to distinguish clearly those Things which might appear to be the same, but were not.

LVIII. I have forborn meddling with those Things that are of aquite different Subject, as the giving Rules about what it may be profitable or advantageous for us to do: For they properly belong to the Art of Politicks,1 which Aristotle rightly so handled by itself, that he mixed nothing foreign with it: Bodin on the contrary has confounded it with that which is the Subject of this Treatise. Yet in some Places I have made mention of the useful, but by the by, and to distinguish it more clearly from a Question of the just.

LIX. He will do me wrong whoever shall think that I had Regard to any Controversies of the present Age, either already risen, or that can be foreseen [132] to arise. For I profess truly, that as Mathematicians consider Figures abstracted from Bodies, so I, in treating of Right, have withdrawn my Mind from all particular Facts.

[A concise way of speaking.] LX. As to the Style, I was not willing, by joining a Multitude of Words with a Multitude of Things to be treated of, to create a Distaste in the Reader, whose Advantage I consulted. I have therefore followed, as much as I could, a concise way of speaking, as convenient for such as undertake to instruct; that so, they who are employed in publick Affairs, may, as at one View, see, both what Kinds of Controversies usually arise, and also the Principles by which they may be[xxxvi] decided; which being known, it will be easy to suit the Discourse to the Subject Matter, and enlarge upon it as much as they please.

[The very Words of Authors quoted.] LXI. I have sometimes quoted the very Words of the ancient Writers, when they were such as seemed to be expressed, either with a singular Force or Elegancy; which I have done sometimes in regard to Greek Authors, especially when either the Sentence was short, or the Beauty of it such as I could not hope to equal in a Translation; which notwithstanding I have always subjoined, for the Use of those who have not learned the Greek Language.

[The Liberty of judging left to the Reader.] LXII. And now, whatever Liberty I have taken in judging of the Opinions and Writings of others, I desire and beseech all those, into whose Hands this Treatise shall come, to take the same with me. They shall no sooner admonish me of my Mistakes, than I shall follow their Admonitions. And moreover, if I have said any thing contrary either to Piety, or to good Manners, or to Holy Scripture, or to the Consent of the Christian Church, or to any Kind of Truth, let it be unsaid again.[1]

 

Endnotes

1

The Author here means what he calls the Law of Nations, which he distinguishes from the the Law of Nature as making a separate Class. But in this he is mistaken; as is acknowledged by most, who have pursued this Study. See Note 3. on B. I. Chap. I. § 14.

1

This is not Cicero’s Sense. The Words here quoted only signify that Pompey, of whom he is speaking, was very well versed in Alliances, Treaties, and Conventions made, concluded, and formed, between States, Princes, and foreign Nations, &c. Equidem contrà existimo, Judices, quum in omni genere ac varietate Artium, etiam illarum, quae sine summo otio non facilè discuntur, Cn. Pompeius excellat, singularem quamdam laudem ejus et praestabile messe scientiam in foederibus, pactionibus, conditionibus Populorum, Regum, exterarum Nationum: in omni denique Belli Jure ac Pacis. Orat. pro L. Corn. Balbo, Cap. VI.

2.
  • Ἀισχρὸν τὰ μέν σε θει̑α πάντ’ ἐξειδέναι,
  • Τά τ’ ὄντα, καὶ μὴ, τὰ δὲ δίκαια μὴ εἰδέναι.
  • Helen. Ver. 928, 929.

This Theonoe was an Egyptian Priestess, who dealt in Divination. Helen does not here design to prefer the Knowledge of what is just and unjust, to that of all things human and divine, as our Author pretends. The Poet only intimates, that we ought to join the Study of Morality with the Study of Religion. In this Sense the Verses here quoted may very justly be understood as addressed to all employed in the publick Ministry of Religion, either to remind them of their Duty, or reprove them for the Faults committed in the Discharge of it, which has been but too often the Case at all Times. See what I have said on this Subject in my Preface to Pufendorf, §7, &c.

1

These Words occur in the sixth Book of that Historian. (Chap. LXXXV. Edit. Oxon.) We find the same Maxim in the fifth, where the Athenians, whose Power was then very considerable, speak thus to the Melians. For you cannot but know that, according to the common Notions of Mankind, Justice is regulated by the equal Necessities of the Parties; and that those who are invested with a superior Power, do all they find possible, while the Weak are obliged to submit. (Chap. LXXXIX.) Grotius.

The former of these Passages is not properly applied. It may be observed that the Word here used is ἄλογον, which signifies unreasonable, not unjust. Besides, it appears from the Sequel of the Discourse that the Question does not here turn on what is just, or unjust. Hermocrates, the Syracusan Embassador, had remonstrated to the Camarinians, that there was not the least Probability, that the Athenians would, after the Reduction of Chalcis, grant the Leontines their Liberty, who were Inhabitants of the same Country. Chap. LXXIX. To which Euphemus replies, that the Athenians had an Interest in making that Distinction, and shews how they would find their Account in it. So that ἄλογον in this Place signifies, what is not conformable to the Rules of good Policy, and is the same as οὐκ εὔλογον in Chap. LXXVI.

2.

The Words here used by the Author, are taken from Tacitus. Id in summâ fortunâ, aequius, quod validius. Annal. Lib. XV. Cap. I.

3.

The Author alludes to a Fragment of the second Book of Cicero’s Treatise De Republicâ, preserved by St. Augustin; where Scipio, on the contrary, maintains, that it is impossible to govern a State well, without observing the Rules of Justice with the utmost Exactness. De Civit. Dei. Lib. II. Cap. XXI.

4.

This Fragment, which may be seen in Cicero’s Oration for Muraena, Cap. XIV. is more entire in Aulus Gellius, Lib. XX. Cap. X.

  • Non ex jure manu consertum, sed mage ferro
  • Rem repetunt, regnumque petunt, vadunt solidâ vi.

But the Poet speaks only of Civil Laws; and sets violent Measures, the distinguishing Characteristicks of War, in Opposition to the legal Proceedings, used for composing Differences in Times of Peace. The same is to be observed of some of the following Passages.

5.

Art. Poet. Ver. 122.

6.

Lucan puts this Speech into the Mouth of Julius Caesar on his passing the Rubicon.

7.

Plutarch De fortuna Alexand. Mag. p. 330. Tom. II. Edit. Wech.

8.

He spoke of the Civil Laws. The Words here referred to are that General’s Answer on Occasion of his being blamed for conferring the Freedom of Rome on a thousand valiant Soldiers, who had signalized themselves in the War against the Cimbri, without the Authority of any Law. See the Passage at Length in Plutarch’s Apophthegms, p. 202. Tom. II. See likewise the Life of Marius by the same Author; and Valerius Maximus, Lib. V. Cap. II. Num. 8.

9.

The Inhabitants of Argos being ingaged in a Dispute with the Lacedemonians about some Lands, and the former having supported their Claim with the best Reasons, Lysander drew his Sword, saying: He, who is Master of this, reasons best about the Boundaries of Lands. Plutarch’s Apophthegms, p. 190. The same Author, in the Life of Caesar, p. 725. Tom. I. relates that Metellus, Tribune of the People, opposing that General for taking Money out of the publick Treasury, and alledging some Laws against that Practice, Caesar replied, that the Laws must give Place to the Exigencies of War.

Seneca in his fourth Book De Beneficiis, Cap. XXXVII. observes, that Princes make many Grants, without enquiring into the Reasonableness of the Demand, especially during a War, when a just and equitable Man is not able to gratify so many Passions supported by Force. He adds, that it is not possible to be at the same Time an honest Man, and a good General. Grotius.

10.

He was very apt to blush, especially when he was obliged to appear in the Assembly of the People. See Seneca’s eleventh Epistle, and Gronovius’s Note on it.

11.

Plutarch, in the Life of Pompey, relates the Matter thus, The Mamertines pretending to be independent on Pompey, by Virtue of an old Roman Law, that General broke out into the following Expression: Will you still continue to alledge the Laws against us, while we have our Swords by our Sides? Quintus Curtius observes that War inverts even the Laws of Nature. Lib. IX. (Cap. IV. Num. 7.) Grotius.

1

This Passage is taken from the ninth Book of his Treatise against the Jews.

2.

Terence in his Eunuch, Act I, Scene I, Ver. 16, &c.

1

In Lactantius, Instit. Divin. Lib. V. Cap. XVI. Num. 3. Edit. Cellar.

1

Horace, Lib. I. Sat. III. Ver. 113

2.

The natural Inclination of Mankind to live in Society is a Principle which has been admitted by the Wise and Learned of all Ages. Aristotle advances it in all his Books of Morality and Politics. Man, says he, is a sociable Animal in regard to those, to whom he is related by Nature. There is therefore such a Thing as Society, and somewhat that is just, even independently of what we call Civil Society. Eadem. Lib. VII. Cap. X. p. 280. Edit. Paris. The same Philosopher observes elsewhere, that Man is by Nature more strongly inclined to Society than Bees, or any other Animals, which are observed to flock or herd together. Polit. Lib. I. Cap. II. p. 298. And this he proves from the Consideration of Man alone being in Possession of the Use of Speech. See Note 3on the 3 d Section of Chap. I. Book VII. of Pufendorf’s Law of Nature and Nations. Cicero, reasoning on the Principles of the Stoicks, lays it down for a certain Fact, that no Man would chuse to live in absolute Solitude, even though he might enjoy an Infinity of Pleasures. From which he immediately infers, that we were born for Society. To this he adds, that as we make Use of our Limbs, before we have learnt what was the Design of Nature in furnishing us with them; so we are naturally formed for civil Society; without which there would be no Room for the Exercise of Justice or Goodness. De finib. Bon & Mal. Lib. III. Cap. XX. See also Lib. V. Cap. XXIII. and De Officiis, Lib. I. Cap. IV. VII, and XLIV. Seneca, De Benef. Lib. VII. Cap. I. and Epist. XCV. p. 470. Diogenes Laertius, Lib. VII. § 123. and the Passages quoted in Note (6) on the following Paragraph. And here I cannot conclude this Note without a beautiful Passage taken out of Epictetus’s Discourses, collected by Arrian, in which we have an excellent Argument ad hominem against such as deny the natural Inclination of Men to Society. The Stoick Philosopher thus attacks his Antagonists. “Epicurus, while he is endeavouring to destroy the Principle of natural Society, reasons on the very same Principle. Suffer not yourselves to be imposed on, says he; beware of Illusion. Take my Word for it, there is naturally no such Thing as Society amongst reasonable Creatures; those, who affirm there is, only abuse your Credulity. But, we may ask him, how does this concern you? Leave us in quiet Possession of our Error. What Damage will you suffer, if all but you and your Followers should be persuaded that there is a natural Society amongst Mankind, and that we ought to do all in our Power for its Support? Why so much Concern for us? What can induce you to light up your Lamp, and spend whole Nights in Study for our Sakes? Why are you at the Pains of composing so many Books? You will tell us, it is with a View of undeceiving us in this Particular, That the Gods interest themselves in our Affairs; and that Happiness essentially consists in something else than Pleasure. —But what is it to you whether others form a right Judgment on these Points or not? What tie is there between you and us? What Interest have you in what regards us? Have you any Compassion for the Sheep, because they submit to be shorn, milked and slaughtered? Ought not you to wish, that Men, inchanted and lulled to sleep by the Stoicks, would as tamely deliver up themselves to the Direction of you and your Companions?—In short, what was it that deprived Epicurus of his Rest, and engaged him to write all he published? Nature, without doubt, that most powerful Principle of human Motions, which strongly influenced him, and forced his Obedience, in spite of all the Resistance he could make, such is the invincible Force of human Nature!—As it is neither possible nor conceivable that a Vine should shoot like an Olive-tree, and not according to the Impulse of its own Nature, and so vice versa; so neither is it possible for Men to be entirely free from human Motions. If you castrate a Man, you cannot extinguish all carnal Inclinations and Desires in him. Thus Epicurus, as much as in him lies, has cut off all the Relations of Husband, Master of a Family, Citizen and Friend, but the Inclinations of human Nature are still entire in him. It was no more in his Power to divest himself of those, than it was in that of the wretched Academicks to throw away or blind their Senses, though no Set of Men ever took so much Pains to do it.” Dissert. Lib. II. Cap. XX. p. 201, &c. Edit. Colon. 1591. The late Lord Shaftesbury has reasoned in the same manner, but with a lively Turn, which gives his Piece the Air of an Original, against Hobbes, who with still more Warmth than his Master Epicurus, undertook to persuade the World that all Men are by Nature so many Wolves one to another. See that Lord’s Essay on the Use of Raillery, &c. p. 64, & seq. printed at the Hague in the Year 1710.

3.

“We have,” says St. Chrysostom, Hom. XXXII. ad Roman. “a certain natural Affection one for another, which subsists even amongst Beasts.” See what the same Father says farther on the first Chapter to the Ephesians, where he affirms that Nature has furnished us with the Seeds of Virtue. To all this let us add the Words of that great Philosopher, the Emperor Antoninus. “It has long since been shewn that we are born for Society. Is it not evident that Things which are less perfect were made for the Use of the more perfect, and that those which have greater Degrees of Perfection were designed for the Service one of another?” Lib. V. § 16. Grotius.

4.

Ὀικείωσις. The Author, in the preceding Note, alledges no other Authority but that of St. Chrysostom; for the Word in question does not occur in the Passage quoted from Antoninus. In the following Passage of Porphyry the Term is used precisely in regard to the natural Sociability of Man. Τάχα μὲν καὶ ϕυσικη̑ς τινὸς οἰκειώσεως ὑπαρχούσης τοι̑ς ἀνθρώποις πρὸς ἀνθρώπους, &c. DeAbstin. Anim. Lib. I. p. 13. Edit. Lugd. 1620. See also Lib. II. p. 159. Lib. III. p. 294, 328. and Plutarch, De Stoicorum Repugn. p. 1308. Tom. II. Edit. Wech. Antoninus uses the Adverb οἰκείως in the same Sense. Lib. IX. § 1. And Arrian has the Verb οἰκειου̑σθαι. Dissert. Epict. Lib. III. Cap. XXIV. They all seem to have copied Aristotle in this Particular, who says Ἴδοι δ’ ἄν τις, καὶ ἐν ται̑ς πλάναις, ὡς ὈΙΚΕΙΟΝ ἅπας ἄνθρώπῳ καὶ ϕίλον. Ethic. Nicom. Lib. VIII. Cap. I.

1

It is an old Proverb that a Dog will not eat Dog’s Flesh. Varro De Ling. Lat. Lib. VI. p. 71. Edit. H. Steph. See likewise Erasmus’s Adagia. Juvenal remarks that Tigers live peaceably together, and that the wildest Beasts spare those of their own Species.

  • ——— ——— parcit
  • Cognatis maculis similis fera ———
  • Indica Tigris agit rabida cum Tigride pacem
  • Perpetuam: saevis inter se convenit ursis.
  • Sat. XVI. Ver. 159, & seq.

Philo, the Jew, has a beautiful Passage to this Purpose. Addressing himself to Men in regard to the Duties of the fifth Commandment, “At least,” says he, “imitate the Behaviour of some brute Beasts, which know how to make an affectionate Return for Favours received. Dogs keep the House, and even expose their Lives in Defence of their Masters, when in imminent Danger. It is said that Shepherds Dogs go before the Flocks and fight till they die, rather than suffer any of their Cattle to be lost. Is it not most shameful that Man should be outdone by a Dog in Point of Gratitude, the tamest and most civilized Creature, by the most brutal of Beasts? But if the Conduct of terrestrial Animals is not sufficient for our Instruction, let us pass on to the Consideration of the Birds of the Air, and learn our Duty from them. The Storks, when rendered incapable of flying by Age, stay in their Nests, whilst their Young traverse Sea and Land in quest of Food for them. The old ones, enjoying a Repose suitable to their Age, live in Plenty and Pleasure, whilst the young ones supporting the Fatigue of their Course cheerfully, with the Satisfaction they find in acquitting themselves of their Duty, and the comfortable Expectation of the same Assistance in their old Age, perform this necessary Office at a proper Time, in return for the Treatment they have received. Thus the same Birds feed their Young whilst unfledged, and their Parents when in the Decline of Life. Thus they are taught by Nature to provide with Pleasure for the Sustenance of those, from whom they received it, when not able to take Care of themselves. Is not this sufficient to confound such as shew no Concern for their Parents, and neglect those who alone, or at least preferably to all others, have a Right to their Assistance? especially when they consider that in this Case they only return what they have received. For all that Children call their own is received from their Parents, who either gave the Things themselves, or put their Children in a Condition of acquiring them.” See concerning the particular Care of Pigeons about their Young, Porphyry De non esu Animalium, Lib. III. And as to certain Fishes, called Scari and Sauri, which shew a Concern for those of their own Species, Cassiodorus Var. Lib. XI. Cap. XL. Grotius.

In regard to the Fishes our Author mentions, they seem to express a Concern for their Species in the following Instances. When one Saurus sees another taken by a Hook, he gnaws the Line, in order to set him at Liberty, and sometimes succeeds in the Attempt. And it is no uncommon Thing to observe several of them unite in a Body to deliver a Captive; so that if it endeavours to escape by the Tail, as he usually does, they assist him to the utmost of their Power. If he puts out his Head, one of them presents his Tail, that he may fasten on it, and thus disingage himself, while the other throws himself forward and drags him along. In which, as Elian observes,“they act like Men, and practise the Laws of Friendship, which they learn only from Nature.” Hist. Animal. Lib. I. Cap. IV. See also Pliny’s Nat. Hist. Lib. XXXII. Cap. II. Ovid’s Halieutic. Fragm. Ver. 13. &c. Plutarch, De Solertiâ Animalium. Tom. II. p. 977. C.

2.

Gronovius on this Place brings the Example of Hens which feed their Chickens, and Cocks which feed the Hens out of their own Mouths. Everyone has observed this Practice, as well as the Ardour, with which the wildest Beasts expose their own Lives in Defence of their Young; and the Abstinence of Hounds, which bring the Game to their Masters. Nor are we less acquainted with the Fervour, with which Bees and Pismires unite their Labours for the Good of their respective Communities, as remarked by the same Annotator from Cicero and Quintilian. The Words of the former in the 19th Chapter of his 3d Book De Finibus Bonorum & Malorum, are; “Even Bees, Pismires and Storks, do some Things for the Sake of others. This Union is much stronger among Men; we are therefore formed by Nature for Society, mutual Assistance, and living in Community.” The latter in his Instit. Orat. Lib. V. Cap. XI. p. 303. Edit. Obrecht. gives this Direction: “If you press a Concern for the Commonwealth, you may shew how those little dumb Creatures, the Bees and Pismires, labour for the common Good.” Several of those who have undertaken to criticize, or comment on our Author, have given his Thoughts a wrong Turn in this, and many other Places. The Weakness of their Criticism sufficiently appears from this single Consideration; that our Author only affirms that the Principle of Sociability has so real a Foundation in the Nature of Man, that we find some faint Tracks of it even amongst irrational Animals, in regard to those of their own Species. He does by no means pretend either that there is any Right common to Men and Beasts, or that any certain Consequences can be drawn from the Actions of Brutes, for proving any one particular Thing conformable or contrary to the Law of Nature. See what he says Book I. Chap. I. § II. and my Remark in the Notes on Pufendorf’s Law of Nature and Nations, Book II. Chap. III. § 2.

3.

See the Passage of Pufendorf, referred to in the preceding Note. By this intelligent and exterior Principle our Author means God himself; as appears from his Treatise Of the Truth of the Christian Religion; where he expresses himself more clearly; but still he does not give us a more just and philosophical Idea of the Thing. Lib. I. § 7. Consult Mr. Le Clerk’s Note on that Piece, p. 13. of the last Edition of Amsterdam, 1717.

4.

I know of no other Place in Plutarch, where that Philosopher speaks of this natural Propensity or Inclination of Children, but in his Account of his little Daughter, who, he tells us, was so surprisingly sweet tempered and benevolent, that she expressed a Desire that her Nurse should give the Breast not only to other children, but even to her Puppets and Play-things, sharing with others, whatever was most agreeable to herself. Consol. ad Uxorem. p. 608. Tom. II. Edit. Wech. But he is not there speaking of the common Inclination of all Children: On the contrary, he seems to attribute something particular to his little Girl, as a Reason for being more sensibly affected by her Death. As to the Thing itself, I think it very probable that, though the Principles and Maxims of the Law of Nature cannot be deduced from the Behaviour of Children, at an Age when their Inclinations act with most Freedom, which our Author indeed does not insinuate, there is still great Room to believe, that notwithstanding the infinite Diversity of Tempers, such Dispositions as are contrary to Humanity, are rather the Result of a bad Education and Custom, than of a natural and invincible Inclination; so that it may be maintained that all Men, even before they arrive to Years of Discretion, have the Seeds of Sociability, which consequently are founded in human Nature, and have no Dependence on a View of Interest, which is all our Author designs to advance.

5.

Whereas Beasts act in a certain and uniform Manner only in regard to one Thing, to which they are impelled, or from which they are diverted by their natural Instinct.

6.

The Emperor Marcus Antoninus observes that “whenever Man, who is born with a Disposition to do good Offices, exerts an Act of Beneficence, he does no more than what he was formed for by Nature.” Lib. IX. § 42. He also asserts that “we may sooner find a terrestrial Body entirely separated from all that is terrestrial, than a Man divided from all other Men.” Ibid. §9.Nicetas Choniates, one of the Writers of the Byzantine History, says, “Nature has engraved and planted inusasort of Sympathy for one another as Members of the same Family.” See St. Augustine De Doctrina Christiana, Lib. III. Cap. XIV. Grotius.

The Earl of Shaftesbury proves the Existence of this natural and social Affection, from the Love of our Country, a Passion, which is found in some Degree in the Hearts of all Mankind. See Tom. III. of his Characteristicks, printed in 1727. p. 141, &c. The Arguments of that ingenious and penetrating Author are too long to be inserted here. But we have another Passage much shorter in the same Volume, p. 220, 221. which contains a remarkable Reflection. “Well it is for Mankind,” says he, “that, though there are so many Animals, who naturally herd for Company’s Sake, and mutual Affection, there are few, who for Conveniency, and by Necessity, are obliged to a strict Union, and kind of confederate State. The Creatures, who according to the Oeconomy of their Kind, are obliged to make themselves Habitations of Defence against the Seasons and other Incidents, they, who in some parts of the Year are deprived of all Subsistence, and are therefore necessitated to accumulate in another, and provide withal for the Safety of their collected Stores, are by their Nature indeed as strictly joined and endowed with as proper Affections towards their Community, as the looser Kind, of a more easy Subsistence and Support, are united in what relates merely to their Offspring, and the Propagation of their Species. Of these thoroughly-associating and confederate Animals, there are none, I have ever heard of, which in Bulk or Strength exceed the Beaver. The major Part of these political Animals and Creatures of a joint Stock, are as inconsiderable as the Race of Ants or Bees. But, had Nature assigned such an Oeconomy as this to so puissant an Animal, for Instance, as the Elephant, and made him withal as prolifick as those smaller Creatures commonly are, it might have gone hard perhaps with Mankind; and a single Animal, who by his proper Might and Prowess has often decided the Fate of the greatest Battles, which have been fought by human Race, should he have grown up into a Society, with a Genius for Architecture and Mechanicks proportionable to what we observe in those smaller Creatures; we should with all our invented Machines, have found it hard to dispute with him the Dominion of the Continent.”

1

Hence it appears that our Author does not mean that bare natural Instinct in the Rule of the Law of Nature; but that he adds Reason for the Direction of such Instinct, without which it might misguide us, and induce us to consult only our private Interest. Hence it is also that he elsewhere makes what belongs to the Law of Nature consist in a necessary Conformity to, or Difformity from a reasonable and sociable Nature, Book I. Chap. I. § 12. Num. I. So that it is ridiculous to object, as Gaspar Ziegler has done, that the Desire of Society, which Grotius lays down as the Foundation of the Law of Nature, might be gratified, though a Man were united in Society and Friendship with one Nation only, or even with one single Family: and that Highwaymen and Pyrates have also their Societies, &c. For Reason, which is peculiar to Man, and which is more natural to him than the Desire of Society, of which we find some Traces in Beasts, clearly teaches us that it is not proper to confine Sociability and Affection to a small Number of Persons, or to one single Community; but that it ought, in some Manner or other, to extend to all Men, or to all of our own Species; on whom it is equally diffused by Virtue of the Design of Nature, and on the Account of their being naturally all alike and equal. I shall not here enlarge on this Subject, but refer the Reader to the Explication and Defence of the general Principle of Sociability, in my Notes on Pufendorf’s Law of Nature and Nations, Book II. Chap. III. So that, on the whole, a Man must be very wrong headed, who will hereafter expose himself by starting and multiplying frivolous Difficulties against a Truth, which when well understood, leaves no room for any plausible Objection.

2.

Seneca makes an excellent Application of this Principle. “That a Sentiment of Gratitude,” says he, “is a Thing valuable in its own Nature, appears from the odious Character which Ingratitude bears in the World, there being nothing so destructive of Concord and the Union of Mankind, as this shameful Vice. In reality, on what does our Security depend, but on the mutual Exchange of good Offices? Certainly nothing but this Commerce of Benefits can make Life commodious, and put us in a Condition of guarding against unforeseen Insults and Invasions. How miserable would Mankind be, if every one lived apart, and had no Resource, but in himself? So many Men, so many Persons exposed every Moment to be the Prey and Victims of other Animals: Blood continually ready to be spilt, in a Word, Weakness itself. Other Animals are strong enough to defend themselves. All such as are designed for a wandering Life, and whose natural Ferocity doth not allow them to go in Bodies, come into the World armed, as I may say. Whereas Man is defenceless on all Sides, having neither Claws nor Teeth to make him formidable. But in Society with his like hefinds the wanted Succours. Nature to make him amends, has furnished him with two Things, which from weak and miserable as he would have been, render him very strong and powerful; I mean, Reason and a Disposition to Society. So that he, who when alone was not able to resist any other, by this Union becomes Master of all. The Disposition to Society gives him the Dominion over all the Animals, not even excepting those bred in the Sea, which live in another Element. It is Society also that furnishes him with Remedies against Distempers, Assistance in his old Age, Relief and Comfort in the midst of Sorrows and Afflictions. This is what puts him in a Condition of defying Fortune, if I may use the Expression. Take away the Disposition to Society, and you will at the same Time destroy the Union of Mankind, on which the Preservation and Happiness of Life depend. Now to maintain that Ingratitude is not a detestable Vice and what ought to be avoided for its own Sake, but only on the Account of its pernicious Consequences, is no better than destroying the Disposition to Society.” De Benefic. Lib. IV. Cap. XVIII. Grotius.

3.

Porphyry, Of Abstinence from Animals, Book III. Justice consists in this, the Abstaining from what is another’s, and the doing no Injury to those that do none to us. Grotius.

1

Indicium ad aestimanda quae delectant aut nocent—& quae in utrumvis possunt ducere. These Words Mr. Barbeyrac renders—choses agréables & desagréables, &c. On which Occasion he professes to follow the Author’s Sense, rather than his Expression. The Word delectant, says he, is not directly opposed to nocent; and I suspect some Omission in the Text; though the Passage appears the same in all Editions of this Work. It is probable, continues our learned Commentator, that Grotius wrote, or designed to write, Quae delectant aut dolorem creant, quae juvant, aut nocent, &c. and that the Words here given in the Roman Character being left out, he did not observe the Omission in reading over this Place.

2.

It is evident that this includes those Duties of Man in regard to himself, which are enjoined him even by the Frame of his Nature, and which may be seen at large in Pufendorf’s Law of Nature and Nations, Book II. Chap. IV.

1

St. Ambrose treats of this in his first Book Of Offices. Grotius.

Our Author probably had his Eye upon Chap. XXX, where that Father treats of Beneficence, and speaks, as usual, in a loose and confused manner of the Rules to be followed in the prudent Management of the Good we do to others.

2.

[[The footnote is wrongly included as part of the previous one in the original.]] Our Author speaks here of such Rewards as are given by the State, or those who represent it, to Persons distinguished by their Merit; as also of the Collation of publick Offices. For they who receive the former, or are placed in the latter, had no full Right to demand them, nor to claim considerable ones as their due, how great soever their Merit may be, or how glorious soever the Actions are, which recommended them. See Book II. Chap. XVII. § 2.

3.

This Maxim is always to be observed by those, whose Business it is to dispose of publick Employs. But it does not always take Place in private Liberalities and the Services we do one another; the Ties of Blood, a pressing Necessity, and other such Considerations, sometimes require the Preference of a Person, otherwise of less Merit. See a beautiful Passage of Cicero to this Purpose, quoted at large in my Pufendorf’s Law of Nature and Nations, Book III. Chap. III. § 15.

4.

This takes Place, all Things else being equal. For it would be a mistaken piece of Charity to bestow a publick Employ on one who is in great Necessity, to the Prejudice of another, much more capable of discharging the Obligations of such a Post. In that Case, a Regard to the Poverty of the Candidate, would be a Respect of Persons as culpable as that of a Judge, who should on that Consideration pronounce Sentence in Favour of a poor Man, contrary to Law and Equity; which is expresly forbid by the Law of Moses, Exod. xxiii. 3. on which Place see the Note of Mr. Le Clerc.

5.

Much Judgment and Circumspection are to be used in this Particular; and it is difficult to lay down any general Rules in Relation to it, because the Practice of this Duty is diversified by an infinite Variety of Circumstances. Mr. Buddeus has written an useful Dissertation on that Subject, intitled, De Comparatione Obligationum, quae ex diversis hominum statibus oriuntur; it was printed in 1704, among the Selecta Juris Naturae & Gentium.

6.

The Author speaks of such as follow Aristotle, and make the Distribution in Question belong to distributive Justice, according to that Philosopher’s Acceptation of the Term, who reckons it part of private or rigorous Justice, by Virtue of which a Man may make a rigorous Demand of what is his Due. See the following Note, and what the Author says, Book I. Chap. I.§7,8.

7.

Since it consists in leaving others in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand. This is the Sense of the Author’s concise Expressions: Ut quae jam sunt alterius, alteri permittantur, aut impleantur. It is probable that he had written or designed to write, aut quae altera debentur, impleantur, as I have observed in my Edition of the Original. A few Examples will explain his Meaning. When we forbear striking, wounding, robbing, injuring or defaming any one, we only leave him in quiet Possession of what was his own; for the good Condition of his Limbs, his Goods, and Reputation, are actually his own, and no Man has a Right to dispossess him of them, while he has done nothing to deserve such Treatment. When we repair the Damage he has sustained in his Person, Goods, or Reputation, whether designedly or through Inadvertency, we restore what we had taken from him, and what was his own, which he had a strict Right to demand. When we keep our Word to him, when we perform our Promise, or make good an Engagement, we do not indeed restore, what he was once in actual Possession of; but we perform what he might strictly require at our Hands. All this relates to the Law of Nature, taken in the strict and proper Sense of that Term; not to mention the Punishment of the Guilty, of which our Author seems not to design to speak in this Place; though he ranks it in the same Class, as we have seen § 8, and as we shall shew in our last Note on Book I. Chap. L. § 5. When the Sovereign refuses to bestow an Employment on one of his Subjects, who is worthy of it, or prefers one less capable of discharging the Duty, or does not reward the Person according to his Merit, he does indeed offend against the Law of Nature, taken in an improper, and less extensive Sense, according to our Author’s Ideas; but he does that Subject no Wrong, properly speaking, because he had no full and rigorous Rights to demand the Employment, or the Reward. The same is to be said of those, who refuse Relief or Assistance to the poor and miserable, not in extreme Necessity; for in that Case they have a strict Right to demand what they want, as we shall see in the proper Place. The learned Gronovius, prepossessed with Aristotle’s Ideas, and not giving due Attention to the Matter, and the Sequel of our Author’s Discourse, widely mistakes his Meaning, and perplexes the Question both here and elsewhere; in which he has been faithfully followed by Mr. De Courtin.

1

This Assertion is to be admitted only in the following Sense: That the Maxims of the Law of Nature are not merely arbitrary Rules, but are founded on the Nature of Things; on the very Constitution of Man, from which certain Relations result, between such and such Actions, and the State of a reasonable and sociable Creature. But to speak exactly, the Duty and Obligation, or the indispensible Necessity of conforming to these Ideas, and Maxims, necessarily supposes a superior Power, a supreme Master of Mankind, who can be no other than the Creator, or the supreme Divinity. We shall treat of this Subject more largely in the fourth Note on Book I. Chap. I. § 10.

2.

The Reader may see on that Subject the excellent Treatise of our Author, Concerning the Truth of the Christian Religion.

1

For this Reason, according to the Sentiment of Marcus Antoninus, every Man, who commits an Act of Injustice, renders himself guilty of Impiety. Ὁ ἀδικω̂ν ἀσεβει̑. Lib. IX. § 1. Grotius.

This Passage is beautiful, but ill applied. The Author ought to have placed it among those quoted in the following Note. In Reality, he is here talking of Voluntary Divine Law, as he himself calls it, Book I. Chap. I. § 15. or of that, which, being in its own Nature indifferent, becomes just or unjust, because God hath commanded or forbidden it. This is evident from the very Terms he employs, and the Sequel of the Discourse; for he calls the Will, which is the Source of this Right, a free or arbitrary Will; and afterwards observes, as it were occasionally, that the Law of Nature, of which he has been laying the Foundation, may be also considered as flowing from the Divine Will, because it was his Pleasure to establish such interior Principles in Men; or that his Nature should be framed in the Manner it is. Our Author’s Meaning therefore in this Place is, that even though there were no Natural Right, or though the Frame of our Nature did not of itself engage us to act in such or such a manner, yet upon the Acknowledgment of a Deity, of whose Existence we cannot reasonably be ignorant or doubtful, we must likewise own ourselves obliged to obey him, whatever he commands, even though his Laws had no other Foundation but his absolute and arbitrary Will. Thus we should always find a Source of Right there; for that God, who has so clearly revealed himself to Men in the Books, which we call the Holy Scriptures, has there prescribed them a Set of Laws entirely like those, which we say were imposed on them by the Frame of their own Nature. But it may be farther said that the Law of Nature, though sufficiently founded in itself, does likewise derive its Origin from God, independently of Revelation, as it was his Pleasure, &c. This I take to be the Meaning of our Author, and the Connexion of his Discourse, which does not appear at first Sight. The Impropriety of this Quotation will appears till more from the Words immediately following, which it is not amiss to produce. The Emperor gives a Reason for what he had advanced, viz. that every Injustice is a real Impiety. For, says he, universal Nature having made reasonable Creatures for one another, that they may assist one another, according to the Merits of each Individual, and do no Hurt to others; he who disobeys her Will, is manifestly guilty of Impiety against the most antient Divinity. Many Pagan Authors have also acknowledged that the Law of Nature is a divine Law. See some Passages alledgedinmy Remark on Pufendorf, Book II. Chap. IV.§ 3. Num. 4.

2.

“When I speak of Nature,” says St. Chrysostom, on 1 Cor. xi. 3. “I mean God; for he is the Author of Nature.” And Chrysippus expresses himself thus. “For it is not possible to find any other Principle or Origin of Justice, than Jupiter and universal Nature; for there we must always begin, whenever we design to treat of Good and Evil.” Book III. Of the Gods. Grotius.

This last Passage cited from a Stoick, whose Works are not extant, though he published a great Number, is preserved by Plutarch, in his Treatise De Stoicorum repugnantiis, p. 1035. Tom. II. Edit. Wechel.

3.

See the preceding Note. Cicero also maintains, that the wisest and most learned Men have been of Opinion that the Source of all Law and Justice is to be sought for in the Divinity. See his Treatise de Legibus, Lib. II. Cap. IV. and Lib. I. Cap. V, VII, X.

4.

Perhaps, it might be rather said that as Ossum has been converted into Os, so Jussum has been changed into Jus, Gen. Jusis, which was afterwards made Juris, as Papisii was turned into Papirii. See Cicero Ep. ad Fam. Lib. IX. Ep. XXI. Grotius.

1

Disorderly Passions are condemned through the whole Scripture, especially in the New Testament, which forbids us, under very severe Penalties, to allow ourselves to be hurried away by those blind Motions. The Apostle St. John includes them all under three Heads, the Lust of the Flesh, the Lust of the Eyes, and the Pride of Life, 1 Ep. Chap. II. Ver. 16. that is, in the Language of the Philosophers, sensual Pleasure, Covetousness, and Ambition.

2.

In the Original it is quite the reverse: Quae nobis ipsis, quique aliis consulunt. But though all the Editions I have seen, and even that of 1632 read it so, it is evidently faulty. It should be read malè consulunt, as I have corrected it in my Edition of the Original, where the Reader may see the Reason why the Word supplied is here absolutely necessary. [[But see my introduction, p. xxiv n. 30, in support of the original reading.]]

1

Digest. Lib. I. Tit. I. De Justitiâ & Jure. Leg. III. The Ideas of the Stoicks, and such was this Lawyer, concerning the Origin of Mankind, were very confused; and though they introduced the Divinity, it was in a very different Manner from what Moses uses in his History of the Creation. See Justus Lipsius’s Physiolog. Stoic. Lib. III. Dissert. IV. The Kindred, which they conceived as subsisting among Men, did not consist in their considering all Mankind as descended from the same Father and the same Mother; but only in the Conformity of their Nature, and the Principles or Materials of which they thought them composed. See Marcus Antoninus, Book II. § 1. and Gataker’s learned Notes on that Place.

1

The Author here passes almost imperceptibly to another Species of Voluntary Law, which however is founded in Nature; it is what a Father and a Mother prescribe to their Children; for Children are obliged to obey their Parents, because they gave them Birth; in which Action, though the Husband and Wife are no more than blind Instruments, they in some Measure imitate God.

2.

Hierocles, in his Comment on Pythagoras’s Golden Verses, says that a Father and a Mother are terrestrial Gods. Philo, on the Decalogue, calls them visible Gods, who imitate the unoriginated God, in producing living Creatures. Pag. 761. Edit. Paris. St. Jerom (Ep. XLVII. Tom. 1. p. 224. Edit. Basil,) says that the Relation between Parents and their Children is next to that between God and Men; secunda post Deum foederatio. Plato calls Fathers and Mothers Images of the Divinity. De Legib. Lib. XI. (p. 930, 931. Tom. II. Edit. H. Steph.) Parents are to be honoured like the Gods, according to Aristotle. Ethic. Nicomach. Lib. IX. Cap. II. Grotius.

The Passage here quoted out of Hierocles, is not in his Commentary on the Golden Verses. They occur in Stobaeus, Serm. LXXVII. where he says a Man would not commit a Mistake, who should call them (Parents) Gods of a second Class, and terrestrial Deities. Pag. 461. Edit. Wechel.

3.

See below Book 1. Chap. IV. § 6. Num. 2.

1

So that the Civil Law, though no kind of Law is in itself more arbitrary, is at the Bottom no more than an Extension of Natural Law, a Consequence of that inviolable Law of Nature, that every one is obliged to a religious Performance of his Promise.

1

Atque ipsa Utilitas Justi propè mater, & Aequi.

Horat. Lib. I. Sat. III. Ver. 98.

Upon which Place, an ancient Commentator on Horace, whether Acron or any other Grammarian, makes the following Remark. “The Poet here opposes the Tenets of the Stoicks; for his Design is to prove that Justice is not Natural, but derived from Interest.” See what St. Augustin says against this Opinion, De Doctrina Christiana, Lib. III. Cap. XIV. Grotius.

2.

Ibid. §8. Note 2.

3.

See Pufendorf, Book VII. Chap. IX. § 5.

1

See Book I. Chap. I. § 14.

2.

For these two Names are sometimes confounded. See what I have said on Pufendorf, Book II. Chap. III. § 23. Note 3.

1

Add to all this what Pufendorf says Book II. Chap. III. § 10.

2.

The Emperor Marcus Antoninus makes a judicious Use of this Comparison. Every Action of yours, which has not a near or remote Relation to the Publick Good, as its End, destroys the Harmony and Uniformity of Life: It is seditious, like that of a Citizen, who by forming Cabals, breaks the Union of the State. Book IX. § 23. And in another Place he says, He who divides himself from another, cuts himself off from all human Society. Book XI. § 8. In Reality, as the same Emperor elsewhere observes, what is useful to the whole Swarm, is useful to each particular Bee. Grotius.

The Author, who probably trusted his Memory on this Occasion, has misquoted the second of these Passages; for instead of ὅλης τη̑ς κοινωνίας ἀποπέπτωκε, he writes οὐ δύναται μὴ καὶ ὅλου ϕύλου ἀποκεκόϕθαι, i.e. must necessarily be cut off from the whole Body of Mankind. The Mistake was occasioned by the last Words immediately preceding the former Sentence, and making part of a Comparison; which the Author forgetting, and confounding with what follows, has changed ϕυτου̑, the Word in the Original, into ϕύλου. The whole Passage runs thus: A Branch broken off from the Branch to which it grew, must necessarily be broken off from the whole Tree; so likewise a Man, &c. The last Passage is in Book VI. § 54. and stands thus: What is not good for the Swarm, is not good for the Bee.

1

Jura inventa metu injusti fateare necesse est.

Horat. Sat. III. Ver. III.
2.

Book II. Of the Common-Wealth, Tom. II. p. 359. Edit. H. Steph. See likewise Gorgias, Tom. I. p. 483, and Pufendorf, Book I. Chap. VI. § 10.

3.

Ὁμου̑ βίην τε καὶ δίκην συναρμόσας. Plut. in Solon. Tom. I. p. 86. Edit. Wechel. To the same Purpose Ovid:

In causaque valet, causamque tuentibus armis.

That is, “ He has a good Right, and his Right is supported by Arms. ” Metam. Lib. VIII. Ver. 59. Grotius.

See Pufendorf, Book I. Chap. VI. § 12. In the Passage from Ovid, where Scylla, the Daughter of Nisus, speaks of Minos, King of Crete, the common Pointing, which our Author follows, is not just. The last Words of it are to be joined to the Beginning of the next Verse, and read thus:

  • ——— causamque tuentibus armis:
  • Ut puto, vincemur. ———

That is, “ And it is my Opinion we shall be overcome by the Superiority of his Arms, which favour the Justice of his Cause. ” See Mr. Burman’s Edition, published in 1713.

1

See Gorgias. Tom. I p. 524, 525, and Book IX. of Plato’s Republic. Tom. II. p. 579. Tacitus produces that Philosopher’s Thought on Occasion of the Remorse of Conscience, with which Tiberius was tortured. The wisest of Men had good Reason for affirming that if the Souls of Tyrants could be exposed to View, we should see them under violent Racks and Tortures; for as the Body is torn with Whips, so is the Mind with Cruelty, Lust, and Male-Administration. Neither the Splendor of the Imperial Dignity, nor Retirement, could secure Tiberius, or hinder him from confessing the Torments of his Soul, and interior Punishment of his Crimes. Annals, Book VI. Chap. VI.

1

Quae foras spectat. Gronovius observes, that our Author here makes Use of an Expression of Apuleius, Book II. Of Moral Philosophy, (p. 15, 16. Edit. Elmenhorst.) where that Platonist, treating of the Virtues according to the Notions of his School, says, that When Justice is advantageous to the Possessor of that Virtue, it is termed Benevolence; but when it extends to the Interest of others, it is properly called Justice. The Commentator, who produces this Passage, might have gone higher, and discovered the Source from which both Apuleius and Grotius derived this Distinction. Cicero, in Book II of his Republic, says, Justice regards what is without us; it is diffused and extensive. And in this he only follows Aristotle, whose Words are these: The Just Man acts for the Benefit of others; and it is for this Reason that we say Justice is a Good belonging to others. Ethic. Nicom. Lib. V. Cap. X. p. 67. Ed. Paris.

1

The Words here used are taken from a Passage in one of Cicero’s Epistles, which our Author quotes in his Note on the next Paragraph. They do not relate to Right in general, but to Civil Laws only. The same is to be observed of the Passage in the Oration for Cecina, to which Gronovius refers us in this Place, as if the Author had it in View, and it exactly expressed his Thought.

1

I am very much mistaken, if the Author has not put the Scholar’s Name for that of the Master. I am induced to think so, not only because he has not specified the Place of Aristotle either in the Margin, or the following Note, where he has thrown together several Passages of other Authors to the same Purpose; but also because I never saw that Philosopher quoted for the Observation in Question; nor do I remember to have found this Thought in any of his Moral or Political Works. On the contrary, the Commentators have quoted Plato, on a wellknown Passage of Cicero, where the same Remark is very finely turned; so that it is surprizing that Grotius takes no Notice of either of those two great Writers. The Grecian Philosopher speaks thus: Do you imagine that a City, an Army, a Gang of Thieves or Highwaymen, or any other Body of Men, united in an unjust Design, could ever succeed in their Enterprizes, if they dealt unjustly with one another. No certainly, replied the other Person in the Dialogue. De Rep. Lib. I. p. 351. Edit. Steph.

Such is the Force of Justice, says Cicero, that even they that live by their Crimes cannot subsist, without practising some Sort of Justice among themselves: For if any one of those, who rob in a Gang, defrauds or robs his Companion, he is no longer allowed a Place even in that infamous Society. A Chief of the Pyrates, who does not make an equal Distribution of the Booty, is either killed or abandoned by his Men. It is even said that Highwaymen have a Set of Laws, to which they submit, and which they observe. DeOffic. Lib. II. Cap. XI.

2.

St. Chrysostom has the same Observation. But you will ask how Highwaymen live peaceably together; and when this is the Case? Certainly, when they do not act like Robbers; for if in the Distribution of what they get, they do not observe the Laws of Justice, and give every one his Share, you will then see them quarrel and fight with one another. In Eph. IV. Plutarch having set down Pyrrhus’s Expression, that he would leave his Kingdom to that of his Sons, whose Sword should be sharpest, compares it with a Verse in the Phenician Women of Euripides. (Ver. 68.) They divide my Estate with a sharp Sword. To which he adds this Exclamation: So unsociable and brutalis the Passion of Avarice! In the Life of Pyrrhus, Tom. I. p. 388. Edit. Wech. Cicero says, We can have no certain Dependence on any Thing, when Justice is disregarded. Ep. ad Fam. Lib. IX. Ep. XVI. Polybius observes that the Dissolution of the Society of Villains and Robbers, is chiefly owing to unjust Practices among themselves, and their not being true one to another. Chap. XXIX. Grotius.

3.

The Author probably had his Eye upon a Passage of Cicero, where that great Orator and Philosopher proposes this Question: Whether the Interest of a Community most conformable to the Law of Nature is always to be preferred to Moderation and Modesty; he answers in the Negative; For, says he, there are some Things so shameful and criminal, that a wise Man will not do them even for the Preservation of his Country. De Offic. Lib. 1. Cap. XIV. He afterwards asserts, that by good luck it can never happen that the Interest of the State should require such Things to be done, which ought to be well observed. Grotius.

4.

The Passage here alledged is in the seventh Book of Aristotle’s Politicks, Chap. II. p. 427. See also his Rhetorick, Book 1. Chap. III. p. 519 Tom II. Edit. Paris, 1629. For the better understanding his Thought, it is to be observed that he is opposing the Opinion of such as maintain that good Policy requires making Conquests, and extending them as far as possible, at the Expence of the Liberty of the neighbouring People. The Philosopher, amongst other Reasons against this way of thinking, urges that “ It does not become an able Administrator of the State, and a wise Legislator, to do any thing which is not lawful, or agreeable to the Rules of Civil Society. But, says he, it is unlawful, and contrary to the Rules of Civil Society, to desire to have the Command of others at any Rate, justly or unjustly; and Conquests may be unjust. This way of reasoning holds good in regard to other Sciences. For Example, it is not the Business of a Physician or a Pilot to use Persuasion or Force indifferently in their respective Professions. But,” adds Aristotle, “the Generality of Mankind give into this Mistake, that political and despotick Governments are but two Names for the same Thing: They make no Scruple of doing that to others, which they look on as unjust, and prejudicial in regard to themselves. They are willing to submit only to those who command them with Justice; but when it comes to their turn to command, they give themselves no Concern about the Justice of the Action.” On reading these Words, one would conclude that Aristotle entertained very just Ideas of the natural Quality of each Man in particular, and Nations in general. But it appears from the Sequel, that he was of Opinion that some Men, and even some People, were naturally Slaves, on whom he thought War might be made without any other Reason; and he makes use of the Comparison of a Hunter, who is not indeed allowed to take or kill Men for Food or Sacrifice, but may lawfully pursue such Animals as are wild and proper for the Purposes designed. See what I have said on this Philosopher’s Notions in my Preface to Pufendorf, p. xcviii. § XXIV. Second Edition, Of the Law of Nature and Nations.

5.

Plutarch, in his Life of Agesilaus, blames the Lacedemonians for making Virtue consist principally in the Interest of their Country, and being unacquainted with any other Justice, but what they thought might contribute to the aggrandizing of Sparta. Thucydides gives us the Sentiments of the Athenians concerning the Humour of that People. The Lacedemonians generally observe the Rules of Virtue among themselves, and in what relates to the Laws of their own Country; but several Examples might be given of their different Conduct in regard to others; in short, they esteem only that virtuous, which is agreeable to them, and only that just, which promotes their Interest. Book V. Chap. CV. p. 344. Edit. Oxon. Grotius.

1

I know not whence this is taken. Plutarch says nothing like it, either in his Life of Pompey, or in his Apophthegms; and it is not probable he would have omitted so remarkable an Expression. Nor do I find the Saying of the Spartan King, as it stands here, in the Apophthegms of the Lacedemonians, or elsewhere. So that I much suspect our Author has depended too much on his Memory; and imagine the Mistake may be thus accounted for. Phraates, King of the Parthians, having sent an Embassy to Pompey, desiring him to be content with bounding his Empire by the Euphrates; that great General replied, that the Romans chose rather to make Justice the Boundary of their Empire. Plutarch, Apophthegm, p. 204. Tom. II. Edit. Wech. See also the Life of Pompey, Tom. I. p. 637. where the Story is told with some Difference. The same Philosopher ascribes the following Reply in one Place to Agesilaus, and in another to his Son Archidamus. One of these Kings being asked how far the Lacedemonian Dominions extended, brandished his Spear, and answered, as far as this can be carried. P. 210. See likewise p. 218, both of the second Volume. Out of these two Stories confusedly remembered, our Author has formed what he here relates, and which, as far as I know, is to be found no where as he gives it.

2.

It was Agesilaus; and Plutarch has preserved this Saying as an Answer to a Question proposed concerning the comparative Excellency of the two Virtues. Apophthegm. Lacon. p. 213. Tom. II.

3.

Agesilaus having observed that the Inhabitants of Asia had a Custom of distinguishing the King of Persia by the Appellation of Great, asked: How is that Prince greater than I, unless he is more just and more wise? Plutarch, Apopht. Lacon. p. 213. Grotius.

4.

This Definition is produced and commended by Cicero, De Offic. Lib. I. Cap. XIX.

5.

[[This footnote is wrongly included as part of the previous one in the original text. The Latin edition has it in the correct place.]] The Emperor Marcus Antoninus declares, that, as Antoninus, he considered Rome was his City and native Country; but as a Man, the whole World. (Book VI. § 44.) Porphyry says, the Man, who is conducted by Reason, forbears injuring his Fellow-Citizens, and observes the same Rule still more rigorously in regard to Strangers and all Mankind; and thus keeping the irrational Part in due Subjection, becomes more rational, and consequently more like Divinity than those with whom he deals in this manner. Of Abstinence, Book II. (p. 333.) Grotius.

6.

We have a Verse of an old Poet to this Purpose.

  • Καὶ νήσων δείραισι βαρὺν ζυγὸν ἔμβαλε Μίνως.
  • King Minos has laid a heavy Yoke on the Necks of the Islands.

See St. Cyril’s VIth Book against the Emperor Julian. Grotius.

The Father from whom our Author has taken this Verse, quotes it as belonging to Callimachus; and gives it with some small Difference in the Words, though to the same Sense.

  • Καὶ νήσων ἐπέτεινε βαρὺν ζυγὸν αὐχένι Μίνως.
  • Pag. 191. Edit. Spanh.
1

The Passage, which our Author had in View, occurs in the Oration on Chersonesus, where Demosthenes, undertaking to dissuade the sending of a new General into the Hellespont, in the Room of Diopithes, who lay under an Accusation of Extortion and Pyracy, shews that it would be an extravagant Piece of Madness to proceed to that Extremity against a Subject of the State, whom they might easily punish without so much Noise. It is proper, says the Orator, and even necessary to pay Troops, employ Vessels, and erect publick Funds against an Enemy, who cannot be reduced by the Laws; a Decree, an Impeachment, and a single Galley are sufficient against our own Citizens, in the Opinion of all considerate Men. P. 38. Edit. Basil. 1572.

1

See the Commentators on these Words of Cicero, in his Oration for Milo; silent enim Leges inter Arma. Cap. IV.

2.

No written Law is of Force in Regard to Enemies; but there are certain Rules and Customs, which are observed by all, even when the Enmity is carried to the greatest Length. Orat. περὶ ἔθους. This Passage is quoted by Peter du Faur, Semestr. Lib. II. Cap. I. p. 8. Edit. Genev. The Orator instances in the Permission of burying the Dead, the Security of Embassadors, &c.

3.

Upon this Principle it was, that King Alphonsus, being asked which of the two he had been most obliged to, Books or Arms; answered, that he had learned by Books, both the Art of War, and the Rights of War. Plutarch says, that amongst good Men there are Laws of War; and that we ought not to push the Desire of conquering so far, as to make an Advantage of wicked and impious Actions. Grotius.

Plutarch has put these Words into the Mouth of Camillus, when he generously declined making an Advantage of the Schoolmaster’s Treachery, who betrayed the Children of the Falisci into his Hands. Life of Camillus, Tom. 1. p. 134.

4.

This Formulary is found in Livy, Book I. Chap. XXXII.

5.

This occurs in a Fragment of that learned Author, preserved by Nonius, and was taken from his second Book De Vitâ Populi Romani. See what is said on this Passage, Book III. Chap. III. § 11. Note 2.

6.

These are the Words of that great General, as related by Livy, on the Occasion of the perfidious School-Master; whence Plutarch has taken Occasion to ascribe to him a Speech very like this, which we have related above, Note 3. There are Laws of War as well as of Peace; and we have learnt how to carry on a War with as much Justice as Bravery. Book V. Chap. XXVII.

7.

Livy makes him speak thus, in his Answer to the Embassadors from Carthage, who came to sue for a Peace, that, though he was almost secure of Victory, he does not refuse to make a Peace, that the whole World may know the Roman People have a strict Regard to Justice both in engaging in and finishing their Wars. Book XXX. Chap. XVI. The thing itself, however, is far from being indisputable. On the contrary, if we look into the Conduct of the Romans, we shall find Injustice practised in several of their Wars, either in regard to the Subject, the Manner, or Conclusion of them; though Alberic Gentilis has taken upon him to justify that People in his Treatise De Armis Romanis. See Mr. Buddeus’s Dissertation, intitled, Juris prudentiae Historicae Specimen, § 82, &c. among his Selecta Juris Naturae & Gentium; and what Grotius himself says in his Book De Verit. Rel. Christ. Lib. II. § 12. I remember a Passage in Cicero, where that celebrated Orator and Philosopher says, that Equity and Fidelity are most commonly observed in entering on, pursuing, and ending a War. De Legib. Lib. II. Cap. XIV.

8.

Livy, whose Words have been quoted Note 6.

9.

Seneca, Ep. CXX. We admired that great Man, persevering in his Resolution of giving a good Example, and unmoved by all the King’s Offers, or the Promises made him on the other Side; preserving his Innocence in War, which is extremely difficult, being persuaded that some Things were not allowable even in an Enemy, P. 595. Edit. Gronov. 1672.

1

Appian makes Pompey speak thus to his Army: “We ought to rely upon the Gods and the Goodness of our Cause, since we are engaged in this War out of an honest and just Desire of maintaining the Government and Liberty of our Country.” De Bell. Civil. Lib. II. p. 460. Edit. H. Steph. (p. 755. Edit. Amstel.) The same Historian introduces Cassius saying, that in War nothing gives so great Hopes as the Justice of the Cause (De Bell. Civil. Lib. IV. p. 645. H. Steph. 1034. Edit. Amst.) Josephus says that King Herod made use of this Consideration to animate his Soldiers, that God is with those, who have Justice on their Side. Antiq. Jud. Lib. XV. We find in Procopius many Thoughts to the same Purpose; as for Instance, what Belisarius says in the Speech he made, when he went into Africa. “Valour will not render us victorious, unless it be regulated and conducted by Justice.” (Vandalic. Lib. I.Cap. XII.) See also another Speech of the same General’s before an Engagement, near Carthage (Ibid. Cap. XIX.) In the Discourse of the Lombards to the Herculi, we have the following Passage, which I have a little corrected. “We call God to witness, whose Power is so great, that the least Particle of it infinitely surpasses all human Force. There is Reason to believe, that having a Regard to the Causes of the War, he will give to it an End answerable to the Deserts of both.” (Gothic. Lib. II. Cap. XIV.) And it is remarkable, that this Prediction was soon accomplished by a wonderful Event, which the Historian afterwards recites. Totilas, in the same Author, says to the Goths: “It is not possible, no, it is not possible, that those who commit Acts of Injustice and Violence, should acquire Glory by Arms; but every one is fortunate or unfortunate, as he behaves himself well or ill.” (Ibid. Lib. III. Cap. VIII.) After the taking of Rome, Totilas makes another Speech, tending to the same Purpose. (Ibid. Cap. XXI.) Agathias, another Historian of those Times, tells us, Book II. Chap. I. that Injustice and Irreligion ought always to be guarded against, and are very prejudicial, but especially when we are obliged to make War, and to come to an Engagement with the Enemy. He proves it elsewhere (Cap. V.) by the Examples of Darius, Xerxes, and the Athenians in their Expedition against Sicily. See also what Crispinus says to the Inhabitants of Aquileia in Herodian, Lib. VIII.(Cap. VI. Edit.Oxon. 1678.) Thucydides observes, that the Lacedemonians believed they had brought upon themselves, by their own Fault, the Disasters they met with at Pylos and other Places, because they had refused to submit to the Decision of Arbitrators, though summoned there to by the Athenians, according to their Treaty. But the Athenians having afterwards refused in their turn to give the same Satisfaction, after several Infringements and unjust Enterprizes, the Lacedemonians from thence conceived good Hope of success in their Affairs for the future. Lib. VII. Grotius.

The Passage of Thucydides, which our Author means, is in § 18. p. 421. of the Oxford Edition. Several States of Peloponnesus making Preparations for War against the Athenians, the Lacedemonians joined them with so much the more Resolution and Confidence, as they believed the Event would not be the same as in the preceding War; which, they themselves acknowledged, had been occasioned rather through their own Fault, than that of the Athenians. For, having sided with the Thebans, when the latter came to attack Plataeae, during a Truce (Lib. II. § 1. & seq.); and having moreover refused, contrary to an express Clause of their Treaty, (Lib. V. § 18. p. 302.) to terminate some Difference in a judicial Way, though they had been summoned to it by the Athenians; they were fully persuaded they had been unsuccessful on that Account, and ingenuously ascribed to their Breach of Faith the Calamities that befel them at Pylos, and upon other Occasions. But after the Athenians, having equipped a Fleet, were gone to ravage the Lands of Epidaurus, Prasia, and other Places, and from Pylos made Incursions into their Country; after they refused, in their turn, to submit to a Decision in an amicable Manner, when any Dispute arose in relation to their Treaties: I say, after that time, the Lacedemonians believing they had made the Injustice to pass over to the other Side, eagerly sought an Opportunity of declaring War against them.

2.

The Author here makes use of the very Terms of Propertius, and not of Ovid, as Gronovius pretends. His Memory failed him on this Occasion, which was also the Case of the learned Mr. Menage. This Mistake has been corrected by the last Commentator on the Poet last mentioned.

  • Frangit & adtollit vires in milite causa:
  • Quae nisi justa subest, excutit arma pudor.
  • Lib. IV. Eleg. VI. Ver. 51, 52. Edit. Brockhuis.
3.

This Thought is contained in the following Verse of Euripides, taken from one of his Tragedies, not now extant.

  • Ὀυδεὶς στρατέυσας ἄδικα, σω̂ς ἠ̂λθεν πάλιν.
  • Erechtei Fragm. Ver. 44. Edit. Barnes.
4.

Lucan introduces Pompey employing this Reason for encouraging his Soldiers before the Battle of Pharsalia.

  • Causa jubet melior superos sperare secundos.
  • Our better Cause bids us hope for the Favour of the Gods.
  • Lib. VII. Ver. 349.

But long before that Poet’s Time, Menander had said in general:

  • Ὅταν τι πράττεις ὅσιον, ἀγαθὴν ἐλπίδα
  • Πρόβαλλε σαυτῷ, του̑το γινώσκων, ὅτι
  • Τόλμῃ δικαίᾳ καὶ Θεὸς συλλαμβάνει.
  • When you engage in any good Action, entertain Hopes of Success; being assured that God favours a just Enterprize.
  • Fragm. è Vulcanalib. p. 190. Edit. Cleric.

See also some Passages cited by our Author, Book II. Chap. I.§1.

5.

Tacitus makes Otho say that good and lawful Undertakings are frequently attended with very bad Success, for want of a judicious Manner of proceeding, Hist. Book I. Chap. LXXXIII.

1

Gladius bené de Bello cruentus, & melior homicida. Tertul. De Resurr. Carnis. Cap. XVI. Grotius.

See below, Book I. Chap. II. § 8. and my Preface to Pufendorf, § 9; where I have inserted other Passages from the Fathers of the Church, who have condemned War as absolutely unlawful.

2.

He was a Franciscan Preacher at Mentz, who lived in the Reign of Charles V. Ziegler on this Place quotes Sixtus of Sienna, Biblioth. Lib. VI. Annot. 115, 156; where the Author produces and criticizes the Passages of those two Writers on this Subject.

3.

This great Author has a long Digression on the Proverb, Dulce Bellum in expertis.

4.

This has very often been the Practice of several Moralists, in all Ages. See a beautiful Passage of Seneca on this Subject, which I have given at Length, with a Translation in my Treatise On Gaming, Book I. Chap. III. § 12.

1

The Author had been Advocate-General, and Pensionary of Rotterdam.

2.

He wrote this at Paris in 1625.

3.

Laws merely positive.

1

The Author is misled here by a corrupted Passage of Ammonius the Grammarian, in his Treatise Of like and different Words, upon the Word Νη̑ες, where we read, Δικαιώματα πολέμων, The Laws of War, instead of πόλεων, States; as it is quoted by Eustathius on the seventh Book of the Iliad. See Menage on Diogenes Laertius, Book V. § 26. and Selden, Of the Law of Nature and Nations, Juxta Discipl. Hebr. Lib. I. Cap. I. p. 4.

2.

The Justice of War is taught most strictly by Fecial Law of the Romans. Cicero, De Offic. Lib. I. Cap. XI. See Book II. Chap. XXIII. § 4 and 8 of this Treatise.

1

He was a Spanish Dominican, who lived in the XVIth Century; and the Treatise here mentioned is intitled, De Indis & Jure Belli, and appears among his twelve Theological Lectures.

2.

A Dutchman, so named from the Place of his Birth, and Chancellor of Cologn. He lived about the Middle of the XVth Century, and wrote a Treatise De Bello Justo.

3.

I know not who, or what Countryman he was. Mr. De Courtin has translated his Name Matthison; and thus he appears to be an Englishman; but perhaps this is only done by guess.

4.

His Book was printed at Rome, in 1609. Grotius.

5.

A Native of Segovia. His Treatise De Bello & Bellatoribus, may be found in the large Collection, called Tractatus Tractatuum, Tom. XVI.

6.

A Spaniard, his Name is Arias, and his Book is in the same Volume of the same Collection, under the Title of De Bello & ejus Justitiâ.

7.

A Native of Bologna in Italy. His Treatise De Bello, is inserted in the same Volume of the Collection already specified.

8.

His Name was Garat. His Treatise De Bello appears in the same Volume of that Collection. It was reprinted at Louvain in 1647, with the Treatise of Ayala, which our Author speaks of a little lower.

1

Peter Du Faur of St. Jori, Counsellor in the Grand Council, afterwards Master of Requests, and at last First President of the Parliament of Toulouse. He was Scholar to Cujas. His Work intitled Semestrium Libritres, is full of Erudition. It has born several Impressions at Paris, Lyons, and Geneva.

2.

He was a Native of Antwerp of Spanish Extraction. His Treatise, De Jure & Officiis Bellicis, was printed in that City in 1597, in 8 vo. The Edition I make use of is that of Louvain, 1648.

3.

This Author has written De Jure Belli: My Edition is printed at Hanau, 1612.

4.

This Reproach does not fall on the modern Lawyers alone; Mr. Noodt has plainly proved that the antient Professors of that Science have sometimes been guilty of the same Fault. See his Probabilia Juris, Lib. II. Cap. II.

1
  • Τα̂υτ’ ἀνθέκαστα, μα̂τερ, οὐχὶ περιπλοκὰς
  • Λόγων ἀθροίσας ἔιπον, ἀλλὰ καὶ σοϕοι̑ς
  • Καὶ τοι̑σι ϕαύλοις ἔνδιχ’, ὡς ἐμοὶ δοκει̑.
  • Ver. 497, &c.

See my Preface to Pufendorf, §1,& c. Cassiodorus observes, that to teach Men the Duties of Justice is indeed a Work of some Difficulty, but not impossible; because the Divinity has been so indulgent to all, that even they, who are unacquainted with the Principles of Law, are yet sensible of the consequential Truths derived from them. Var. VII. 26.

2.

The same Poet introduces Hermione speaking thus to Andromache.

  • ὐ βαρβάρων νόμοισιν οἰκου̑μεν πόλιν

“We do not govern our State by the Laws of Barbarians.” To which Andromache replies:

  • Κᾀκεɩ̂ τά γ’ αἰσχρὰ κᾀνθάδ’ αἰσχύνην ϕέρει

“What is dishonourable or dishonest among them, bears the same Character also among us.”

Androm. Ver. 242, 243. Grotius.
1

Why should they not be thus employed? The Emperor Alexander Severus read every Day Cicero’s Books De Republicâ, and his Treatise Of Offices. Grotius.

This Account is taken from the Life of that Prince, written by Aelius Lampridius, who says, when he read Latin Books, he preferred none to Cicero’s Pieces Of Offices, and On the Commonwealth, Cap. XXX.

2.

The Philosophers, in Consequence of certain false Principles, with which they were infatuated, frequently advanced very false Maxims, and sometimes contradicted themselves. The Academists were particularly remarkable on this Account, valuing themselves on the Art of maintaining both Sides of all manner of Subjects. See Buddeus’s Dissertations Of Moral Sceptism, and the Errors of the Stoicks, among his Analecta Historiae Philosophicae, and the Morality of the antient Philosophers, abridged in my Preface to Pufendorf’s great Work.

3.

The Historians, as well as the Poets, with a View of keeping up the Character of the Persons introduced, often put Maxims into their Mouths, which are false and contrary to Natural Law. The Writers of both Classes entertained likewise some Ideas which were far from being just, and sometimes very gross, on several Subjects; but the Poets exceeded the Historians in this Particular. In regard to the former, see my Preface to Pufendorf, § 16; and as to what concerns the latter, Mr. Le Clerc’s Parrhasiana, Tom. I. p. 200, & c. Our Author, in the Course of this Work, produces a great Number of Passages, which may serve to prove beyond Dispute what he here advances. We have already seen some of them, at the Entrance of this Preliminary Discourse, § III. Notes 1, 2. which are taken from Thucydides and Tacitus, two of the greatest and most judicious Historians of Antiquity, the one Greek, and the other Latin.

4.

This relates to the Orators. See Pufendorf’s Law of Nature and Nations, Book IV. Chap. I. § 21. Note 1.

5.

See what I say on Book I. Chap. I. § 14.

6.

See on Pufendorf, Book III. Chap. III. § 23. Note 3.

1

See, for Example, Book III. Chap. VII. § 6, 7.

1

This is what Lactantius says, Would any one but collect what Truths are scattered through the Writings of each of them, and diffused through the several Sects, and reduce them into one Body, he would not differ from us. Instit. Divin. Lib. VII. Cap. VII. (Num. 4. Edit. Cellar.) Justin Martyr speaks to the same Purpose in his first Apology: Not, says he, because the Doctrines of Plato are entirely different from those of Christ; but because they are not conformable to them in every Particular. Which is also the Case in regard to the Tenets of the other Philosophers, as of the Stoicks, and of the Poets and Historians; for each of them, being directed by a Ray of the Light of innate Divine Reason, discovered something conformable to it, and spoke well so far (p. 34. Edit. Oxon.) Tertullian frequently calls Seneca, our Seneca; but then he observes that, none but Christ could give us a complete Body of Spiritual Virtues, (Adv. Jud. Cap. IX.) St. Augustine lays it down as a Fact that those Rules of Morality, which are so highly commended by Cicero, are taught and learnt in the Christian Churches, diffused through the whole World, Ep. CCII. See what the same Father says in regard to the Platonists, whom he maintains to be almost Christians, Ep. LVI, in his Treatise De Verâ Religione, Cap. III. and Confess. Book VII. Chap. IX. and Book VIII. Chap. II. Grotius.

To these Authorities we may add that of Clement of Alexandria, who talks in the same manner, Strom. Lib. I. p. 338, 349. Edit. Oxon. See the Life of that Father, written by Mr. Le Clerc, in his Bibliotheque Universelle, Tom. X. p. 187, & c. and the Dissertation of the late Mr. Olearius, De Philosophiâ Eclecticâ, p. 1216, in the Latin Version of Mr. Stanley’s Philosophical History, printed at Leipsick in 1712.

1

Lactantius treats on this Point at large in his Divine Institutes, Books VI. Chap. XV, XVI, XVII. Let us add this Passage of Cassiodore: Non adfectibus moveri, sed secundum eos moveri, utile vel noxium. Grotius.

2.

Ethic. Nicom Lib. II. Cap. VI.

3.

Whatever the learned Gronovius may say on the Subject, these are really two different Virtues. Aristotle might give the Greek Word Ἐλευθεριόστης a compound Idea, including both that Disposition, by which a Man is inclined to give freely, and that which directs him to a prudent Regulation of his Expences; but they are in Reality two different Dispositions, and two distinct Ideas. It is true, the more saving we are, the more we have to give away; but it does not therefore follow that Frugality, or a commendable Savingness, is only Part of Liberality. It is a very different Modification of the Soul, which indeed puts us in a Condition of performing more numerous and more considerable Acts of Liberality, on certain Occasions; but which is not therefore more a Part of Liberality itself, than Sobriety and a Love of Work are Parts of Chastity, because they are good Preservatives against Temptations to Impurity, and because those three Virtues, like most others, mutually assist one the other. Whoever takes a Delight in relieving the Indigent with his Substance, and actually does it on proper Occasions in a judicious manner, and as far as his present Circumstances permit, is so far truly liberal, even though for want of that Oeconomy, and Care of his Affairs, which compose the Character of a good Manager, he should be reduced to a Station, in which he is no longer able to give as much as would otherwise have been in his Power. We shall sometimes see Persons, who, in spite of all their Negligence, and after their superfluous Expences, have still something to give, and bestow it freely on all, whom they have an Opportunity of assisting; will any one deny such Men the Character of Liberality? In a Word, Liberality, and Frugality, are two different Virtues; but they are both to be equally acquired and cultivated, but the Want of the latter should hinder the Practice of the former, or at least confine the Exercise of it to too narrow a Compass. The Philosopher himself owns that Liberality, according to his Definition, consists more in giving and spending judiciously than in getting Debts in, and keeping one’s Money. The Use of Money seems to consist in Expences and Gifts; for receiving and keeping it are rather to be called Possession; so that it is the Business of a liberal Man rather to give to whom he ought to give, than to receive from those who are indebted to him, and not receive where it is not due. Ethic. Nicomach. Lib. IV. Cap. I. Thus our Author rightly observes that Aristotle was obliged to reduce the two Virtues under Consideration to one, in order to find two opposite Vices, one by Defect, the other by Excess; for Avarice is indeed opposite to Liberality, according to the common Ideas; but Prodigality is so far from being in itself contrary to Liberality, that it bears some Resemblance to that Virtue, and may have some Tendency toward promoting the Practice of it, which at least is not incompatible with it. If some prodigal Persons become niggardly, when the Necessitous are to be relieved, there are others, who give freely, and take a Pleasure in doing good, though they often do it without much Judgment, or a sufficient Regard to all Circumstances.

4.

There are several Faults in this Distinction. 1. The Philosopher does not distinguish the Virtue in question by any particular Name, but only calls the Person endowed with it ἀληθέυτικος and ϕιλαλήθης ; and understands by it that Disposition which directs a Man to love Truth, and commit no violence on it by his Actions, in Things indifferent, i.e. in regard to which we were otherwise under no Obligation to speak and act sincerely from the Laws of Fidelity and Justice; for, says he, Sincerity in Dealings, and every thing that regards Justice and Injustice, relates to another Virtue. Ethic. Nicom. Lab. IV. Cap. XIII. Thus he makes a faulty Distinction of two Sorts of Sincerity, and Veracity, one relating to Things indifferent, the other to those, which are obligatory; as if the Diversity of the Objects on which one and the same Virtue is employed, would privilege the Multiplication of that Virtue into as many different Species. 2. He no where treats of that other Sort of Veracity and Sincerity, which is only occasionally mentioned in this Place; and that which he here treats of is entirely reduced to indifferent Things; which relate only to the Person of him, who speaks or acts. But is it not possible for a Man to lie, feign, or dissemble in a thousand other indifferent things, on a Point of History, for Example, a Phaenomenon of Nature, an Event, on some Action or Quality of another Man, which does neither good nor harm to any one?: Strictly speaking, Boasting and Dissimulation, which Aristotle gives us for the two opposite Extremities, are both of them contrary to Truth and Sincerity by Defect, and not by Excess. Both he who attributes to himself Qualities, with which he either is not endowed at all, or not in so high a Degree, and he who refuses to acknowledge or extenuates those of which he is really possessed, are faulty in deviating from the Truth. If one says more than true and the other less, they only take two different Ways of saying things otherwise than they are. The opposite Extremity in the Excess would be to speak and act too sincerely, and with an excessive Simplicity, which discovers either by Words or Conduct what was not proper to be known. Besides, the End of Dissimulation, of which the Philosopher discourses, is commonly to acquire more Esteem than we deserve, while we either seem unwilling to acknowledge our Merit, or undervalue it; and he himself observes that it sometimes seems to be a sort of Boasting in Disguise; and concludes the Chapter, which treats of these two Vices, with saying that Boasting is diametrically opposite to Veracity, and even worse, that’s Dissimulation. The same Inequality of Opposition is found between several other Vices; from which it appears how loose and useless his Principle of Mediocrity proves.

5.

Our Philosopher owns himself that no Man is without a Relish for Pleasure; and that human Nature is a Stranger to such an Insensibility; that even Brutes make a Distinction in their Food, and are pleased with one Kind preferably to another: If any one, says he, finds nothing delightful, or makes no Distinction between one thing and another, he is far from being a Man. As there is no such Person in the World, there is no Name assigned him. Ethic. Nicom. Lib. III. Cap. XIV. It appears from this passage that Aristotle had an Idea of a thing that has no Existence; for where is the Man, to whom every thing is indifferent, and who takes a Pleasure in nothing? If any one be found insensible to the natural Pleasures of the Taste and Touch, to which the Philosopher confines Temperance, and makes this Insensibility the Extremity by Defect, it must be the Result of a very singular Constitution, a deep Melancholy, or some other Indisposition of Body; and in this Case the Defect will not be moral, butpurely physical. In regard to other Pleasures, as that of Musick, or what arises from a Contemplation of the Beauties of Painting, or Architecture, &c. an Insensibility to them is not a thing evil in itself. The Instance here alledged by Gronovius, of Timon the Manhater, and the Conduct of Mark Anthony, who copied his Example for a short Time, are nothing to the Purpose. That famous Humourist, notwithstanding his Enmity to Mankind, and his Aversion to Society, took a Pleasure in cultivating his Garden. Mr. Hemsterhuis has given us his Character, and all the Particulars to be found in History concerning him, in his beautiful Remarks on Lucian’s Timon, published in 1708, in a new Edition of the Select Dialogues, and some other Pieces of Grecian Antiquity. One might with more Propriety here alledge the Example of Misers, who deprive themselves of the Comforts and Conveniencies, and sometimes even of the Necessaries of Life. But, besides that it is no common thing to see the Matter carried to that Excess, if they deny themselves the Use of several Things, this does not commonly proceed from a stupid Insensibility to the most natural Pleasures, but from the Preference they give their Money; for when it is in their Power to taste those Pleasures, without being at any Expence, they indulge themselves without Reserve, and are more apt to exceed the Bounds of Moderation, than those who pay for the Use of what Nature offers them.

6.

Gronovius is of Opinion that the Philosopher would not be understood to speak of the Contempt of Honours, which is not Evil, but only of the Contempt of Reputation, by which a Man is induced to act ill, to get above the Consideration of what will People say, and sink into a base and sordid way of living. He instances in the famous Dionysius, Tyrant of Syracuse, who having left his Kingdom, retired to Corinth, where he wore dirty and ragged Cloaths, drank freely with all he met, frequented Taverns and Brothels, and amused himself with chattering about Trifles with the Refuse of Mankind, as Justin tells us, Book XXI. Chap. V. But we need only observe Aristotle’s Description of the Contempt of Honours, in which he makes the Extremity opposite to Magnanimity in the Defect consist, to be convinced that the learned Gentleman, whose Explication I have given, disguises the Philosopher’s Thought out of a too warm Concern for the Credit of the Antients. Aristotle says: Those who are subject to the Fault in Question do not seem to be bad Men, because they are guilty of no Crime: That the pusillanimous are faulty only in depriving themselves of those Honours, which the Philosopher considers as real Goods, though they deserve them, and forego the Possession of some valuable Thing, for want of a due Sense of their own Merit. —That such Persons seem rather chargeable with Laziness than Folly. The Opinion, they entertain of themselves, makes them still worse.—they forbear engaging in good Actions and glorious Enterprizes, as unworthy of appearing in them, and decline the Enjoyment of exterior Goods. Ethic. Nicom. Lib. IV. Cap. IX. Such a Disposition has nothing in it that is of itself vitious, and even comes near to Humility, of which the Pagans had some Idea, as I have shewn in my Treatise On Play, Book I. Chap. III. § 6. As long as a Man is ignorant of his own Merit, he is so far from being culpable for not aspiring at Honours, that require Qualifications, of which he believes himself not possessed, that he is to be commended for not aiming at them; and Ignorance in this Case is the more excusable, as we are much more inclined to the opposite Extreme, and to flatter ourselves with the Possession of good Qualities, of which we are entirely unprovided. It is good always to entertain a Diffidence of ourselves in that Point, in order to avoid the Illusion of Self-Love; and there is commonly great Reason for presuming, that the Man who declines Honours, does it rather on a Principle of Modesty, than out of Indolence, or Meanness of Soul. Aristotle, however, maintains that Pusillanimity (by which Term he means an In difference to Honours) appears more frequently in Opposition to Magnanimity, than Ambition, and that it is the more culpable of the two, Ibid. Experience shews the Falsity of the former of these Assertions; in regard to the latter, it must be allowed that the Philosopher speaks conformably enough to the Notions of the Vulgar, and the ambitious Part of Mankind. Hence it was that among the Romans, for Example, those who had a Right to aspire at the Consulship, and declined the Charge, were particularly careful to offer the Reasons for their Conduct in the strongest Terms, to avoid the Reproach of Pusillanimity. See Cicero’s Epistles to Atticus, Book I. Ep. I. p. 8. Edit. Graev. But, consulting the Ideas of sound and right Reason, it will appear that there is more Greatness of Soul in refusing Honours than in pursuing and embracing them.

7.

According to our Philosopher, it is no less a Folly not to be angry on just Occasions, as to give a loose to Passion without Reason. They, who are not angry, as Persons, Times, and Things require, are chargeable with Folly. They seem miserable, incapable of being affected, or revenging an Injury. To which he adds that to suffer patiently in such Cases, and neglect the Defence of our Friends, is a Mark of a mean and servile Mind. Ethic. Nicom. Lib. IV. Cap. XI. Hence it appears that Aristotle considers the Disposition of all those in general, who command their Passion, when they have just Reason to be angry, as a Vice opposite to Lenity by Defect; and that he does not, as Gronovius pretends, confine that Censure to the stupid and mean Patience of Buffoons and Parasites, who tamely submit to the greatest Affronts and Indignities, in Consideration of some paultry Advantage. But if we consider the Matter in itself, the Tranquillity of a Mind, free from Anger, is not a moral Defect. For supposing, what is very seldom to be found, a Man either naturally or by the Force of long Custom so hard to be moved, that he is seldom or never angry, he is thus very happy, as being secured from the Excesses of a blind Passion; nor will such a Man be less disposed, or less able to maintain his just Rights, and that of his Friends. On the contrary, by being Master of his Passions, and of a peaceable Disposition, he will be able to take more just Measures, and manage his Interest better than those, who are actuated by a Passion so hard to govern as Anger. Though Anger is not evil in its own Nature, and may be allowed to a certain Point, it is never absolutely necessary. We always may, and that with more Security, support our Dignity and maintain our Right, without being in a Passion. But it is evident that our Philosopher makes a Virtue of a moderate Degree of Anger, and a Desire of Revenge, the natural Effect of that Passion; which being in itself vitious, never allows Anger to be kept within due Bounds.

1

He speaks in the following Manner of Justice, properly so called, which he terms particular or private, to distinguish it from universal or general Justice, including the Practice of all the Virtues which relate to our Neighbour. This Distinction being made, it is evident that a just Action consists in observing a Medium between doing an Injury and receiving one. He that does an Injury, has more, and he who is injured, less than his due. Justice is a Mediocrity; not in the same manner as the Virtues already spoken of; but as the Medium is its Object, and Injustice includes the two Extremes. Justice therefore is a Disposition to act what is right with Choice and Deliberation, and to render every one his Due, both in our Dealings with others, and those which others have with one another; so that we do not take to ourselves more of what is agreeable and advantageous, or less of what is disagreeable and prejudicial than is our Due, leaving others too small a Share of the former, and too much of the latter, but observe a just Proportion here, as well as in the Distribution to be made among others. Injustice, on the contrary, is a Disposition of doing Wrong designedly, that is of giving each Person too much or too little of what is advantageous or prejudicial, without any regard to exact Proportion. Thus there is both Excess and Defect in Injustice, because it consists in giving too much and too little, that is, in appropriating to ones self too large a Share of what is simply advantageous, and taking too little of what is prejudicial; and observing the same unequal Distribution in regard to other Men, deviating from the Rule of Proportion sometimes on one Side, and sometimes on the other. The Extreme in unjust Actions, by way of Defect, is to receive an Injury; that by way of Excess, to do one. Ethic. Nicom. Book V. Chap. IX. Gronovius thinks Aristotle sufficiently defended against our Author’s Criticism, by saying, that whereas in other Virtues there is but one Medium, fixed by Geometrical Proportion, Justice observes sometimes the Medium of this Geometrical Proportion, and sometimes that of Arithmetical Proportion; so that here is only an Explication and Distinction of Terms, not a Transition from one kind of Thing to another. But the present Question does not turn on the Nature of the Medium, or the Proportion to be observed for determining it. The Subject, in which this Medium is placed, must be specified, so as to be found between two opposite Extremes of the same Thing, whatever Proportion is observed for determining it. According to Aristotle, the Medium, in which the Essence of Moral Virtue consists, is planted, as one may say, in certain Sorts of Passions and Actions, not vicious in themselves, but which become such, by deviating from that Medium, and thus form two opposite Vices, one by Excess, the other by Defect. Fear, for Example, is a Passion not evil in its own Nature; too much Fear is Timidity, or Cowardice; too little is Audacity, or a rash Boldness: The just Medium is Fortitude, or rational Courage. Speaking, laughing, a regular Composure of the Face and exterior walking, standing still, in short all we say or do in Conversation are in themselves indifferent. Behaving ourselves in these Particulars so as to endeavour at pleasing every one, or certain Persons on all Occasions, is Flattery: on the contrary, to act as if we had no Concern for pleasing any one, is Clownishness or Incivility; the just Medium is Civility, or a reasonable Complaisance. See Ethic. Nicom. Book II. Chap. VI, VII. To return to Justice, the Virtue under Consideration, according to our Philosopher, its Medium consists in a certain Equality, an equal Distribution of Advantages and Disadvantages; for this is what he means by that Equality to which the Actions, whereby we practice Justice, relate. An exact Observation of this Equality, is the proper Employment of Justice, and what constitutes its Nature. A Disregard of this Equality, whether we take or give more or less than it requires, is a Vice opposite by Defect; the more or the less is not then in Matter of Justice, but in the Things about which it is employed: We do not observe this Equity too much or too little, we do not exceed the just Equality, but always fall short of it, even when we take or give too much, this is no more than a different manner of Inequality. Where then is the other opposite Extreme, which ought to consist in an excessive Concern for maintaining the Equality in question? It will not be the Jus summum, that rigorous Justice, which is called the Height of Injustice. (Summum Jus, Summa Injuria, Cicero De Offic. Lib. I. Cap. X. Terence Heautont. Act. IV. Scene V. Ver. 48.) For when a Man pushes his Demands as far as he may according to the Rigor of the Law, or presses the Terms of the Law too severely in pronouncing Sentence, it is a Defect of Equity: He offends against the Spirit of the Law, against that very Equality which the Law designs to establish, and introduces a real Inequality contrary to Equity, as Aristotle himself makes appear, Book V. Chap. XIV. Ina Word, our Philosopher was very sensible of the Lameness of his Principle of Mediocrity, when applied to this Virtue, and shews it plainly enough in the Words already quoted. He owns that Justice is a Mediocrity, not in the same manner as other Virtues are, but as a Medium is its Object, and Injustice only is its opposite Vice, which alone includes the two Extremes. This abundantly shews the Uselessness and Insufficiency of Aristotle’s Principle. Besides, it will appear, on a careful Examination of the Matter, that the Nature of all the Virtues may be accurately explained without having recourse to that Principle. See a Passage from Mr. Grew, an ingenious Englishman, quoted in my Preface to Pufendorf, p. xciv, xcv. of the second Edition.

2.

The learned Gronovius calls this Chicanry; because, says he, this less, according to Aristotle, relates to Hardships and Disadvantages, and not Profits and Advantages. But he is himself guilty of the Fault with which he charge sour Author. Grotius has his Eye on the Definition of an Unjust Action, which occurs in the Close of the Passage quoted in the foregoing Note; according to which receiving an Injury, or having less than one’s due is comprehended in the Idea of Injustice, as well doing an Injury, or taking more than one’s Due. The Philosopher explains himself clearly in another Place, where he says, It is evident that both receiving and doing an Injury are evil; for by the former a Man has less, and by the latter more than the Medium requires—But doing an Injury is the more culpable of the two, because done maliciously; whereas a Man receives an Injury without Malice, or an Inclination to Injustice.—So that receiving an Injury is in itself the less evil, though it may by Accident become a greater. Ethic. Nicom. Lib. V. Cap. XV. p. 73. On reading this last Sentence, we immediately perceive the tacit Allusion which Grotius makes to it, while he explains it, and refutes the Philosopher’s Opinion.

3.

Supposing one Man commits Adultery for Lucre’s Sake, and receives his Reward; another is guilty of the same Crime out of a Motive of Lust, and pays for it. The latter seems rather sensual than covetous; whereas the former is unjust, but not sensual, because he acted with a View of Gain. Besides, every other unjust Action has always a Relation to some View. Thus Adultery relates to Intemperance; abandoning one’s Comrade in an Engagement, to Cowardice: striking, to Anger. But when a Man gains by his Crime, it relates only to Injustice. Ethic. Nicom. Lib. V. Cap. 4. We see here that the Philosopher does not sufficiently distinguish between the Principle or Motive, which induces a Man to commit an Injustice, and the unjust Action itself; for he pretends that one and the same Action, by which we invade another’s Property, relates either to universal Justice, or to particular Justice, which is Justice properly so called, as the Agent is influenced by a Motion of Sensuality, Cowardice, Anger, or by a formal Design of seizing on what belongs to another, and taking more than one’s Due. Now besides that this formal Design is seldom found in Injustice, few Men doing an Injury merely for the Sake of doing it, and without being actuated by some Passion, without which they would rather choose to leave their Neighbour’s Right untouched; besides this Consideration, I say, the Diversity of Principle may indeed make us offend at the same Time both against Justice, properly so called, and against some other Virtue, relating either to ourselves or others; but, this notwithstanding, every Action tending to the Prejudice of another’s Right, such as Adultery and Murder, will always be a real Injustice in itself; and all that Gronovius has advanced in Defence of Aristotle, is nothing to the Purpose. He may, if he pleases, alledge the Example of Mnester the Comedian, who was proof against all the Solicitations of Messalina, till the Emperor Claudius, her Husband, commanded him to do whatever she should require of him. This Comedian, according to our Commentator, did indeed commit an unjust Action, and an Act of Intemperance; but if we judge of his Conduct in a moral Manner, he was neither chargeable with Injustice nor Intemperance. I own he was not so culpable, as if he had solicited Messalina; but even granting that a Husband can yield to another Man his Right to his Wife’s Body, this was by no means the Emperor’s Intention, whose general Order to obey the Empress did not extend to this Action. So that the Comedian ought still to have persisted in his Refusal, and by his Compliance he certainly became even more guilty of Injustice than Intemperance; though this single Action did not denominate him habitually unjust or intemperate, which is not the present Question. As to Murder committed by a Motion of Anger, it is sufficiently specified in the Passage here quoted, striking, relates to Anger. So that Gronovius had no Reason to say he knew not whence this was taken, and that it could only be from Eth. Nicom. Lib. V. Cap. X. p. 68, in which he pretends our Author contradicts himself; for he himself quotes and commends this very Passage, Book III. Chap. XI. § 4. But the Question there turns on a different Thing, viz. the Distinction between unjust Actions committed maliciously, and such as are done without any premeditated Design.

1

Agathias makes a famous General speak thus: Those Motions of the Soul, which by Nature prompt us to what is pure, good, eligible and our Duty, are to be indulged without Restraint. Those, which have a contrary Tendency, are not to be followed on all Occasions, but only so far as is consistent. Thus Prudence is in the Opinion of all Mankind a pure Good, without the least Mixture of Evil; and Anger, so far as animates us to Action, is commendable; but an Excess of that Passion is to be avoided as prejudicial. In Belisarius’s Speech, Book V. (Chap. VII.) Grotius.

2.

Here Gronovius makes two Replies in Favour of Aristotle. First, that the Philosopher is to be excused for not ranking Piety, Faith, Hope and Charity among the Moral Virtues, as they are known only by Revelation delivered to Christians; for Aristotle, says he, as all the ancient Pagan Philosophers did, included the Worship of the Deity under Magnificence.Ethic.Nicom. Lib. IV. Cap. V. This Idea is followed by Sallust, Bell. Catilin. Cap. IX. In suppliciis Deorum magnifici, &c. and by Justin, Book XXIV. Chap. VI. speaking of the Presents offered in the Temple of Delphos. Now Excess in this Case is possible, as appears from that ancient Law: Pietatem adhibento: opes amovento. Cicero de Legib. Lib. II. Cap. VIII. and from the Reason assigned by Lycurgus for a Law he had made for regulating the Expence of the Sacrifices. Plut. Apophthegm. Lacon. p. 229. Tom. II. Edit. Wech. The other Answer is, that solid Piety indeed cannot be carried too far, and the same is to be said of all other Virtues, which, as such, are always found in the just Medium, to what Length soever they are carried; but that there may be Excess in exterior Actions, by which alone one Man can form a judgment of another’s Sentiments. For how do we make it appear that we serve God? Is it not by frequenting Places of Worship; by praying on our Knees, bear-headed, and with our Hands joined and raised up to Heaven: By giving Alms, by contributing to the necessary Expences of the publick Worship; by observing Festivals; by reading and meditating on the Holy Scriptures; by abstaining from every thing, which we think contains any Impiety, and hindering the Commission of it, as much as in us lies, &c ? Now who does not know that in each of these Particulars we may do more than God requires, and sound Reason allows? Thus, conformably to Aristotle’s Principle, Piety will certainly hold the middle Way between Superstition, which makes its Excess, and Impiety or Atheism, which is its Defect. This is our learned Commentator’s Reasoning; on which I have two observations to make. First, it is no very easy Matter entirely to justify Aristotle’s Omission of so considerable a Virtue as Piety; and several judicious Authors have with good Reason blamed him for allowing Religion no Place in his System of Morality, as I have shown in my Preface to Pufendorf, § 24. In Reality, as soon as we acknowledge a Deity, as he did, if we reason with ever so little Exactness, we must necessarily discover certain Duties in which we stand engaged to that Being. Thus we see several of the Pagan Philosophers have spoken very finely on that Subject. In vain does Gronovius pretend that according to the Ideas of all the ancient Heathen Writers, the Worship of the Divinity is included in that Virtue, which Aristotle calls Magnificence. He had forgot that beautiful Passage of Cicero. The best, the purest, most holy and most pious Worship of the Gods is always to honour them with Purity, Sincerity, and Integrity both of Mind and Words. For the Philosophers are not the only Persons, who have distinguished Piety from Superstition; our Ancestors have done the same. De Nat. Deor. Lib. II. Cap. XXVIII. See also his Oration Pro domo suâ, ad Pontifices, Cap. XLI. with Graevius’s Notes, and the Passages quoted from Seneca and Epictetus in my first Note on Pufendorf, Book II. Chap. IV. § 3. It is evident from those and several other Authorities, which might easily be produced, that many of the wise Pagans made Piety, and the Worship of the Divinity consist principally in the interior Sentiments, and not in the exterior Acts of Devotion. Secondly, we must then find out two vicious Extremes in the interior Sentiments: It must be possible for a Man to entertain too exalted an Idea of God, respect and love him too much, be too submissive to his Will, &c. in all which there never can be any Excess. So that whatever they may say who are resolved to reconcile Aristotle with Reason and good Sense at any Rate, it will still be certain that here, as in several other Virtues, there is no Medium, equally or almost equally removed from two opposite Extremes, in the same Kind of Things, which are the proper Object of Virtue.

3.

Noct. Attic. Lib. IV. Cap. IX. at the End.

4.

Instit. Div. Lib. VI. Cap. XVI. Num. 7. Edit. Cellar.

1

Which are to be used with much Caution. See the Author’s Reflection on that Subject. Book I. Chap. III. § 5. Num. 6.

2.

Of this Sort, according to Gronovius, are these found in the Roman History, down to the six hundredth Year from the Foundation of Rome, or the third Punick War; and those in the Grecian History to the Peloponnesian War.

1

The same Gronovius, says our Author, had Bodin and other Judaizing Christians in View in this Place.

2.

The Ceremonial, and several Political Laws.

3.

From what God is pleased to do or command by Virtue of his supreme Authority over the Life and Goods of his Creatures, no Consequence can be drawn that the same Thing is ordered in Regard to Men, or allowed by the Law of Nature. On this Occasion are alledged the Example of Abraham, whom God commanded to sacrifice his Son: And that of the Israelites who received an express Order from him to carry off the Egyptians Gold and Silver Vessels, and utterly exterminate the seven Nations of Canaanites, after having seized on their Country, and all their Possessions. See what our Author says on this Subject, Book I. Chap. I. § 10. Num. 6. Book II. Chap. XXI. § 14. and Book III. Chap. I. § 4. Num. 6.

4.

This some Anabaptists maintain. Ziegler refers us to Sixtus Senonensis’s Bibliotheca Sanct. Book VIII. Haeres. I.

5.

This is to be understood of the Letter, not of the Spirit of the Law, or the Intention of the Legislator. See what I have said in my Treatise Of Play, Book I. Chap. III. § 1, and my first Note on Book I. Chap. I. § 17. of this Work.

1

This is an Observation of Cassian in his Divine Institutions. Grotius. But the most judicious Part of the learned World have at present but little Value for the Rabbies, and are of Opinion that those Doctors are of very little Use for understanding the Old Testament. The most antient Rabbies, whose Writings are extant, are the Authors of the Talmud, who lived some Centuries after Jesus Christ. The Hebrew had then long been a dead Language; they had no Book in that Tongue but the Old Testament; they were very bad Criticks, and Men of little Judgment. They had no other antient Monuments of the History of their own Nation, than the Books of the Old Testament, and were unacquainted with Heathen Authors: Their Traditions must have undergone much Alteration and Corruption by Length of Time. To supply their Defect of Knowledge, and indulge their Inclination to Fables and Allegories, they have invented the most extravagant and chimerical Facts and Customs. So that they are on no Account comparable to Christian Interpreters, who, like Grotius, have studied the Languages methodically, and had recourse to all the Monuments of Antiquity. See Cunaeus, De Repub. Hebr. Lib. II. Cap. XXIV. Mr. Le Clerc’s Thoughts on Father Simon’s Critical History, p. 198, 199, and the Defence of that Book, Letter VI; the Bibliotheque Universelle, Vol. IV. p. 315, &c. Vol. VII. p. 247, &c. Vol. X. p. 117, 118. Vol. XXIV. p. 115, &c. Bibliotheque Choisie, Vol. VII. p. 83, 84. David le Clerc’s Quaestiones Sacrae, p. 139, 285, &c. and John le Clerc’s Quaestiones Hieronymianae, Quaest. VI. Ziegler here quotes a Passage of Isaac Casaubon’s Exercit. in Baron. XVI. Num. 15; and another from Joseph Scaliger, De Emendat. Temporum, Lib. VII. But the Rabbies are least to be depended on in Matters of Morality and Law. Selden’s Treatise De Jure Nat. ac Gent. secundum Disciplinam Hebraeorum, is a good Proof of what I advance, how advantageous an Opinion so ever that learned Gentleman may have entertained of the Jewish Doctors. See my Preface to Pufendorf, §7.Boecler accuses Grotius of not reading the Books of the Rabbies with sufficient Care and Attention, and confining himself almost wholly to Moses the Son of Maimon. But others, perhaps, will think he allows them too much Weight, and lost too much of his Time in perusing them, though the Strength of his Judgment preserved him from the Contagion.

1

See my nineteenth Note on Book I. Chap. II. § 9.

1

These Canons can be of no great Use to our Author’s Design. First, because we have very little remaining of the Councils of the two or three first Centuries, when, according to him, the Doctrine of the Church must have been in its greatest Purity; and several of those that have come to our Hands, are either supposititious, falsified, or corrupted in several Places. Secondly, because, generally speaking, the Decisions of Councils commonly run either on speculative Points, or on Ecclesiastical Discipline. Thirdly, because the Councils not only were subject to Error, but have very often actually erred, even in such Things as were very easy. Our Author gives us to understand as much, when he says, Synodici Canones, quirectisunt; i.e. Those Synodical Canons which are just and reasonable. So that, after all, Recourse must be had to the Scripture, which, when well interpreted, is the Touchstone for examining the Decisions of the Councils, in order to see whether they are just and reasonable. Lastly, it is well known that the Proceedings of most of the Councils were very irregular, and they were generally only so many Cabals of Men devoted to the Emperors, or some other prevailing Party; so that the least Concern on those Occasions was to furnish the Mind with necessary Knowledge, or bring an upright and Christian Heart to such Assemblies.

2.

It is a great Mistake to imagine the Generality of the primitive Christians Men of a Piety and Probity exactly conformable to the Rules of the Gospel. See Mr. Le Clerc’s Ecclesiastical History, Saec. I. Anno LVII. § 6, &c. But how good soever they might have been, their Judgment and Conduct cannot be here admitted as a Rule, in Matters not otherwise clearly and expresly decided in Scripture. The Extent of their Knowledge, and the Justness of their Judgment were not always equal to the Warmth of their Zeal, and the Integrity of their Heart. Every one knows that several of them entertained too high a Notion of the Necessity of Martyrdom, and thus prepossessed run to it with some Rashness. The Generality of them seemed to think it unlawful to engage in a War, to go to Law, to bear publick Offices, to take an Oath, to carry on Trade, to marry a second Time, or receive Interest for Money; all which it is impossible to prove evil in themselves, either from Reason or Scripture. Thus too great a Veneration for the uninlightened Simplicity of those first Ages seems to have induced our Author to give into the Distinction of Evangelical Councils, and Precepts; as appears from Book I. Chap. II. § 9. where my Remarks on that Subject may be seen at Length.

3.

I have been pretty large in shewing, in my Preface on Pufendorf, § 9, and 10, that the Fathers of the Church, of whom our Author speaks in this Place, are but indifferent Masters, and even bad Guides in Law and Morality. I have not changed my Opinion since Father Cellier, a Benedictin Monk opposed me on that Head in a Book in 4 to, entitled, An Apology for the Morality of the Fathers of the Church, published at Paris in 1718. I could easily make it appear that I have been so far from dealing in false Accusations, that I have advanced nothing on the Subject in Question, but what may be demonstrated either by the Confession of my Antagonist himself, or the Weakness of the Reasons he offers in Favour of these antient Doctors of the Church, whom he undertakes to justify at any Rate. Their Cause is not in very good Hands, since their Apologist, on one Side, does not understand the State of the Question; and on the other, distrusting the Force of his Proofs, calls in Invectives and abusive Language to his Assistance; not to mention an Infinity of trifling Things, nothing to the Purpose.

1

This Irnerius, or, as some call him, Wernerius, lived at the Beginning of the XIth Century; some make him a Milanese, others a German. The Roman Law had been for some Ages, if not absolutely unknown and out of Use in the West, at least but little known or followed. The Digest in particular seemed then quite buried in Oblivion. But the famous Pandects of Florence being found at Amalphi, in the Kingdom of Naples, when the Town was taken by the Emperor Lotharius II, in the War which he made, in Conjunction with Pope Innocent II, on Roger King of Sicily, the Inhabitants of Pisa, who had furnished the Emperor with some Ships, desired that Copy, as a Recompence of their Services, and obtained it. The Taste of Learning was then beginning to revive, and Professors in all Sciences had been lately settled at Bologna. Pepo, one of that Number, undertook to explain the Roman Law. But he did not succeed in that Post. Irnerius, who had been Professor of the Liberal Arts at Ravenna, took his Place. He was called Lucerna Juris, i.e. The Light of the Law, and introduced the Roman Law into the Schools, either of his own Head, or as the Abbé D’Ursperg says, at the Solicitation of Matilda, Countess of Tuscany. Soon after the Roman Law made its Way to the Bar, and Lotharius and his Successors gave it the Force of Law. Irnerius, who understood Greek, had studied the Basilics, and other Greek Books of the Roman Law, preserved in the East. He made short Scholia on the Body of the Civil Law, and thus gave Birth to the Glosses, which increased very much under his Successors. See Delineatio Historiae Juris Romani & Germanici, written by Mr. Thomasius, § 121, &c. published at Leipsic, in 1704, at the Head of Francis Hotman’s Antitribonianus: and Origines Juris Civilis, by the late Mr. Gravina, Professor at Rome, Book I. § 143. p. 101. &c. the last Edition, printed in 1717.

2.

Francis Accursius, a Native of Florence, lived in the Close of the XIIth and the Beginning of the XIIIth Century. He made a Collection of all the Explications of the Lawyers before his Time, with considerable Additions of his own; so that though he was almost forty Years old, when he entered upon that Study, he has left us Glosses on the whole Civil Law, somewhat larger than the former, but still pretty short. The great Cujas places him above all the Expositors both Greek and Latin, with whom he was acquainted. See Gravina’s Book quoted in the preceding Note, § 153. p. 108.

3.

He was born at Sentinum, a Town in Umbria, called at present Sassoferrato, and lived in the middle of the XIVth Century. He brought the Subtilties of Logick, and the barbarous Language of the Schools into the Law, so that he did not so much apply himself to the Explanation of the Roman Law, as to the Decision of an Infinity of Cases and Questions, of which the Laws take no Notice, but which he undertook to deduce from them, either by Consequences, and those often very remote, or without any Grounds. See Mr. Gravina’s Origines Juris Civilis, § 164. p. 112, &c. where a Distinction is also made between the Disciples of Bartoli, as making a Class of Lawyers different from that of Accursius’s Scholars.

4.

Andrew Alciati, a Lawyer of Milan, was the first who united these two Studies, which ought to be inseparable. He was Professor, first at Bourges, and afterwards at Avignon. Returning into his own Country he taught publickly at Bologna and Ferrara; he then retired to Pavia, where he died in 1550, aged about 59. Francis Cujas went so far beyond him in this Point, that he is deservedly esteemed the chief Restorer of the Roman Law. That great Man was a Native of Tholouse. He taught in the Universities of Cahors and Bourges, at Valence in Dauphiny, and Turin. Having appeared to great Advantage in all those Places, he returned to Bourges, where he died in 1590, about 70 Years of Age. We meet with the most considerable Particulars relating to the Life, Character, and Writings of those two celebrated Lawyers, and the chief of their Successors in Mr. Gravina’s Origines Juris Civilis, Lib. I. § 170. p. 121, &c. to the End of the Book.

5.

See Note the third on Pufendorf, Law of Nature and Nations, Book II. Chap. III. § 23.

6.

See Book III. Chap. IX.

1

Diego Covarruvias was born at Toledo, and was the first Professor of Canon Law at Salamanca. He enjoyed several publick Employments, and died Bishop of Segovia in 1577. His Works have been printed several Times, in two Volumes in Folio.

2.

Fernando Vasquez, was Scholar to Covarruvias. His Controversiae Illustres is the chief Piece used in this Work. It is divided into six Books, and has born more than one Impression. Our Author has some Quotations from his Book De Successionibus & ultimis voluntatibus, which makes three Volumes in Folio.

3.

John Bodin, a Lawyer of Anjou, died in 1585. The Work here meant by our Author, is his famous Treatise of the Commonwealth, which is extant both in Latin and French; but the Latin Edition is the better and more compleat. That which I make use of is printed at Francfort in 1622.

4.

Francis Hotman, a Native of Paris, and descended from a Silesian Family, died at Basil in 1590, after having written a great Number of Books. His Quaestiones Illustres, the Treatise here meant, appeared in 1573.

1

Good Policy ought to authorize nothing against the invariable Rules of Justice; and that of the Machiavellians, which makes the Advantage of the State, or of those who rule it, the only Principle, is false and abominable. However, the Just and the Useful are really two different Things, even in Politicks; as will be easily comprehended by one single Example taken from the Matter of the Work before us. Before engaging in a War, it is above all Things necessary, that a just Cause should appear for so doing. But how good soever the Reasons for such a Step may be, if Circumstances do not allow of taking Arms, without acting to the Prejudice of the Publick Good, if there is Danger of losing as much as, or even more than will be gained, it would then be contrary to good Policy.

 

Selected Chapters from The Rights of War and Peace (1625)

Source

Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). 3 vols. </titles/1877>.

The Selected Chapters

Book I

  • CHAPTER I: What War is, and what Right is.
  • CHAPTER II: Whether ’tis ever Lawful to make War.

Book II

  • CHAPTER I: Of the Causes of War; and first, of the Defence of Persons and Goods.
  • CHAPTER XXII: Of the unjust Causes of War.
  • CHAPTER XXIII: Of the dubious Causes of War.
  • CHAPTER XXIV: Exhortations not to engage in a War rashly, tho’ for just Reasons.

Book III

  • CHAPTER X: Advice concerning Things done in an unjust War.
  • CHAPTER XI: Moderation concerning the Right of killing Men in a just War.
  • CHAPTER XII: Concerning Moderation in regard to the spoiling the Country of our Enemies, and such other Things.
  • CHAPTER XXV: The Conclusion, with Admonitions to preserve Faith and seek Peace.

The full contents of the 3 volume set:

Vol. 1. </titles/1425>

  • THE LIFE OF HUGO GROTIUS
  • H. GROTIUS to His Most Christian Majesty LEWIS XIII. King of France and Navarre.
  • THE PRELIMINARY DISCOURSE Concerning the Certainty of Right in general; and the Design of this Work in particular.
  • Book I
    • CHAPTER I: What War is, and what Right is.
    • CHAPTER II: Whether ’tis ever Lawful to make War.
    • CHAPTER III: The Division of War into Publick and Private. An Explication of the supreme Power.
    • CHAPTER IV: Of a War made by Subjects against their Superiors.
    • CHAPTER V: Who may lawfully make War.

Vol. 2. Book II. </titles/1947>

Book II

  • CHAPTER I: Of the Causes of War; and first, of the Defence of Persons and Goods.
  • CHAPTER II: Of Things which belong in common to all Men.
  • CHAPTER III: Of the original Acquisition of Things; where also is treated of the Sea and Rivers.
  • CHAPTER IV: Of a Thing presumed to be quitted, and of the Right of Possession that follows; and how such a Possession differs from Usucaption and Prescription.
  • CHAPTER V: Of the Original Acquisition of a Right over Persons; where also is treated of the Right of Parents: Of Marriages: Of Societies: Of the Right over Subjects: Over Slaves.
  • CHAPTER VI: Of an Acquisition (Possession or Purchase) derived from a Man’s own Deed; where also of the Alienation of a Government, and of the Things and Revenues that belong to that Government.
  • CHAPTER VII: Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will.
  • CHAPTER VIII: Of Such Properties as are commonly called Acquisitions by the Right of Nations.
  • CHAPTER IX: When Jurisdiction and Property Cease.
  • CHAPTER X: Of the Obligation that arises from Property.
  • CHAPTER XI: Of Promises.
  • CHAPTER XII: Of Contracts.
  • CHAPTER XIII: Of an Oath.
  • CHAPTER XIV: Of the Promises, Contracts, and Oaths of those who have the Sovereign Power.
  • CHAPTER XV: Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order.
  • CHAPTER XVI: Of Interpretation, or the Way of explaining the Sense of a Promise or Convention.
  • CHAPTER XVII: Of the Damage done by an Injury, and of the Obligation thence arising.
  • CHAPTER XVIII: Of the Rights of Embassies.
  • CHAPTER XIX: Of the Right of Burial.
  • CHAPTER XX: Of Punishments.
  • CHAPTER XXI: Of the Communication of Punishments.
  • CHAPTER XXII: Of the unjust Causes of War.
  • CHAPTER XXIII: Of the dubious Causes of War.
  • CHAPTER XXIV: Exhortations not to engage in a War rashly, tho’ for just Reasons.
  • CHAPTER XXV: Of the Causes for which War is to be undertaken on the Account of others.
  • CHAPTER XXVI: Of the Reasons that justify those who under another’s Command engage in War.

Vol. 3. </titles/1427>

Book III

  • CHAPTER I: Certain General Rules, shewing what, by the Law of Nature, is allowable in War; where also the Author treats of Deceit and Lying.
  • CHAPTER II: How Subjects Goods, by the Law of Nations, are obliged for their Prince’s Debts: And of Reprisals.
  • CHAPTER III: Of a just or solemn War, according to the Right of Nations, and of its Denunciation.
  • CHAPTER IV: The Right of killing Enemies in a solemn War; and of other Hostilities committed against the Person of the Enemy.
  • CHAPTER V: Of Spoil and Rapine in War.
  • CHAPTER VI: Of the Right to the Things taken in War.
  • CHAPTER VII: Of the Right over Prisoners.
  • CHAPTER VIII: Of Empire over the Conquered.
  • CHAPTER IX: Of the Right of Postliminy.
  • CHAPTER X: Advice concerning Things done in an unjust War.
  • CHAPTER XI: Moderation concerning the Right of killing Men in a just War.
  • CHAPTER XII: Concerning Moderation in regard to the spoiling the Country of our Enemies, and such other Things.
  • CHAPTER XIII: Moderation about Things taken in War.
  • CHAPTER XIV: Of Moderation concerning Captives.
  • CHAPTER XV: Moderation in obtaining Empire.
  • CHAPTER XVI: Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy.
  • CHAPTER XVII: Of Neuters in War.
  • CHAPTER XVIII: Concerning Things privately done in a publick War.
  • CHAPTER XIX: Concerning Faith between Enemies.
  • CHAPTER XX: Concerning the publick Faith whereby War is finished; of Treaties of Peace, Lots, set Combats, Arbitrations, Surrenders, Hostages, and Pledges.
  • CHAPTER XXI: Of Faith during War, of Truces, of Safe-Conduct, and the Redemption of Prisoners.
  • CHAPTER XXII: Concerning the Faith of inferior Powers in War.
  • CHAPTER XXIII: Of Faith given by private Men in War.
  • CHAPTER XXIV: Of Faith tacitly given.
  • CHAPTER XXV: The Conclusion, with Admonitions to preserve Faith and seek Peace.
  • PASSAGES OF SCRIPTURE, Illustrated, examined, or corrected in this Treatise.
  • INDEX I: Of the AUTHORS whose Works are explained, censured, defended, or remarked upon, either in the Text or in the Notes.

BOOK I: CHAPTER I: What War is, and what Right is.

[I.The Order of the Treatise.] I. All1 the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People2 that form no Community, or those that are Members of different Nations, whether3 private Persons, or Kings, or other Powers invested with an Authority equal to that of Kings, as the Nobles of a State, or the Body of the People, in Republican Governments: All such Differences, I say, relate either to the Affairs of War, or Peace. But because War is undertaken for the Sake of Peace, and there is no Controversy [134] from whence War may not arise, all such Quarrels, as commonly happen, will properly be treated under the Head of the Right of War; and then War itself will lead us to Peace, as to its End and Purpose.

[II.The Definition of War, and the Original of the Word (bellum).] II. 1. Being then to treat of the Right of War, we must consider what that War is which we are to treat of, and what the Right is which we search for. Cicero4 defines War a Dispute by force. But Custom has so prevailed, that5 not the [2] Act of Hostility, but the State and Situation of the contending Parties, now goes by that Name; so that War is the State or Situation of those (considered6 in that Respect) who dispute by Force of Arms. Which general Acceptation of the Word comprehends [135] all the kinds of War of which we shall hereafter treat, not even excluding single Combats, which being really ancienter than Publick Wars, and undoubtedly of the same Nature, may therefore well have one and the same Name. This agrees very well with the Etymology of the Word; for the Latin Word Bellum (War) comes from the old Word Duellum (a Duel) as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo, and thereby implied a Difference between two Persons, in the same Sense as we term Peace Unity (from Unitas) for a contrary Reason. So the7 Greek Word Πόλεμος, commonly used to signify War, expresses in its Original an Idea of Multitude. The ancient Greeks likewise called it Λύη, which imports a Disunion of Minds; just as by the Term Δύη, they meant the Dissolution of the Parts of the Body.

2. Neither8 does the Use of the Word (War) contradict this larger Acceptation. For tho’ sometimes we only apply it to signify a Publick [136] Quarrel, this is no Objection at all, since ’tis certain, that the more eminent9 Species does often peculiarly assume the Name of its Genus. We do not include Justice in the Definition of War, because it is the Design of this Treatise to examine, whether any War be just, and what War may be so called. But we must distinguish that which is in Question, from that concerning which the Question is proposed.

[III.Right, as it is attributed to Action, described, and divided into that of Governors and governed, and that of Equals.] III. 1. Since we intitle this Treatise Of the Rights of War, we design first to enquire (as I said before) whether any War be just; and then what is just in that War? For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense. So that the Right of War is properly that which may be done without Injustice with Regard toan Enemy. Now that is unjust which is repugnant to the Nature of a Society of reasonable Creatures. So Cicero says, it is unnatural to take from another to enrich one’s self; which he proves thus, because,10 if every one were to do so, all Human Society and Intercourse must necessarily be dis- [3] solved. Florentinus11 declares, that it is a villainous Act for one Man to lay an Ambush for another, because Nature has founded a kind of Relation between us. And Seneca12 observes, As all the Members of the Human Body agree among themselves, because on the Preservation of each depends the Welfare of the Whole, so should Men favour one another, since they are born for Society, which13 cannot subsist but by a mutual Love and Defence of the Parts.

2. But as in Societies, some are equal, as those of Brothers, Citizens, Friends and Allies. And others unequal, καθ’ ὑπεροχὴν,14 by Preeminence [137] as Aristotle terms it; as that of Parents and Children, Masters and Servants, King and Subject,15 God and Man: So that which is just takes Place either among Equals, or amongst People where of some are Governors and others governed, considered16 as such. The latter, in my Opinion, may be called thea Right of Superiority, and the former theb Right of Equality.

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[IV.Right taken for Quality divided into Faculty, and Aptitude or Fitness.] IV. There is another Signification of the Word Right different from this, but yet arising from it, which relates directly to the Person: In which Sense Right is17 a moral Quality annexed to the Person, enabling him to have, or do, something justly. I say, annexed to the Person, tho’ this Quality sometimes follows the things, as18 Services of Lands, which are called real Rights, in Opposition to Rights,19 meerly personal, not because the first are not annexed to the Person, as well as the last, but because they are annexed only to him20 who possesses such or such a Thing. This moral Quality when21 perfect, is called by us a Faculty; when imperfect, an Aptitude: The former answers to the Act, and the latter to the Power, when we speak of natural Things.

[V.Faculty strictly taken divided into Power, Property, and Credit.] V. Civilians call a Faculty that Right which a Man has to his22 own; but we shall hereafter call it a Right properly, and strictly taken. Under which are contain- [4] ed, 1. A Power either over our selves, which is term’d23 Liberty; or over others, such as that of a Father over his Children, or a [139] Lord over his Slave. 2.24 Property, which is either compleat,25 or imperfect. The last obtains in the Case26 of Farms, for Instance, or Pledges. 3. The Faculty of demanding what is due, and to this27 answers the Obligation of rendering what is owing.

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[VI.Another Division of Faculty into private and eminent.] VI. Right strictly taken is again of two Sorts, either private and inferior,28 which tends to the particular Advantage of each Individual: Or eminent and superior, such as a Community has over the Persons and Estates of all its Members for the common Benefit, and therefore it29 excells the former. Thus a regal Power is above30 that of a Father and Master; a King has a31 greater Right in the Goods of his Subjects for the publick [141] Advantage, than the Proprietors themselves. And when [5] the Exigencies of the State require a Supply, every Man is more obliged to contribute towards it, than32 to satisfy his Creditors.

[VII.What Aptitude is.] VII. Aristotle calls Aptitude or Capacity,1 ἀξίαν2 Worth, or Merit: And Michael of Ephesus terms that which is called Equal or Right, according to that Merit, τὸ προσάρμοζον καὶ τὸ πρέπον, Fit and Decent.

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[VIII.Of Expletive and Attributive Justice not properly distinguished by Geometrical and Arithmetical Proportions, nor is this conversant about Things common nor that about Things private.] VIII. 1. ’Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right, and is called by Aristotle συναλλακτικὴ, Justice of Contracts, but this does not give us an adequate Idea of that Sort of Justice. For, if I have a Right to demand Restitution of my Goods, which are in the Possession of another, it is not by vertue of any Contract,1 and yet it is the Justice in question that gives me such a [143] Right. Wherefore he also calls it more properly ἐπανορ- [6] θωτικὴν,2 corrective Justice. Attributive Justice, stiledby Aristotle διανεμητικὴ3 Distributive, respects Aptitude or imperfect Right, the attendant of those Virtues4 that are beneficial to others, as Liberality, Mercy, and prudent Administration of5 Government. But whereas the same Philosopher [144] says, that Expletive Justice follows6 a simple Proportion, which he calls ἀριθμητικὴν Arithmetical Justice; but Attributive, which he terms γεωμετρικὴν7 Geometrical, is regulated by a comparative Proportion, and which is the only Proportion8 allowed by the Mathematicians, this may hold in some Cases, but not in all. Neither does Expletive Justice of itself differ from Attributive in such use of Proportions, but in the Matter, about which it is conversant, as we have said already. And therefore in a [145] Contract of Society,9 the Shares are made by a Comparative Proportion, and if only one [7] 10 Person be found worthy of a Publick Office, a simple Proportion is all that is necessary in disposing of it.

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2. Neither is that more true which some maintain, that Attributive Justice is exercised about Things belonging to the whole Community; and Expletive about Things belonging to private Persons. For on the contrary, if a Man would bequeath his Estate by Will, he does it commonly by Attributive Justice; and when the State repays out of the11 publick Funds what some of the Citizens had advanced for the Service of the Publick, it only performs an Act of Expletive Justice. This Distinction Cyrus learnt of his Tutor: For when Cyrus had adjudged the lesser Coat to the lesser Boy, tho’ it belonged to another Boy of a bigger size; and so on the other side gave his Coat, being the bigger, to that bigger Boy. His Tutor told him, ὁτι ὁπότε μὲν κατασταθείν του̑ ἁρμόττοντος [147] κριτὴς, &c. That12 had he been appointed Judge of what fitted each of them best, he ought to have done as he did: But since he was to determine whose Coat it was, his Business was to have considered13 which had a just Title to it, whether he who took it away by Force, or he who made it, or bought it. [8]

[IX.Right taken for a Rule or Law defined and divided into Natural and Voluntary.] IX. There is also a third Sense of the Word Right, according to which it signifies the same Thing1 as Law, when taken in its largest Extent, as [148] being a Rule of2 Moral Actions, obliging3 us to that which is good and commendable. I say, obliging: for4 Counsels, and such other Precepts, which, however honest and reasonable they be, lay us under no Obligation, come not under this Notion of Law, or Right. As to Permission, it is not5 properly speaking an Action of the Law, but a meer Inaction, [9] [149] unless as it obliges every other Person not to hinder the doing of that, which the Law permits any one to do. I add moreover, that the Law obliges us to that which is good and commendable, not barely to that which is just: Because Right in this Sense does not belong to the Matter of Justice alone (such as I have before explained it) but also to that6 of other [150] Virtues; tho’ otherwise, whatever is conformable to this Right, may also, in a larger Acceptation, be termed7 Just. Of this Right, thus taken, the best Division is that of8 Aristotle, into Natural and Voluntary, which he commonly calls Lawful Right; the Word Law being taken in9 its stricter Sense: Sometimes also10 an Instituted Right. We find the same Difference among the Hebrews, who when they speak distinctly, call the Natural Right מצות11 Precepts, and the Voluntary Right חקים Statutes; the former of which the Septuagint call δικαιώματα, and the latter ἐντολὰς.

[X.The Law of Nature defined, divided, and distinguished from such as are not properly called so.] X. 1. Natural Right is the Rule and Dictate of1 Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its [151] Suitableness or Unsuitableness to a reasonable Nature,2 and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.

2. The Actions upon which such a Dictate is given, are in themselves either3 Obligatory or Unlawful, and must, consequently, be understood [152] to be either com- [10] manded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things [153] as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory.

3. But that we may the better understand this Law of Nature, we must observe, that some Things are said to belong to it, not properly, but (as the Schoolmen love to speak) by way of Reduction or Accommodation, that is, to which the Law of [11] Nature is not4 repugnant; as some Things, we have now said, are called Just, because they have no Injustice [154] in them; and sometimes by the wrong Use of the Word,5 those Things which our Reason declares tobehonest, or comparatively good, tho’they are not enjoined us, are said to belong to this Natural Law.

4. We must further observe, that this Natural Law does not only respect such Things as depend not upon Human Will, but also many6 Things which are consequent to some Act of that Will. Thus, Property for Instance, as now in use, was introduced by Man’s Will, and being once admitted, this Law of Nature informs us, that it is a wicked Thing to take away from any Man, against his Will, what is properly his own. Wherefore7 Paulus the Civilian infers, that8 Theft is forbid by the Law of Nature: Ulpian, that it is9 Dishonest by Nature: And10 Euripides calls it Hateful to GOD, as you may see in these Verses of Helena,

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  • Μισει̑ γὰρ ὁ θεὸς, &c.

5. As for the Rest, the Law of Nature is so unalterable, that11 God himself cannot change it. For tho’ the Power of God be infinite, yet we may say, that there are some12 Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil13 should [12] not be Evil. And this is Aristotle’s Meaning, when he says, ἔνια ἐυθὺς ὀνόμασται,&c.14 Some Things are no sooner mentioned than we discover Depravity in [156] them. For as the Being and Essence of Things after they exist, depend not upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of according to this Rule, as we may find, Gen. xviii. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6. iii. 6.

6. Yet it sometimes happens, that in those Acts, concerning which the Law of Nature has determined something, some Sort of Change may deceive the Unthinking; tho’ indeed the Law of Nature, which always remains the same, is not changed; but the Things concerning which the Law of Nature determines, and which may undergo a Change. As for Example: If my Creditor forgive me my Debt, I am not then obliged to pay it; not that the Law of Nature ceases to command me to pay what I owe, but because what I did owe ceases to be a Debt. For as Arrian rightly argues in Epictetus, Ὀυκ ἀρκει̑ τὸ δανείσαθαι πρὸς τὸ ὀϕείλειν, ἀλλὰ δει̑ προσει̑ναι καὶ τὸ ἐπιμένειν ἐπὶ του̑ δανείου καὶ μὴ διαλελύσθαι αὐτὸ. Non sufficit, &c.15 To make a just Debt, it is not enough that the Money was lent, but it is also requisite, that the Obligation continue undischarged. So when God commands16 any Man to be put to Death, or his Goods to be taken away, Murder and Theft do not thereby become lawful, which very Words always include a Crime; but that cannot be Murder or Theft, which is done by the express Command of him who is the Sovereign Lord of our Lives and Estates.

7. There are also some Things allowed by the Law of Nature, not absolutely, but according to a certain State of Affairs. Thus, before Property was introduced,17 every Man had naturally a full Power to use what [157] ever came in his Way. And before Civil Laws were made, every one was at Liberty18 to right himself by Force.

[XI.That Natural Instinct does not make another distinct Law.] XI. 1. But that Distinction, which we find in the Books of the Roman Laws, of immutable Right into such as is1 common to Men with Beasts, which they call in a strict Sense the Law of Nature; and that which is peculiar to Men, which they often style the Law of Nations, is of very little or no use; for nothing is properly susceptible of Right and Obligation, but a Being that is capable of forming2 general Maxims, as Hesiod has well observed,

  • Τόν δε γάρ ἀνθρώποισι νόμον, &c.

[13] 3 Jupiter has ordained that Fishes, wild Beasts, and Birds should devour each other, because Justice doth not take place amongst them: But to4 Men he has prescribed the Law of Justice, which is the most excellent Thing in the World.

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Cicero in his first Book of Offices5 remarks, that we do not say Horses and Lions have any Justice. And Plutarch, in the Life of Cato the Elder, νόμω μὲν γὰρ, &c. We by Nature observe Law and Justice, only towards Men. And Lactantius, in his fifth Book,6 We find that all Animals, destitute of Wisdom, follow the natural Biass of Self-Love. They injure others to procure themselves some Advantage; for they know not what it is to hurt with a View of hurting, and with a Sense of the Evil that is in it. But Man, having the Knowledge of Good and Evil, abstains from hurting others, tho’ to his own Detriment.7 Polybius having related in what Manner Men first engaged in Society, adds, when they saw any one offending his Parents or Benefactors, they could not but resent it, giving this Reason for it, Του̑ γὰρ γένους τω̂ν ἀνθρώπων ταυτῃ διαϕέροντος, &c. For since human Kind does in this differ from other Animals, that they alone enjoy Reason and Understanding, ’tis very unlikely that they should (as other Animals) pass by an Action so repugnant to their Nature, without reflecting on, and testifying their Displeasure at it.

2. If at any Time8 Justice be attributed to brute Beasts, it is improperly, and only on the Account of some Shadow or Resemblance of Reason9 [159] in them. But it is not material to the Nature of Right, whether the Act itself, on which the Law of Nature has decreed, be common to us with other Animals, as the bringing up of our Offspring, &c. or peculiar to us only, as the Worship of God.

[XII.How the Law of Nature may be proved.] XII. Now that any Thing is or is not by the Law of Nature, is generally proved either à priori, that is, by Arguments drawn from the very Nature of the Thing; or à posteriori, that is, by Reasons taken from something external. The former Way of Reasoning is more subtle and abstracted; the latter more popular. The Proof by the former is by shewing the necessary Fitness or Unfitness of any Thing, with a reasonable and sociable Nature. But the Proof by the latter is, when we cannot with absolute Certainty,1 yet with very great Probability, con- [14] clude that to be by the Law of Nature, which is generally believed to be so by all, or at least, the most civilized, Nations. For, an universal Effect requires an universal Cause. And there cannot well be any other Cause assigned for this general Opinion, than what is called Common Sense.

There’s a Passage in Hesiod to this Purpose, very much commended.

  • Φήμη δ’ οὔτις, &c.

2 That which is generally reported amongst many Nations is not intirely vain.

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Τὰ χοινη̑ ϕαινόμενα πιστὰ.3 That is certain, which universally appears to be so,4 said Heraclitus, determining λόγον τὸν ξυνὸν,5 Common Reason to be the surest Mark of Truth. And Aristotle,6 κράτιστον πάντας, &c. ’Tis the strongest Proof, if all the World agree to what we say. Cicero,7 The [161] Consent of all Nations is to be reputed the Law of Nature. So Seneca,8 What all Men believe must be true. Likewise Quintilian, We allow9 that to be certainly true which all Men agree in. I with some Reason said, By the most civilized Nations; for as10 Porphyry well observes, τίνα τω̂ν ἐθνω̂ν, &c. Some People are savage and brutish,11 whose Manners cannot, with Truth and Justice, be reckoned a Reproach to human Nature in general. And Andronicus Rhodius, παρ’ ἀνθρώποις, &c. That Law12 which is called the Law of Nature, is unchangeable, in the Opinion of all Men who are of a right and sound [15] Mind: But if it does not appear so to Men of weak and disturbed Judgments, it argues nothing to the Purpose; for we all allow Honey to be sweet, tho’ it may taste otherwise to a sick Person. To which agrees that of Plutarch, in the Life of Pompey, Φύσει μὲν, &c.13 No Man either was or is by Nature a wild and unsociable Creature, but some have grown so by addicting themselves to Vice, contrary to the Rules of Nature; and yet these, by contracting new Habits, and by changing their Method of living, and Place of abode, have returned to their natural Gentleness. Aristotle gives this Description of Man, as peculiar to him, ἄνθρωπος ζω̂ον ἥμερον ϕύσει,14 Man is by15 Nature a mild Creature. And [162] elsewhere, δει̑ δὲ σκοπει̑ν, &c.16 To judge of what is natural, we must consider those Subjects that are rightly disposed, according to their Nature, and not those that are corrupted.

[XIII.Voluntary Right divided into Human and Divine.] XIII. The other kind of Right, we told you, is the1 Voluntary Right, as being derived from the Will, and is either Human or Divine.

[XIV.Human Right divided into a Civil Right, a less extensive, and a more extensive Right than the Civil: This explained and proved.] XIV. We will begin with the Human, as more generally known; and this is either a Civil, a less extensive, or a more extensive Right than the Civil. The Civil Right is that which results from the Civil Power. The Civil Power is that which governs the State. The State is a1 compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit. The less extensive Right, and which is not2 derived from the Civil Power, though subject to it, is various, including in it the Commands of a Father to his Child, of a Master to his Servant, and the like. But the more extensive Right, is the Right of Nations, which [163] derives its Authority from3 the Will of all, or at least of4 many, Nations. I say of many, because there is scarce any Right found, except that of Nature, which is also called the Right of Nations, common to all Nations. Nay, that which is reputed the Right or Law of Nations in one Part of the World, is not so in another, as we shall shew5 hereafter, when we come to treat of Prisoners of War, and Postliminy or the Right of Returning. Now the Proofs on which the Law of Nations is founded, [16] are the same with those of the unwritten Civil Law, viz. continual Use, and the Testimony of Men skilled in the Laws. For this Law is, as Dio Chrysostom well observes,6 εὕρημα βίου καὶ χρόνου, the Work of Time and Custom. And to this purpose eminent Historians are of excellent Use to us.

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[XV.The Divine Law divided into that which is universal, and that which is peculiar to one Nation.] XV. The Divine voluntary Law (as may be understood from the very Name) is that which is derived only from the1 Will of GOD himself; whereby it is distinguished from the Natural Law, which in some Sense, as we have said above, may be called Divine also. And here may take Place that which Anaxarchus said, as Plutarch relates in the Life of Alexander, (but too generally) that2 GOD does not will a Thing because it is just; but it is just, that is, it lays one under an indispensible Obligation, because GOD wills it. And this Law was given either to all Mankind, or to one People only: We find that GOD gave it to all Mankind at three different Times. First, Immediately after3 the Creation of Man. [165] [17] Secondly, Upon the Restoration of Mankind4 after the Flood. And thirdly, Under the Gospel, in that more perfect reestablishment [166] by5 CHRIST. These three Laws do certainly oblige all Mankind, as soon as they are sufficiently made known to them.

[XVI.That the Law given to the Hebrews did not oblige Strangers.] XVI. Of all the Nations of the Earth, there was but one, to whom GOD peculiarly vouchsafed to give Laws, which was that of the Jews, to whom Moses thus speaks, Deut. iv. 7. What Nation is there so great who hath GOD so nigh unto them, as the LORD our GOD is in all Things that we call upon him for? And what Nation is there so great, who have Statutes and Judgments so righteous, as all this Law, which I set before you this Day. And the Psalmist, cxlvii. 19, 20. He shewed his Word unto Jacob, his Statutes and Ordinances unto Israel. He hath not dealt so with any Nation, and as for his Judgments they have not known them. Neither is it to be doubted, but that those Jews (among whom Tryphon also in his Disputes with Justin) do egregiously err, who think that Strangers too, if they would be saved,1 must submit to the Yoke of the Mosaick Law: For a Law [167] obliges only those, to whom it is given. And2 to whom that Law is given, itself [18] declares, Hear O Israel; and we read every where that the Covenant was made with them, and that they were chosen to be the peculiar People of GOD, which Maimonides owns to be true, and proves it from Deut. xxxiii. 4.

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But among the Hebrews themselves the real ways lived some Strangers, ἐυσεβει̑ς καὶ σεβόμενοι τὸν θεὸν,3 Pious Persons, and such as feared GOD, as the Syrophenician Woman, Matt. xv. 22. And Cornelius, Acts x. 2. one τω̂ν σεβομένων Ἑλλήνων of the devout Greeks, Acts xvii. 4. in the Hebrew, חםיךו אומות the Righteous amongst the Gentiles; as it is read in the Talmud, Title of the King;4 and he who is such a one is called in the Law כן רבג a Stranger5 simply, Lev. xxii. 25. or, גד ותושב6 a Stranger, and a [169] Sojourner, Lev. xxv. 47. Where the Chaldee Paraphrast calls him, an Uncircumcised Inhabitant. These, as the Hebrew Rabbins say, were obliged to keep the Precepts given to Adam and Noah, to abstain from Idols and Blood, and from other Things, which shall be mentioned hereafter in their proper Place; but not the Laws peculiar to the Israelites. And therefore, tho’ it was not lawful for the Israelites to eat of any Beast that died of itself, yet it was allowed7 to the Strangers that dwelt among them, Deut. xiv. 21. There are only [19] 8 some Laws, where it is expressly declared, that they were given for the Strangers as well as for the Natives. It was also allowed to Strangers who came from Abroad, and9 never [170] submitted to the Levitical Law, to worship GOD in the Temple at Jerusalem, and to offer Sacrifices; but yet10 they were obliged to stand in a particular Place, separate from that of the Israelites, 1 Kings viii. 41. 2 Macc. iii. 35. John xii. 20. Acts viii. 27. Nor do we find that11 Elisha [171] signified to Naaman the Syrian, nor Jonah to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, Moabites, and Egyptians, to whom they wrote, that there was any Necessity for them to receive the Law of Moses.

What I have here said of the whole Law of Moses, I would be understood to mean of Circumcision too, which was, as it were, the Introduction to the Law. There is only this Difference, that the Law of Moses obliged only the Israelites; but that of Circumcision obliged all the Posterity of Abraham. Whence we read in the Jewish and Greek Histories, that the12 Idumeans (the Edomites) were compelled by the Jews to be circumcised: Wherefore those People who, besides the Jews, were circumcised, (as there were many, according to13 Herodotus,14 Strabo,15 Phi- [20] lo,16 Justin,17 Origen,18 Clemens Alexandrinus,19 [172] Epiphanius,20 St. Jerom, and21 Theodoret) were probably descended from Ismael, Esau, or22 the Posterity of Keturah.

But of all other Nations that of St. Paul holds true, Rom. ii. 14, 15. Since the Gentiles, who have not the Law, do by Nature (that is by23 following [173] in their Manners, the Rules which flow from the primitive Source, or from Nature, unless you had rather refer the Word Nature to what goes before, and so24 oppose the Knowledge which the Gentiles acquired of themselves, and without Instruction, to that which the Jews had by means of the Law, which they were taught almost from the Cradle) the Things contained in the Law; these having not the Law are a Law unto themselves, as shewing the Work of the Law written in their Hearts, their Consciences also bearing Witness, and their Thoughts the mean while accusing or [21] else excusing one another. And again, in the 26th Verse, If the Uncircumcision keep the Righteousness of the Law, shall not his Uncircumcision be counted for Circumcision? And therefore, Ananias the Jew, in the History of Josephus, did very well instruct Izates Adiabenus, (25 Tacitus [174] calls him Ezates) that GOD might be rightly worshipped, and26 well pleased with us, tho’ we were not circumcised. Now the Reason why so many Strangers were circumcised (among the Jews) and by that Circumcision obliged to keep the Law, (as St. Paul expounds it, Gal. v. 3.) was partly that they might be naturalized; for Proselytes (called by the Hebrews גרי צרק Proselytes of Righteousness)27 enjoyed the same Rights and Privileges with the Israelites, (Numb. xv.); and partly, that28 they might be Partakers of those Promises which were not common to Mankind, but peculiar to the Hebrews only. Tho’ I cannot deny, but that in latter Ages some entertained an erroneous Opinion, that there could be29 no Salvation without the Pale of the Jewish Church. Hence we may conclude, that we (who are not Jews) are obliged to no Part of the Levitical Law, as a Law30 properly so called, because all Obligation beyond that, arising from the Law of Nature, is derived from the Will of the Law-giver; but it cannot be made appear, that it was the Will of GOD, that any other People, beside the Israelites, should be bound by that Law; and therefore, as to us, it is by no Means necessary to prove the abrogating of that Law; for it cannot be said to be abrogated in respect to them whom it never bound. But the Obligation of it was abolished to the Israelites, as to the ceremonial Part, as soon as ever the Evangelical Law began to be published, which was manifestly revealed to St. Peter, Acts x. 15.; but as to the Rest, after that People ceased to be a People, by the Destruction of their City, and the utter Desolation of it, without any Hopes of Restauration. The Advantage which we who are Strangers have obtained by the Coming of CHRIST, does not then consist in being [175] freed from the Law of Moses; but, whereas before, we had only very weak Hopes in the Goodness of GOD, we are now, by an express Covenant, assured thereof; and we, together with the Jews, (the Children of the Patriarchs) are made one Church; their Law, which as a Partition Wall divided us, being quite taken away, Eph. ii. 14.

[XVII.What Arguments Christians may fetch from the Judaical Law, and how.] XVII. Since then the Mosaick Law cannot directly oblige us (as I have already shewed) let us see of what other Use it may be to us, as well in regard to the Right of War, which we are to treat of, as in other like Cases. For the Knowledge of it may be necessary in many Points.

First then, the Law of the antient Hebrews serves to assure us, that nothing is injoined there contrary to the Law of Nature; for since the Law of Nature (as I said before) is perpetual and unchangeable, nothing could be commanded by GOD, who can never be unjust, contrary to this Law. Besides, the Law of Moses is called pure and right, Psalm xix. 8. and by the Apostle St. Paul, holy, just, and good, Rom: vii. 12.

I speak of its Precepts, for we must treat more distinctly of its Permissions. Now the Permission, positively granted by the Law, (for that which is of the1 bare Fact, and signifies the Removal only of Hindrances, [176] on the Part of the [22] Law, is not to the present Purpose) is either compleat, and without Reserve, which gives us a Right to do something with an intire Liberty in all Respects; or less compleat, and with Reserve, which gives us only an Impunity with Men, and a Right to do a Thing, so as that no Man shall molest and hinder us. From the first of these Permissions, as well as from a positive Precept, it follows, that what the Law allows, cannot be contrary to the Right of Nature. But as to the latter,2 the Case is entirely different: But it seldom happens that there is Occasion to draw that Consequence with Certainty;3 for the Terms [177] which express the Per- [23] mission being equivocal, it is better to have Recourse to the Principles of the Law of Nature, in order to discover what Kind the Permission is of, than to conclude from the Manner in [178] which the Permission is conceived, that the Thing permitted is conformable or not conformable to the Law of Nature.

The next Observation is not unlike this, viz. That Christian Princes may now make Laws of the same Import with those given by Moses, unless they be such Laws as wholly related either to the Time of the expected Messias, and the Gospel, not then published; or that CHRIST himself has either in4 general, or in5 particular commanded the contrary: For, excepting these three Reasons, no other can be imagined, why that which the Law of Moses formerly established, should now be unlawful.

The third Observation may be this; whatsoever was enjoined by the Law of Moses, which relates to those Virtues that CHRIST requires of his Disciples, ought now as much, if not more,6 to be observed by us Christians. The Ground of this Observation is, because what Virtues are required of Christians, as Humility, Patience, Charity, &c. are to be practised in a7 more eminent Degree, than under the State of the Hebrew [179] Law, and that with good Reason too; because the Promises of Heaven are more clearly proposed to us in the Gospel. Wherefore the old Law, in comparison with the Gospel, is said to be neither perfect nor ἄμεμπτος faultless, Heb. vii. 19. viii. 7. And CHRIST is termed the End of the Law, Rom. x. 5. but the Law only our Schoolmaster, or Guide, to bring us unto CHRIST, Gal. iii. 24. Thus the old Law concerning the Sabbath, and8 that relating to Tythes, shew, that Christians are obliged to set apart no less than the seventh Part of their Time for the Worship of GOD, nor no less than the tenth Part of their Income for the Maintenance of those who are employed in Holy Affairs, or for other Sacred and Pious Uses.

[180]

Endnotes

1.

See Pufendorf, Law of Nature and Nations. B. I. Chap. I. § 8. Note I.

2.

Such were the antient Patriarchs, who lived in Tents, and travelled from Place to Place, without forming a Community or depending on any Government; though there were civil Societies already established in the World at that Time. The learned Gronovius on this Place, alledges the Example of the Aborigines, the first Inhabitants of Italy, and of several People in Africa; The Aborigines, a savage People, free and independent, without Laws or Government. Salust. Bell. Catil. Cap. VI. The Getulians and Libyans, a rough and uncivilized Set of Men, were the first Inhabitants of Africa... they lived without any Government or Laws, or the least Measures of Discipline among them. Idem Bell. Jugurth. Cap. XXI. Edit. Wass. They (the remote Inhabitants of Cyrenaica) being scattered about the Country in Families, and living under the Direction of no Law, had no common Regulations. Pomponius Mela, Lib.I.Cap. VIII. Num. II. Edit. Voss. We find even at this Day amongst the Arabians, and Africans several Nations of Savages, and Vagrants, without Laws, Magistrates or any Form of Government.

3.

See B. II. Chap. XI. § 1. Num. 5.

4.

II. For since there are two Ways of disputing Things, one by Debate, the other by Force, &c. De Offic. Lib. I. Cap. XI. See Pufendorf. B. V. Chap. XIII. where he treats of other Ways of deciding Differences in the independent State of Nature.

5.

Philo the Jew considers as Enemies not only such as actually attack us by Sea or by Land, but also those who make Preparations for either, those who erect Batteries against our Ports, or Walls, though no Battle is given. De Specialib. Lib. II. p. 790. Edit. Paris. Servius, on Verse 545, of the first Book of the Eneid.

  • ——— Quo justior alter
  • Nec pietate fuit, nec bello major & armis.

Makes this Remark. This is not an idle Repetition; for the Word Bellum, (War) includes Counsels, and Measures, taken against the Enemy; that is a Skill in Military Affairs. Whereas the Word Arma, (Arms) is used only to express the very Act of employing Forces: thus the former relates to the Mind, the latter to the Body. The same Commentator, on Verse 547. of B. VIII. says: Bellum is the whole Time employ’d in making the necessary Preparations for fighting or in Acts of Hostility: and Praelium denotes an actual Engagement. Grotius.

6.

For not only those who are at War, stand in several different Relations to other Persons, who observe a Neutrality, by Vertue of which they do many Things that by no Means relate to a State of Hostility: but they also may and frequently do act towards each other, as if they were not Enemies; so that in such Cases the Use of Force, and the Laws of War are suspended. This takes Place when two Enemies enter into an Agreement, or Treaty; as the Author shews at large in the proper Place. Gronovius, in a Note on this Place, and Huber De jure Civitatis, Lib. III. Sect. IV. Cap. IV. §. 2. allow of no Difference in the Main between Cicero’s Definition, and that given by our Author. It is sufficient however, if the latter is more clear and extensive than the former. Obrecht, in his Dissertation De ratione Belli (which is the eighth in the Collection published in 1704.) has defended our Author’s Definition against the mistaken Criticisms of some Commentators.

7.

Our Author, giving the Etymology of πόλεμος, derives it from πολυς ; while others search elsewhere for the Origin of that Word; nor are we to be surprised at this. The Country of Etymologies is of a very large Extent, and affords great Numbers of different Roads, where each Man may walk at his Ease. However, in Complaisance to those who delight in such Enquiries, and for the Sake of clearing up our Author’s Meaning, we must say something on the last Words of this Paragraph, which stand thus in the Original: Veteribus etiam λύη dissolutione, quomodo & corporis dissolutio δύη. Here the Commentators are silent, not excepting Gronovius, a Critic by Profession; who only explains δύη by other Greek Words, signifying any Sort of Unhappiness. But this neither shews the Reason of our Author’s Etymology, nor his Application of it. At first sight it might be imagined that the Text is faulty; and I know some have been of Opinion, that λύη ought to be repeated in this Place; but we find δύη in all the Editions of this Work; and I firmly believe I have found out what our Author Means, and what induced him to propose the Etymology of this Word, which he tacitly derives from δύω. He took δύη in the Sense which some Lexicographers give to λύπη, dolor; and at the same Time was thinking of Plato’s Etymology of λύπη, Pain, which he derives from λύω, to dissolve; because, says he, when we suffer Pain, the Body suffers a Dissolution; in Cratylo, p. 419. Vol. I. Edit. H. Steph. Our Author in Imitation of that ancient Philosopher, derives δύη from δύω for the same Reason; for on a Separation of the Parts of the Body, it follows that those which before appear’d only as one continued whole, by their Union, become more than one. The Principles of the old Philosophy, in which our Author was educated, helped him moreover to form this Etymology; for we know that according to those Principles, Pain is caused by a Dissolution of Continuity.

8.

See, for Example, Horace B. I. Sat. III. v. 107. and Terence Eunuch. Act. I. Scen. I. v. 16.

9.

The Author gives Instances of this B. II. Chap. XVI. § 9.

10.

III. De Officiis. Lib. III. Cap. V.

11.

I have quoted this Law in my first Note on § 14. of the Preliminary Discourse.

12.

De Ira. Lib. II. Cap. XXXI.

13.

In Ep. XLVIII. he says thus: We ought to observe carefully and religiously the Laws of this Society, which unite us all together, and teach us that there is a Law common to all Mankind. The Reader may likewise see what S. Chrysostom says on this Subject on 1 Cor. Chap. XI. v. I. Grotius.

14.

Καθ’ ὑπεροχὴν. But the Philosopher makes this Distinction with Regard to Friendship, which is the Bond of Societies. The Friendships already mention’d therefore, are founded on Equality....But there is another Sort of Friendship, established on Preeminence, such as that between Father and Son, the Elder and the Younger, Husband and Wife, and between every Prince and his Subjects. Ethic. Nicom. B. VIII. Chap. VI. VII.

15.

Concerning this Society, see Philo the Jew, on these Words ἐξένηψε Νω̂ε Noah awaked (from his Wine) p. 281, 282. Edit. Paris. Plutarch also has something on the same Subject in his Life of Numa. p. 62. Edit. Wech. Vol. I. Grotius.

I am surprised that our Author has not quoted the following remarkable Passage of Cicero, which is much more express, and more to his Purpose than those, to which he refers us. Since therefore nothing is more excellent than Reason, which is common to God and Man, the first rational Society is between God and Man. For where there is a Participation of Reason, there is also a mutual Participation of right Reason. Now this being a Law, we are to conclude a Society between the Gods and Men founded on Law. Farther, where there is one common Law, there is likewise a common Right; and those who hold these in common, are to be esteem’d, as it were, fellow-citizens. De Legib. Lib. I. Cap. VII. But, properly speaking, there is no Law, or Right common to God and Man. See Pufendorf B. II. § 3. and Chap. III. § 5, 6. As also Mr. Thomasius’s Dissertation call’d, Philosophia Juris, de Obligat. & Action. which is the third in the Collection printed at Leipsic. Cap. I. § 8, &c.

16.

This Restriction is to be carefully observed. For, as Ziegler very well remarks on this Place, in all Dealings between a Superior and an Inferior, independently of the Relation of Superiority, the Right of Equality takes Place, as amongst Equals; thus, for Example, Contracts between a Prince and one of his Subjects require no other Rules than those which ought to be observed between two private Persons. When a Merchant has sold his Goods to his King, the King is as much obliged to pay for them, on the Terms, and at the Time agreed on, as the meanest Purchaser. To which I add, that there are some Cases, wherein a Superior becomes in certain Respects the Inferior; and that then the Right of Superiority is changed in Regard to the same Persons, according to the Nature of the Things. Thus a Magistrate is bound to honour his Parents, and consequently to submit to their Will to a certain Degree, whenever the Administration of publick Affairs is not concern’d; but, in the Character of Magistrate, he is to have no Regard for the Will of his Parents, but may even command them. See B. II. Chap. V. § 6. Note I.

a

Jus Rectorium.

b

Jus Equatorium.

17.

IV. See Pufendorf, B. I. Chap. I. § 19, 20.

18.

See the same Author, B. IV. Chap. VIII.

19.

Such, for Example, is the Power of a Father over his Child, the Right of a Husband over his Wife, the Usufructuary Right and the Right of demanding the Performance of a Promise, by which a Man has personally engaged himself, &c.

20.

Thus the Right of Passage, belonging to the Proprietor of a Country House in the Neighbourhood, is inherent only in the Possessor of the said House, and is transmitted to all, who shall possess the same, till that Right is extinct.

21.

Perfect Right, is that which we may assert by Force, and the Violation of which is a Wrong properly so called. Whence it is easy to judge what is Imperfect Right. See Pufendorf, B. I. Chap. I. § 7. and our Author, B. II. Chap. XXII. § 16.

22.

V. As when we say, Suum cuique tribuendum est, we must give every Man his own.

23.

Hence the Roman Lawyers very well called this Liberty Facultas. Grotius. This Definition occurs twice in the Body of the Law: Libertas est naturalis Facultas ejus, quod cuique facere libet, nisi quid Vi, aut Jure, prohibetur. Digest. Lib. I. Tit. V. De statu Hominum. Leg. V. and Instit. Lib. I. Tit. III. De Jure Personarum, §1. In order to understand it thoroughly, it will be proper to read Mr. Noodt’s excellent Commentary on the first Part of the Pandects, p. 29. See Pufendorf’s Remark on the Manner, how this natural Power of Man over himself is to be understood. B. I. Chap. I. § 19.

24.

The Scholiast on Horace says the Word Jus is taken for Property or a Right to a Thing. Jus pro Dominio. Grotius.

Our Author probably had the following Passage in View:

Permutet Dominos, & cedat in altera Jura.

Lib. II. Ep. II. v. 174.

On which the Scholiast says: In altera Jura, id est, in alterius Dominium.

25.

See Pufendorf. B. IV. Ch. IV. § 2.

26.

Ut Ususfructus, Jus Pignoris, says our Author. As these Words stand, they insinuate that the Usufructuary, and the Creditor have a Sort of Right of Property, though imperfect, the former to the Goods in his Possession by vertue of his Tenure, the latter to the Thing pledged in his Hands for Security of the Debt. But, if we reason conformably to the Ideas of the Law of Nature, neither of them has any such Right, of Property, properly so call’d. The whole Matter is, that the Enjoyment of the Goods by the Usufructuary, till the Time of the Tenure is expired; and the Detention of the Pledge by the Creditor till he is pay’d, renders the Property imperfect, of which the Master of the said Things, who remains solely such, has not all the Profits, or full Exercise, during that Time. But our Author had the Niceties of the Roman Law in View, which allows an Usufructuary Creditor, &c. a real Action for recovering the Possession of another Man’s Goods, in the same Manner as if they were the real Proprietors of them; and thus they are often considered as such, and the Right to them near to that of Property: Jus dominio proximum, say the Interpreters.

27.

Creditum: Debitum. Short, and very proper Expressions, taken from the Roman Law. See what I have said on Pufendorf B. I. Chap. I. § 20. Note 3. of the second Edition: and B. V. Chap. XI. § I. Note 5. The learned Gronovius, without Reason, restrains the Terms in Question to Contracts of Loan, properly so called. It is surprising, that he did not observe, that our Author here imitates the Language of the Roman Lawyers; and the more so, because some other Commentators, much less skill’d in Criticism, have perceived this Allusion. In my Opinion it may be affirm’d, without the least Hesitation, that by the Word Creditum, we are here to understand, not only the Right a Man hath to demand what is due to him by Vertue of some Contract, Bargain, Promise, or Law; but also the Right we have to require Satisfaction for any Damage or Injury received; all which is included in the Idea affix’d to that Word by the Roman Lawyers. Creditorum Appellatione non hi tantum accipiuntur, qui pecuniam crediderunt, sed omnes, quibus ex qualibet causâ debetur, utsicuiexempto, vel ex locato, vel ex alio ullo debetur: Sed etsi ex delicto debeatur, mihi videtur Creditoris loco accipi. Digest. Lib. I. Tit. XVI. De verborum, & rerum signif. Leg. XI, XII. See B. II. Chap. I. § 2. and Chap. XVII. § 1. I believe our Author goes still farther, and extends the Word Creditum to the Right of punishing, and that of Debitum to the Obligation of submitting to condign Punishment. I am induced to think so, because first the Perfect Right, to which the Debitum & Creditum in Question relate, answers to the Law of Nature, or Natural Right, properly so called, of which the Author has spoken in his preliminary Discourse, § 8. Now one of the general Rules of that Law is, that those who violate its Maxims, deserve to be punished. See what I have said on § 10, Note 7. It is very probable therefore, that our Author, while he was enumerating the several Things which may be required in Rigour, would not forget the Punishment of Criminals. Secondly, because he elsewhere actually ranks Debitum ex poena, or poenale among those things, which we may demand of another in Rigour. B. III. Chap. XIII. § 1, 2. and makes a Right to punish belong to Justitia expletrix, which is the Matter of Perfect Right. B. II. Chap. XX. § 12.

28.

VI. This takes in all those Rights, natural or acquired, with which each Man is invested, independently of the Relation of a Citizen, or Member of the State. The Author produces Examples of this kind which are sufficient for making the Matter clear and intelligible. See what he says concerning Promises, B. II. Chap. XI. § 8. and Chap. XIII. § 20.

29.

Because the Design and Good of civil Society necessarily require, that the natural and acquired Rights of each Member should admit of Limitation several Ways and to a certain Degree by the Authority of him or them, in whose Hands the sovereign Authority is lodged.

30.

So that a Subject ought to obey his Prince preferably to his Father and his Master. And the Prince may allow a Father and a Master more or less Power over their Children, and Slaves, as he shall judge most conducive to the Public Good. See B. II. Chap. V. § 7, and 28.

31.

This is the Observation of Philo the Jew, who says: Certainly Silver, Gold, and all other valuable Things, which Subjects treasure up, belong more to those who govern, than to those in Possession of them, περὶ ϕυτουργίας (of Noah’s Planting.) p. 222. Edit. Paris. Pliny the younger declares, that a Prince, to whom the Possessions of every one of his Subjects belong, is as rich as all of them together. Paneg. Cap. XVII. And a little after: What does Cesar see, that is not his own? See John of Salisbury in his Polycrat. Lib. IV. Cap. I. p. 335. Edit. Lugd. 1639. Grotius.

The latter Passage of Pliny is not rightly quoted or applied, for the Panegyrist says the direct contrary, in commendation of Trajan, Est quod Caesar non suum videat, &c. That Caesar sees something which is not his own; and that the Prince’s Empire is now larger than his Patrimony. Cap L. Num. 3. Edit. Cellar. Besides, there is some-what what extravagant, or at least too figurative, in the Expressions of the antient Writers, quoted by our Author, as well as in those of the Moderns, who imitate them. For, strictly speaking, the Goods of each Subject belong no more to his own Sovereign than to a foreign Prince. The whole Truth of the Matter is, that in case of a pressing Necessity, the Sovereign may, for the publick Advantage, dispose of the Goods of his Subjects, even against their Will, in the same Manner as if they were his own. But he then acts, not as Proprietor of such Goods, but as Head of the Society, in favour of which every one of its Members is engaged, either expressly or tacitly, to make such a Sacrifice. See what is said, B. I. Chap. III. § 6. Num. 4. B. II. Chap. XIV. § 7 and B. III. Chap. XX. § 7.

32.

And consequently, the Sovereign may discharge a Debtor from the Obligation of paying, either for a certain Time, or forever, if the publick Good requires it. We have an Example of this in Livy, Lib. XXIII. Cap. XIV. Num. 3. which is here produced by Gronovius. After the fatal Battle of Cannae; Marcus Junius Pera, the Dictator ordered publick Notice to be given, that he would pardon all who had been guilty of capital Crimes, and exempt from Payment all such as were in Chains for Debt, if they would list under him.

1

Ἀξία. The Philosopher uses this Word when he treats of Distributive Justice, by Vertue of which we are to give every one what is due to him, according to his Merit. Ethic. Nicom. B. V. Chap. VI. But I find that Cicero uses the Latin Word Dignitas, which answers to the Greek Ἀξία, in a large Sense, including both perfect and imperfect Right: His Words are, Justitia est habitus animi, communi utilitate conservata, suam cuique tribuens Dignitatem. De Invent. Lib. II. Cap. LIII. And the Author of a Treatise on Rhetorick, ascribed to that great Orator and Philosopher, makes Justice consist in rendering to every one his due, (Jus) according to his Merit, (pro dignitate cujusque) Ad Heren. Lib. III. Cap. II. Huber, in his Treatise De Jure Civitatis, and his Praelect. in Institut. & in Pandect. quotes these two Passages wrong, as if he had read quae cuique jus suum & dignitatem tribuit; and on the sole Authority of this false Quotation, he pretends that Cicero expresses perfect Right by the Term Jus, and imperfect Right by Dignitas.

2.

Cicero has given us an Example of several Degrees of Merit and Fitness, which confer more or less of this imperfect Right; which I shall here set down, translated from the Author’s Note on this Place.

But if there be any Dispute or Enquiry, to whom we are obliged to render most Service, let our Country and our Parents, to whom we stand most indebted, hold the first Rank. Next to these are our Children, and our whole Family, who depend on us alone, and can have no other Refuge. In the next Place we must think of our Relations, with whom we live in a good Understanding, and whose Fortune is most commonly united with our own. The necessary Supports of Life are therefore principally due to those whom I have already mentioned. But living in Society, giving Advice, Conversation, Exhortations, Consolations, and sometimes even Reproofs, take Place chiefly in Friendship. De Offic. Lib. I. Cap. XVIII. See B. II. Chap. VII. § 9, 10. of this Treatise. Seneca, speaking of Wills, says, We look out for Persons of the greatest Worth, (or Merit, dignissimos) to whom we may leave our Estates. De Benef. Lib. IV. Cap. XI. See St. Augustin, DeDoctr. Christ. Lib. I. Cap. XXVIII. and XXIX. Grotius.

1

Our Author’s Criticism in this Place, has been justly censured, for the Word συνάλλαγμα, according to Aristotle’s Sense of it, expresses all Dealings Men may have one with another, and in which any Inequality appears that ought to be redressed by the Exercise of the Species of Justice in question. The Philosopher, (Ethic. Nicom. Lib. V. Cap. V.) distinguishes these συναλλάγματα into voluntary, by which he understands Contracts properly so called, as those of Sale, Loans, Bail, Trusts, Hiring, &c. and Involuntary, under which he comprehends all Sorts of Damage and Injuries done to another; either clandestinely, or by open Violence; in short, what the Roman Lawyers call Delictum, and which the learned Gronovius improperly compares to Quasi contractus, which, according to them, Non ex maleficio substantiam capiunt Institut. Lib. III. Tit. XXVIII. The same Commentator (in order to shew, that the Example of a Person in possession of another Man’s Goods may relate to Aristotle’s Permutative Justice) observes, that ever since the Establishment of Property, there has been a tacit Agreement among all Men, by which each of them is obliged to restore the Goods of another. This is a false Principle, laid down by our Author himself, B. II. Chap. X. § I. in which he has been followed by Pufendorf, B. IV. Chap. XIII. § 3. I have confuted them both, in my Note on the Passage of the latter, here referred to. I am not therefore surprized that Gronovius grounds his Argument on it; for besides that he had a better Talent at commenting on the Thoughts and Expressions of others, than at examining and considering Subjects of this Nature, he thus found an Argument ad hominem, against Grotius, in favour of his dear Aristotle. But it is very strange that he has not added a Remark, very proper for supporting his Criticism, and the more so, as it depends on a grammatical Nicety, viz. that the Word συνάλλαγμα does not signify the Foundation of the Obligation arising from the Justice under Consideration, but only the Object or Matter on which this Sort of Justice is employed, which Aristotle therefore calls, Δικαιοσύνη, or Δίκαιον, τὸ ὲν τοι̑ς συναλλάγμασι διορθώτικον, Lib. V. Cap. V. and ὅ γίνεται ἐν τοι̑ς συναλλάγμασι καὶ τοι̑ς ἑκουσίοις καὶ τοι̑ς ἀκουσίοις Cap. VII. that is, corrective Justice in Mans Dealings one with another, or barely corrective Justice, a Term which Interpreters would have done well to preserve, as much more expressive of the Philosopher’s Sense than that of commutative Justice, which conveys a very different Idea. Thus when our Author says, it is not by Vertue of a Contract, (ἐκ συναλλάγματος) that the Possessor of another Man’s Goods is obliged to restore them, it makes nothing against Aristotle, according to whose Principles, συνάλλαγμα is here a Detention of what belongs to another; but the Obligation of restoring, is founded on an In equality subsisting to the Prejudice of the Proprietor, an In equality which the Justice under Consideration requires to be redressed. To which it may be added, that Aristotle’s Corrective or Permutative Justice, does no more answer exactly to our Author’s Expletive Justice, than the Distributive Justice of the former does to the Attributive Justice of the latter, and that there is a wide Difference between those two Distinctions, both in regard to their Foundation, and the Extent of each particular Member. But all this is of little Consequence in the Main, and it would be better to leave the Philosopher with his Division, which besides that it is very defective, is useless at present, as several Authors have observed. See Pufendorf, B. I. Chap. VII. § 12. Mr. Thomasius’s Institutiones Juris Divini, Lib. I. Cap. I. § 106: As also the Principia Juris, secundum ordinem digestorum; by Mr. Westenberg, Professor at Franeker, Lib. I. Tit. I. § 15, &c.

2.

Ἐπανορθωτική Ethic. Nicom. Lib. V. Cap. VII. p. 65. Edit. Paris. Vol. II. Or, as Aristotle more frequently calls it, Διορθωτική.

3.

It is not the same Thing. See Note 1. on this Paragraph.

4.

For the Justice in question regulates the Exercise of those Virtues, which consist in doing such Things in favour of others, as cannot in Rigour be demanded, and directs a proper Application of the Acts of those Virtues, by a prudent choice of Persons the most worthy, to feel the Effects of them. See the second Note on Paragraph 7th, and what has been said in the Preliminary Discourse, § 10, and the Notes of that Place; as also our Author, B. II. Chap. I. § 9. Num. 1.

5.

The Author has here in view, chiefly the Distribution of Rewards and publick Employments; for tho’ the Prince on such Occasions ought to prefer Persons of most Merit, and greatest Abilities, no private Person can in Rigour demand this Preference. See Pufendorf, B. I. Chap. VII. § 11. So that Catiline made use of a very frivolous Pretence, in Justification of his Conspiracy, when he said, Deprived of the Fruits of my Labour and Industry, I was not raised to a Post equal to my Merit.... I saw Men of no Worth promoted to Honours, and myself repulsed upon groundless Surmises. Sallust, Bell. Catilin. Cap. XXXVI. Edit. Wass.

6.

Simple Proportion, or Arithmetical, is found, according to Aristotle, between three Quantities, the first of which exceeds, or is exceeded by the second, as much as the second surpasses, or is surpassed by the third; so that to reduce Things to a just Medium, in which Justice consists, we must take from or add to the first Quantity, as much as is added to or taken from the second. In this Place we are to add or take away what is agreeable or advantageous, and what is disagreeable or disadvantageous; which the Philosopher calls κέρδος Gain, and ζημία Loss or Damage; for we take away part of both from him who has too much of either, in order to give it to him who has too little of them. Thus supposing a Thing worth only six Crowns, has been fraudulently sold for nine, the Seller has three Crowns too much, and the Buyer three too little: Take away three Crowns from the former, and give them to the latter, and you come to an Arithmetical Proportion between 9, 6, and 3; because 9 exceeds 6 as much as 6 does 3. See Ethic. Nicom. Lib. V. Cap. VII.

7.

This Geometrical Proportion subsists between four Quantities, the first of which contains or is contained in the second, as often as the third contains or is contained in the fourth; as when we say, Six is to three as twenty-four to twelve; or Three is to six as twelve to twenty-four.

8.

Cassiodorus calls it Habitudinis comparatio. Homer gives a pretty good Description of this Sort of Proportion, which commonly belongs to Attributive Justice, when he says,

  • Ἐσθλὰ μὲν ’σθλῳ ἔδωκε, χέρεια δὲ χείρονι δόκεν.

He gave valuable Things to him who deserved most, and Things of less Value to him, who had less Merit. Grotius.

The Passage of Cassiodorus is taken from his Treatise De Dialectica, p.408. Edit. Paris, 1589, where he says, In proportione non est similitudo, sed quaedam habitudinis comparatio. As for Homer’s Verse, it is not well supported. It occurs in the fourteenth Book of the Iliad, where Neptune taking his Advantage of a profound Sleep, into which Jupiter had been thrown at Juno’s Entreaty, exhorts the Grecians to march against the Trojans; whereupon Diomedes, Ulysses, and Agamemnon ran from Rank to Rank, and made the Soldiers change their Arms, giving the best to the most valiant, and the worst to those that had less Courage. In Barnes’s Edition therefore we read ἔδυνε he put on, instead of ἔδωκε he gave.

9.

It has been justly remarked, that in Geometrical Proportion, by which Distributive Justice is regulated, according to Aristotle, the Merit of the Persons is compared with the Things themselves, so that the Quantity of what is given to one, is to the Quantity of what is given to another, as the Merit of one is to the Merit of the other. This evidently appears from Ethic. Nicom. Lib. V. Chap. VI, & VII. and particularly from a Passage where the Philosopher says, that in Affairs where Corrective or Permutative Justice, as opposed to Distributive, is concerned, (ἐν τοι̑ς συναλλάγμασι) an Arithmetical Proportion is to be observed; so that the Question is not whether a Man of a good or bad Character cheats, is cheated, or commits Adultery; but that the Law considers no other Difference than that of the Damage sustained, looking on them as equal in other Respects, Lib. V. Cap. VII. p. 63. Edit. Paris. An Opposition, which plainly insinuates, that in the other sort of Justice, a Regard is paid to the Quality of the Persons, as well asto the Advantage or Disadvantage arising to either of the Parties. So that in a Contract of Society, which belongs to Aristotle’s Corrective or Permutative Justice, according to him, no Regard is tobe had to the Quality of the Person; and as Gronovius observes, if the Prince of Orange puts 1000 Crowns, for Example, into the India Company’s Stock, he receives no more Dividend than a private Person, who deposits the same Sum. Nor does our Author pretend he does; though his Commentator insinuates as much. All he means is, that in the Administration of Corrective or Permutative Justice, Men do not always observe such an Arithmetical Proportion, as Aristotle describes; for upon dividing the Profits among several Proprietors, who have engaged in a Partnership in unequal Shares, it is certain, that Geometrical Proportion must be observed, and that the other is not sufficient. It is true, this is not a Geometrical Proportion, by which the Merit of the Persons is compared with Things; and that it is enough that the Things themselves are compared together, that is, each Person’s Share with that of others, and with the Loss or Gain, of which each is to have his Part. It is also true, as Pufendorf observes, B. I. Chap. VII. § 9. the Shares of the Partners may be equal; in which Case, there will be a perfect Equality in the Division of the Profits. But as they may be, and very frequently are unequal, it may justly be affirmed, that the Use of Arithmetical Proportion is not sufficient in Contracts, which is all our Author contends for.

10.

Some reply, that the Case is not possible, but all that can be said with Certainty is, that it seldom happens. Others say, that Geometrical Proportion is observed even in that Case, because the Merit of that Person, who alone is capable of an Employment, is compared with the want of Merit in all the other Subjects. But then the Comparison is not made between Things of the same Kind, and consequently, Geometrical Proportion cannot take Place here. In reality, the whole Dispute is of very little Importance; and how faulty soever Aristotle’s Division may be, our Author had better have proposed his own, than have given himself the Trouble of reconciling it with the other, as he has rectified it; for they are still very different at the bottom, as will easily appear on a careful perusal of that great Philosopher’s Moral Treatises.

11.

I am inclined to think the Author here had in view a Passage of Aristotle, where he says, that Distributive Justice always follows Geometrical Proportion. For, continues the Philosopher, upon a Distribution of the Publick Money, it must be made in Proportion to what each has contributed. Ethic. Nicom. Lib. V. Cap. VII. p. 62. I suppose the Philosopher designed to speak of the following Case. Several private Persons have furnished the State with Money for the Demands of the Publick, and that in different Sums; the proper Officers are inclined to reimburse them, but the Sum destined for that End, is not sufficient for the Payment of all the Creditors; so each receives in Proportion to what he lent. But this very Example may serve to shew, how little Justness there is in Aristotle’s Ideas. For, properly speaking, there is no Comparison between the Degree of the Merit of the Persons, and the Quantity of the Things, but only between what is advanced, and what is restored. If it be said that each Person deserves more or less to be reimbursed, as he had lent more or less, it may be easily shewn, that this Circumstance is but a very ambiguous Proof of more or less Merit; for it may, and often will happen, that those, who have furnished the largest Sums, have not lent so much in Proportion, as Persons of smaller Fortunes, who perhaps have very much streightened themselves to assist the Publick, whilst the former have suffered little or no Inconvenience, by depriving themselves for some Time of a Sum, very inconsiderable in comparison of what remained in their Hands. Now can it be doubted, that on this Supposition, they, who have expressed most Zeal for the publick Good, and have suffered most by promoting it, deserve to receive in Proportion to a larger Share of the Sum, which is not sufficient to discharge the whole Debt, than they whose Debt is in itself the most considerable? I reason here on the Principle established by our Lord Jesus Christ, in regard to Alms, in the Judgment he pronounces of a poor Widow’s Charity, who gave only two small Pieces of Money for the Use of the Poor. Mark xii. 42, &c.

12.

Cyropaed. Lib. I. Cap. III. § 14. Edit. Oxon.

13.

See the same Writer, Lib. II. of the Cyropaedia. To the same Purpose God forbids the Judges of his People to countenance a poor Man in his Cause, or respect the Person of the Poor, in giving Judgment, Exod. xxiii. 3. Levit. xix. 15. In truth, as Philo the Jew observes, the Merits of the Cause are to be considered in themselves, and abstractedly from any Regard to the contending Parties. Lib. De Judice, p. 720. Edit. Paris. Grotius.

I do not find in the second Book of Xenophon’s Cyropaedia, to which our Author refers his Readers, any one Passage, that can relate to the Matter before us, but the following Reflection of Cyrus. One of that Prince’s Favourites proposed to him, that all his Soldiers should not equally share the Booty taken from the Enemy, but that it should be divided according to each Man’s respective Merit, and Behaviour in the Time of Action. Cyrus thought the Proposal reasonable, but was of Opinion, that the Consent of the whole Army should be first asked. “Where is the Necessity of such a Condescention? said Chrysanthes. “Is it not enough that you declare such is your Pleasure, and that the Distribution shall be made on that Foot? When you established Combats for the Prize, did not you at the same Time regulate each Person’s Reward?” To which Cyrus replied, The Case is not parallel; for I imagine the Soldiers will look on all the Plunder that shall be made, as their own Property; whereas they are persuaded that the general Command of the Army belongs to me, and perhaps is even my Birth-Right. So that I believe they think I commit no Injustice, to any one, when I dispose of the Charges in the Army. Cap. II. §10, 11. Edit. Oxon.

1

In this Sense Horace says,

Jura inventa metu injusti fateare necesse est.

Lib. I. Sat. III. v. 3.

and

Jura neget sibi nata.

Art. Poet. v. 122.

On which Words the Scholiast says, Legum sit contemptor. Grotius.

2.

See Pufendorf, B. I. Chap. V. Where he explains the Nature and Foundation of moral Actions.

3.

The Author’s Expression in this Place seems to insinuate, that the Law obliges by its self, and merely as it is a Rule; whereas, all Laws derive their Power of obliging from a Superior, who makes them; that is, from some Intelligent Being, who has a Right of imposing an indispensible Necessity of submitting to his Direction, on those whose Liberty he restrains. To which may be added, that the Author reduces the whole Effect of the Law to the Obligation; whereas Permission ought to be joined to it, which he without Reason excludes.

4.

See Pufendorf, B. I. Chap. VI. § 1.

5.

I cannot be of our Author’s Opinion in this Point. Permission is as real an Effect of the Law, taken in its utmost Extent, as the strongest and most indispensible Obligation. The Superior, who gives Being to the Law, has a Right of positively directing either all the Actions of those who depend on him, or at least, all those of a certain kind: In regard of all those Actions, he has a Power of imposing a Necessity of acting or not acting in a certain manner. But no Superior exercises his Authority so extensively; there is always a considerable Number of Things subject to his Direction, in which he leaves every one the Liberty of doing as he pleases. This is not a mere Inaction, or Negation of Action, as our Author pretends, but a real positive Act, though commonly tacit, by which the Superior or Legislator makes an Abatement of his Right. So that, as the Actions commanded or prohibited, are regulated positively by the Law, so far as it imposes an indispensible Necessity of doing the former, and forbearing the latter, the Actions permitted, are likewise positively regulated by the Law in their own Way, and according to their own Nature, so far as the Law either originally gives a Power of doing or not doing them at Pleasure, or confirms and leaves Men in Possession of a Liberty, which it might have taken away either entirely, or in Part. There is no manner of Necessity of an express Permission, which seldom takes place in Divine or Human Laws: The Silence of the Legislator sufficiently infers a positive Permission of whatever is neither enjoined nor prohibited. Thus when God, who alone can regulate all the Actions of Men, of what Nature soever they be, forbad the Jews the Use of certain Animals for Food, as he might, if he had pleased, [[have]] extended the Prohibition to several other Kinds, by his only forbidding some Particulars, he actually and positively allowed them the Liberty of eating or not eating all others. As to human Laws, either they turn on Things already commanded or prohibited in some manner by Divine Law, natural or revealed; and in that Case, they give as much as in them lies, a Permission of doing several other Things of that Kind, where they are silent; which is a necessary Consequence of Impunity: Or they relate to Things otherwise indifferent in themselves; and then they of course permit whatever they do not forbid; there being an Infinity of Actions of such a Nature, that a Man invested with Authority may lay a Restraint on the Liberty of others, which the Law of Nature allows only so far as a lawful Superior does not think proper to bound it. In one Word, whoever fixes certain Limits, and declares no one shall be allowed to exceed them, does by that very Action express how far he grants Men Liberty to go, if they please. This Way of Reasoning is the more just, because, as our Author owns, the Permission which a Law gives to any one, lays an Obligation on others not to form any Obstacle to his acting, when he is disposed to do what the Law permits. Now this Obligation arises, and ought necessarily to arise from a Right inherent in him, to whom the Law gives a Liberty of acting as he pleases; for in all Obligations in which we stand engaged to others, there is some correspondent Right; and we have not a Right to require a Thing, because another is obliged to do it, but on the contrary, he is obliged to do it, because we have a Right to require it. Whence then arises this Right? It can certainly arise only from the Permission granted by the Law, a Permission, by vertue of which we are also empowered to resist those, who disturb us in the Enjoyment of this Right, and employ either the common Means of Justice, when we are in a Condition of having Recourse to the Protection of a proper Judge, or Force, if we have no other Way left of righting ourselves. In short, every one knows, that the Laws grant an express Permission, either to all such as depend on the Legislator, or only to some in Particular. From all which it appears, in my Opinion, that the Author had no Reason for excluding Permission from the general Idea of the Law. To which may be added what I have said on this Subject against Pufendorf, who is of the same Opinion with Grotius, B. I. Chap. VI. § 15. Note 2. By way of Supplement for this Omission, and some others, I am of Opinion that Law should be defined as I have already defined it, in a Note on the Abridgment of The Duties of a Man and a Citizen. B. I. Chap. II. § 2. of the last Editions: The Will of a Superior sufficiently notified in some manner or other, by which Will he directs either all the Actions in general of those who depend on him, or at least all those of a certain Kind, so that, in Regard to such Actions, he either imposes on them a Necessity of doing or not doing certain Things, or leaves them at Liberty to act or not act as they shall judge proper.

6.

We have an Example of this in a Law made by Zaleucus, inflicting a Penalty on those, who should drink Wine against the Physician’s Orders. Grotius.

This severe Law made the Offence capital, if we may believe Elian, Var. Hist. Lib. II. Cap. XXXVII. See Pufendorf, B. I. Chap. VI. § 4 in the Text and Notes. To which we may add what Elian says of the Lacedemonians and Romans, Lib. III. Cap. XXXIV. with the Note of the late Mr. Perizonius.

7.

Thus we say: It is just to acknowledge Favours, to have Compassion for the Poor, to be liberal to those who want our Assistance, to take a prudent Care of our Health and Fortune, &c.

8.

In his Ethic. Nicom. Lib. V. Cap. X. where he makes a Distinction between Δίκαιον Φυσικὸν, and Δίκαιον νομικὸν, as making part of what he calls Δίκαιον πολιτικὸν Civil Law. So that his Division is not exactly the same with that of our Author. See my Preface to Pufendorf, § 24. p. 97, 98. of the second Edition.

9.

That is, for a Constitution absolutely depending on the Will of the Legislator.

10.

Τὸ ἐν τάξει. The Philosopher makes use of this Expression, when speaking of Injustice. Ἀδικὸν μὲν γάρ ἐστι τῃ̑ ϕύσει, ἢ τάξει. Ethic. Nicom. Lib. V. Cap. X. p. 68. Vol. II. Edit. Paris.

11.

Thus Maimonides, in his Guide to the Doubtful, Lib. III. Cap. XXVI. Grotius. See Selden, who also adopts this Rabbinical Remark, in his Treatise, De Jure Nat. & Gent. secundum Disciplinam Hebraeorum, Lib. I. Cap. X. p. 119, 120. But our Author here gives us to understand, that this Distinction is not always observed, as he expressly acknowledges in his Commentary on St. Luke i. 6. See Mr. Le Clerc, on Genesis xxvi. 5. and in his Additions to Dr. Hammond’s Notes on Rom. viii. 4.

1

Philo the Jew, in his Treatise, where he undertakes to prove that every good Man is free, speaks thus, Right Reason is an unerring Law, not corruptible or lifeless, written by this or that mortal Man, on Papers or inanimate Pillars, but incorruptible, and engraved by an immortal Nature on an immortal Mind, p. 871. Edit. Paris. Will you enquire where the Law of GOD is? says Tertullian, when you have a common Law exposed to every one’s View, and written on the Tables of Nature? De Coronâ Militis, Cap. VI. The Emperor Marcus Antoninus declares, The End to be proposed by all rational Creatures, is to follow the Reason and Laws of the most antient Commonwealth, Lib. II. § 16. See a Fragment of Cicero’s Treatise De Republicâ, Lib. III. quoted by Lactantius, Lib. VI. Cap. VIII. St. Chrysostom has several fine Thoughts on this Subject, in his twelfth and thirteenth Homilies On the Statues. What Thomas Aquinas says, Secunda Secundae, I.VII. 2. and Scotus, III. Dist. 37. is not unworthy our Notice. Grotius.

2.

Our Annotator adds the Words ac Sociali, & Sociable in the Text of his Latin Edition, because his Author expresses himself in the same Manner, § 12. Num. 1. and in the following Chapter, § 1. Num. 3. He thinks it probable, that the Transcriber or Printer omitted those two Words; and that the Author overlooked the Omission, as he has done in several other Places.

3.

Actus debiti, aut illiciti per se. The Author here supposes we should be under an Obligation of doing or not doing certain Things, even tho’ we were not answerable to any one for our Conduct. We are not to be surprized that his Notions on that Subject are not entirely just, since we see at this Day not only the Generality of Philosophers and Scholastick Divines, but also some Authors, otherwise very judicious, and far from being Slaves to the Schools, strenuously maintain, that the Rules of the Law of Nature and Morality do in themselves impose an indispensible Necessity of conforming to them, independently of the Will of GOD. Some however, reason so as to make it seem a mere Dispute about Words. I shall endeavour to put the Question in a clear Light in a few Words, and shew the Foundation of the Negative, which I take against the Author. This Note may be joined to what I have said on the same Subject in my Preface to Pufendorf, § 6. p. 36. Second Edition. The Question here is not whether we can discover the Ideas and Relations, from which all the Rules of the Law of Nature and Morality are deduced, abstractedly from the Will of an intelligent Being. It must be acknowledged with the Patrons of the Opinion which I oppose, that these Rules are really founded on the Nature of Things; that they are agreeable to the Order conceived necessary for the Beauty of the Universe; that there is a certain Proportion or Disproportion, a certain Fitness or Unfitness between most Actions and their Objects, which give a Beauty to some, and a Deformity to others. But it does not follow from this Concession, that we are, properly speaking, obliged to do or not to do such a Thing. The Fitness or Unfitness, which may be termed the natural Morality of Actions, is indeed a Reason for acting, or not acting; but then it is not such a Reason as imposes an indispensible Necessity, which is implied in the Idea of an Obligation. This Necessity can come only from a superior, that is, from some intelligent Being existing without us, who has a Power of restraining our Liberty, and prescribing Rules for our Conduct. If there were any Obligation independently of the Will of a Superior, it must be laid on us either by the Nature of the Things themselves, or by our own Reason. Now the Nature of Things cannot impose any Obligation properly so called. The Relation of Fitness or Unfitness between our Ideas, can of itself only oblige us to acknowledge such a Relation; something more is necessary for obliging us to make our Actions conformable to it. Nor can Reason of itself lay us under an indispensible Necessity of following those Ideas of Fitness or Unfitness, which it places to our View, as grounded on the Nature of Things. For, first, the Passions oppose these abstracted and speculative Ideas with sensible and affecting Ideas, they shew us in several Actions contrary to the Maxims of Reason, a Relation of Pleasure, Content, and Satisfaction, which attend them, as soon as we resolve to perform them. If our Understanding diverts us from such Actions, the Inclination of our Heart carries us toward them with much more Force. Why then should we comply with the former, preferably to the latter, if there is no exterior Principle that obliges us so to do? On this Supposition, are not the Inclinations of our Heart as natural as the Ideas of our Mind? Do they not arise from a certain Disposition in our Nature? You will say, Reason evidently shews us that we shall act more conformably to our Interest, by observing the Rules which she prescribes, than in being guided by our Passions. But the Passions will dispute this Advantage, and even pretend it lies on their Side, because the Satisfaction which they offer is present and certain; whereas the Interest to which Reason would engage our Attention, is future and distant, and perhaps therefore to be looked on as uncertain. Even tho’ we were convinced that, all Things well considered, it would be advantageous to us to listen to the Dictates of Reason, is not every one at full Liberty to renounce his Interest, while no other Person is concerned in his acting conformably to it, or invested with a Right of requiring he should consult it as much as is in his Power? How much so ever a Man acts in contradiction to his real Interest, he will, on this Supposition, be only imprudent: He will be guilty of no Violation of any Duty or Obligation, properly so called. But secondly, what ought to be particularly observed, and which alone is sufficient for proving the Thesis here advanced, is that our Reason, considered as independent on the Being who endowed us with it, is at the Bottom nothing but Ourselves. Now no Man can impose on himself an indispensible Necessity of acting or not acting in such a particular Manner. The very Notion of Necessity implies, that it cannot cease at the Pleasure of the Person subject to it; otherwise it would be ineffectual, and reduced to Nothing. If then the Person obliged, and the Person who lays the Obligation be one and the same, he may disengage himself from it, when, and as often as he pleases; or rather there will be no real Obligation; as, when a Debtor succeeds to the Estate and Rights of his Creditor, the Debt ceases. In a Word, as Seneca very well observes, properly speaking, No Man owes any thing to himself.... The Word Owe takes Place only between two. De Benef. Lib. V. Cap. VIII.

From all which I conclude, that how conformable soever the Maxims of Reason be to the Nature of Things, and the Constitution of our Being, they are by no Means obligatory, till this same Reason has discovered the Author of the Existence and Nature of Things, whose Will gives those Maxims the Force of a Law, and imposes an indispensible Necessity on us of conforming to them, by Vertue of his Right to restrain our Liberty, as he judges proper, and prescribe what Bounds he pleases to the Faculties we received from him. It is true, GOD can command nothing contrary to the Ideas of Fitness and Unfitness, which Reason shews us in certain Actions, but still the Obligation of regulating our Conduct by those Ideas proceeds only from his Will. The Question is not, Whether that Will be arbitrary or not? It is still that alone which, properly speaking, imposes the Necessity. If, supposing an Impossibility, we could reasonably persuade ourselves that the Divinity is such as he is represented by the Epicureans, a Being who does not interest himself in the Actions of Men, requires nothing at their Hands, has no Concern for their living well or ill; whatever Ideas we might entertain of Order, Fitness, and natural Justice, the Consideration of such a Divinity would not be sufficient for imposing an indispensible Necessity of taking those Ideas for our Rule, even tho’ we believed he himself acted conformably to them, as far as the Perfection of his Nature requires; for Example is not in itself a solid Foundation of Obligation. In short, that the Will of GOD is the Source of all Duties appears from this Consideration, that when they who are in Possession of a Religion, practise the Rules of Virtue, and the Maxims of the Law of Nature, they ought so to do, not principally and precisely because they acknowledge such Rules conformable to the natural and invariable Ideas of Order, Fitness, and Justice; but because GOD, their Sovereign Master, wills that they should follow them in their Conduct. And, in Reality, it would otherwise be unnecessary for GOD to give any Orders on that Head, because they would be already obliged to act in that Manner: The Will and Authority of GOD would, on this Supposition, be no more than a Sort of Accessory, which, at most, would only make the Obligation stronger. I have treated this Matter more at large in my Reflections on The Judgment of an anonymous Author; or the late Mr. Leibnitz, printed in 1718, at the End of the fourth Edition of my Translation of the Abridgment of Pufendorf’s Book Of the Duties of a Man and a Citizen.

4.

He speaks here of such Things as are neither commanded nor forbidden by the Law of Nature, in regard to which we are left to our Liberty to act as we judge proper, unless a lawful Superior makes some positive Law in that Point; as it is in his Power; which is agreeable to the Law of Nature only in the Manner here specified, not being immutable, as our Author observes elsewhere, B. I. C. II. § 5. n. 1. But it is evident from what I have said, Note 5. on the preceding Paragraph, that there is a Natural Law of bare Permission, as well as one which is obligatory; and thus the Things which the Author means, may very well be considered as belonging to Natural Law, in the former Acceptation of the Term.

5.

Our Author, in another Part of this Work, mentions Concubinage, Divorce, Polygamy, B. I. C. II. § 6. n. 2. the Action of a Person, who discovers to another, what he is not by the Law of Contract obliged to discover: (B. II. C. XII. § 9. n. 2.) The Care of declaring War in certain Cases, where it may be omitted without any Violation of Natural Law: (B. III. C. III. § 6 n. 6.) The Vow of Celibacy, Second Marriages, and the like, (B. III. C. IV. § 2. n. I.) as so many Examples of Things belonging to this Class. What we shall say on those Places, and on B. I. C. II. § 1. n. 3. will help to explain the Principle here laid down by our Author, and shew wherein he has misapplied or extended it too far. See also Pufendorf, B. II. C. III. § 22.

6.

See Pufendorf, B. II. C. III. § 15. Note 5. and § 22, 24.

7.

Theft is a fraudulent taking of a Thing, for the Sake of making an Advantage either of the Thing itself, or of the Use or Possession of it: All which is forbidden by the Law of Nature. Digest. B. XLVII. Fol. 2. De Furtis, Leg. I.§3.

8.

The Words of the Emperor Julian on that Subject are, Besides that, by which we are all convinced, without Instruction, of the Existence of something Divine; there is a second Law, sacred and divine by Nature, which orders us entirely to abstain from another Man’s Property, and allows us not to make any Attempt on it, either by Word or Action, or even in our secret Thoughts, &c. Orat. VII. p. 209. Edit. Spanheim. The Philosopher Chrysippus, as represented by Cicero, said, There is no Injustice in seeking ones own Advantage; but it is contrary to Equity to take away from another. De Offic. Lib. III. Cap. X. Grotius.

9.

Theft and Adultery are in their own Nature Evil and Infamous. Digest. Lib. L. Tit. XVI. De Verborum significatione, Leg. XLII.

10.

For the Deity abhors violence. It is his Will that all Men should remain in quiet Possession of their own Goods; but no Rapine is allowed. Riches unjustly acquired are to be renounced, for the Air and Earth are common to all Men, where, when they increase their Possessions, they are not to detain or take away what belongs to others. Helen. V. 909, &c.

11.

Compare this with what Pufendorf says, B. II. C. III. § 5.

12.

See Mr. Le Clerc’s Ontology, C. XIV.

13.

The Definition of moral Good and Evil, of Virtue and Vice, being established on the necessary Congruity or Incongruity, which we perceive between certain Ideas, founded on the very Nature of Things; to say the Good becomes Evil, and Evil Good, as long as the Things remain the same, implies a Contradiction. If therefore God should command a Thing in which we find a necessary Incongruity with the Nature of Things; and on the contrary, prohibit a Thing in which we discover a necessary Congruity with the Nature of Things; he would act in Contradiction to himself, because he is the Author of that Nature: Thus he would be wise and not wise at the same Time; he would have all Perfections, and yet want one of the greatest; which is such a manifest Contradiction as can never be the Object of the Divine Omnipotence. If it be said, that God can change the Nature of Things, the Proposition is unintelligible, and when closely examined, implies no less Contradiction. For either the Things would not be the same, tho’ called by the same Names; as Man, for Example, would be no longer a rational and sociable Creature; or Things remaining still the same, they would no longer be endowed with the same Properties, and the same essential Relations, i.e. they would and would not be the same; for the Essence of a Thing, and the Thing itself, differ only in Name.

14.

Ethic. Nicom. B. II. C. VI. The Application of this Passage is not entirely just. Aristotle is not here speaking of the Mutability or Immutability of Moral Evil. He means no more than that some Passions and Actions are of such a Nature, that they can be innocent in no Case, nor in what Manner soever they are admitted. Of this Sort are a malicious Joy at our Neighbour’s Misfortunes, Impudence, Envy, Adultery, Theft, and Murder; whereas some other Passions and Actions are Good or Evil, as a just Medium is observed, or as we depart from it, and give into either Extreme: Such are Fear, Confidence, Desire, Aversion, Anger, Compassion, Joy, Sorrow, the Actions of giving or receiving, of speaking or being silent, &c. But, whether the moral Evil, always inherent in the former Sort of Actions and Passions, and sometimes in the latter, is absolutely inseparable from them, even by the Will of God, is another Question, on which the Philosopher says nothing either directly or indirectly, which leaves us Room to suppose he had it in his Thoughts.

15.

This Example is employed, B. I. C. VII. by way of Comparison, in relation to a very different Subject.

16.

See Preliminary Discourse, § 49. n. 3. and B. I. C. II. § 2. num. 1. B. II. C. VII. §2. n. 3. and B. III. C. XI. § 9. num. 2.

17.

This is treated of in B. II. C. II. § 2.

18.

See B. I. C. III. § 1, 2. and B. II. C. XX. § 8.

1

See Pufendorf, B. II. C. III. § 2, 3.

2.

Brutes have not a Power of forming abstracted or general Ideas, as Mr. Locke has shewn in his Essay on the Human Understanding, B. II. C. XI. § 10, 11. See also Cicero, De Officiis, B. I. C. IV. and Seneca, Ep. 124. Or if it be imagined, that by allowing Brutes Knowledge, it will be hardly possible to deny them some universal Ideas; it must be granted, at least, that they are not very extensive, and, according to all Appearance, are raised only by the Impressions of some particular Object which is present.

3.

Oper. & Dier. V. 276, &c. Edit. Cleric.

4.

Juvenal makes the same Observation, Sat. XV. v. 142, &c. “It is that which distinguishes us from Brutes. And it is also upon that Account that we only, of all Animals, have obtained a wonderful Capacity of apprehending divine Things, of inventing and exercising divers Arts. This Understanding we derive from Heaven, which the other Animals, whose Bodies are formed to look towards the Earth, are intirely deprived of. The common Creator of the Universe has given to them Souls endowed only with Sense; but to us he has moreover given Reason, that a mutual Affection might encline us to ask and give mutual Assistance, to unite together, and to form Notions, &c. ”St. Chrysostom says, We ought not to trans gress the Rules of Justice, even in regard to inanimate Beings, and such as are void of Sense. On VII. C. of Epist. to the Romans. Grotius.

This Thought of St. Chrysostom seems, on the contrary, to suppose some Sort of Law common to Men and Brutes.

5.

Nor does our Nature differ in any Thing more from that of Beasts, to which we attribute Strength, as a Horse and a Lion, but never Justice, Equity, or Beneficence; for they have neither the Use of Reason nor Speech. De Off. B. I. C. XVI. Our Author might have added a Passage from Aristotle, where that Philosopher observes, that We never say Beasts are temperate or intemperate, but by a Metaphor, tho’ one Species of Animals differs widely from another, in the natural Desire of Generation, and Greediness in Eating. Ethic. Nicom. Lib. VII. Cap. VII. p. 92.

6.

Cap. XVII. Num. 30, 31. Edit. Cellar.

7.

(Polyb.) Lib. VI. Cap. IV. In regard to what the Philosopher says of Offences committed against Parents, we have an Example of that Kind in Ham, and the Punishment of his Crime, Gen. ix. 22, &c. St. Chrysostom observes, that We are naturally inclined to join in our Indignation with those who have been injured; for, says he, we immediately become Enemies to the Offenders, tho’ we have no Share in the Injury. Hom. XIII. De Statuis. The Scholiast on Horace, Sat. III. Lib. I. v. 97. remarks, that Our Sentiments of Indignation upon hearing of a Murther, are different from those that arise in our Soul when we are inform’d of a Robbery. Grotius.

8.

Pliny, in his Natural History, Lib. VIII. Cap. V. speaks of a Sort of Sense of Justice in Elephants, which he terms divinatio quaedam Justitiae. The same Writer, Lib. X. Cap. LXXIV. tells us, on the Credit of another Author, that in Egypt, an Asp was known to kill one of its own Young, for having killed the Man’s Son who entertained and fed him. Grotius.

9.

Seneca says, that wild Beasts are not, properly speaking, subject to Anger, but have a Sort of blind Impetuosity in its stead. Brutes, says he, are void of human Passions, but have certain Impulses resembling those Motions. De Ira. Lib. I. Cap. III. Origen also observes, that Beasts are not susceptible of Vice, properly so called, but that we find in them something that resembles Vice. Contra Celsum. The Peripaticks said, The Lion seems to be angry. Porphyr, De non esu Animalium, Lib. III. p. 309. Edit. Lugd. 1620. Grotius.

1

This Way of proving the Existence of the Law of Nature is of little Use, because only the most general Maxims of that Law have been received by most Nations. Some Practices even contrary to the most evident of them, were long considered as indifferent in the most civilized Countries, as appears from the horrible Custom of exposing Children. See Pufendorf, B. II. Chap. III. § 7, 8. and what I have said in my Preface to that Author, § 4.

2.

Opp. & Dier. vers. penult. But the Passage is not well applied in this Place; for the Poet means only that we ought to endeavour at securing a good Reputation in the World, because false Reports always make some Impression, and prejudice the Person to whose Disadvantage they are spread. Ὀυ πάμπαν ἀπόλλυται, Are not entirely without Effect.

3.

This is taken from Sextus Emtricus, [[sic: Empiricus]], Adv. Mathem. Lib. VII. § 134. p. 399. Edit. Fabric.

4.

Aristotle maintains, that What all Men conceive in a certain Manner, is really such as it appears; and that, Whoever attempts to discredit such a Belief, will advance nothing much more worthy of Credit. Ethic. Nicom. Lib. X. Cap. II. p. 130. Edit. Paris. Seneca, undertaking to prove that no Duty is more evident than that of Gratitude, gives the following Reason for it: How different so ever the Opinions of Men may be on other Subjects, they will all unite in declaring that a proper Return is to be made to those who have deserved well of us. Epist. LXXXI. Quintilian says, I will therefore call the Consent of the Learned, the Standard of Language, and the Consent of good Men, the Rule of Life. Lib. I. Cap. VI. To the same Purpose, Josephus, the Jewish Historian, There is no Nation in which the same Customs are generally established: One City frequently differs from another in this Point, but Justice is equally proper for all Men, being extremely useful both to the Greeks and Barbarians. As our Laws have a strict Regard to that Virtue, they render us, if religiously observed, benevolent and friendly to all Men. This is what we are to require from Laws: Nor are others to profess an Aversion to them, on the Account of the Difference between their Institutions and ours, but rather to consider whether our Laws have a Tendency to promote Probity and Virtue; for this is the common Concern of all Mankind, and is of itself sufficient for maintaining human Society. Antiq. Judaic. Lib. XVI. Cap. X. Tertullian says, that Whatever is equally received by great Numbers of People, is not an Error, but a real Tradition. De praescript. adv. Haeret. Cap. XXVIII. Grotius.

None of these Quotations, except the two first, are to our Author’s Purpose: That of Quintilian seems rather to insinuate the contrary of what he would prove; for it is well known, that good Men were never the Majority; and that great Master of Rhethoric had a little before declared, that Custom, if it received its Name from the Practice of the Majority, will give most pernicious Precepts, not only for forming a Stile, but also for regulating our Lives. The Passage of Josephus comes to no more than this: That the Practice of Justice is equally useful to all Men; but there is nothing in it that insinuates that all Men entertain the same Ideas of that Virtue.

5.

Sextus Empiric. Adv. Mathem. Lib. VII. § 131, 133.

6.

I know not whence this is taken; for I do not find it in any of those Books where it might be supposed that Philosopher has said any Thing of this Nature.

7.

Tusculan Quaest. Lib. I. Cap. XIII.

8.

Epist. CXVII.

9.

Instit. Orator. Lib. V. Cap. X. p. 399. Edit. Burman. He instances in the Belief of a Divinity, and the Obligation under which Children lie of loving and obeying their Parents.

10.

Of Abstinence, Lib. IV. p. 428. Edit. Lugd. 1620.

11.

Justin Martyr makes this Exception, Except such as being possessed with impure Spirits, and corrupted by a bad Education, evil Customs, and unjust Laws, have lost their natural Ideas. Colloq. cum Tryphone. Philo the Jew observes, that It is surprizing any Man should be so blind, as not to perceive certain Properties of Things, which are as clear as the Sun. In his Treatise proving all good Men to be free, p. 871. Edit. Paris. St. Chrysostom cautions us against forming a Judgment of Things from the Opinion of such as have a corrupt Mind. In his Homily on the Divinity of Jesus Christ. Grotius.

12.

Ethic. Nicom. Lib. V. Cap. X. Num. 2. Edit. Heins.

13.

In the Life of Pompey, Vol. I. p. 633. Edit. Wech.

14.

Topic. Lib. V. Cap. II. p. 228. Vol. I. Edit. Paris.

15.

St. Chrysostom says the same in his eleventh Homily On the Statues. Philo the Jew is larger on this Point. Nature, says he, when it produced the tamest of all living Creatures, made him sociable, and disposed to Concord. She also gave him the Use of Speech, for promoting an Harmony and a Conformity of Manners. On the Decalogue, p. 763. Edit. Paris. And in another Place, Man is the most tractable of Animals, being by Nature endowed with the Gift of Speech, by which the most savage Passions are charmed into Tameness. Of the Immortality of the World, p. 945. Grotius.

16.

Polit. Lib. I. Cap. V.

1

This is usually called Positive Law. Its Objects are Things in themselves indifferent, or such as are not founded on the Constitution of our Nature, and consequently admit of different Regulations, as Time, Place, and other Circumstances require; all which depend on the Will of a Superior, which is the only Foundation of this Kind of Law, which is therefore called Arbitrary. See Pufendorf, B. I. Chap. VI. § 18.

1

The Author follows Aristotle in the Addition of this Epithet. That Philosopher considered Civil Society, as a perfect Society, ἀυτάρκη, containing all that is necessary for living commodiously and happily. Politic. Lib. I. Cap. I. See also Lib. III. Cap. VI. & Lib. VII. Cap. IV. The Definition of a State may be seen in Pufendorf, B. VII. Chap. II. § 13; and the Note on that Place.

2.

For there were Parents and Children, Masters and Servants, &c. before there were Princes and Subjects. The Authority of a Father over his Child, that of a Master over his Servant, &c. is by no Means founded on the Will of the Civil Power, and the Obligations incumbent on Men as Members of a State; but has a different Origin, as shall be shewn in the proper Place. The Sovereign in this Case can only lay a Restraint on that Authority, as far as the Publick Good requires.

3.

This Positive Law of Nations, distinct from the Law of Nature, is a mere Chimera. See Pufendorf B. II. Chap. III. § 23. with the Notes. I grant there are some Laws common to all Nations, or certain Things which ought to be observed by all Nations, in Regard to one another; and this may very well be termed the Law of Nations. But, besides that the Obligation to obey those Laws, does not arise from the Consent of Nations, which cannot take Place here; the Principles and Rules of such a Law, are in Reality the same with those of the Law of Nature, properly so called: The whole Difference consists in the Application which may be made in another manner, on the Account of the different Ways taken by Communities for determining Disputes. This is evident from the Example of Reprisals, which are founded on that general Maxim of the Law of Nature and Nations, that Damages ought to be repaired; for a Man in the State of Nature, cannot demand Satisfaction, for any Injury received from one who lives out of all Civil Society, of any of his Relations or Friends, who are really not concerned in the Affair. As to Customs received by the Generality of Nations, and concerning which the Law of Nature has given no Directions, if we are obliged to submit to them, it is not because they are obligatory in themselves, but because as soon as we know a Thing is generally practised, we are, and may be supposed to conform to such a Custom, while we give no Proof of the contrary. Thus the whole Obligation arises from this tacit and private Agreement, without which the Customs in Question have no Force.

4.

See Vasquez, II. Controv. Illustr. LIV. 4. Grotius.

5.

B. III. Chap. VII, IX.

6.

Orat. LXXVI. De Consuetudine.

1.

We have the following Passage on this subject in one of our Author’s Epistles. “Salmasius, in his Treatise De Usuris, frequently disputes about Words. Thus (p. 589, 685.) he spends much of his Time in opposing the Epithet Voluntary, which I have employed as a proper Term for characterizing and distinguishing non-natural divine Law. But he did not observe that Cicero calls a bad Action Facinus voluntarium, and opposes voluntarius to necessarius. God was at full Liberty not to create Man. The Moment he is determined to create Man, that is, a Nature endowed with Reason, and formed for a Society of an excellent Kind, he necessarily approves of such Actions as are suitable to that Nature, and as necessarily disapproves of those which are contrary to it. But there are several other Things which he commands or prohibits, because he thought fit so to do, and not because he could not act otherwise. I do not see what more proper Word could be found for expressing this Sort of Law, which is not invariably attached to the Nature of Man, and for establishing which the free Determination of the Divine Will intervenes.” Epist. Part II. Ep. 429.

2.

I have produced and explained the Passage of Plutarch, to which our Author here alludes, in my Remarks on Pufendorf, B. II. Chap. III. § 4. n. 1.

3.

I do not understand what positive Laws the Author means, which God delivered at the beginning of the World, and which are still obligatory, as soon as they are known. It is probable he understands by those Terms the several Sorts of Incest in the Collateral Line relating to the fourth of the six Commandments, which he, with the Rabbies, supposes were given to Adam and Noah, though they are only distinguished by the Name of the latter, as is also the Seventh, concerning Abstinence from Blood, which we find prescribed to Noah, Gen. ix. 4. See Num. 4. of the following Paragraph, and Chap. II. of this Book, § 5. Num. 5. B. II. Chap. V. § 13. num. 2, 5, 6; as also Selden, De Jure Nat. & Gent. juxta disciplinam Hebraeorum, Lib. I. Cap. X. But all this is grounded only on a very uncertain Tradition, which can never have the Force of a general Law, duly promulgated; as will appear still more evidently from what I shall say on the Places here referred to. We shall shew in Note 1. on B. II. Chap. V. § 13 that the Consequence drawn from Levit. XVIII. 24. &c. is not well founded. Others, (as Mr. Hochsteter, Professor at Tubingen, in his Collegium Pufendorfianum, Exercit. III. § 19.) with more Reason refer this to the Prohibition given to our first Parents in regard to the Tree of Knowledge of Good and Evil. Gen. ii. 16, 17 iii. 2, 3. But, tho’ that positive Law would have been equally obligatory to their Posterity, had they remained in Paradise, yet as the Matter of the Prohibition was but of short Duration, and the Law could never take Place afterwards, it is to no Purpose to make it an Example of an universal positive Law. The same Author, and several others, after Mr. Thomasius, who first reduced this Sort of Laws to a System, but afterwards ruined his own Edifice; those Authors, I say, place the Prohibition of Polygamy and Divorces among the universal positive Laws given to Adam; and pretend to find it in Gen. ii. 24. as also the Observation of the Sabbath, ibid. v. 3. the Authority of a Husband over his Wife, iii. 16. the Use of Sacrifices, iv. 3. But, first, tho’ Moses says, A Man shall leave his Father and his Mother, and shall cleave unto his Wife; and they shall be one Flesh. Nothing can hence be concluded either for or against Polygamy or Divorce. The Expression, Shall be one Flesh, in itself means no more than that there shall be the strictest Union between a Man and his Wife; but it does not imply that a like Tie cannot at the same Time subsist between a Husband and two or more Wives. And all that can be inferred from the same Text, in regard to the Dissolution of Marriage, is, that it ought not to be admitted rashly, and without some good Reason. The Word Flesh, according to the Hebrew Idiom, signifies all Ties, both of Affinity and Consanguinity, as Mr. Le Clerc has observed. Thus Laban says to Jacob, Thou art my Bone and my Flesh, Gen. xxix. 14. that is, I own you for one of my Relations. As therefore all the Relations of a Man are his Flesh; so, in the same Way of Speaking, a Man may be said to be one Flesh with several Wives. Secondly, Inregard to the Sabbath, it is owned by the most judicious Divines, that when Moses, after the History of the Creation, says, GOD blessed the Seventh Day, and sanctified it, he speaks by Anticipation, and only touches by the by on the Reason why GOD afterwards instituted the Feast of the Sabbath, so considerable among the Jews. Thirdly, When GOD says to Eve, Thy Desire shall be to thy Husband, and he shall rule over thee, the Penalty consists rather in the Necessity laid on Wives, in consequence of Sin, of obeying ill Husbands, than in any Right conferred on Husbands to command them in certain Cases, and to a certain Extent, that Right being grounded on the Law of Nature, and not barely on Divine Positive Law; as we shall see in the proper Place. Fourthly, The fourth Chapter of Genesis gives us only one Example of Sacrifices offered by two Sons of Adam; but there is not the least Insinuation, that GOD had commanded them to render him that Kind of exterior Worship. It is not probable indeed, that Men should so soon have thought of it, without some Direction, as Mr. Le Clerc very well observes; but it does not thence follow, that GOD had then prescribed that Practice, in the Form of an universal and perpetual Law for all Mankind.

4.

Of this Sort are usually said to be the Prohibition of eating Blood, Gen. ix. 4. and the Punishment of Murther, v. 6. But, First, The Prohibition of eating the Flesh of Animals, with their Blood or Life, was a Sort of symbolical Law, for diverting Men from Cruelty towards one another, at a Time when a Tenderness in that Particular was of the greatest Importance for the Multiplication of Mankind. See Mr. Le Clerc’s Comment on the Place. Besides, we have not the least Insinuation, that any but the moral Part of this Law was to be obligatory at all Times, and in all Places; and such as pretend it not allowable, even under the Gospel Dispensation, to eat the Blood of any Animal, have been sufficiently confuted. Secondly, When GOD says, Whoso sheddeth Man’s Blood, by Man shall his Blood be shed. This is not a Law, properly so called, but a bare Declaration of the just Punishment which Murtherers are to fear, either from Man or from GOD, by an Effect of the Divine Providence and Vengeance. See the following Chapter, § 5. note 2. This is evident from the preceding Words, where God says, At the Hand of every Beast will I require it: (the Life of Man) At the Hand of every Man’s Brother will I require the Life of Man. To which he adds, by way of Confirmation, Whoso sheddeth, &c. For in the Image of GOD made he Man. From this Passage mis understood, some Lawyers, as the late Mr. Cocceius, Professor of Law at Francfort on the Oder, (Dissert. De Sacrosancto Talionis Jure § 29, &c.) infer that even at this Day no human Power can pardon a Murtherer. See a Dissertation of Mr. Thomasius, printed at Hall, in 1707, and entitled, De Jure aggratiandi Principis Evangelici in causis Homicidii. in which he opposes this Error. See also the following Chapter, § 5. num. 3.

5.

See the following Chapter, § 6 num. 2.

1

Some Commentators, as well Lawyers or Criticks as Divines, inveigh strongly against this Assertion of our Author; but they only copy the common Places of Scholastick Divinity. They need not have given themselves so much Trouble, had they but considered, that the Question concerning the Salvation of the Pagans ought not to be brought into this Dispute, as being nothing to the Purpose. For whether the Heathens could or could not be saved without some Knowledge of JESUS CHRIST, either distinct or typical, it is still certain, that the Law of Moses, as such, laid no Obligation on the Pagans. This Law was undoubtedly directed only to the Israelites, as our Author observes; and an infinite Number of Pagans, who neither did or could know that there was such a People in the World, to whom GOD had given particular Laws, being therefore in an absolute Impossibility of having any Acquaintance with them, it cannot be reasonably said, they were under an Obligation of observing them. Thus supposing that the Efficacy of the Sacrifice of JESUS CHRIST cannot be extended to such as have not had the Assistance of Revelation, though through no Fault of their own, how moral soever they may live; they will not be condemned for not submitting to Laws of which they neither had nor could have any Knowledge; but for a Multitude of other Sins. Their being deprived of such a Means of Salvation, which GOD was not obliged to allow them, will be their Misfortune, not their Crime. As to those Pagans who lived in the Neighbourhood of Judea, and thus had it in their Power to embrace Judaism, as GOD did not forbid their being received when they offered themselves, so neither did he command them to be circumcised, to qualify themselves for sharing the Advantages of the Mosaick Law. Gronovius was sensible of this, and even gives a Reason for it, which evidently shews the Laws of Moses, as such, did not oblige the Pagans. The Prophets, says he, were not to encroach on the Functions of the Messiah, who alone was to unite the Nations, call all Men, and render the Church universal. Eusebius, in his Evang. Demonst. says, The Law of Moses was delivered only to the Jews, and that while they remained in their own Country. Whence he infers, that therefore there was a Necessity of another Prophet, and another Law. Lib. I. Cap. I. See Mr. Le Clerc’s Prolegomena to the Eccl. Hist. Sect. I. Cap. VIII. § 10.

2.

The learned Gronovius objects, that the Laws of the Decalogue are universally obligatory, tho’ the short Preface which ushers them in is addressed to Israel, whom GOD had brought out of Egypt. But, beside that the fourth Commandment, relating to the Observation of the Sabbath, was only for the Jews, as appears from the whole Tenor of the Words in which it is drawn up; and that the Reason of the Fifth, that thy Days, &c. evidently proves the same in regard to that; if the Pagans lay under any Obligation to practise the moral Parts of the Decalogue, it was not as they were a Set of Laws delivered from Heaven on Mount Sinai, but as so many Precepts which all Men may learn from natural Reason. So that Ziegler’s Criticism does not affect our Author, whom he impeaches of not distinguishing between the Moral, Ceremonial, and Judiciary Laws.

3.

Ἐυσεβει̑ς καὶ ϕοβούμενοι τὸν Θεὸν not σεβόμενοι, as our Author, who has taken this from the Epithet given to Cornelius the Centurion, Acts x. 2. This Sort of Strangers are likewise called simply, Ὁι σεβόμενοι Ἑλληνες, Greeks who feared or adored (GOD) Acts xvii. 4. For nothing is more groundless than the Assertion of Gronovius, who says, They were so called in relation to their Conversion to Christianity, not in regard to their former State. It is impossible to give into this Thought, if we read the Words of St. Luke with ever so little Attention.

4.

And Tit. De Synedrio, Cap. XI. Grotius. The Quotation of Tit. De Rege is false, as we are told by Boecler, on the Credit of Wagenseil, Not. p. 175.

5.

Of such Persons see also Exod. xii. 45. Grotius.

6.

Such a Stranger is distinguished from a Proselyte, or circumcised Stranger; as appears from Numb. ix. 14. Maimonides talks much of these pious uncircumcised Persons, in his Treatise On Idolatry, Cap. X. § 6. The same Writer, in his Com. on Misnajoth, and elsewhere, says, that such pious Gentiles will partake of the Happiness of the World to come. St. Chrysostom, in his Exposition of Romans ii. has these Words, Of what Sort of Jews, and of what Sort of Greeks does he here discourse? Of those who lived before the Appearance of Christ; for he has not yet brought his Discourse down to the Times of Grace. To which he adds, He (the Apostle) here speaks not of the idolatrous Greeks, but of such of them as worshipped GOD, of Men who follow the Dictates of natural Reason, of Men, who except only that they do not observe the Jewish Ceremonies, practise all the Duties of Piety. He instances in Melchizedeck, Job, the Ninevites, and Cornelius the Centurion. He afterwards repeats it, that by the Term Greek, the Apostle means not an Idolater, but a pious and virtuous Man, not subject to the Ceremonies of the Law. He pursues the same Ideas in explaining those Words of St. Paul, 1 Cor. ix. 21. To them that are without Law, as without Law. And in his XII. Homily De Statuis, he observes, that the Apostle using the Word Greek, does not thereby mean an Idolater, but a Man who worships one GOD, without being tied down to the Observation of the Jewish Rites; such as Keeping of the Sabbath, Circumcision, and the several Sorts of Purifications; but yet makes the Study of Wisdom and Piety appear through his whole Conduct. Grotius.

The Author, at his Entrance on this Note, seems to appropriate the Term Proselyte to those Pagans who had intirely embraced Judaism. But it is well known, that the other Strangers, settled among the Jews, were likewise called Proselytes; because, in Reality, tho’ they were not subject to the Observation of the Mosaick Ceremonies, they were absolutely obliged to renounce Pagan Idolatry, and make a Profession of worshipping the one true GOD, the Creator, which was the great and fundamental Article of the Jewish Religion. These therefore were termed Proselytes of the Gate, to distinguish them from the Proselytes of Justice, or such as were naturalized. The learned Gronovius is mistaken, when he tells us that Cornelius forbore making an open Profession of Judaism, for Fear of losing his Post in the Army. Nor, says that Commentator, could he have retained the Title of a Roman Citizen, which was a requisite Qualification for bearing Arms in the Roman Troops; or at least, for enjoying an honourable Employment in them. For, beside that we find nothing in the whole Account given of him, Acts x. which gives us any Room to suspect he was not publickly a Proselyte of the Gate, is not the Example of St. Paul, who, tho’ a Jew by Birth, was a Roman Citizen, of itself sufficient to defeat this Argument? And is it not surprising, that Gronovius should entirely forget, or take no Notice of so well known an Example? See Orbis Romanus, by the late Baron Spanheim, Exerc. I. Cap. XVII. which affords a great Number of Instances and Authorities to this Purpose. See also what our Author says in the following Chapter, § 7. num. 5.

7.

Here the learned Gronovius replies, that this proves only, that GOD allowed these Strangers Liberty of Conscience, but it does not thence follow, that they were exempt from all Obligation of submitting to the whole Law. But, since GOD absolutely required they should observe certain Laws, as that against Idolatry; so that without a Compliance with that Prohibition, they were not permitted even to live in the Country, he plainly discharged them from the Obligation of submitting to the rest. This is insinuated in the Reason given in the Passage under Consideration: For, says GOD, thou art an holy People, unto the LORD thy GOD. That is, You Israelites ought not to eat of what is forbidden by the Laws, established for you in particular; but these Strangers are dispensed with in that Point, because those Laws were not given for them. So that it is surprising our Commentator should alledge those Words as a Proof of what he asserts, when they make directly against him.

8.

Such as the Prohibition of working on the Sabbath Day, Exod. xx. 10.

9.

To the Passages of Scripture produced by our Author, we may add the Testimony of Josephus, De Bello Jud. Lib. II. Cap. XXX. p. 809, 810. Edit. Lips. See Mr. Le Clerc on Esdras vi. 10. The learned Gronovius pretends that GOD allowed Strangers to pray and offer Sacrifices in the Temple of Jerusalem, only with a view of rendering them in some Manner tributary to the Jews; as he permitted that People to carry off the Spoils of the Egyptians, and Hiram King of Tyre to furnish Solomon with Materials for building the Temple. But this great Critick did not observe Solomon’s Words at the Dedication of the Temple, 1 Kings viii. Moreover, concerning a Stranger that is not of thy People Israel, but cometh out of a far Country for thy Name’s sake.... Hear thou in Heaven, thy Dwelling-Place, and do according to all that the Stranger calleth to thee for; that all People of the Earth may know thy Name, to fear thee, as doth thy People Israel. From which it is evident, that GOD accepted of the Homage of Strangers, when offered with pious Dispositions, as Solomon supposes they might be; so that GOD had a very different View on this Occasion from what our Commentator pretends: Nor is the Passage quoted from Tacitus, for proving that the Jews were enriched by the Offerings and Presents of the Pagans, well applied, Every one of that detestable People sent their Tribute thither, in Contempt of the Religion of the respective Countries in which they lived; and thus the Jews grew rich. Pessimus quisque, spretis Religionibus patriis, Tributa & Stipes illuc congerebant; unde auctae Judaeorum res. Histor. Lib. V. Cap. V. where Tacitus evidently speaks of the Money which the Jews themselves dispersed through several Parts of the World, transmitted every Year to Jerusalem; Money raised by the Sale of their First-Fruits. That this was their Practice, appears from the Passages of Philo and Josephus, quoted by Justus Lipsius in one of his Notes, which Gronovius himself has inserted in his Edition of the Latin Historian, from whom the Passage is taken.

10.

See Josephus, where he treats of Solomon’s Temple. Grotius.

The Place allotted for Strangers, was called The Court of the Gentiles. The Jewish Historian, in several Parts of his History, speaks of a Prohibition against passing the Limits of it. See Antiq. Jud. Lib. XII. Cap. III. Lib. XV. Cap. ult. De Bello Jud. Lib. VI. Cap. XIV. Contra Apion, Lib. II. There is no Mention of this Court in the Old Testament; but from Ezekiel xliv. 7, &c. it may be inferred, that there was originally an Inclosure round the Court of Israel, where Strangers were allowed to enter, and perform their Devotions. See Selden, De Jure Nat. & Gent. secund. Hebr. Lib. III. Cap. VI.

11.

We have a Reflection to the same Purpose in St. Hilary, on Matt. xii. Grotius.

Our Author, in his Treatise of The Truth of the Christian Religion, B. V. § 7. joins to these the Example of Moses, who did not exhort Jethro, his Father-in Law, to embrace the Ceremonies of the Law, which he had delivered to the Israelites by Divine Direction. He likewise observes, in a Note on that Place, that some of the Mosaick Laws were impracticable to the Generality of other People; as those relating to the First-Fruits, Tenths, and solemn Feasts; which were to be observed in only one Place in Judea, where it was impossible for all the Nations of the World to convene.

12.

See Josephus, Antiq. Jud. Lib. XIII. Cap. XVII. Ptolom. Lib. I. De Vita Herodis, as quoted by Ammonius under the Word Ἰδουμαίοι. Selden, De Jure Nat. & Gent. secund. Hebr. Lib. II. Cap. II. and my 19th Note on this Section.

13.

That Father of Historians speaks of the Egyptians and Ethiopians, and the People of Colchis, Lib. II. Cap. XCI, CIV. He asserts that the Use of Circumcision was derived from the Egyptians to the other two Nations, as also to the Phenicians and to the Syrians, who inhabited Palestine; by whom he understands the Jews, who, according to him, acknowledge the Truth of this Account, as far as it relates to them. See also Diodorus of Sicily, Lib. I. Cap. XXVIII. and Lib. III. Cap. XXXII. p. 17 and 115. Edit. H. Steph.

14.

See his Geography, Lib. XVI. p. 771. Edit. Paris. where he treats of the Cacophagi, a People of Ethiopia, and p. 776. in his Account of the Troglodytes, some of whom, he tells us, are circumcised after the Manner of the Egyptians, spoken of Lib. XVII. p. 824.

15.

See his little Piece On Circumcision, p. 810, 811. Edit. Paris.

16.

In his Dialogue with Tryphon, where he speaks of the Idumeans.

17.

In his Answer to Celsus, Lib. V. where he observes, that the Egyptians, and the People of Colchis had not the same Reason for Circumcision, that obliged the Jews to the Practice of that Ceremony; and that the Jews themselves made a Distinction between their Circumcision and that used by the Ishmaelites of Arabia, tho’ the People last mentioned were Descendants of Abraham, and Ishmael, the Founder of their Nation, had been circumcised by the Hands of that Patriarch, Pag. 263. Edit. Cantab.

18.

That Father, in his Stromata, Lib. I. Cap. XV. p. 354. Edit. Oxon. says that Pythagoras, travelling into Egypt, was circumcised in that Country, in order to qualify himself for being initiated in the Mysteries of the Egyptians, and enabling him to learn the Philosophy of their Priests.

19.

He says, Haeres. XXX. § 30. that the Egyptians, the Saracens, or Ishmaelites, the Samaritans, the Idumeans, and the Homerites, were circumcised as well as the Jews; but that most of these People used that Ceremony out of Custom, without assigning any Reason for it, and by no Means with a View of obeying the Divine Law which prescribed it. Hence we may observe, that tho’ the first Persons who neglected Circumcision, and thus occasioned its being abolished among the Nations descending from Abraham, were to blame, yet the Law of Circumcision ceased to oblige their Posterity, who had no Knowledge of that Institution: So that the Action of Hyrcanus, who forced the Idumeans to be circumcised, must necessarily be considered as violent and unjust, and not authorized by him who is the sole Master of Men’s Consciences. Besides, the same Wagenseil, mentioned in Note 4 of this Paragraph, observes, after Boecler, that Maimonides says the direct contrary of what our Author advances in this Place, viz. that all Abraham’s Posterity were obliged by the Law of Circumcision, and that the Jews forced the Idumeans to observe that Ceremony.

20.

In his Commentary on Jerem. IX. Vol. V. p. 287. Edit. Bas.

21.

In his third Question on Exodus.

22.

Those Ethiopians whom Herodotus ranks among the circumcised, seem to have descended from the Posterity of Keturah: St. Epiphanius calls them Homerites.

The Homerites were part of the Idumeans; and our Author does not remember that he himself said so, in his Notes on The Truth of the Christian Religion, Lib. I. § 16. p. 60. Edit. Amsterd. Cleric. He both there and here supposes the Truth of the common Opinion, in his Time concerning the Origin of Circumcision, viz. that it was derived from the Hebrews to all other Nations. But, could he have read what Sir John Marsham and Doctor Spencer have written on that Subject, I imagine he would have changed his Opinion, and acknowledged, that Circumcision was practised among the Egyptians before GOD made it a Sign of his Covenant with Abraham, and his Descendants, to whom he prescribed that Ceremony in a different Manner, and with a different View than those which induced the Egyptians to use it. See Mr. Le Clerc on Genesis xvii. 8, &c.

23.

St. Chrysostom understands this of natural Inferences, Τοι̑ς τη̑ς θὺσεως λογισμοι̑ς. To which he adds, They are therefore the Objects of our Wonder, because they stood not in need of a Law.... Conscience, and the Use of Reason, are sufficient, instead of a Law. Tertullian asserts, that Before the Law of Moses, written on Tables of Stone, there was an unwritten Law, which was understood naturally, and observed by the Patriarchs. Adv. Jud. Cap. II. To these may be added, a Thought of Isocrates, If Men would govern a State well, they ought not to fill the Portico’s with Letters, but carve the Maxims of Justice on the Minds of the Citizens. Areopag. p. 148. Edit. H. Steph. Grotius.

This Passage is a little too far fetched. For even positive Laws, and several other Things, not derived from natural Light common to all Men, may be carved on the Mind or Soul, by Force of Instruction and Practice: So that what the Grecian Orator says, rather supposes in itself that the Rules of Justice, tho’ grounded on natural Reason, are but little known, and generally neglected.

24.

This is the Apostle’s true Meaning, the Words Nature and naturally are often used by the Greek and Latin Authors, in Opposition to the Way of Instruction, which gives us the Knowledge of certain Things. We find St. Paul, speaking of a Custom established in his Time, says, Doth not Nature itself teach you, that if a Man hath long Hair it is a Shame unto him? But if a Woman hath long Hair it is a Glory unto her. 1 Cor. x. 14, 15. This Exposition is justified by daily Observation; several Things are learnt without a Master, which are looked on as what we know naturally. Much more then may it be said, that the Gentiles, who were deprived of Revelation, did of themselves, and without that Assistance, know the Precepts of Morality, which the natural Light of Reason led them to discover, and which were the same with those prescribed by the Law of Moses to the Jews; so that when a Pagan acted according to those Precepts, He did by Nature the Things contained in the Law, Rom. xi. 14. Which shewed the Work of the Law (that is, the moral Precepts of the Law) written in his Heart, or in his Mind, v. 15. that is, he could easily form such Ideas, and retain them in his Memory. See, concerning this last Expression, Mr. Le Clerc’s Ars Critica. Tom. I. p. 163, &c. Edit. 4.

25.

In the last Editions of this Historian, and in those which have the best Reputation among the Learned, we find Tzates, which was probably the true Name of that Adiabenian Prince, who was converted to Judaism, with his Mother Helena.

26.

Tryphon the Jew, making some Abatement in this Point, owns to Justin Martyr, that If he persisted in that Manner of philosophizing, he had some Hopes left of a better State. Grotius.

27.

Thus Justin Martyr, in his Dialogue with Tryphon, observes, that A Proselyte, who receives Circumcision, and is ranked among the (Jewish) People, is considered as one of the same Country.

28.

Such Proselytes were therefore admitted to the Celebration of the Passover. Grotius. See Exod. xii. 19, 47, 48.

29.

St. Paul frequently argues against this Opinion, particularly in his Epistles to the Romans and Galatians.

30.

See what I have said in my second Note on this Paragraph.

1

That is, which consists solely in the Silence of the Law. For Silence alone is not an incontestable Proof, that the Legislator approves of what he does not forbid. We can only infer from it, that he does not design to employ the Means in his Power for hindering Men from doing such Things. The only Case in which Silence can be taken for a Mark of Approbation, is when it clearly appears, that the Legislator designed to forbid whatever he judged to be evil. Now we have no Reason to believe that GOD designed to forbid, positively, by the Law of Moses, every Thing that is any way evil. On the contrary, it was even necessary, that he should not prohibit some such Things. In reality, when GOD gave written Laws to the Jewish Nation, he acted rather as the temporal Master and Sovereign of that People, than as the perfect Teacher of Mankind in general. For which Reason all the Punishments, with which he threaten’d the Offenders, were of a temporal Nature. As therefore there is no Civil Society, whose Interest permits that every Thing contrary to some Virtue, or some Law of Nature, should be attended with some Penalty; GOD would have acted contrary to his own Wisdom, if, in Quality of Civil Legislator of the Jews, he had not left several Things in themselves evil unpunished, and consequently, been silent on such Articles, especially when he had to do with so gross and stubborn a People. Thus, for Example, Murder was punished with Death, Levit. xxiv. 21. Numb. xxxv. 16, 17, 30. And that with good Reason: A Civil Society, in which Men might kill one another with Impunity, could not subsist; but such Motions of Anger as tended only to do some Injury, were not prohibited; because if the Legislator had annexed a Punishment to a Thing so common among all People, and from which the Jews, in particular, would have much Difficulty to abstain, the Regulation would have produced more Harm than Good. See Matt. v 21, &c.

2.

See St. Chrysostom, on the Close of Rom. vii. Grotius.

3.

I should think that we ought to reason in a different Manner on Divine from what we use to do on Human Laws. The Permission granted by human Laws, however it may be given, never of itself implies any Approbation of the Legislator, but only supposes that he judges proper not to punish the Thing in Question. The Reason is, that the Design of Legislators, considered as such, is to make the best Provision in their Power, for the Regulation of each Man’s exterior Actions, in order to secure the publick Safety and Tranquillity; and not, properly speaking, to make Men good. But the same Thing cannot be said of GOD. In what Manner soever he acts, he always proposes making Men virtuous; and consequently, all positive Permissions from him are certain Proofs of Approbation. He may indeed be silent in regard to certain Things which imply some Vice, and leave them unpunished in this World, for the Reason given in Note 1. on this Paragraph; and that the rather, because, on due Consideration, it will appear that the Evil of such Things may be easily discovered by Consequences drawn from their Conformity with what is expressly prohibited, or their Incompatibility with what is clearly commanded. But GOD cannot positively permit the least Thing evil in its own Nature, even when he acts as a temporal Monarch; for that Character does not divest him of his Sanctity, but he still may and ought to be thought to approve of every Thing, at least as innocent, which he permits either in express Terms, or by a necessary Consequence from some formal Law or Ordinance. These then, in my Opinion, are the Consequences which may be drawn from the Divine Permission, when the Reasons deduced from the Nature of Things, which must always be considered, appear doubtful. First, When GOD permits a Thing in certain Cases, and to certain Persons, or in regard to certain Nations, it may be inferred, that the Thing permitted is not evil in its own Nature. For he would act in Contradiction to himself, if he authorized any Thing evil, in any Circumstances, or in Favour of any Person. For Example, Exod. xxii. 2, 3. Permission is given to kill a Thief in the Night, but not in the Day: Whence we may safely conclude, against the Opinion of some Doctors, too rigid on that Point, that when we resist an unjust Aggressor so far as to kill him, tho’ he attempts only our Goods, this Defence is not criminal in itself, or contrary to the Law of Nature. GOD forbid the Jews to lend Money to one another on Interest; but he permitted that Practice in regard to Strangers, without excepting the Proselytes of the Gate: Therefore lending on Interest is not evil or unlawful in its own Nature, whatever some Divines and Lawyers may pretend. The Consequence is demonstrative, and sufficient to justify such Contracts, when reduced to lawful Bounds. The Law of Moses, Deut. xvii. 17. forbids Kings to multiply Wives to himself, lest they should induce him to violate the Law: This Prohibition implies a tacit Permission, both for them and all other Men, to have more than one Wife, without which it would be superfluous: Polygamy therefore is not in its own Nature evil and unlawful. Secondly, When GOD regulates the Manner of a Thing, or makes some other Regulation in regard to that Thing, which necessarily supposes it permitted; we are to enquire whether this is one single occasional Action, or a Thing, either by itself or by its Consequences, reduced to a Habit, and a continual Practice. In the last Case, a Permission always implies a real Approbation of the Thing in Question, as in its own Nature lawful. Thus it is impossible that GOD should permit the Practice of Robbery, Piracy, Assassination, Duelling, &c. under any Sort of Conditions. When therefore we find him directing the Manner of Divorces, and regulating certain Cases which suppose the Permission of Polygamy, as in Deut. xxi. 15. we may very reasonably conclude, that neither Divorces nor Polygamy are essentially contrary to the Law of Nature. See our Author’s Application of this Principle in the following Chapter, §2. num. 2. in order to shew, that all Sorts of War are not in their own Nature unjust. But when it is one single Act, which does not intail a Series of Sins, the Permission may imply no more than Impunity, without any Prejudice to the Divine Sanctity. Of this Kind is the Permission granted by the Law of Moses to the Revenger of Blood, that is, to the nearest Relation or Heir of a Person killed without any Malice or premeditated Design; this Revenger of Blood was allowed to kill such an involuntary Murtherer, if he found him out of his Asylum, even tho’ he had been declared innocent by the Judges; He shall not be guilty of Blood, Numb. xxxv. 27. But it does not follow, that GOD considered this Action as innocent before the Tribunal of Conscience, and conformable to the Law of Nature; but only, that he thought proper to grant an Impunity in that Case, before the Civil Judge, to a Man who had killed another through a Spirit of Revenge. This was one single Act, and the Person might be sensible of its Injustice, and repent of it, after the first Motion of his Passion was over: Besides, the Person thus killed was in fault, who might have been secure, had he not left his Asylum against the express Orders of GOD.

4.

JESUS CHRIST, for Example, has abolished all the Laws in general, which related to the Distinction of Meats. If therefore any Civil or Ecclesiastical Power pretends to oblige Men to Abstinence from any Sort of Food, on a Principle of Religion, such an Attempt is an open Violation of the Christian Liberty, established by our Saviour. I suppose this done on a Principle of Religion; for the Case will be widely different, if the Use of certain Meats are prohibited for good Reasons, founded on the Interest of the State. The Sovereign has an undoubted Power to impose such Abstinence in that View; as he may be allowed to decline making the wisest political Regulations in the Mosaick Law his Model, when they are not suited to the Constitution of the State under his Government.

5.

Thus JESUS CHRIST having repealed the Husband’s unlimited Permission of putting away his Wife for any Cause whatever, and without any other Reason than his own Will; a Christian Prince cannot make a Law, permitting Divorces in that Manner, only obliging the Husband to testify in a Writing delivered to his Wife, that he will have no farther Commerce with her.

6.

Christian Liberty has done no Prejudice to Innocence; the Law of Piety, Sanctity, Humanity, Truth, Fidelity, Chastity, Justice, Mercy, Benevolence, and Modesty, remain intire. Tertul. De Pudicit. Cap. VI. Grotius.

7.

We ought to shew greater Degrees of Virtue, because we have now a plentiful Effusion of the HOLY SPIRIT, and the Advantages resulting from the Coming of CHRIST are very great. Chrysost. De Virginitate. XCIV. See the same Father, in his Discourse, tending to shew that Vice is occasioned by Negligence. De Jejuniis III. And on Rom. vi. 14. vii. 5. As also St. Irenaeus, Lib. IV. Cap. XXVI. The Author of Synopsis Sacrae Scripturae, among the Works of St. Athanasius, writing of Matt. v. observes, that our Lord enlarges the Extent of the Precepts of the Law. Grotius.

8.

The same Use is made of this Law, in regard to Christians, by St. Irenaeus, Lib. IV. Cap. XXXIV. And St. Chrysostom, on the Close of the last Chapter of 1 Cor. and on Ephes. ii. 10. Grotius.

 

BOOK I: CHAPTER II: Whether ’tis ever Lawful to make War.

Having viewed the Sources of Right, let us proceed to the first and most general Question, which is, Whether any War be Just, or, Whether ’tis ever Lawful to make War? [24]

[[[I.]] That to make War is not contrary to the Law of Nature, proved by Reason.] I. 1. But this Question, as well as those which follow, is to be first examined by the Law of Nature. Cicero learnedly proves, both in the third Book of His Bounds of Good and Evil, and in other Places, from the Writings of the Stoicks, that there are two Sorts of natural Principles; some that go before, and are called by the Greeks Τὰ πρω̂τα κατὰ ϕύσιν, The first Impressions of Nature; and others that come after, but ought to be the Rule of our Actions, preferably to the former.1[Gel. xii. c.5] What he calls The first Impressions of Nature, is that Instinct whereby every Animal seeks its own Preservation, and loves its Condition, and whatever tends to maintain it; but on the other Hand, avoids its Destruction, and every Thing that seems to threaten it. Hence comes it, says he, that there’s no Man left to his Choice, who had not rather have all the Members of his Body perfect and well shaped, than maimed and deformed. And that ’tis the first Duty of every one to preserve himself in his natural State, to seek after those Things which are agreeable to Nature, and to avert those which are repugnant.

[181]

2. After that follows, (according to the same Author)2 the Knowledge of the Conformity of Things with Reason, which is a Faculty more excellent than the Body; and this Conformity, in which Decorum consists, ought (says he) to be preferred to those Things, which mere natural Desire at first prompts us to; because, tho’ the first Impressions of Nature recommend us to Right Reason; yet Right Reason should still be dearer to us3 than that natural Instinct. Since these Things are undoubtedly true, and easily allowed by Men of solid Judgment, without any farther Demonstration, we must then, in examining the Law of Nature, first consider4 whether the Point in Question be conformable to the first Impressions of Nature, and afterwards, whether it agrees with the other natural Principle, which, tho’ posterior, is more excellent, and ought not only to be embraced when it presents itself, but also by all Means to be sought after.

3. This last Principle, which we call Decorum, according to the Nature of the Things upon which it turns, sometimes consists (as I may say) in an indivisible Point; so that the least5 Deviation from it is a Vice: And [182] sometimes it has6 a large Extent; so that if one follows it, he does something commendable, and yet, without being guilty of any Crime, he may not follow it, or may even act quite otherwise: Just as in contradictory Things, one passes immediately from one Extreme to the other; a Thing either is or is not, there is no Medium: But be- [25] tween Things that are opposed after another Manner, as between Black and White, there is a Medium, which either partakes of both Extremes, or is equally removed from both. The last Sort of Decorum is most commonly the Subject of Laws both Divine and7 Human, which by prescribing Things relating thereto, render them obligatory, whereas before they were only commendable. But the Matter in Question is concerning the first Sort of Decorum. For, as we have said above, when we enquire into what belongs to the Law of Nature, we would know whether such or such a Thing may be done without Injustice; and by unjust we mean that which has a necessary Repugnance to a reasonable and sociable Nature.

Among the first Impressions of Nature there is nothing repugnant to [183] War; nay, all Things rather favour it: For both the End of War (being the Preservation of Life or Limbs, and either the securing or getting Things useful to Life) is very agreeable to those first Motions of Nature; and to make use of Force, in case of Necessity, is in no wise disagreeable thereunto; since Nature has given to every Animal Strength to defend and help itself. All Sorts of Animals, says Xenophon,8 understand some Way of Fighting, which they learnt no where but from Nature. So, in a Fragment of Ovid’s9 Halieuticon: Or, Art of Fishery, All Animals naturally know their Enemy, and how to defend themselves: They are sensible of the Force and Quality of their Weapons, And in Horace, The Wolves assault with Teeth, and the Bulls with Horns: Whence is it but from Instinct? But Lucretius more fully, Every Animal knows its own Power: A Calf is sensible of its Horns, even before they are grown, and10 will push with its Head, when provoked. Which Galen thus expresses, We see every living Creature employ his strongest Part in his own Defence: The Calf pushes with his Head, tho’ his Horns be not yet grown; the Colt kicks with his Hoofs, tho’ yet tender; and the Whelp bites with his Teeth, as yet but weak. And the same Author tells us, in his First Book Of the Functions of the Members, That Man is [184] an Animal by Nature fitted for Peace and11 War; that he is not indeed born with Arms, but with Hands12 proper to make and to use Arms, so that we see the very Infants defend themselves with their Hands, without being taught. So13 Aristotle says, Man has a Hand, instead of a Spear, a Sword, and other such Weapons; as being capable of grasping and holding every Thing else.

But Right Reason, and the Nature of Society, which is to be examined in the second and chief Place, does not prohibit all Manner of Violence, but only that which is repugnant to Society,14 that is, which invades another’s Right: For the Design of Society is, that every one should quietly enjoy his own, with the Help, [26] and by the united Force of the whole Community. It may be easily conceived, that the Necessity of having Recourse to violent Means for Self-Defence, might have taken Place, even tho’ what we call Property had never been introduced. For our Lives, Limbs, and Liberties, had still been properly our own, and could not have been, (without manifest Injustice) invaded. So also, to have made use of Things that were then in common, and to have consumed them, as far as Nature required, had been the Right of the first Possessor: And if any one had attempted to hinder him from so doing, he had been guilty of a real Injury. But since Property has been regulated, either by Law or Custom, this is more easily understood, which I shall express in the Words of15 Tully, If every Member of the Body was capable of Reflection, and did really think that it should enjoy a larger Share of Health, if it could attract to itself the Nourishment of the next Member, and should thereupon do it, the whole Body would of Necessity languish and decay: So if every Man were to seize on the Goods of another, and enrich himself by the Spoils [185] of his Neighbour, human Society and Commerce would necessarily be dissolved. Nature allows every Man to provide the Necessaries of Life, rather for himself than for another; but it does not suffer any one to add to his own Estate, by the Spoils and Plunders of another.

It is not then against the Nature of Human Society, for every one to provide for, and take Care of himself, so it be not to the Prejudice of another’s Right; and therefore the Use of Force, which does not invade the Right of another, is not unjust; which the same16 Cicero has thus expressed, Since there are but two Ways of Disputing, the one by Argument, the other by Force; and the former being peculiar to Man, and the other to Beasts, we must not have recourse unto the last, but when the first cannot be employed. And17 again, What can be opposed to Force, but Force? And in Ulpian,18 To repel Force by Force is naturally lawful. So in Ovid,19

  • Armaque in armatos sumere jura sinunt.

The Laws permit us to take Arms against those who are armed to attack us.

[II.Proved by History.] II. What I have said already, that every War is not repugnant to the Law of Nature, may be further proved from sacred History. For when Abraham, with the Assistance of his hired Servants and Confederates, had vanquished the four Kings which had plundered Sodom, GOD was pleased, by his Priest Melchisedech, to approve of his Action; for thus said Melchisedech to him, Blessed be the most high GOD, who hath delivered thine Enemies into thine Hand, Gen. xiv. 20. Yet had Abraham, (as appears from the History) taken up Arms without any special Warrant from GOD, but moved thereunto by the Law of Nature, being a Man not only very holy, but also very wise, as is testified of him even by Strangers, [186] as1 Berosus and2 Orpheus. I shall not instance in the seven Nations, whom GOD delivered up to be destroyed by the Israelites, because they had a special Commission from GOD to execute this Judgment upon them, for their notorious Abominations. Wherefore those Wars in Holy Writ are called, in a literal Sense, Battles of the3 LORD, as being undertaken by the Command of GOD, and not the Will of [27] Man. It is more to our Purpose to remark, that the Israelites, under the Conduct of Moses and Joshua, having by Force of Arms repelled the Amalekites, who attacked them, Exod. xvii. GOD approved the Conduct of his People, tho’ he had given no Orders upon that Head before the Action.

And further, GOD himself prescribed to his People certain general and established Rules of making War, Deut. xx. 10, 15. thereby plainly shewing, that War might sometimes be just, even without a special Command from GOD; for there he makes a manifest Difference between the Cause of those seven Nations, and that of other People. And since he does not declare the just Reasons of making War, he thereby supposes that they may be easily discovered by the Light of Nature. Such was the Cause of the War made by Jephtha against the Ammonites, in defence of their Borders, Judges xi. and afterwards by David against the same People, for affronting his Ambassadors, 2 Sam. x. And it is very remarkable, [187] what the Author of the Epistle to the Hebrews records, that Gideon, Barack, Sampson, Jephtha, Samuel, and others, by Faith subdued Kingdoms, waxed valiant in Fight, put to flight whole Armies of the Aliens, Heb. xi. 33, 34. in which Place, (as we may gather from the Context) under the Notion of Faith, is included their assured Confidence, that what they did was pleasing to GOD: And upon this Account David is said, by a Woman distinguished for her Wisdom, To fight the LORD’s Battles; that is, to make just and lawful Wars, 1 Sam. xxv. 28.

[III.Proved by Consent.] III. What we have here proved from Holy Writ, may be also confirmed, by the Consent of all, or at least the wisest Nations. Every Body knows that fine Passage of Cicero, where treating of the Right of recurring to Force, in defence of one’s Life, he renders this Testimony to Nature,1 This (says he) is not a written, but a Law born with us, which we have not learned, received, or read, but taken and drawn from Nature itself; a Law to which we have not been formed, but for which we are made; in which we have not been instructed, but with which we are imbued; that if our Lives be brought into Danger by Force or Fraud, either by Robbers or Enemies, all Means that we can use for our Preservation, are2 fair and honest. And again, This, Reason has taught the Intelligent, Necessity the Barbarians, Custom the Nations, and Nature herself the wild Beasts, at all Times to repel, by any Means whatsoever, all Force (or Violence) offered to our Bodies, our Members, or our Lives. Caius the Lawyer says,3 Natural Reason allows us [188] to defend ourselves against Danger. And Florentinus the Lawyer, that4 It is but just, that whatever any one does in defence of his Body, should be held lawfully done.5 Josephus observes, That it is a Law of Nature, fixed in all living Creatures, to be desirous of Life; and that we therefore look on them as our Enemies, who would openly deprive us of it.

This Principle is founded on Reasons of Equity, so evident, that even in Beasts, which (as I said6 before) are not susceptible of Right, but have only some slight Resemblance of it, we distinguish between the Attack and the Defence. When Ulpian7 had said, that An Animal8 without Knowledge, that is, without the Use of Reason, is incapable of doing Wrong, he immediately adds, When two Rams, or two Bulls fight, and one kills the other, it must be considered, (according to Q. Mu- [28] tius) whether that which is killed was the Aggressor, or not; in the last Case, the Owner has an Action of Damage against the Master of the other Beast; but in the first he has no Action against him. Which may be explained by that of Pliny,9 Lions, as fierce as they are, do not fight with Lions, nor do Serpents bite Serpents; but if Violence be offered them, there are none so tame but will exert their Anger, none so patient of Injury, but, upon receiving Hurt, will make an active and vigorous Defence.

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[IV.That War is not contrary to the Law of Nations.] IV. By the Law of Nature then, which may also be called the Law of Nations, it is plain, that every Kind of War is not to be condemned. History, and the Laws and Customs of all People, fully inform us, that War is not disallowed of by the Voluntary Law of Nations: Nay,1 Hermogenianus declares, that Wars were2 introduced by the Law of Nations, which I think ought to be interpreted somewhat different from what it generally is, viz. That the Law of Nations has established a certain Manner of making War; so that those Wars which are conformable toit, have, by the Rules of that Law, certain peculiar Effects: Whence arises that Distinction which we shall hereafter make use of, between a solemn War, which is also called Just, (that is, regular and compleat) and a War not solemn, which yet does not therefore cease to be just, that is, agreeable to Right. For tho’ the Law of Nations does not authorize Wars not solemn, yet it does not condemn them, (provided the Cause be just) as shall hereafter be more3 fully explained. By the Law of Nations, ( says Livy)4 it is allowed to repel Force by Force. And Florentinus5 declares it to be allowed by the Law of Nations to repel Violence and Wrong, and to defend our Lives.

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[V.That the Voluntary Divine Law before Christ was not against it, proved; and the Objections answered.] V. There is a greater Difficulty concerning the Voluntary Divine Law: But let none here object, that the Law of Nature being unchangeable, GOD himself cannot decree any Thing against it; for it is true, as to those Things which the Law of Nature either positively forbids or commands, but not as to those that are barely permitted by the Law of Nature; for they, being properly1 without the Bounds of the Law of Nature, may be either prohibited or commanded, as shall be thought proper. The first Objection then against War, brought by some, is that Law given to Noah and his Posterity, Gen. ix. 5, 6. where GOD thus speaks, Surely the Blood of your Lives will I require; at the Hand of every Beast will I require it, and at the Hand of Man; at the Hand of every Man’s Brother will I require the Life of Man. Whosoever sheds Man’s Blood, by Man shall his Blood be shed; for in the Image of GOD made he Man. And here some take the Phrase of requiring Blood in a general Sense, and the other, that Blood shall be shed in its turn, to be a bare Threatening, and not an Approbation; neither of which Explications can I agree to. For the forbidding to shed Blood, reaches no further than that in the Law, Thou shalt not kill; which neither disproves Capital Punishments inflicted on Criminals, nor Wars undertaken by publick Authority. Therefore, both the [29] Law of Moses, and the Law given to Noah, tend rather to explain and renew the Law of Nature, obscured, and, as it were, extinguished by wicked Customs, than to establish any Thing new: So that the Shedding of Blood, prohibited by the Law given to Noah, ought to be understood in that Sense which implies a Crime; as by Murder we understand not every Act whereby the Life of a Man is taken away, but the premeditated killing of an innocent Person. And that which follows, of shedding Blood for Blood, seems to me not so much to denote the bare Fact, or what shall happen,2 as the Right that Men have to put Murderers to Death.

I thus explain the Case. It is not unjust by the Law of Nature, that a [191] Man should suffer himself as much Evil, as he has caused (to others); according to that which is called The3 Law of Rhadamanthus.

  • To suffer what one has done, is Just and Right.

And Seneca the Father expresses it thus,4 It often happens that one suffers, by a most just Retaliation, in the same Manner that one had designed to make another suffer. From a Sense of this natural Equity, Cain, guilty of Parricide, says of himself, Gen. iv. 14. Whosoever finds me shall kill me. But GOD in those early Days, either upon the Account of the Scarcity of Men, or because there being yet but few Examples of Murder, it was not so necessary to punish it, thought fit to prohibit what was naturally permitted; and ordered that all Intercourse with, and even the5 Touching of Murderers should be avoided, but that their Lives should be spared. As6 Plato also appointed in his Laws; and7 Euripides informs us, that it was practised by the old Greeks, in these Verses,

  • Καλω̂ς ἔθεντο, &c.

Our Fathers, in antient Times, had wisely ordered, that whoever embrued his Hands in the Blood of another, should not appear in the Sight of any one in the Country: Banishment was the Punishment inflicted on him for the Murder; but it was not permitted to take away his Life, as he had taken away the Life of another. To which we may refer that of Thucydides,* It [192] is probable, that in former Days heinous Crimes were slightly punished, but when in Time these Punishments came to be despised, they were changed into Death. And Lactantius,* As yet it was reputed a Sin to put even the greatest Offenders to Death.

Their Conjecture of the Divine Will, grounded on that remarkable Instance (of Cain) passed into a Law; so that Lamech having8 committed the like Fact, from this Example promised himself Impunity, Gen. iv. 24. [30]

But as before the Flood, in the Times of the Giants, Murders were very frequent and common; that the same Licentiousness might not become customary, after the Restoration of Mankind, GOD was pleased [193] to restrain it by more rigorous and effectual Means. Having then abolished the Indulgence of former Ages, he put Men in Possession of their natural Right; he expressly permitted what Nature dictated not to be unjust, and declared every Person9 innocent that killed a Murderer. When Civil Tribunals were erected, that Permission, for very strong Reasons, was transferred solely to the Judges; yet so, that some Track of that antient Custom was to be seen, in the Right granted to him that was next of Kin to the Person killed, even after the Law of Moses; of which10 I shall treat more largely hereafter.

We have the great Abraham to justify this Interpretation, who not being ignorant of the Law given to Noah,[Gen. vi. 9.] took up Arms against the four Kings, which he believed not repugnant to that Law. So Moses commanded the People of Israel to fight against the Amalekites that came to attack them, without any other Reason than the Law of Nature; for it does not appear that he particularly consulted GOD in this Case.[Ex. xvii. 9.] Besides, capital Punishments were not only inflicted on Murderers, but also on other Sorts of Criminals, and that not only among the Gentiles,[Gen. xxxviii. 24.] but even among the Patriarchs themselves.

They concluded from the Light of natural Reason, that it was consonant to the Divine Will, that the Punishment appointed for Murderers might, without Injustice, be inflicted on other most heinous Offenders; for there are some Things which we prize equally with our Lives; as Reputation, Virgin-Chastity, conjugal Fidelity; and those Things without which our Lives cannot be safe, as Reverence to our Sovereigns; against which those who offend are to be accounted as bad as Murderers.

Hither we may refer that antient Tradition among the Hebrews, that GOD gave more Laws to the Sons of Noah, which were not all recorded by Moses, as thinking it enough to include them afterwards in the peculiar Laws of the Hebrews. Thus it is plain from Levit. xviii. that there [194] was an11 antient Law against incestuous Marriages, tho’ not mentioned by Moses in its proper Place. Among those Commands of GOD to the Sons of Noah, they say12 this was one, that not only Murders, but also Adulteries, Incests, and Rapines should be punished with Death, which the Words of Job seem to confirm;[Job xxxi. 11.] and even the Law of Moses gives Reasons for these capital Punishments,13 which Reasons suit no less with other Nations, than with the Hebrews themselves; and particularly it is said of Murder,[Lev. xviii. 24, 25, 27, 28. Ps. ci. 5. Prov. xx. 8. Numb. xxxv. 31, 33.] that the Land cannot be cleansed but by the Blood of the Slayer. Besides, it would be absurd to think, that whilst the Jews were allowed to secure their publick and private Safety by capital Punishments, and to defend themselves by War, all other Nations and Powers should be denied the same Privilege; and yet that the Prophets should never have intimated to those Nations and Powers, that GOD condemned every Kind of War, and all Use of the Sword of Justice, as they frequently admonished them of other Sorts of Sins which they were guilty of. [31]

Nay on the contrary, is it not most evident, that since the Laws of Moses, with respect to criminal Matters, carry so visible a Character of the Divine Will, the other Nations would have done very well to take them for a Model? It is even probable, that the Greeks at least, and particularly14 the Athenians, did so: Whence proceeds so great an Agreement of the old Attick Law, and from thence of the Roman15 in the Twelve Tables, with the Hebrew Laws. This is enough to prove, that the Law given to Noah is not to be taken in that Sense which they imagine, who would thence conclude all Wars to be unlawful.

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[VI.Certain Cautions concerning the Question, whether War be contrary to the Law of the Gospel.] VI. The Arguments brought out of the New Testament against War are more plausible; in examining which, I shall not suppose that, which others do, that there is nothing in the Gospel (except Points of Faith, and the Sacraments) but what is injoyned by the Law of Nature; for that, in the Sense that most Divines take it, I cannot think true.

1. This I freely grant, that there is nothing commanded us in the Gospel, which is not agreeable to natural Decorum; but I see no Reason to allow, that the Laws of CHRIST do not oblige us to any Thing but what the Law of Nature already required of itself.

2. And those, who are of that Opinion, are strangely embarrassed to prove, that certain Things which are forbid by the Gospel,1 as Concubinage, Divorce, Polygamy, are likewise condemned by the Law of Nature. Indeed these are such that Reason itself inform susitis more Decent to refrain from them, but yet not such, as (without the Divine Law) would be criminal. The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say,[1John iii. 16.] that we are obliged to this by2 the Law of Nature. Justin Martyr says,3 To live only according to the Law of Nature, is to live like an Infidel.

3. Neither shall I follow them, who supposing another Principle very considerable, if it were true, pretend that CHRIST, in the Precepts he gives in the fifth and following Chapters of St. Matthew, only interprets [196] the Law of Moses. For those Words so often repeated, imply something else, (You have heard it has been said to them of old: But I say unto you) which Opposition, as also the Syriack, and the other Translations, plainly declare, that the Word Veteribus must be render’d to, and not by them of old; as Vobis is to, and not by you. Now those of old are certainly the Contemporaries of Moses;[Ex. xx. 13. Lev. xxiv. 21. Numb. xxxv. 16, 17, 30. Ex. xx. 14. Deut. xxiv. 1. Ex. xx. 7. Numb. xxx. 2. Lev. xxiv. 20. Deut. xix. 21. Lev. xix. 18. Ex. xxxiv. 11, 12. Deut. vii. 1. Ex. xvii. 19. Deut. xxv. 19.] for what is there mentioned to be said to them of old, was not spoken by the Doctors of the Law, but by Moses himself, either in those very Words, or the same Sense, as Thou shalt not kill. Whosoever killeth shall be in Danger of Judgment. Thou shalt not commit Adultery. Whosoever shall put away his Wife, let him give her a Writing of Divorcement. Thou shalt not forswear thyself, but shall perform unto the Lord thine Oaths. An Eye for an Eye, and a Tooth for a Tooth, (that is, you may demand it in Justice). Thou shalt love thy Neighbour (that is, an Israelite) and hate thine Enemy, (4 that is, the seven Nations with whom they were forbid to make any League, or shew them any Mercy. To these are to be added the Amalekites, with whom the Hebrews are commanded to have an implacable War). [32]

4. But to understand the Words of CHRIST, we must carefully observe, that the Law delivered by Moses may be considered two Ways; either as to what it has in common with Laws merely human, that is,[Heb. ii. 2.] as it restrained the most heinous Crimes by the Fear of visible Punishments, and so maintained the Order of Civil Society amongst the antient Hebrews; in which Sense it is called The Law of a carnal Commandment, and The Law of Works.[Heb. vii. 16. Rom. iii. 27.] Or it may be considered as to what it has peculiar to Divine Laws, that is, as it also requires the Purity of the Mind, and some Acts, which may be omitted without the Fear of temporal Punishment;[Rom. vii. 14.] in which Sense it is termed A spiritual Law rejoicing the Soul, Psal. xix. 8. (which the Latins call the xviiith). The Doctors of the Law and Pharisees contenting themselves with that first Part of it, (the Carnal) despised the other, (the Spiritual) which yet is the more excellent, and neglected to teach it the People; which appears plainly, not only from the Books of the New Testament, but also from Josephus and the Rabbies.

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5. But even as to what relates to this second (spiritual) Part, we must know, that tho’ the Virtues which are required of Christians, were recommended and injoined to the Hebrews, yet it was not5 in so high a Degree, nor with so great an Extension; and in both these Respects CHRIST opposes his Precepts to those of the Antients: Whence it is plain, that his Words imply more than a bare Interpretation. These Remarks not only serve to the Matter in Hand, but also to many other Subjects, wherein the Authority of the antient Law might be misemployed.

[VII.Arguments for the negative Opinion out of Holy Writ.] VII. 1. Therefore, omitting those Arguments of less Weight, the first and chief Testimony, whereby we may prove that the Right of making War is not absolutely taken away by the Law of the Gospel, is that of St. Paul to Timothy, I exhort you, that above all Things, Prayers and Supplications,[1Epist. ii. 1, 2, 3.] Intercessions and giving Thanks, be made for all Men; for Kings, and such as are in Authority,1 that we may lead a quiet and peaceable Life, in all [198] Godliness and Honesty; for this is good and acceptable in the Sight of GOD our Saviour, who would have all Men to be saved, and to come to the Knowledge of the Truth. Hence we are taught three Things, First, That it is pleasing to GOD that Kings should become Christians. Secondly, That being converted to Christianity they still continue Kings; which Justin Martyr thus expressed,2 We pray, that Kings and Princes may, together with their Royal Power, be found to have wise and reasonable Sentiments. And in the Book intitled, The Constitutions of Clement, the Church prays,* χριστιανὰ τὰ τέλη, for Christian Magistrates. And Thirdly, That it is acceptable to GOD, that Christian Kings should contribute their utmost to the Quiet of others.

[Rom. xiii. 4.] But how? He explains This in another Place: He is the Minister of GOD to thee for Good; if thou do ill, be afraid, for he beareth not the Sword in vain; for he is GOD’s Minister, an Avenger to execute Wrath upon them that do Evil. Under the Right of the Sword, is figuratively comprehended every Sort of Punish- [33] ment, as that Expression is3 also taken, sometimes among the Lawyers; but yet so, that the true4 and effective Use of the Sword, which is the principal5 Part, be not excluded. The second [199] Psalm may not a little help to explain this Place; which Psalm, tho’ it was really verified in the Person of David, yet does it more fully and perfectly relate to CHRIST, as we may learn from Acts iv. 25. xiii. 33. and Heb. v. 5. Now that Psalm advises all Kings to kiss the Son with Reverence, that is, to shew themselves his Servants as Kings, as St. Austin rightly expounds it, whose Words relating to this Subject I shall here set down.6 In this Kings serve GOD, according to the Divine Command, as they are Kings, when they promote Virtue, and discourage Wickedness in their Kingdom, not only in Things that have Relation to human Society, but also in what regards Religion. And in another Place,7 How then do Kings serve the LORD in Fear, unless by prohibiting, and punishing with a religious Severity, all Transgressions of the Commandments of the LORD? For he serves GOD one Way as a Man, and another as a King. And a little after, Herein Kings serve GOD as Kings, when they do for his Service what they could not perform unless they were Kings.

[(2.)Arg.] 2. That Place which I have before quoted in the thirteenth to the Romans, affords us a second Argument, where the higher Powers, such as Kings, are said to be of GOD; and the Apostle calls them likewise, the Ordinance of GOD: Whence he infers, that we ought to be subject to them, to respect and honour them, and that for Conscience sake; so that to resist them is to resist GOD himself. If by Ordinance we only understand what GOD only permits, as he does Acts that are sinful, then no Obligation would follow of Honour or Obedience, especially in regard to Conscience, and the Apostle had said nothing, when he so highly magnified and exalted this Power, but what he might have said of Thefts and Robbery. We must therefore understand this Power, as established with the Approbation of GOD: Whence it follows, (since GOD cannot will Things that are inconsistent) that this Power is not8 repugnant to the Will of GOD revealed in the Gospel, and obligatory on all Men.

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Neither does it prejudice our Argument, that the Sovereign Powers, at the Time when St. Paul wrote this, were not Christians.[Acts xiii. 12.] For first, this is not universally true; since Sergius Paulus, Vice-Praetor of Cyprus, had long before professed the Christian Faith; to say nothing of what is reported of the9 King of Edessa, perhaps intermixt with some Falsities, but which seems to be founded on some Truth. Besides, the Question is not about the Persons, whether they were Christians or Infidels; but whether that Function, exercised by Infidels, contained in it any Thing contrary to Piety; which we say the Apostle denies, where he says it is or- [34] dained of GOD, even at that Time, and therefore to be honoured and respected, with regard to Conscience itself, which, properly speaking, is under the Dominion of GOD only: And therefore, the Emperor Nero,[Acts xvi.] and King Agrippa, whom St. Paul so earnestly exhorted to turn Christians, might have become the Subjects of JESUS CHRIST, without being obliged to renounce, the one his Empire, or the other his Royalty; which two Sorts of Sovereignty cannot be conceived without the Right of the Sword, and the Power of making War. As then the antient Sacrifices were nevertheless holy, according to the Law, tho’ offered by wicked Priests;10 so Civil Government is holy and sacred, tho’ administred by a wicked Person.

[(3.)Arg.] 3. The third Argument is taken from11 the Words of St. John the Baptist, who being asked by the Jewish Soldiers, (many thousands of [201] whom served the Romans, as appears from Josephus, and other Writers) What they should do to flee from the Wrath to come, he did not bid them quit their Military Employment, which he ought to have done, if it had been GOD’s Will, but only to abstain from Extortion and Falshood,[Luke iii. 14.] and to be content with their Pay. But to these Words of the Baptist, which plainly allow of a Military Life, many object, that what the Baptist prescribed, did differ so much from what our Saviour commanded, that he seemed to preach one Doctrine and CHRIST another. But this I cannot agree to, for both John and our Saviour declare the Sum of their Doctrine in the same Terms, Repent ye, for the Kingdom of Heaven is at hand.[Matt. iii. 2, 4, 17.] And CHRIST himself says, the Kingdom of Heaven, (that is, the new Law, for the Hebrews used to call their Law by the Name of Kingdom) begun to suffer Violence from the Days of John the Baptist.[Matt. xi. 12. Mark i. 4. Acts xi. 38. Matt. iii. 8, 10. Luke iii. 11. Matt. xi. 13. Mark i. 1. Luke i. 77. Matt. xi. 9. Luke vii. 26. — ii. 77. — iii. 18. Acts xix. 4. John i. 29. Matt. iii. 11. Mark i. 8. Luke iii. 16.] John is said to preach the Baptism of Repentance for the Remission of Sins; so are the Apostles said to do in the Name of CHRIST. John required Fruits meet for Repentance, and threatens Destruction to those that did not bring them forth. He also requires Works of Charity above the Law. The Law is said to continue unto John; that is, from him a more perfect Law did begin. And the Beginning of the Gospel is reckoned from John. John is called greater than the Prophets, because he was sent to give Knowledge of Salvation to the People, and to preach the Gospel: Neither does John ever distinguish JESUS from himself by any Difference of Doctrine, (tho’ what John declared more generally and indefinitely, and by Way of Elements, CHRIST, the true Light, delivered clearly and distinctly) but only by this, that JESUS was the promised Messias, that is, a spiritual and heavenly King, who should give the Power of the HOLY GHOST to those that believed on him.

[(4.)Arg.] 4. The fourth Argument is this, which seems to me of no small Weight. If it were not permitted to punish certain Criminals with Death, [202] nor to defend the Subject by Arms against Highwaymen and Pyrates, there would of Necessity follow a terrible Inundation of Crimes, and a Deluge of Evils,12 since even now that Tribunals are erected, it is very difficult to restrain the Boldness of profligate Persons. Wherefore if it had been the Design of CHRIST to have introduced a new Kind of Regulation, as was never heard of before, he would certainly have declared in most distinct and plain Words, that none should pronounce Sentence of Death against a Malefactor, or carry Arms in Defence of one’s Country, which we no where read that he did; for what is brought to this Purpose, is either very general or obscure. But Equity itself, and common Sense, teaches us to restrain Words that are general, and favourably to explain those that are ambiguous, and even to recede somewhat from the Propriety and common Acceptation of the Words, in [35] order to avoid that Sense which may bring along with it the greatest Inconveniencies.13

[(5.)Arg.] 5. The fifth Argument may be this, that it cannot by any good Reason be proved, that the Laws of Moses, which regarded the Punishments of Crimes, were abolished, ’till the City of Jerusalem was destroyed, and with it the Form of the State, without any Hope of reestablishment. For neither is there in the Law of Moses any Term fixt to that Law; neither does CHRIST or his Apostles ever speak of the abolishing of that Law, unless so far as it may seem comprehended (as I said) in the Destruction of the Jewish Government. Nay, on the contrary, St. Paul says, that the High Priest (at that Time) was appointed to judge according to the Law of Moses.[Acts xxiii. 3. Matt. v. 17.] And CHRIST himself in the Preface to his Precepts, said, that he came not to destroy the Law, but to fulfil it; which is easily understood to refer to the ceremonial Part; for the Lines of a rough Draught are compleated, when the Picture appears in all its Perfection. But as to the [203] Judaical Law, how can it be true, if CHRIST, as some imagine, abolished it at his Coming? And if the Obligation of that Law continued as long as the Jewish State subsisted, it follows, that the Jews, even such as turned Christians, if14 they were called to the Magistracy, could not avoid it, nor judge15 otherwise than Moses had prescribed.

Having thoroughly consider’d all Things, I cannot indeed find the least Reason, why any pious Man, that heard our Saviour pronounce those Words, should take them in any other Sense. I own, that before the Time of the Gospel, some Things were tolerated (either as to outward Impunity, or even in regard to Conscience, which I have not now Occasion or Leisure strictly to examine) which CHRIST did not allow to his Followers; as, for Instance, to put away a Wife for every Offence, and a Person injured to seek Reparation by Course of Law: But tho’ between CHRIST’s Precepts and those Permissions, there is a certain Difference, yet there is no Contradiction: For he that keeps his Wife, and he that parts with his Right of taking Vengeance, does nothing contrary to the [204] Law, but acts most agreeably to16 the Intention of the Law. It is quite otherwise in a Judge, whom the Law does not allow, but command, to punish a Murderer with Death; and if he neglect it, he shall be guilty before GOD. If CHRIST had forbid such a [36] Person to put a Murderer to Death, he would have ordered something directly contrary to the Law, he would have abolished the Law.

[(6.)Arg.] 6. The sixth Argument is taken from the Example of Cornelius, the Centurion, who received the HOLY GHOST (an infallible Sign of Justification) from CHRIST, and was baptized into the Name of CHRIST, by the Apostle St. Peter, yet we no where find that he laid down his Commission, or was ever advised to it by St. Peter. But some may answer, that being instructed in the Christian Religion by St. Peter, he may be supposed at the same Time to have been exhorted to quit his Employment. Indeed if it were certain, and could be proved, that War was forbid among the Precepts of CHRIST, they would say something to the Purpose; but since that appears no where else, it would have been proper to have said something of it, at least in this Place, that future Ages might not be ignorant of the Rules of their Duty. Neither does St. Luke use (where the Quality of the Persons required a special Change of Life) to pass such a Thing over in Silence, as we may see in several Places, particularly Acts xix. 19.

[(7.)Arg.] 7. The seventh Argument like to this, is taken from the Example of Sergius Paulus, which I have already alledged; for in the Account of his Conversion, there is no Mention made of his quitting his Government, [205] or of his being advised to do it. Now Silence, in regard to Things which it was natural for one to mention, and very necessary not to omit, implies, as I have just said, that they never were.

[(8.)Arg.] 8. The eighth Argument is drawn from the Conduct17 of St. Paul, when he understood that the Jews lay in Wait for him; he immediately acquainted the Commander of the Roman Garrison with it, and when the Commander had sent Soldiers to convoy him safe to Caesarea, he did not refuse it, neither did he in the least insinuate, either to the commanding Officer or the Soldiers, that it was displeasing to GOD to repel Force with Force; and yet this is that St. Paul, who neglected no Opportunity himself, of warning Men of their Duty, or to blame the Neglect in others, 2 Tim. iv. 2.

[(9.)Arg.] 9. The ninth Argument is, because the proper End of any Thing that is honest and obligatory, must also be honest and obligatory: To pay Tribute is honest; and also a Precept obliging the Conscience,[Rom. xiii. 3, 4, 5, 6.] as St. Paul expresses it; and the End of Tribute is,18 to enable the Sovereign Powers [206] to protect the Good, and restrain the Wicked.19 Tacitus speaks appositely to this Purpose, Nations can have no Peace without Arms, no Arms without Pay, and no Pay without Taxes. To which agrees that of St. Austin,20 For this Cause we pay Tribute, that Soldiers may have Money to buy them Necessaries. [37]

[(10.)Arg.] 10. The tenth Argument is taken from that Place of the Acts, where St. Paul pleads thus, If I have wronged any Man, or done any Thing worthy of Death, I refuse21 not to die. Whence I conclude, that St. Paul did believe, that even after the publishing of the Evangelical Law,[Acts xxv. 11.] there were some Crimes which Equity allowed, and even required, to be punished with Death: Which also St. Peter teaches.[1 Pet. ii. 19, 20.] But if it had then been GOD’s Will, that capital Punishments should be no longer used, St. Paul might indeed have cleared himself; but he ought not to leave such an Opinion in the Minds of Men, as if to punish Offenders with Death had been now no less lawful than formerly. But having proved that capital Punishments were justly inflicted after the Coming of CHRIST, I think it also proved, that some Wars may be lawfully made, as against a Multitude of armed Offenders, who are to be overcome by Arms,22 before they can be brought to a Trial. Indeed the Forces of Criminals, and the [207] Boldness wherewith they resist, may have some Weight, in considering whether it be proper to pursue them with the utmost Rigour; but still that lessens nothing of the Right itself.

[(11.)Arg.] 11. The eleventh Argument is, that23 in the Revelation of St. John, some Wars of the Righteous are foretold, with manifest Approbation, Chap. xviii. 6. and elsewhere.

[(12.)Arg.] 12. The twelfth Argument may be this, that the Law of CHRIST did only abolish the Law of Moses, in regard to those Things which separated the Jews from the Gentiles; but what Things were accounted honest by the Law of Nature, or by the tacit Consent of civilized Nations,[Eph. ii. 14.] it was so far from abrogating, that it comprehends them under the general Precept to think on every Thing that is honest and vertuous. Now the Punishment of Crimes, and repelling Injuries by Arms, are by Nature reputed laudable, and referred to the Virtues of Justice and Beneficence.[Phil. iv. 8. 1 Cor. xi. 14.] And here, by the by, we may observe the Error of them, who pretend that the Israelites had a Right to make War, only because GOD had given them the Land of Canaan. Indeed this is a just Cause, but not the only one. For even before those Times, holy Men did make War by following the Light of Reason; and also the Israelites themselves afterwards, upon other Occasions, as David, for the affronting of his Ambassadors. Besides, what every man possesses, by Vertue of human Laws, is not less his own, than if GOD had (immediately) given it to him; and that Right is not taken away by the Gospel.

[208]

[VIII.The Arguments out of Scripture for the Affirmative answered.] VIII. Let us now see the Reasons for the contrary Opinion, that the pious Reader may more easily judge which are the most weighty.

1. First they alledge the Prophecy of1 Isaiah, who foretold, That the Nations should beat their Swords into Plow-Shares, and their Spears into Pruning Hooks.[(1.)Arg. Isa. ii. 4.] Nation shall not lift up Sword against Nation, neither shall they learn War any more. But this Prophecy is to be understood, either conditionally, as many others are, as that should be the State of Affairs, if all Nations would2 submit to the Law of [38] CHRIST, and live up to it, whereunto there should nothing be wanting on GOD’s Part; for it is certain, if all were Christians, and lived like Christians, there would be no Wars: Which3 Arnobius expresses thus, If all Persons who look upon themselves as Men, not so much from the Shape of their Bodies, as because they are endowed with Reason, would lend an Ear to his salutary and peaceable Lessons, and not presumptuously follow their own Fancies rather than his Exhortations, the whole World would long since have enjoyed profound Peace, and lived in perfect and indissoluble Union. Iron would have been employed for gentler Purposes, and converted into less dangerous Instruments [209] than what it has hitherto served for. And4 Lactantius thus, What would be the Consequence, if all Men would unite in Concord? Which certainly might be done, if banishing their deadly and impious Rage, they would resolve to live innocently and justly. Or this Place is to be understood literally; and then, it is plain that this Prophecy is not yet fulfilled; but that the Accomplishment of it, and of the general Conversion of the Jews, is yet to be expected. But take it which Way you will, there can be nothing hence inferred against the Lawfulness of War, as long as there are those who will not suffer others to live in Quiet, and who insult such as love Peace.

Several Arguments are drawn from the fifth of St. Matthew, to judge of which it is necessary, that we remember what was said a little before, viz. If CHRIST had intended to have abolished all capital Punishments, and the Right of (making) War, he would have done it in most plain and exact Terms, on Account of the great Importance and Novelty of the Thing; and so much the more, because none of the Jews could imagine but that the Laws of Moses, concerning Judgments and other political Affairs, ought to preserve their Force in regard to the Jews, as long as their Government subsisted. After this general Remark, let us examine these Places in order.

[(2.)Arg.] 2. The second Argument brought to defend their Opinion is out of those Words. You have heard it has been said, an Eye for an Eye, and a Tooth for a Tooth; but I say unto you, resist not Evil,[Ex. xi. 13. Matt. v. 38, 39. Acts vii. 27.] (לרשע which answers to the Greek Word τῷ ἀδικου̑ντι him that injures thee); but if any Man strike thee on the one Cheek, turn to him the other also. From hence some infer, that no Injury is to be repelled or revenged, either publickly or privately; but this the Words do not imply; for CHRIST does not here speak to Magistrates, but to those that are injured; nor of all Injuries [210] neither, but of slight ones, as a Box on the Ear, for the Words following limit those that go before, however general they may at first appear. So in the following Precept, If any Man will sue thee at the Law, and take away thy Coat, let him have thy Cloak also.5 Our Saviour does not forbid absolutely to have Recourse to Law, or to take Arbitrators in order to decide a Difference.[1Cor. vi. 4.] This is evident from the Interpretation of St. Paul, who does not prohibit every Kind of Law-Suit, but only would have Christians not go to Law with one another before the Heathen, [39] and that from the Example of the Jews, amongst whom it was a received Maxim, that He that brings the Cause of an Israelite before Strangers, profanes the Name of GOD; but CHRIST, to exercise our Patience, would not have us dispute for Things that may be easily recovered, as a Coat, or a Cloak with a Coat, if one run a Risque of being deprived of both; nor prosecute our Right according to Law, however well founded it may be. Apollonius Tyanaeus6 said, It was not like a Philosopher to sue for a little Money. The Praetor (said Ulpian7) does not disapprove the Action of [211] a Man, who had rather lose his Substance than be engaged in a Multiplicity of Law-Suits, for the Recovery of it; for this Aversion to Suits of Law is not to be condemned. What Ulpian here says to be approved of by good Men, is what CHRIST himself commands, chusing the Subject of his Precepts from Things most honest and commendable: But we cannot justly infer from hence, that a Parent or Tutor ought not to defend by Law, when he is forced to it, what his Child or Pupil cannot subsist without. For a Coat or Cloak is one Thing, and one’s whole Maintenance another. In Clement’s Constitutions, it is said of a Christian, if8 he have a Suit depending, Let him endeavour to make it up, tho’ it be somewhat to his Loss. What therefore uses to be said of moral Things in general, may be applied here, that they do not consist in an indivisible Point, but have in their way a certain Extension.

So in that which follows, If any Man shall compel thee to go with him one Mile, go with him two: Our Lord did not say a hundred Miles, which might draw one too far from his necessary Business, but one, and if occasion be, two, which is only a kind of a Walk, and the Trouble and Hindrance occasioned by it almost nothing at all. The Meaning then is, that in Things which will not incommode us much we must not insist with Rigour upon our Right; but rather9 yield more than is desired, that our10 Patience and good Nature may be known unto all.

Our Saviour adds, Give unto him that asks of thee,11 and from him that would borrow of thee, turn not away. If these Words were understood [212] without any Restriction, it would indeed be very hard. He that takes not care of his own Family is worse than an Infidel, says St. Paul. Let us then follow the Explication of St. Paul, the best Interpreter of his Master’s Law,[1Tim. v. 8.] who exhorting the Corinthians to Charity towards the Poor at Jerusalem, says, Not that others should be eased and you be burthened; but that by an Equality,12 your Abundance should supply their Wants; that is, (to use Livy’s Words on a like Occasion)13 That out of your Plenty,[2 Cor. viii. 13.] you may relieve the Necessities of others. As14 Cyrus did towards his Friends, according to Xenophon. Let us use then the same Equity in explaining the Precept we have just now mentioned, viz. Resist not Evil; but if any Man, &c.

As the Law of Moses allowed the Liberty of a Divorce, to prevent the Cruelty of Husbands towards their Wives; so also to obviate all private Revenge, to which the Israelites were extremely inclined, it allowed the injured Person to avenge him [40] self, not indeed by his own Hand, but by the Law of15 Retaliation before the Judge; which16 the Law of the Twelve Tables afterwards established, He that breaks a Limb, let him suffer the like. As CHRIST required of his Disciples an higher Degree of Patience, he was so far from approving this Demand of Revenge in the Person injured, that he does not allow some Injuries to be repelled [213] by Force, or Law. But what Sort of Injuries? Such as might be easily born;17 not but that it is praise-worthy to suffer even grievous Injuries without demanding Satisfaction; but that he is contented with a more limited Patience: Therefore he proposes the Example in a Box on the Ear, which does not in danger Life, nor maim the Body, but only declares a certain Contempt of us, which diminishes nothing of our Merit. Seneca,18 in his Book of the Constancy of a wise Man, distinguishes an Injury from an Affront, The former (said he) is by Nature more grievous, the other more light, and is hard to digest only for those that are very delicate; it offends, but does no hurt. Such is the Weakness and Vanity of our Minds, that some Men think nothing more insupportable; thus you will find a Slave, who had rather be scourged than take a Box of the Ear. And the same* Author in another Place, An Affront is less than an Injury, which we may complain of, rather than revenge; and which the Laws have not judged worthy of any Punishment. So one in Pacuvius,19 I easily bear an Injury, so it be without an Affront. So another in Caecilius,20 I can easily bear Misfortune, if not the Result of an Injury done me; and even an Injury, unless accompanied with an Affront. And in Demosthenes,21 Blows, tho’ a Grievance to a free Man, are so chiefly when given as a Mark of Contempt. And the same Seneca a little lower says,22 That Grief (arising) from an Affront, is a Passion moved by a Meanness and Narrowness of Mind, affected by some disobliging Action or Word.

Therefore in such a Case, CHRIST enjoins Patience; and lest any one [214] should object the trite Proverb,23 By bearing an old Injury you invite a new one; he adds, we should also rather24 bear a second Injury than repel the first: Because from thence no Hurt comes to us, but what consists25 in a false Imagination. To turn the Cheek, is a Hebraism for to bear a Thing patiently, as appears from Is. 1. 6. and Jer. iii. 3. To turn the Face, is used by26 Tacitus and27 Terence in the same Sense.

[(3.)Arg.] 3. The third Argument is usually taken from the following Words in St. Matthew, You have heard it has been said, thou shalt love thy Neighbour, and hate thine [41] Enemy; but I say unto you, love your Enemies, bless them that curse you, and pray for them that despitefully use you, and persecute you.[Matt. v. 43, 44] There are some who think both capital Punishments and Wars repugnant to this Love and Kindness (to be shewn) to our Enemies and Persecutors. But that is easily answered, if we consider well the Words of the Law of Moses, to which our Lord opposes this Precept. The Hebrews were commanded to love their Neighbour; that is, those28 of their own Nation; for so is the Word Neighbour to be understood, as appears from Lev. xix. by comparing the 17th Verse with the 18th. Nevertheless, [215] the Magistrates were commanded to put to Death Murderers, and other notorious Offenders: Notwithstanding this likewise,[Judges xx. 21] the eleven Tribes justly made War upon the Tribe of Benjamin for their horrid Crime. So also David, who fought the29 LORD’s Battles, did recover by Arms the Kingdom promised him from Ishboseth.

But let the Word Neighbour more largely extend to all Men whatsoever; for all are received into common Grace; no People are now condemned by GOD to utter Destruction; yet what was formerly lawful against the Israelites, will still be as lawful against all Men: Since it was then commanded to love them, as it is now to love all Men. But if you urge, that under the Evangelical Law there is required a greater Degree of Love; this may also be granted; provided also it be allowed, that all are not to be30 equally loved, but a Parent (for Instance) more than a Stranger: Thus also we are to prefer the Good of the Innocent to that of the Guilty, and a publick Good before a private one, by the Law of a well regulated Charity. Now out of Love to the Innocent, arise capital Punishments and pious Wars. See the moral Sentence which is in Prov. xxiv. 11. CHRIST’s Precepts then of loving and promoting the Good of every one, are to be obeyed, unless a greater and juster Love interpose: It is a known old Saying,31 that To spare all is as cruel as to spare none. [216] Besides, we are commanded to love our Enemies from the Example of GOD himself, who makes his Sun to rise upon the Wicked; but the same GOD does even in this Life punish some wicked Persons, and will do it very severely in the next. By which at the same Time are solved all the Arguments that use to be drawn from the Meekness that is prescribed to Christians:[Ex. xxxiv. 6. Jonah iv. 2.] For tho’ GOD is called gentle, merciful, long-suffering, yet Holy Writ does every where declare his Wrath against32 obstinate Sinners, that is, his Design to punish them; and the Magistrate is appointed to be the Minister of this Wrath. Moses is famed for his extraordinary Meekness, yet he punished Offenders, and that capitally.[Numb. xiv. 18. Rom. ii. 8. — xiii. 4. Matt. xxii. 7. 1 Cor. iv. 21. —v.5. 1 Tim. i. 20.] We are frequently commanded to imitate the Mildness and Patience of CHRIST; but yet it was CHRIST who33 grievously punished the rebellious Jews, and will condemn the Wicked at the Day of Judgment for their Crimes. The Apostles imitated their Master’s Gentleness,34 yet they used the Power given them from GOD in the Punishment of heinous Sinners. [42]

The fourth Objection is taken from Rom. xii. 17. Render to no Man Evil for Evil: Provide Things honest in the Sight of all Men: If it be possible, as much as lies in you, live peaceably with all Men: Dearly beloved,35 avenge [217] not yourselves, but rather give Place unto Wrath; for it is written, Vengeance is mine, I will repay, saith the LORD: Therefore, if thine Enemy hunger, feed him; if he be athirst, give him Drink; for in so doing thou shalt heap Coals of Fire upon his Head. Be not overcome of Evil, but overcome Evil with Good. But here also we may give the same Answer as to the former Passage; for when36 GOD said, Vengeance is mine, I will repay, at the very same Time capital Punishments were in Use, and there were written Laws touching Wars. We find likewise an express Command to do Service to one’s Enemies, that is, to those who were of the same Nation;[Ex. xxiii. 4, 5.] without Prejudice however to the Right of inflicting capital Punishments, even on the Israelites themselves, and taking up Arms against them for just Reasons, as we have said above. Wherefore neither can the same Words now, or the like Precepts, tho’ taken more largely, be wrested to such a Sense; and the less, because the Division of Chapters was not made by the Apostles, or in their Time, but37 much later, for the Convenience of Readers; and for the more easy quoting of the Places: And therefore, what now begins the thirteenth Chapter, Let every Soul be subject to the higher Powers, and what follows, was formerly joined to those Precepts of not taking Revenge.

But in this Discourse St. Paul says, that the publick Powers are GOD’s Ministers, and Revengers to execute Wrath (that is, Punishment) upon those that do Evil: Most plainly distinguishing thereby, between the Revenge that is exercised in GOD’s Stead, for the publick Good, and that ought to be referred to the Vengeance which GOD has reserved to himself; and that private Revenge which is intended only to satisfy the Resentment of an Injury, and which the A postle had a little before forbid. For if we would comprehend even that Revenge which is required for the Sake of the publick Good in that Prohibition, What would be more [218] absurd than, when he had bid them abstain from capital Punishments, to add immediately, that the publick Powers were ordained by GOD to this End, to execute Punishment in GOD’s Stead?

[(5.)Arg.] 5. The fifth Place, which some alledge is, Tho’ we walk in the Flesh, we do not war after the Flesh;[2 Cor. x. 3.] for the Weapons of our Warfare are not38 carnal, but mighty, through GOD, to the pulling down of strong Holds, &c. But this Place makes nothing to the Purpose; for both what goes before, and what follows, shews that by the Word Flesh St. Paul there meant the weak State of his Body, as to outward Appearance, upon which Account he was contemned. To this St. Paul opposes his own Weapons, that is, the Power given to him as an Apostle, to punish the Refractory, which he used to Elymas the Sorcerer, the incestuous Corinthian, Hymenaeus, and Alexander. He therefore denies this Power to be carnal, that is, weak; nay, on the contrary, he affirms it to be most strong. What is this to the Right of capital Punishments, or of War? Nay, on the contrary, because the Church at that Time was destitute of the Assistance of the publick Powers, GOD raised up that miraculous Power for its Defence; which began to cease almost as soon as the Church had Christian Emperors; as the Manna ceased as soon as the Israelites were come into a fruitful Country. [43]

[(6.)Arg.] 6. The sixth Place produced is, Put on the whole Armour of GOD, that ye may be able to stand against the Wiles of the Devil;[Eph. vi. 11, 12.] for we wrestle not against Flesh and Blood, (add only, after the Manner of the Hebrews) but against Principalities, &c. He speaks of that Warfare which Christians have, as Christians, not of that which they may have in common with other Men upon certain Occasions.

[(7.)Arg.] 7. The seventh Place that is brought is, From whence come Wars and Fightings among you?[James iv. 1, 2, 3.] Come they not hence, even from your Lusts, that war in your Members? Ye lust, and have not: Ye envy, and desire to have, and cannot obtain: Ye fight and war, and yet ye have not, because ye ask not; ye ask and receive not, because ye ask amiss, that ye may consume it upon your [219] Lusts. This contains no general Maxim, which absolutely condemns the Use of Arms; it only says, that those Wars and Fights with which the dispersed Jews were at that Time miserably harassed among themselves (part of which History we meet with in Josephus) did arise from wicked Causes; and that the Case is the same still, we know, and lament. That of Tibullus has a Meaning not unlike this Passage of St. James.39 Gold is the Cause of so many Quarrels: There were no Wars whilst People drank out of wooden Goblets.

And we find it remarked40 often in Strabo, that those Nations41 lived [220] most innocently, whose Diet was most simple. What42 Lucan says is agreeable to this, — O profuse Luxury, that is never satisfied with small Provision! Ambitious desire of Dishes, every where searched for, by Sea and by Land! Vain Pomp of splendid Tables! Learn, how little is sufficient for Life; how small a Portion Nature is contented with. Rich and old Wines cannot raise the Sick; it is not necessary for them to drink out of Gold or Porcelain Cups. It is fair Water that restores Health. A good Fountain, together with Bread, is enough for Men. Wretched Mortals! Why then do they go to War? To which we may add that of43 Plutarch, in The Contradictions of the [221] Stoicks, There is no War among Men, but what arises from Vice; one from the Desire of [44] Pleasures, another from Covetousness, and a third from Ambition.44 Justin commending the Manners of the Scythians, says, It were to be wished that the rest of Mankind practised the like Moderation, and were as scrupulous of grasping at other Men’s Goods and Possessions. We should not then see so many continual Wars carried on in all Ages, and in all Countries; nor would the Sword carry off greater Numbers than die of a [222] natural Death.45 Cicero says, Disorderly Passions give Birth to Hatred, Dissentions, Discord, Seditions, and Wars.46 Maximus Tyrius, All Places are now full of War and Injustice; for irregular Passions are every where let loose, and inspire all Mankind with a Desire of adding to their Possessions. And47 Jamblichus, For nothing but an excessive Concern for the Body, and the Passions which direct making an extravagant Provision for it, are the Causes of Wars,[Matt. xxvi. 52] Seditions, and Quarrels; for Men engage in War, for the sake of procuring what is pleasant and advantageous to them. But what was said to St. Peter, All they that take the Sword, shall perish with the Sword; not belonging to War, in its common Acceptation, but properly to the Use of Arms between private Persons, (for CHRIST himself gives this Reason of his forbidding or neglecting his Defence,[John xviii. 36.] because His Kingdom was not of this World) shall be treated of in its48 proper Place.

[IX.The Opinion of the primitive Christians concerning this, examined.] IX. Whensoever there is any Dispute about the Sense of what is written, the Practice afterwards established, and the Authority of the Judicious, uses to be of great Weight; which is also to be observed in Holy Scripture. For it is not probable, that the Churches, which were founded by the Apostles, should suddenly, or all at once, fall off from the Maxims which the Apostles had briefly given them in Writing, and more largely explained by Word of Mouth, or had even reduced into Practice. But they who condemn all Kind of War without Exception, use [45] to alledge some Passages of the primitive Christians; against which I have three Things to say.

First, That from those Passages nothing else can be gathered, than the private Sentiment of some Persons, not the common Opinion of the Churches. Besides, most of them who are cited, affected to be singular, and to teach something more sublime; such as, for Example, Origen and Tertullian, who are not always consistent with themselves. For the same [223] Origen says, that Bees were given as a Pattern by GOD, of1 the just and regular Method that Men ought to take in making War, when there is a Necessity for it. And the very same Tertullian, who in another Place seems to disapprove of capital Punishments, said,2 No Body denies but it is3 good to punish the Guilty. And he is at a Stand about Wars; for in his Book Of Idolatry, he4 says, The Query is, Whether the Faithful may be allowed to take up Arms; and whether military Persons may be admitted into the Christian Church? And in that Place, he seems to incline to that Opinion which is against War. But in his Book Of the Soldier’s Crown, after he had made some Reflections against War, he presently distinguishes between them who were Soldiers before their Baptism, and those who list themselves after Baptism.5 Their Condition (says he) is plainly different, who were Soldiers before their Conversion to the Faith; as those whom John admitted to Baptism, or as those most pious Centurions,[Matt. viii. 9. Acts x.] one of whom CHRIST approved of, and another St. Peter instructed:6 Provided that having embraced the Faith, and being sealed (by Baptism) they either presently quit their Employment, as many have done; or be particularly careful that they do nothing to offend GOD. He then was sensible that they continued Soldiers after Baptism, which certainly they would not have done, [224] if they had understood War to have been forbidden by CHRIST; no more than Soothsayers, Magicians, and7 other Professors of unlawful Arts, were allowed after Baptism to practise their Art. In the same Book, commending a certain Soldier, and him a Christian, he cries out,8 O Soldier, glorious in GOD!

The second Observation is, That Christians did often disapprove or avoid War, on account of the Circumstances of the Times, which would scarce permit the bearing of Arms, without committing some Actions contrary to the Laws of Christianity. In Dolabella’s Letter to the Ephesians, which is extant in Josephus, we find the Jews9 desire to be exempted from all military Expeditions, because mixt with Strangers, they could not well perform the Rites of their own Law; and because they were forced on the Sabbaths to bear Arms, and make long Marches; and the same Historian tells us, that for the same Reasons the Jews got Leave10 of Lentulus to [46] be discharged; and in another Place he relates, when the Jews were commanded to depart from the City of Rome,11 some listed themselves Soldiers, others were punished for refusing to do it in Reverence to the Laws of their Country; namely for the Reasons mentioned before; to which there was sometimes added a third, because they would be obliged to fight against their own Countrymen, but to bear [225] Arms against their Nation was unlawful; that is, when their Countrymen were in danger for observing the Laws of their own Country. But as often as the Jews could avoid these Inconveniencies, they served in the Wars, even under foreign Kings, but yet12 continuing to observe the Laws of their Country, and to live according to them, which they first stipulated, as Josephus testifies. Very like to these Dangers were those, which Tertullian objects to the Men of the Sword in his Times; as in his Book of Idolatry,13 The Oath of Fidelity to GOD, and that to Man, the Banners of CHRIST, and those of the Devil, are things inconsistent with one another: Because the Soldiers were obliged to swear by the Pagan Gods, Jupiter, Mars, and others. In his Book of the Crown of a Soldier, he says,14 Shall he (a Christian) stand Centry before the Temples which he has renounced; and shall he sup where he is forbid by the Apostle? Shall he guard those (Demons) by Night, which he has exorcised in the Day? And afterwards,15 How many other Military Functions are there, which ought to be looked on as Sins?

The third Observation is this, that the Christians of the Primitive Times aspired with so much Ardor to the highest degree of Perfection, that they often took the divine Counsels for Precepts of an indispensible Obligation. Christians (says16 Athenagoras) do not sue at Law those that rob them. Salvian17 said it was commanded by CHRIST that we should rather abandon those things that are contested than engage in a Law Suit. But this taken so generally,18 seems to be design’d rather [skips to p. 48] [226] [227] [228] [229] [230] as good Counsel,19 and tending to a more sublime Life, but not as an absolute Precept. Thus many of the Primitive Fathers condemn’d20 all Oaths, without any Exception; whereas21 St. Paul himself did swear in Matters of Consequence. A Christian in Tatian said, I refuse the Pretorship. In Tertullian, A Christian is not22 ambitious of the Aedile’s Office. Lactantius maintains, that a just Man (such he would have a Christian to be) should not make War;23 but at the same time says, that he should not go to Sea. How many of the Primitive Fathers dissuade Christians from second Marriages? All which, as they are commendable, excellent, and highly pleasing to GOD, so they are not required of us by the Necessity of any Law. These Remarks will suffice to answer all Objections founded on Ecclesiastical Antiquity.

X.1 Now to confirm our own Opinion, first we want not Writers, and even more ancient ones than those that are opposed to us, who believed that the Practice of inflicting capital Punishment, and that of making War, the Innocence of which depends on the Justice of the former, are not inconsistent with Christianity: Clemens Alexandrinus says, that a Christian, if he be called to the Government, should be [49] (as Moses) a living Law to the Subjects, reward the Good, and punish the Bad. And [231] in another Place,2 describing the Habit of a Christian, he says, it would become him to go barefoot, unless he should happen to be a Soldier. In the Constitutions, intitled, The Constitutions of Clemens Romanus, we3 read, Not that all Killing is unlawful, but only that of the Innocent; provided that this Right of putting to Death be reserved to the Magistrate alone.

But setting aside private Opinion, let us come to the publick Authority of the Church, which ought to be of the greatest Weight. I say then, that Soldiers were never denied Baptism, or Excommunicated by the Church, (because they were Soldiers) which yet ought to have been done, and would have been done, if the military Profession had been repugnant to the Conditions of the new Covenant. In the a foresaid Constitutions, the same Writer treats of those who formerly used to be admitted to Baptism, and those who used to be rejected,4 Let a Soldier that desires to be baptized, be exhorted to abstain from Wrongs and Oppressions, to be content with his Pay: If he complies with these, let him be admitted. Tertullian in his Apology, speaking in the Person of Christians, says,5 We go to Sea, and fight together with you. He had said a little before,6 We are but of a few Days standing, and yet we have filled all your Empire, Islands, Castles, Towns, Councils, and your very Armies. In the same Book he had7 told that Rain had been obtained in favour of the Emperor Marcus Aurelius, by the Prayers of his Christian Soldiers. In his Book Of a Crown, he says, that the Soldier who had thrown away the Garland, was more brave than the rest of his Fellows; and he8 informs us, that he had many Christian fellow Soldiers.

We may add, that some Soldiers that had suffered Torments and [232] Death for the Sake of CHRIST, received from the Church the same Honour with other Martyrs; among whom are recorded9 three of St. Paul’s Companions: Cerialis, who suffered Martyrdom under Decius; Marinus, under Valerian; fifty under Aurelian; Victor, Maurus, and Valentinus, a Lieutenant-General under Maximian: About the same Time, Marcellus the Centurion, Severian under Licinius. Cyprian concerning Laurentius and Ignatius, both Africans, says,10 They also were once Soldiers in the Armies of this World, but were truly the Soldiers of GOD in the spiritual Warfare, whilst they vanquished the Devil by the Confession of CHRIST, and obtained by their Martyrdom, the Palms, and glorious Crowns of the LORD. Hence it is plain, what the common Opinion of the primitive Christians was concerning War, even before the Emperors were Christians.

If the Christians in those Times did not willingly appear at11 Trials for Life, it ought not to be thought strange, since for the most part Christians themselves were to be tried. Besides, the Roman Laws in other Things, were more severe than Christian Lenity could allow of; which sufficiently appears in the single Instance of the12 Silanian Decree of the [233] Senate. But yet, after that Constantine embraced, [50] and begun to promote, the Christian Religion, capital Punishments did not there upon cease. Nay, Constantine himself, among other Laws, made also this13 of sowing up Parricides in a Leather Sack; tho’ otherwise he was so very mild towards Criminals, that he is14 blamed by many Historians, for too much Indulgence. He had also a great many Christians in his Army, (as History informs us) and caused the Name of CHRIST to be put15 on his Standard: From that Time also the military Oath was changed to that Form extant in Vegetius,16 By GOD, and CHRIST, and the HOLY GHOST, and the Majesty of the Emperor, which, next to GOD, ought to be loved and reverenced by Mankind. Neither at that Time, among so many Bishops, some of whom had suffered very severely for Religion, do we read of so much as one, that exhorted Constantine not to put any Criminal to Death, or to engage in any War, or that dissuaded the Christians from serving in Wars, out of Fear of GOD’s Wrath; tho’ most of those Bishops were very strict Observers of Discipline, and far from dissembling [234] those Things, which related either to the Duty of the Emperors, or other Persons: Such was St. Ambrose, in the Time of Theodosius, who in his seventh Sermon speaks thus,17 To go to War is no Fault; but to do it purely for Plunder is a Sin. And in his Offices,18 Valour, which either defends our Country by Arms from Barbarians, or protects the Weak at Home, or our Companions from Robbers, is compleat Justice. This Argument seems to me of so great Weight, that I will seek for no other.

I am not ignorant, that Bishops, and other Christian People, have19 often interceded in favour of Criminals, especially such as were condemned to Death, and that Custom was introduced, that they who20 took Sanctuary in a Church, should not be delivered up, but upon promise to save their Lives; and that about Easter,21 those who were committed to Prison should be released. But he that carefully considers all these and such like Things, will find that they are only the Effects of [235] Christian Goodness, which eagerly embraces all Opportunities of Mercy; and not [51] the Consequences of a fixed and settled Opinion, which condemns in general all capital Punishments; and therefore, those Favours were not universal, but limited to certain Times and Places, and even the Intercessions themselves were moderated22 with certain Exceptions.

Here some object against us, the 12th Canon of the Council of Nice, which runs thus,23 Whoever being called by Grace, have at first shewed their Zeal and Faith, and quitted their military Employment; but have afterwards returned like Dogs to their Vomit; so that some shall give Money, and make Interest, to be taken into the Service: They shall lye prostrate (in the Church) for ten Years, after having been for three Years bare Hearers (of the Word). But in regard to all these, it must be observed what Disposition they are in, and in what Manner they do Penance. For whoever, by Fear, by Tears, by Patience, and by good Works, testify the Sincerity of their Conversion, these fulfilling the appointed Time of Hearing, shall at Length assist at publick Prayers, and afterwards it shall be lawful for the Bishop to treat them somewhat more favourably. But whosoever shall look on their Punishment with Indifference, and shall think the Form of their entering into the Church to be sufficient for their Conversion, these shall fulfil the whole appointed Time. The very Term of thirteen Years Penance, sufficiently declares, that the Matter in Question is not about a small or doubtful Sin, but a heinous and incontestable Crime. The Crime here meant, was undoubtedly24 Idolatry; for the Mention which was made of the Times of Licinius, in the 11th Canon immediately preceding, ought to be supposed tacitly repeated here, as the Sense of the following Canon often [236] depends on the former. See for an Instance the 11th Canon of the Eliberan Council. But Licinius, (as Eusebius25 informs us) dismissed those Soldiers from the Service, who would not26 sacrifice to their Gods: And the Emperor27 Julian afterwards did the same; for which Reason we read Victricius, and others, quitted the military Profession for the Sake of CHRIST. And formerly 1104 Soldiers had done so in Armenia, under Dioclesian, of whom there is Mention made in the Martyrologies: And Menna and Hesychius, in Egypt. In the Time then of Licinius, many left the Service; of whom was Arsaceus, mentioned among the Confessors, and Auxentius, afterwards made Bishop of Mopsuestia. Wherefore those, who had resigned their military Employments from a Motive of Conscience, could not be admitted again under Licinius, but by renouncing the Christian Faith: Which Crime was by so much the greater, by how much their former Act had shewn them to have a superior Knowledge of the Divine Laws; therefore these Apostates were punished more grievously than those mentioned in the former Canon, who abjured Christianity, without any Danger of losing Life or Goods.

But to interpret this Canon generally of all War without Restriction, is absolutely against Reason. For28 History plainly testifies, that they who had quitted their Posts under Licinius, and had not, during his Reign, returned to them again, because they would not violate their Christian Faith, were left to their Choice by Constantine, whether they would continue still discharged, or return to a military Life: Which doubtless many did. [52]

[237]

There are also some who object the Epistle of29 Leo, which says, That it is against the Rules of Ecclesiastical Discipline, after having done Penance, to return to the Profession of Arms. But we must know, that in Penitents, no less than in Clergymen and Monks, there was required an eminent Degree of Sanctity, far above that of the Generality of Christians; that the extraordinary Purity of their Lives might serve as much to Edification,30 as their bad Examples had before given Offence. Likewise in the most antient Customs of the Church, which, that they might be the more reverenced for their venerable Name, are generally called the Apostolical Canons: Canon the 82d it is decreed, That no Bishop, Priest, or Deacon, should follow the War, and retain at the same Time a Roman Employment, and the sacerdotal Function: For those Things that are Caesar’s, should be given to Caesar, and those that are GOD’s should be given to GOD. By which it appears, that those Christians who did not aspire to Ecclesiastical Offices were not forbid to follow Arms.

Moreover, they who after Baptism had served any Office, Civil or Military, could not be ordained Clergymen, as you may see in the Epistles of Syricius and Innocentius, and by the Council of Toledo. For Clergymen were not chosen31 out of Christians of any Sort, but of them who had given Proof of a most strict Life. Besides, Ecclesiastics ought not to have been diverted from their Functions by32 any other Care or Work, [238] that required continual Application, such as the Service in War, and the Exercise of certain Civil Employments; for which Reason the first Canon provided, that no Bishop, Priest, or Deacon, should meddle in secular Affairs; and the 80th, that he should not be concerned in the administration of publick Affairs. And the sixth of the African Councils, that he should not act either as an33 Attorney or an Advocate. So St. Cyprian holds it34 unlawful for them to be appointed Tutors or Guardians.

But we have the express Judgment of the Church for our Opinion, in the first Council of Arles, which was held under Constantine; for the third Canon of that Council runs thus, As to those who throw away their Arms in Time of Peace, we have thought fit to exclude them from the Communion; that is, they who quit their military Employment, when there was no Persecution. For the Christians by the Word35 Peace meant so, as appears from Cyprian and others. Let us add the [53] Example of the Soldiers under Julian, who had made so great Progress in Christianity, [239] that they were ready to seal the Truth of the Gospel with their Blood; of whom St. Ambrose speaks thus,36 The Emperor Julian, tho’ an Apostate, yet had under him Christian Soldiers, to whom when he said, March (against the Enemy) in defence of the State, they obeyed him; but when he said, March against the Christians, then they acknowledged the Emperor of Heaven. Such was the The bean Legion long before, which in the Reign of Dioclesian the Emperor were instructed in the Christian Religion, by Zabda, the thirtieth Bishop of Jerusalem, and afterwards left a memorable Example of Christian Constancy and Patience to all Ages, which I shall speak of hereafter.

Let it suffice, in this Place, to mention that Speech of theirs, which expresses accurately, and in few Words, the whole Duty of a Christian Soldier,37 We offer you our Service against any Enemy whatever, yet hold it a most heinous Crime to embrue our Hands in the Blood of Innocents: They can act vigorously against the Impious, and the Enemies of the State; but have no longer Force, when the Business is to massacre the Pious, and our fellow Citizens. We remember that we took up Arms for the Defence of our Countrymen, and not against them. We have always fought for Justice, for Piety, for the Preservation of the Innocent; these have been hitherto the Recompence of our Dangers. We have fought with Fidelity. How should we present it to you, (the Speech is made to the Emperor) if we neglect it towards GOD? And St. Basil speaks thus of the antient Christians.38 Our Ancestors never accounted Slaughters committed in War, as Murders, excusing them who fought for Virtue and Piety.

[240] [336] [384]

Endnotes

1

Cicero gives this as the Opinion of the Stoicks, which he approves of, and confirms, De Finib. Lib. III. Cap. V. VI. VII. See also Lib. V. Cap. VII. and Pufendorf, B. II. Chap. III. § 14.

2.

As every other Nature only then shews what is its real Good, when it is arrived to Perfection; so what makes the real Good of Man is not to be found in Man, till Reason is perfect in him. Senec. Ep. CXXIV. Grotius.

3.

That is most valuable in every Being, to which it is destined by Nature, and which makes its Excellence. What is most valuable in Man? Reason. Seneca, Epist. LXXVI. See also Epist. CXXI. and CXX. V. Juvenal says, that, according to the Doctrine of Zeno, there are some Things which we ought never to do, even tho’ our Life was at stake.

  • ——— Melius nos
  • Zenonis praecepta monent: Nec enim omnia, quaedam
  • Pro vitâ facienda putat ———
  • Sat. XV. v. 106, &c. Grotius.

Aulus Gellius, quoted by our Author in his Margin, says, When we are reduced to that Strait, we are obliged to expose ourselves to suffer some exterior Inconveniency or Damage, rather than be wanting to the inviolable Rules of Decorum, Lib. XII Cap. V.

4.

See our Author’s Application of this Principle to the natural Motions of Revenge, B. II. Chap. XX. § 5. num. 1.

5.

Thus, for Example, it is never decent (honestum) nor, consequently, allowable by the Law of Nature, to fail in Point of Gratitude to a Benefactor; to take another Man’s Goods, to which we have no Right; to break a valid Promise or Agreement; to prejudice any one’s Honour; to deprive the Innocent of Life, &c. In all which there may be different Degrees of Turpitude, according to the Variety of Circumstances; and as the Ingratitude, the Robbery, the Failure, the Affront, or the Murder, are more or less heinous; but in regard to the Quality of the Actions themselves, the least Fraud, for Example, is not less contrary to the Rules of Decorum, and the Law of Nature, than the greatest.

6.

The Author does not here speak of the Application of the general Maxims of Decorum, and the Law of Nature to particular Cases, as the Commentators on this Work have imagined, who instance in the several Manners of discharging the Duties of Beneficence, Liberality, Friendship, &c. referring to B. II. Chap. I. § 5. where he treats of the Extent of Time allowed for a just Defence of one’s self. The Question in this Place turns on the Nature of Actions in general, as it appears from the Examples to which our Author himself applies his Principle. Thus, independently of any positive Law against Polygamy, it is commendable and decent, according to our Author, to be content with one Wife; but the Man who takes two, commits no Fault: That Action is not contrary to the first Sort of Decorum, to which the Law of Nature, properly so called, bears a Relation.

7.

The Emperor Justinian congratulates himself, on having given the Force of a Law to a Thing of this Nature, which the antient Lawyers had only advised, viz. That neither the Heir, nor any one under his Jurisdiction, should be admitted Witness to a Will. Institut. Lib. II. Tit. X. De Test. ordinandis, § 10. See the Theodosian Code, Lib. III. Tit. VIII. De secundis Nuptiis, Leg. II. With Godfrey’s Comment on that Law, Vol. I. p. 285.

8.

De Cyri Institut. Lib. II. Cap. III. § 5. Edit. Oxon.

9.

This is very well explained by a Passage in Pliny. For all Animals have this Understanding, and are sensible, not only of their own Advantages, but also of their Enemies Power to hurt them: They know the Use of their own Weapons, the proper Opportunities for an Attack, and the weak Side of their Adversaries. Hist. Nat. Lib. VIII. Cap. XXV.

10.

The same Observation is made by Martial, III. Epigr. 58. v. 2.

  • Vitulusque inermi fronte prurit ad pugnam.

Porphyry says, that Every Animal knows which Part of him is weak, and which strong: That he takes Care of the former, and makes use of the latter; as the Panther of his Teeth, the Lion of his Claws and Teeth, the Horse of his Hoofs, and the Ox of his Horns. De Abst. Animal. Lib. III. p. 268. Edit. Lugd. 1620. Irrational Animals, says St. Chrysostom, carry their Arms on their Bodies; thus the Ox has his Horns, the wild Boar his Tusks, the Lion his Claws: But GOD has given me Arms distinct from my Body, to shew that Man is a tame and sociable Creature, and that I am not to employ those Arms at all Times; for sometimes I quit my Dart, and at others I handle it: That I might therefore be free from Incumbrance, and not be obliged to carry my Arms always with me, he has made them separate from my Nature. De Statuis, Hom. XI. This passage agrees with that quoted from Galen in the Text. Grotius.

11.

But so that he is designed by Nature rather for Peace than War. See Pufendorf, B. VIII. Chap. VI. § 2.

12.

As the Body of Man is formed in such a Manner, that he cannot, like other Animals, provide for his own Defence and Security, by Horns, Teeth, or Flight; Nature has given him a strong Breast, and Arms, that he might defend himself with his Hands, and by presenting his Body as a Shield. Cassiodore, De Animâ, p. 296. Edit. Paris. Grotius.

13.

De Partib. Anim. Lib. IV. Cap. X. p. 1034. Edit. Paris.

14.

See Pufendorf, B. II. Chap. V. § 1.

15.

De Offic. Lib. III. Cap. V.

16.

De Offic. Lib. I. Cap. XI.

17.

Epist. ad Famil. Lib. XII. Ep. III.

18.

Digest. Lib. XLIII. Tit. XVI. De vi & de vi armatâ. Leg. 1. § 27.

19.

De Arte amandi, Lab. III. v. 492.

1

See Josephus Antiq. Jud. Lib. I. Cap. VIII. where he quotes the Passage of that profane Historian.

2.

Or rather an antient Poet, who assumed the Name of Orpheus Clement of Alexandria, Stromat. Lib. V. p. 723. Edit. Potter. Oxon. And Euseb. Praep. Evang. Lib. XIII. Cap. XII. have preserved this Fragment, to which our Author here alludes, and which he himself has quoted in a Note on his Treatise Of the Truths of the Christian Religion, Lib. I. § 16. p. 66. Edit. 1717. And in his Comment on Matt. v. 31.

3.

Our Author found the Expression in this Sense, in 1 Sam. xvii, 47. where David says to Goliath, All this Assembly shall know that the LORD saveth not with Sword and Spear; for the War (Battle, E. B.) is the LORD’s, and he will give you into our Hands. But it is more natural to understand by these Words, The War is the LORD’s, that the Success of the War depends on GOD; as Mr. Le Clerc explains them. Nor does our Author produce any other Passage to the same Purpose; he even gives a different Exposition, at the Close of this Paragraph, to a Text which at first Sight might seem proper to be alledged in this Place. He was thinking of the Rabbinical Distinction between commanded and voluntary Wars. On which see Cuneus, De Rep. Hebr. Lib. II. Chap. XIX. Schickard, De Jure Regio, Cap. V. and Selden, De Jure Nat. & Gent. &c. Lib. VI. Cap. XII.

1

Orat. pro Milone, Cap. IV. Ibid. Cap. XI.

2.

Seneca says, The most secure Means of Defence is always at hand; every Man being charged with the Care of his own Person. Ep. CXXI. p. 604. Edit. Gronov. Var. Quintilian lays it down as a Rule for an Orator, To speak in his Client’s defence, before he attempts to retort the Crime on the Accuser; because our own Safety is naturally preferable to the Destruction of our Adversary. Inst. Orat. Lib. VIII. Cap. II. p. 403. Edit. Obrecht. Sophocles therefore, speaking of Hercules, justly observes, that Had he defended himself fairly and openly, (against Iphitus) Jupiter would have pardoned his killing him. Trachin. v. 281, 282. p. 341. Edit. Steph. See also the Laws of the Wisigoths, Lib. VI. Tit. I. Cap. VI. Grotius. The Quotation from Seneca is not directly to the Purpose.

3.

Therefore if I kill your Servant, who is a Highwayman, and lays Wait for me, I shall be innocent; for natural Reason, &c. Digest. Lib. IX. Tit. II. Ad Leg. Aquil. Leg. IV.

4.

Digest. Lib. I. Tit. I. De Just. & Jure, Leg. III.

5.

De Bell. Jud. Lib. III. Cap. XXV. p. 852. Edit. Lips.

6.

See § 11. of Chap. I.

7.

Digest. Lib. IX. Tit. I. Leg. I. § 3, 11.

8.

Seneca reasoning in the same Manner on another Occasion, says, that Beasts, which are not supposed to understand what a Benefit is, or have any Notion of its Value, are gained by constant good Usage. De Benef. Lib. I. Cap. III. See the whole Passage, and compare it with that of Philo the Jew, quoted in a Note on § 7. of the Preliminary Discourse. Grotius.

9.

The first Clause only occurs in Pliny, Hist. Nat. Lib. VII. but I do not find the following Words in that Author: They probably belong to some antient Author, as far as I can judge by the Stile. This Mixture was occasioned by our Author’s taking the Quotation at second hand; for I believe I have discovered whence it was taken. Marcus Lycklama, in his Membranae, a Book published some Years before this, explaining Law III. of the Title in the Digest. De Just. & Jure, and taking occasion to treat of the natural Right of Self-Defence, Lib. VII. Eclog. 42. quotes this Passage of Pliny, without specifying the Place, and subjoins what here follows in the Text of Grotius.

1

Digest. Lib. I. Tit. I. De Justitia & Jure, Leg. V.

2.

Cornelius Nepos, in his Life of The mistocles, says, that General freely owned to the Lacedemonians, that the Athenians had, by his Advice, secured their Temples and Houses with Walls, in order to defend them more effectually against the Enemy; an Action allowable by the common Law of Nations. Vita Them. Cap. VII. num 4. Edit. Cellar. Grotius.

3.

See our Author, B. III. Chap. VI. § 27.

4.

Lib. XLII. Cap. XLI.

5.

Digest. Lib. I. Tit. I. De Just. & Jure. Leg. III. See what I have said on Pufendorf, B. II. Chap. III. § 3. Note 11. and § 23. Note 3. from which it appears, that Florentin, in this Law, spoke of what our Author terms the Law of Nature, whether the Question concerns the Law of Nature or the Law of Nations, in the Manner used by the antient Lawyers in explaining that Distinction. The same is to be said of Law V. of the same Title, quoted by our Author, as the first, Note 1. for when the Lawyers refer War to the Law of Nations, they only mean, that whereas the natural Instinct, common to all living Creatures, prompts Man to defend himself in the best Manner he can; Reason, which is the Principle and Rule of the Law of Nations, forbids them to make War, even in their own Defence, without a just Cause, and directs them to keep within certain Bounds. See Cujas on the Laws in Question. Vol. VII. p. 23, 29, &c. Edit. Fabrot.

1

See Chap. I. § 9. Note 5.

2.

See my 4th Note on § 15. of the same Chapter.

3.

Quoted by Aristotle, Ethic. Nicom. Lib. V. Cap. VIII. Apollodorus gives the Law of Rhadamanthus in this Manner, Let him who takes his Revenge on an unjust Aggressor escape with Impunity. Biblioth. Lib. II. Cap. IV. § 9. Edit. Th. Gale. Grotius.

4.

Controvers. Lib. V. Praefat. p. 350. Edit. Gronov. 1672.

5.

Contactum ac commercium. The Author here alludes to the Defilement or Uncleanness, which the Antients thought was contracted by touching a Man who had killed another, even innocently or lawfully. See Pufendorf, B. II. Chap. V. §. 16. Note 2. And Elian, Var. Hist. Lib. VIII. Cap. V. with the late Mr. Perizonius’s 4th Note; as also Everhard Feith, Antiq. Homeric. Lib. 1. Cap. VI. But these confused and obscure Ideas were not in Being in Cain’s Time.

6.

De Legib. Lib. IX. p. 864, &c. Vol. II. Ed. H. Steph.

7.

Orestes, v. 511, &c.

*

In Lib. III. De Bell. Pelopon. § 45. Edit. Oxon. Servius, on 1 B. of Virgil’s Aeneid. v. 136, 140, observes that All the Punishments inflicted by the Antients were pecuniary; which he concludes from the Phrase Lucre commissa, used in that Place. The same Inference is drawn from those of Scelus expendere, which occurs II. Lib. v. 229. and Pendere poenas, B. VI. v. 20. alluding to the Practice of those early Times, when Money was delivered by Weight. Pliny tells us, that The first capital Sentence was passed in the Areopagus, Hist. Nat. Lib. VII. Cap. LVI. p. 478. Edit. Hack.

*

This Passage is taken from his Instit. Div. Lib. II. Cap. X. Num. 23. Edit. Cellar. and is immediately preceded by these Words, They (the antient Romans) used to forbid their Exiles the Use of Fire and Water; for as yet, &c. For it was not their Custom to put a Citizen to Death, or even banish them in Form; they only laid a strict Prohibition against furnishing the Criminal with any of the Conveniencies or Necessaries of Life, and thus reduced him to a Necessity of quitting the Country.

8.

Or rather, he had not then been guilty of such a Crime; but promised himself Impunity, on the Supposition of his committing it hereafter: For the Words of Moses will admit of that Sense. Grotius.

It does not fully appear that Lamech promised himself Impunity, by Virtue of GOD’s Prohibition in relation to Cain, when he said, Gen. iv. 23, 24. I shall slay, (I have slain) a Man to my wounding, and a young Man to my hurt. If Cain shall be avenged sevenfold, truly Lamech seventy and sevenfold. I think it much more probable, that this Speech of Lamech is a mere Rodomontado, and a Boast of his Strength, by which he imagined himself able to take a Revenge for the least Injuries done to him, more extensive than the Punishment with which those who should kill Cain were threaten’d. On consulting Mr. Le Clerc’s Comment on the Place, this will appear the most natural Explication of the Words, so that they are of no Use towards establishing the Consequence our Author would draw from them. It is sufficient for his Purpose, that nothing can be inferred from them in favour of the Opinion he opposes, concerning GOD’s Prohibition in relation to Cain; for even supposing that Prohibition extended to all other Cases of the like Nature, it was founded on a manifest Reason, on the Cessation of which, that is, on the Multiplication of Mankind, the Prohibition vanished of itself.

9.

Josephus expresses it thus, I command that Men abstain from Murder, and preserve themselves undefiled with Blood, and that those who kill be punished. Antiq. Jud. Lib. I. Cap. IV. p. 10. Edit. Leips. Grotius.

10.

See B. II. Chap. XX. § 8. Num. 8.

11.

See B. II. Chap. V. § 13.

12.

See Selden, De Jure Nat. & Gent. secund. Hebr. Disciplinam.

13.

I find nothing in or near these two Texts, relating to the Subject in Hand.

14.

See our Author’s Treatise, On the Truth of the Christian Religion, Lib. I. § 15. with Mr. Le Clerc’s Note, p. 28. Edit. 1717.

15.

An antient Lawyer has drawn a Comparison between the Laws of Moses and the Roman Law, under this Title, Collatio Mosaicarum & Romanarum Legum. Peter Pithou published that Work for the first Time, at Paris, in 1572; of which we have lately been presented with a beautiful Edition, in the Jurisprudentia Ante-Justinianea, by Mr. Schulting, a learned Professor of Law at Leiden.

1

The Author, in a Note on this Place, quotes a Passage from St. Jerom, which I at present omit, because he gives it more at large on B. II. Chap. V. § 9. Num. 4.

2.

This Instance is not altogether just. The Law of Nature, rightly understood, requires us in certain Cases to sacrifice our Lives for others, when a considerable Advantage may result from such an Action to the Publick. Thus we find the wise Pagans thought it their Duty to die for their Country. The Christian Religion therefore, only furnishes us with much more powerful Motives for the Practice of this Duty, by proposing the certain Hope of a Life to come, which will make us ample Amends for the Loss of the present. It is the Will of JESUS CHRIST, that we suffer Death for the Gospel; but this is no more than an Extension or Application of the Law of Nature, because nothing is more advantageous to Society, than a sincere and judicious Profession of the Christian Religion, and consequently, than the couragious Resolution of such as sacrifice their Lives for the Interest of its holy Doctrines.

3.

Epist. ad Zenam. We meet with a like Thought in Origen’s Philocalia. Grotius.

4.

The famous Rabbi Abarbanel, on Deut. xxiii. 21. says, the Law allowed the Jews to hate those People. Grotius.

5.

See to this Purpose what has been said in the Close of the preceding Chapter. St. Chrysostom has a beautiful Passage on this Subject, Formerly, says he, so great a Degree of Virtue was not enjoined. It was then allowable to take Revenge for Injuries received, and return Reproach for Reproach, and be solicitous for a massing Riches; to swear, provided it was done with a good Conscience; to take an Eye for an Eye, and hate an Enemy: Nor was there any Prohibition against living luxuriously, being angry, or putting away a Wife and taking another. Nay more, the Law permitted a Man to have two Wives at the same Time; in short, great Indulgence was granted in those and other Particulars. But since the Coming of CHRIST, the Way is become much narrower. De Virgin. Cap. XLIV. In the same Work he says, The same Degree of Virtue was not required from them (the Jews) that is expected from us. Cap. LXXXIII. And in his Discourse on the Coequality of the Son to the Father, he affirms, that the Gospel contains a greater Number of Precepts, and those carried to a higher Degree of Perfection. Vol. VI. Edit. Savill. Grotius.

Several of the Examples alleged by that Father, ought to be understood according to our Author’s Distinction between the Spirit and the Letter of the Law.

1

Seneca, making an Apology for the true Philosophers, who were falsely accused of despising Kings and Magistrates, asserts that, on the contrary, no Men are more faithfully obedient to Persons in publick Authority; because none have greater Obligations to them, than those who enjoy Ease and Tranquillity under their Protection. Epist. LXXIII. The whole Epistle is well worth reading; in which we have likewise this Observation, Tho’ all enjoy the Benefit of this Tranquillity, those who make a good Use of it, have a greater Share in the Blessing.

2.

Apol. I. p. 32 Edit. Oxon.

*

These Words may be interpreted a Christian End, or a Death worthy of a Christian. Grotius.

3.

See Mr. Noodt’s Treatise, De Jurisdictione & Imperio, Lib. I. Cap. IV.

4.

The Lawyers usually make this Distinction between the Right of the Sword, and the Power of punishing Criminals without putting them to Death: Thus, for Example, they say, No Man can transfer to another the Power of the Sword which is given him, or that of inflicting any other Punishment. Digest. Lib. L. Tit. XVII. De Diversis Reg. Juris. Leg. LXX.

5.

Though this Proof, and several others which follow it, have a direct Tendency to shew only that Princes and Magistrates, even under the Gospel Dispensation, may, and ought to punish certain Crimes with Death; yet they are to his Purpose, not only for the Reason given at the End of Num. 10. of this Paragraph; but also for another more strong and direct, which he ought not to have omitted, viz. Because there can be no plausible Foundation for condemning War absolutely, but on a Supposition, that the Right of taking away a Man’s Life, especially on the Account of some temporal Advantage, is incompatible with Christian Clemency. Now, if a Prince may and ought to put any of his Subjects to Death, when guilty of certain Crimes, which are sometimes prejudicial only in regard to some temporal Interest, Why may he not innocently take Arms against Strangers? Why should he be more tender of the Lives of Strangers than of those of his own Subjects? See what our Author says farther on capital Punishments, B. II. Chap. XX. § 12, 13.

6.

Contra Crescon. Grammatic. Lib. III. Cap. LI.

7.

Ad Bonis. Ep. L.

8.

In order to compleat our Author’s Argument, we must add what he himself says afterwards, that the Sovereign Power in itself, and according to the Practice of all Nations, includes the Right of making War, and that of punishing certain Crimes with Death. See my 5th Note on this Paragraph.

9.

Edessa is a City in Osroëne; and the Name of Abgarus is very common in that Country, as appears from several Medals, from Tacitus, Appian, and from the Fragments of Dio Capitolinus, lately published, (Excerpt. Vales. p. 476.) as well as from Pieces which have been long extant. Grotius.

This Story of Abgarus’s Epistle to JESUS CHRIST, and our Lord’s Answer, both produced by Eusebius, Hist. Eccl. Lib. I. Cap. XIII. is no better than a mere Fable. See Mr. Du Pin’s Preliminary Dissertation on the Bible, B. II. Chap. VI. § 2.

10.

St. Chrysostom makes this very plain in his Observations on this Text. Grotius.

11.

Tesmar, in his Notes, quotes two Passages from St. Augustin, where he employs this Example to shew that War is not absolutely condemned by the Gospel. In the first he reasons thus, If all Wars were condemned by the Christian Doctrine, the Soldiers in the Gospel, when they asked Advice, for the Security of their Salvation, would rather have been commanded to lay down their Arms, and entirely renounce their Profession; whereas it is only said, Do Violence to no Man, neither accuse any falsely, and be content with your Pay. Now when they are commanded to be content with their Pay, they are not forbid to continue in the military Profession. Epist. V. The other Passage is taken from his CV. Epistle, where that Father reasons from the Example of David, and the two Centurions.

12.

St. Chrysostom says, that To this End Tribunals were erected, Laws made, Punishments appointed, and various Kinds of Penalties enjoined. Serm. ad Patremfidel. Grotius.

13.

To which add, that if the Gospel absolutely condemned War and capital Punishments, such Christians as observed the Precepts of their Religion with the greatest Exactness, would thereby be inevitably exposed to become a Prey to Villains and Usurpers; which is not agreeable to the Goodness and Wisdom of GOD.

14.

Either there is some Omission in this Place, (tho’ all the Editions agree) or our Author expresses himself improperly. If the Political Law continued in force, it follows indeed, that the Jews, when converted to Christianity, ought, if Magistrates, to judge according to those Laws; but it by no Means follows, that they could not on any Account, or for any Reason, decline the Magistracy. The Author probably means, that they cannot decline it merely because the Exercise of it was attended with the Obligation of passing Sentence of Death for certain Crimes. I find nothing, at least in the Books of the Old Testament, from whence it can be inferred, that every one called to the Magistracy was obliged to accept of that Charge. The Jews acknowledged no such Obligation, as appears from a Passage of the Talmud, quoted by Buxtorf, in his Florileg. Hebraic. p. 183. where it is said, that the antient Sages declined publick Offices, and excused themselves from undertaking the Function of a Judge, ’till they saw none else would accept of it; and that even then they did not take Place in the Council, but at the earnest Intreaty of the People and Elders.

15.

The Jews however in our Saviour’s Time, had not the Power of Life and Death, but were under a Necessity of obtaining the Roman Governor’s Permission for executing a Criminal. See our Author’s Commentary on Matt. v. 22. and on John xviii. 31. So that they only declared, according to their Law, such or such a Person guilty of a capital Crime; which supposes, however, that JESUS CHRIST had not abolished the political Laws, and, consequently, is sufficient for our Author’s Purpose, whatever that passionate and injudicious Divine Osiander may say.

16.

For, besides that every one may renounce the Benefit of a Law, without doing any Thing contrary to that Law; the Design of that Law which allowed of Divorces, was not to put Men on dismissing their Wives, but to provide for the Security of the Wife, who would have been exposed to very bad Treatment, among such a People as the Jews were, if a Husband had not been at Liberty to dismiss her when she became disagreeable to him. So that the Intent of the Legislator was to prevent the greater Inconveniency; and nothing would have been more pleasing to him than to see Husbands keep their Wives, while they gave no just Cause for a Separation. This is what the Spirit or nobler Part of the Law required, tho’ that Part was least studied by the Generality of the Jews. The same is to be said of the Law of the Satisfaction allowed to the Injured, for hindering private Persons from doing themselves Justice by violent Means, to which the Jews were strongly inclined.

17.

The Council of Africa makes use of this Passage, to justify the Resolution of imploring the Assistance of the temporal Power against the Factious; Against whose Fury we may call for such Defence as is not unusual, or disallowed by the Scripture; since the Apostle Paul, as we read in the Book of Acts, secured himself against a Conspiracy of factious Men by a military Force. And St. Augustin frequently urges this Example, as in his Lth. Epistle to Boniface, and in CLIVth. to Publicola, where he says, that If the Soldiers, who guarded St. Paul, had fallen on his factious Enemies, the Apostle would not have thought himself guilty of the Effusion of their Blood. And Epist. CLXIV. he observes, that St. Paul took care to provide himself with a strong Guard for his Defence. Grotius.

The second of these Passages of St. Augustin may be found in the Canon Law, Caus. XXIII. Quaest. V. Can. VIII.

18.

Tributorum autem finis est, &c. The Design of raising Taxes is, &c. Here some Commentators charge our Author with advancing an inconclusive Reason; for, say they, Taxes are raised, not only for supporting War, but also for defraying several other necessary Expences in Time of Peace. This is certain, nor does our Author himself deny it, or say it is the only Design of imposing Taxes. It is sufficient that this is one, and even one of the most considerable Ends proposed. Mr. Barbeyrac therefore translates the Words thus, Mais quel est le but de ces sortes de charges imposées aux Sujets? N’est ce pas, entr’ autres, que les Puissances ayent de quoi fournir aux Depenses, &c. But with what View are such Burthens laid on the Subject? Is it not, among other Considerations, that the Powers may have wherewithal to defray the Expences, &c. To which he adds, that this Version, made conformably to the Author’s Thought, leaves no Room for Criticism; and that Mr. Vander Muelen has done Justice to the Author in this Place.

19.

The Historian puts this Speech in the Mouth of Petilius Cerealis, Hist. Lib. IV. Cap. LXXIV. Num. 2.

20.

Contra Faust. Lib. XXII. Cap. LXXIV. p. 299. Tom. VI. Edit. Eras. Basil. 1528. This Passage (in which our Author writes propter necessaria militi, instead of propter bella necessario militi, as the Words stand in the Edition here specified, which probably he used) is quoted in the Canon Law, Caus. XXIII. Quaest. I. Can. IV. but not exactly in the same Terms, and among some short Extracts of what goes before, or follows.

21.

The same Apostle says elsewhere, There was no Cause of Death in me, that is, I had done nothing worthy of Death. Acts xxviii. 18. Justin Martyr makes this Declaration in his second Apology; addressed to the Emperor, the Senate, and the whole Body of the Roman People, But we desire that such as do not live conformably to the Precepts of JESUS CHRIST, and are only nominal Christians, may be punished, even by your Authority. Grotius.

22.

The Author here alludes to a Passage in Tacitus, relating to Piso, as the learned Gronovius has observed on this Place. Petitam armis Rempublicam; utque reus agi posset, acie victum. Annal. Lib. III. Cap. XIII.

23.

This eleventh Argument occurs both in the first Edition of the Work before us, and in that of 1632, which the Author assures us he had carefully revised. I make this Observation, because it is omitted in several Editions, which was probably the Printer’s Fault, who skipped over two Lines, being misled by the Resemblance of the Words Undecimum and Duodecimum. This Article was wanting in the Edition of 1642, the last published in the Author’s Life Time; but it had been restored before my Edition appeared.

1

St. Chrysostom explains this Prophecy of the universal Peace established by the Foundation of the Roman Empire at the Time of our Saviour’s Birth. It is foretold, says that Father, not only that this Religion shall be well established, and immoveable, but also that it shall bring much Peace on the Earth; that the several Aristocracies and Monarchies shall be destroyed; and that there shall be one Kingdom raised above all the others, the greatest Part of which shall enjoy Peace in a more perfect Manner than before: For formerly Artificers and Orators bore Arms, and went to the Wars. But since the Coming of CHRIST, that Practice has been abolished, and military Employments are confined to a particular Rank of Men. Discourse on the Divinity of CHRIST. We have exactly the same Explication in Euseb. De Praep. Evang. Lib. I. Cap. X. p. 8. Edit. Rob. Steph. Grotius.

2.

In Reality, as Justin Martyr observes, Christians have no Enemies among themselves to fight with, Ὀυ πολεμου̑μεν τοι̑ς ἐχθροι̑ς. Which is exactly what Philo the Jew said of the Essenes, You can find among them no Artist who makes Javelins, Darts, Swords, Helmets, Cuirasses, Shields, or any Sort of Armour or Machines. In his Treatise proving every good Man is free, p. 877. Edit. Paris. St. Chrysostom likewise says, If Men loved one another as they ought to do, there would be no capital Punishments. Grotius.

3.

Adversus Gentes, Lib. I. p. 6. Edit. Lugd. Salmas.

4.

It is where he reproaches the Pagans with the Deification of their Conquerors; on which Occasion he reasons thus, If Immortality can be acquired only by shedding Blood, Who will have Gods, if an universal Concord was established in the World? And this certainly might be effected, if Men would lay aside their pernicious and impious Rage, and become innocent and just. Will no one be worthy of Heaven, on this Supposition? Will Virtue lose its Existence, merely because Men are not allowed to give a Loose to their Passions, and destroy one another? Instit. Div. Lib. 1. Cap. XVIII. Num. 16. Edit. Celler.

5.

St. Cyprian explains the Text thus, JESUS CHRIST commands you, not to demand the Restitution of what is taken from you. De Patientia. And St. Irenaeus says, that our Lord here commands us, not to be sorrowful, like Men who cannot bear to be defrauded; but to be chearful, as if we had freely given what is taken from us. And if any Man shall compel thee to go a Mile, go with him two. That is, says the same Father, that you should not follow him like a Slave, but go before him like a Freeman. Lib. IV. Cap. XXVI. Libanius, who had read the Gospels, commends those who did not go to Law for the Recovery of a Coat or a Cloak, Orat. de Custodiâ Reorum. St. Jerom says, that When any Man would sue us, and take away our Coat by litigious Chicanry, the Gospel directs us to grant him our Cloak also. Dialog. I. Adv. Pelag. Tom. II. p. 274. Edit. Basil. Grotius.

The Passage of St. Cyprian, here quoted by our Author, is in his Treatise De Bono Patientiae, p. 216. Edit. Fell. Brem. But it does not fully appear, that that Father designed it as an Explanation of the Words of the Gospel that follow.

6.

Vit. Apol. Tyan. Lib. II. Cap. XV. (XXXIX. Edit. Olear.)

7.

Digest. Lib. IV. Tit. VII. De alienat. judicii, mutandi causâ factâ. Leg. IV. § 1. This Law considered in itself, does not relate to the Action of sacrificing some Part of our Property, rather than engage in a Suit of Law. The Case is widely different; for the Person here supposed to avoid the Multiplication of Law-Suits, is in Possession of the Goods of another Man, who sees the Proprietor disposed to recover them into his own Hands. See Mr. Noodt’s excellent Commentary on the first Part of the Digest. p. 203, 204; for I should be too long in this Place, if I undertook to give the Grounds of this Explication, which supposes an Acquaintance with the Niceties of the Roman Law.

8.

Lib. I. Cap. XLV.

9.

Cicero recommends making large Abatements of our Right, and avoiding Law-Suits and Quarrels, even sometimes to our own Prejudice. De Offic. Lib. II. Cap. XVIII.

10.

Justin Martyr says, that our Saviour’s Design in laying down this Precept, is to engage us to the Practice of Patience and Civility to all Men, and to avoid Passion. Apol. II. Grotius.

11.

The same Father explains this of that Chearfulness with which we ought to divide our Substance with the Indigent; and the Care we ought to take to avoid Ostentation in all our Actions. Apol. II. And in another Place, communicating our Goods to every needy Person. St. Cyprian says, We are to refuse our Alms to no one. Testim. Lib. III. Cap. I. Grotius.

12.

I will give to the Indigent, says Seneca, but so as not to reduce myself to Poverty. De Benef. Lib. II. Cap. XV. St. Chrysostom, on the Passage of the Epistle to the Corinthians here quoted, observes, that GOD requires of every one according to his Abilities only. And to explain himself more fully, he adds, that The Apostle commends the Thessalonians for giving more than they could afford; but does not oblige the Achaians to do the same. Grotius.

13.

Lib. VI. Cap. XV. Num. 9.

14.

Cyropaed. Lib VIII. Cap. II. § 11. Edit. Oxon.

15.

This was not literally a Punishment of Retaliation; for no Criminal was to lose an Eye or a Limb, according to the Law of Moses, which only imposed a fine on such as wounded any one, if Death did not ensue. An Eye for an Eye, a Tooth for a Tooth, are therefore only proverbial Expressions; the Sense of which is, that every Man should be punished by the Judges, according to the Enormity of his Crime. See Mr. Le Clerc on Exod. xxi. 24. and Deut. xix. 21.

16.

This law ordered a strict Retaliation, unless the Criminal could prevail with the Person injured, to come to an Accommodation. See A. Gellius, Noct. Attic. Lib. XX. Cap. I. and Festus on the Word Talio.

17.

See St. Chrysostom in the Place quoted Note 12. Grotius.

18.

De Constantiâ Sapientis Cap. V.

*

Ibid. Cap. X. Grotius.

19.

In his Peribaea.

20.

These Words are taken from a Piece intitled Fallacia, and are quoted by Nonius Marcellus, page 430. Edit. Paris. Mercer. as well as those of the preceding Note. Gronovius conjectures, that the last Words should be read Nisi circumstant Contumeliae, instead of Nisi constat Contumelia.

21.

Oration against Midias, p. 395. Edit. Gen. This Passage is quoted by the Roman Lawyers, Digest. B. XLVIII. Tit. XIX. De Paenis. Leg. XVI. § 6.

22.

De Constantiâ Sap. Ch. X.

23.

Veterem ferendo injuriam, invites novam. This is one of Publius Syrus’s Sentences, preserved by Aulus Gellius, Noct. Atticae, Lib. XVII. Cap. XIV. It is the 753d in Gruter’s Collection: On which see his Notes, published at Leyden in 1708.

24.

It is a glorious Victory, says St. Chrysostom, to give the Offender more than he requires, and exceed the Bounds of his vicious Desires, by the Greatness of our own Patience. In VII. ad Romanos. Grotius.

25.

The same Father says in another Place, that An Affront either subsists or falls to the Ground, according to the Disposition of those who suffer, not according to the Intention of those who offer it. Orat. I. De Statuis. Grotius.

26.

Mox ut praeberi ora contumelis, &c. Hist. Lib. III. Cap. XXXI. Num. 5. and Os & offere contumeliis. Ibid. Cap. LXXXV. Num. 6. Livy says, Praebere ad contumeliam os. Lib. IV. Cap. XXXV. Num. 10.

27.

Sa. Qui potui meliùs, qui hodie usque os praebui?

Adelph. Act. II. Scen. III. Vers. 7. See also Cicero’s first Epistle to Atticus, page 145. Vol. I. His Oration for Sextus Roscius, Ch. XLIX. page 205. And against Verres III. page 32. Ed. Graevii; where the same Expression is used in the same Sense.

28.

The Proselytes were placed on the Level with the Hebrews in this Particular, and the Laws which prohibited doing an Injury to another, were also extended to those uncircumcised Inhabitants, of whom we have spoken, Chap. I. § 16. This is acknowledged by the Talmudists. Grotius.

29.

See § 2. of this Chapter, Num. 3. at the End.

30.

Tertullian says, The first Degree of Goodness is that exercised toward Relations: The second, That employed on Strangers. Against Marcion. B. IV. Chap. XVI. St. Jerom having acknowledged himself obliged by the Divine Precept to love his Enemies, and pray for his Persecutors; asks, Whether it is just that he should love them like his near Relations? And that no Difference should be made between an Enemy and a bosom Friend? Against Pelag. Dial. I. Vol. II. page 274. Edit. Basil. Grotius.

31.

These are Seneca’s Words, Nam tam omnibus ignoscere Crudelitas est quam nulli. De Clementiâ. Lib. I. Cap. VII. St. Chrysostom, speaking of human Punishments, says, These Things are not done by Men out of Cruelty, but out of Humanity. In I. ad Cor. iii. 12, &c. And St. Augustin, to the same Purpose, As there is sometimes a punishing Compassion; so there is also a tender Cruelty. Ep. LIV. to Macedonius. The Emperors Valentinian, Theodosius, and Arcadius, in the third Law of the Theodosian Code, De defensoribus civitatum, speak thus, Let all Protections be removed, which by favouring the Guilty, and assisting the Criminal, encourage the Growth of Wickedness. (This Law occurs in almost the same Terms, under the same Title, in the Justinian Code, Leg. VI.) Totila declared, that To commit a Crime, and screen the Guilty from Punishment, were Actions equally culpable. Procop. Gothic. Lib. III. Cap. VIII.

32.

See St. Cyril on this Subject, in his fifth Book against Julian, Page 173, &c. Edit. Spanheim. Grotius.

33.

See likewise Matt. xxi. 41. Luke xix. 12, 14, 27. St. Chrysostom, having enumerated the Calamities which befel Jerusalem, adds, And to shew you that CHRIST himself did all this, hear him foretelling it, both in Parables, and in clear and express Terms. In Romans xiv. See also his second Oration against the Jews, where he has something to the same Purpose.

34.

Shall I kill? Shall I cut off a Limb? For there is a Spirit of Lenity, and a Spirit of Severity. Chrysost. 1 Cor. iv. 21. See likewise St. Augustin, De Sermonibus Domini in Monte. Lib. I. and others quoted by Gratian. Cause XXIII. Quest. VIII. Grotius.

35.

The Vulgate reads defendentes in this Place; but that Word is frequently used by Christian Writers for revenging. Tertullian, in his Treatise Of Patience, Chap. X. against Marcion, B. II. Chap. XVIII. The Passage of St. Paul, here under Consideration, is well explained by St. Augustin in the following Manner: We are therefore forbidden to resist Evil, that we may not be delighted with Revenge, which feeds the Mind with the Damage sustained by others. Ep. CLIV. Grotius.

36.

See Levit. xix. 8. and Deut. xxxii. 35. where we have the Sense of the Words.

37.

The present Distinction of Chapters is attributed to Hugo de Sancto Charo, a Cardinal, who lived in the thirteenth Century; or to others not much earlier. Before that Time there was a much more antient Division, made towards the Close of the fourth Age. See Dr. Mills’s Prolegomena, Num. 905, &c. Edit. Kuster. According to that, the twelfth, thirteenth, and fourteenth Chapters in our Editions make but one; as may be seen in the said Doctor’s beautiful Edition.

38.

St. Chrysostom is of Opinion, that by carnal Weapons in this Place, are understood Riches, Glory, Power, Eloquence, Address, Intrigue, Flattery, and Hypocrisy. Grotius.

39.
  • Divitis hoc vitium est auri; nec bella fuerunt,
  • Faginus adstabat quum scyphus ante dapes.
  • Lib. I. Eleg. XI. v. 7, 8. Edit. Brockhuys.
40.

See, for Example, B. VII. p. 300. Edit. Paris. B. XIV. p. 656. and B. XV. p. 713.

41.

Philo the Jew makes the same Remark, in his Treatise Of a contemplative Life, p. 892. Edit. Paris. upon quoting that Verse of Homer, Iliad. B. XIII. v. 6.

  • Γλακτοθάγων, ἀβίωντε, δικαιοτάτων ἀνθρωπών.

Men who live on Milk, and in great Poverty; but are remarkable for their Probity. Justin, having told us that the Scythians made a Profession of Despising Gold and Silver as much as other Men idolized them, observes, that The Innocence of their Morals and Freedom from Avarice proceeds from this excellent Disposition; for, says he, where the Use of Riches is known, there Covetousness is found. B. II. Ch. II. Num. 8, &c. Nicephorus Gregoras says something like this of the same People, B. II. The Passage is worth reading. Plutarch, in his Life of Alexander the Great, p. 698. Vol. I. Edit. Wechel. introduces Taxiles, an Indian King, speaking thus to that Prince, What Necessity is there of Fighting and Wars between us, if you neither come to deprive us of our Water, nor necessary Food; for which only reasonable Men are obliged to take Arms? Diogenes the Philosopher said, that Robbers and Warriors were not to be found among such as lived on Water-gruel. Porphyry looks on a simple and cheap Diet, as what contributes very much towards establishing Piety, and making it common among Men. Of Abstinence from Animal Food, B. II. p. 144. Edit. Lugd. 1620. Grotius.

In the Verse quoted from Homer, at the Beginning of this Note, our Author, following the common Explanation, takes Ἀβίων for an Epithet; whereas it is the proper Name of some of the antient Scythians, as the Author of the short Scholia observes, tho’ he has given Occasion to this false Interpretation. Upon consulting Strabo’s Geography, B. VII. p. 296, 300. Edit. Paris. Arrian’s Account of Alexander’s Expedition. B. IV. Ch. I. Q. Curtius, B. VII. Chap. VI. Num. 11. And Stephanus, De Urbibus, under the Word Ἄβιοι, it will appear, that the Poet here speaks of the Abians, as a particular People; and it is surprising, that Madam Dacier is the first Translator of Homer, who hath not made a Mistake in this Place; for not only Wetstein’s small Edition, but also Mr. Barnes’s large and beautiful Edition, are here conformable to those which had appeared before. In the latter the Printer has omitted the whole Greek Scholium on the sixth Verse, which the Editor has not observed, tho’ he assures the Publick, he has placed it in better Order than it ever was in before. The Saying of Diogenes, which our Author produces, without telling us where he found it, may be seen in Porphyry, B. I. p. 94. I am the more willing to make this Observation, because this Saying is one of those which have escaped the Enquiries, not only of Mr. Stanley, in his Philosophical History, written in English; but also those of the late Mr. Olearius, who when he translated that excellent Piece into Latin, undertook to make the necessary Supplements to it.

42.

Pharsal. Lib. IV. v. 473, &c.

43.

Page 1049. Vol. II. Edit. Wech. This is a very just Observation, but little regarded. It will not be improper to confirm it by some other Passages, as beautiful as those already quoted. The Philosopher Athenaeus, in a Greek Epigram, Mortals, why take you so much Pains for evil Things, and engage in Quarrels and Wars, at the Instigation of an insatiable Desire of Gain?

  • Ἀνθρώπι, μοχθει̑τε τι χείρονα, καὶ διὰ κέρδος
  • Ἄπληστον νεικω̂ν ἄρχετε καὶ πολέμον
  • Diogen. Laert. B. X. §12. Edit. Amst.

Fabianus Papirius, an antient Rhetorician, writes thus, We see Armies drawn up in Battle Array, where often fellow Citizens and Relations are ready to engage one with another: The Hills on both Sides are covered with Cavalry, and soon after the whole Country is covered with dead Bodies, or Plunderers. Should it be asked, What forces Man to commit this Crime on Man? Since even the wild Beasts do not make War one with another; and if they did, Would the same Conduct become Man, that peaceable Animal, and most nearly resembling the Divinity? What excessive Rage actuates you, who are one Family, and of the same Blood? Or what Fury animates you to shed one another’s Blood? By what Chance, or by what Fatality, has so pernicious a Practice been introduced among Mankind? Must Parricide be committed, with a View of making splendid Entertainments, and adorning Palaces with Gold? No Doubt those Things must be great, and worthy of Commendation, which induce us to admire our sumptuous Tables, and rich Cielings, rather than retain our Innocence, and live in the open Air. Ought we not to desire to enslave the whole World, that we may have it in our Power to indulge our Appetites and Passions without Restraint? In fine, Why are pernicious Riches sought for with so much Eagerness, but with a Design of leaving them to our Children? Seneca, Controvers. B. II. Controv. IX. p. 153. Edit. Elziv. Doth the Love of Riches, of a Woman, of Glory, or any Thing else that affords Pleasure, prove the Cause of small and common Evils? Doth not this divide the nearest Relations, and convert their natural Affection into irreconcileable Hatred? Is it not for this that large and populous Countries are reduced to so many Desarts, by domestick Seditions? Is it not this that daily fills both Sea and Land with new Calamities, by Means of Fleets and Armies? The Wars of the Grecians and Barbarians, either with one another, or among themselves, which are described by the Tragick Writers, are all derived from one Source, the Desire of Riches, Glory, or Pleasure. Philo the Jew, on the Decalogue, p. 765. Edit. Paris. Pliny observes, that The Magnificence of Riches has a Tendency to promote enormous Crimes, Destruction, and War. Hist. Natural Lib. II. Cap. LXIII. The Philosopher Diogenes says, that Tyranny, the Ruin of Cities, foreign and intestine Wars, are not owing to a Desire of purchasing a simple Diet of Herbs and Fruit; but to a Fondness for exquisite Food and Dainties. St. Jerome, Adv. Jovinian. B. II p. 77. Edit. Basil. St. Chrysostum observes, that If mutual Love was maintained among all Mankind, no one would injure another; Murthers, Quarrels, Wars, Seditions, Rapines, insatiable Desires, and all other Vices, would be banished out of the World. In 1 Cor. xiii. 3. and in another Place, he asks, Are not they (the Rich) the Authors of Seditions, Wars, the Destruction of Cities, Slavery, Captivity, Murder, and an Infinity of other Calamities? Orat. ad Patrem fidelem.

Claudian says, If Men would be content with the little Nature requires, we should not hear the Sound of the Trumpet, nor be exposed to Sieges. In Rufin. Lib. I. v. 206, &c.

Agathias maintains, that The Minds of Men, wholly addicted to Injustice, and insatiable Desires, fill the World with War and Confusion. Histor. Lib. I. Cap. I. I shall conclude all the fine Passages I have quoted, with a Saying of Polybius, When one knows how to be contented with the Necessaries of Life, one needs no other Philosophy or Master. Apud Suidam, voc. Ἀυτάρκεια.

44.

Lib. II. Cap. II. Num. 2, &c.

45.

De Finib. Bon. & Mal. Lib. I. Cap. XIII.

46.

Dissert. XIII. p. 142. Edit. Davis.

47.

Cap. XIII. p. 142.

48.

In the next Chapter, § 3.

1

Πρὸς τὸ δικαίους, καὶ τεταγμένους πολέμους, εἴποτε δέοι, γίγνεσθαι ἐν ἀνθρώποις. Our Author quotes only these Words, without specifying the Place whence he took them.

2.

Bonum esse, quum puniuntur Nocentes, nemo negat. Thus our Author cites the Passage, but does not tell us in what Treatise it is to be found. It is in the nineteenth Chapter of his Book DeSpectaculis, where it is delivered in a more energetical Manner, Bonum est, quum puniuntur nocentes. Qui hoc nisi Nocens, negabit? It is good to punish the Guilty. Who, but a Criminal, will deny this?

3.

The same Father says elsewhere, that, according to St. Paul, Human Justice does not bear the Sword in vain; and the Severity of Punishment is advantageous to Mankind. De Animâ. Cap. XXXIII. He addresses himself to the Proconsul Scapula, in the following Terms, We do not attempt to terrify you, nor are we afraid of you. But I wish we could save all Men, by exhorting them not to fight against GOD. You may both exercise your Jurisdiction, and be mindful of the Duties of Humanity; even on this Consideration, that you yourselves are under the Power of the Sword. Cap. IV. Grotius.

4.

De Idololatria, Cap. XIX.

5.

Cap. XI.

6.

Tertullian applies this Distinction to Marriage, in his Treatise Of Monogamy, and in his Exhortation to Chastity. Grotius.

7.

Tertullian says, Such Persons are not received into the Church, as exercise Professions not allowed of by the Law of GOD. De Idololatria, Cap. V. The primitive Christians admitted neither Prostitutes, Stage-Players, nor Persons of any other infamous Professions, to the Sacraments of the Church, till they had renounced such criminal Engagements. As we learn from St. Augustin, De Fide & Operib. Chap. XVIII. See an Example of this Discipline, in regard to a Comedian, in St. Cyprian, Epist. LXI. (2d Edit. Oxon.) in regard to the Gladiators, infamous Promoters of Debauchery, and such as traded in Cattle for Sacrifices; in Tertullian, De Idol. Cap. XI. of a Charioteer in the publick Games, in St. Augustin. Grotius.

8.

De Coronâ militis, Cap. I.

9.

Alexander, the Son of Theodore, deputed from Hyrcanus, High Priest, and Prince of the Jewish Nation, has declared to me, that his Countrymen cannot engage in the Army; because they are not allowed to bear Arms or March on the Sabbath Day, and will not easily be able to observe the Distinction of Meats, and other Customs belonging to that People. Antiq. Jud. Lib. XIV. Cap. XVII. pag. 488. Edit. Leips.

10.

This Account immediately follows the Passage quoted in the last Note.

11.

Antiq. Jud. XVIII. Cap. V.

12.

This is what Josephus says of Alexander the Great, who proposed their serving him on these Conditions. Antiq. Jud. Lib. XI. Cap. ult.

13.

De Idolol. Cap. XIX.

14.

De Coronâ Militi, Cap. XI.

15.

Ibid.

16.

Legat. pro Christian. Cap. I. p. 10. Ed. Oxon. 1706.

17.

De Gubernat. Der. Lib III. p. 74. Edit. Paris. 1645. St. Basil the Great pretends that going to Law is expresly forbidden by the Gospel. Homil. de Legend. Grecor. Lib. §7. Edit. Oxon. 1694.

18.

Without entering into Theological Disputes, I shall only make some Remarks, which, in my Opinion, will be sufficient for shewing how little Grounds there are for what has been formerly and stillis said in many Places, concerning those pretended Evangelical Counsels; and at the same Time discovering what gave Occasion to the Distinction between them and Precepts. First, then, I say, if there were really any divine Counsels, properly so called, they must necessarily relate to such things as on one hand are always commendable, excellent, and in their own Nature agreeable to GOD: And on the other, left entirely to the Liberty of every Man; so that they can in no Case be obligatory. Now, upon a careful Examination of the very Examples, here alledged by our Author from the ancient Fathers, which are the most considerable of those made to regard the Evangelical Counsels, it will appear that they turn on things, which either are neither good, nor evil in their own Nature, or are really obligatory in relation to certain Persons, and in certain Circumstances. 1. Let us begin with second Marriages and Celibacy in general, which our Author elsewhere ranks in this Class. B. III. Chap. IV. §. 2. numb. 1. It is certain that whether a Person marries or lives single, he does neither Good nor Evil in that, considering the thing in itself. As the married State does not necessarily engage to Vice, so neither is an unmarried Life an infallible Means for practising Virtue.

A Man may be good or bad in a married State; as he may likewise be either in Celibacy. It is but too evident from Experience that those, who have made a Vow of Celibacy, or laid themselves under the same Tie in regard to a second Marriage, have generally fallen into one of these two Inconveniences, viz. either they have not lived chastly, or have not proved less subject to other Passions and Vices very unworthy of a Christian, such as Anger, Covetousness, Hatred, Pride, the Spirit of Domination, Sloth, &c. even though a Man’s Constitution will easily allow him to for ego Marriage, if while he lives in Celibacy, he does not for that Reason become more useful to Society, and more capable of discharging his Duty, the Matter is then entirely indifferent. But if one has good Reason to believe he shall be able to employ his Time better, and do the Publick more Service in a single Life (which depends on the Condition and Circumstances of each Person, of which they must judge for themselves) he is then under an indispensible Obligation not to marry, supposing he believes himself entirely secure from Temptations of Impurity; or not to marry a second Time, especially when he may thus make a better Provision for his Family. 2. In regard to forbearing Law Suits, and chusing rather to lose one’s Property, than sue the Person, who has taken it from us or detains it unjustly; it is a general Maxim, that we are obliged to make some Abatement in our Right, whenever that can bed one without great Prejudice to ourselves, or occasioning any other Inconvenience. The View of promoting Peace, and Prudence equally require such a Cession. So that Law-Suits bring commonly so many pernicious Sources of Hatred, Animosities, Divisions, Discontent, Perplexities, Expences, &c. we are to avoid them as much as possible, and expose ourselves to a slight Loss rather than engage in all unhappy Consequences, which attend the pursuit of our most just Rights. This is not a Counsel, but a real Precept, both the Gospel, and the Law of Nature, especially when certain particular Circumstances demand such a Moderation. This was the Case in the Infancy of Christianity, when, to avoid giving an ill Opinion of that Religion, and its Votaries, it was highly improper for Christians to go to Law in the Courts of Pagan Judges. See what our Author says, Paragraph 8. of this Chapter, num. 4. But, if no such Inconvenience to ourselves or others is to be apprehended, and some considerable Interest is at Stake, it is so far from being a very commendable Action, quietly to permit our Property to be taken away, or detain’d, that it would even be a bad one; for thus ill-designing Men would be encouraged to do evil; and such a Moderation would be the more blameable, as it might add to the Inconveniences of one’s self or one’s Friends. So that Patience in the Case before us, is either useless or prejudicial; and then it cannot deserve Commendation; or it is a real Duty. Almost the same may be said of declining War. Thirdly, when the primitive Christians refused the Edileship or Praetorship, it was, according to Gronovius, because those who accepted of these Posts were obliged to exhibit publick Shews for the Entertainment of the People, in which there was some Mixture of Idolatry. But the extravagant Ideas they had of several other things, give us room to believe, that many of the antient Doctors of the Church condem’d all in general, who sought for or accepted of Honours and Dignities. In regard to the thing its self, the Honours in question are either vain Titles and frivolous Distinctions, which suppose no Merit in the Persons who receive them, and have no Tendency to promote the Good of Society: Or it is requisite that they, on whom they are conferred, should be possess’d of certain commendable Talents and Qualities, for the worthy Discharge of the Functions annexed to them. There is no great Virtue in neglecting or rejecting the former: And as there is great Danger they will inspire us with Sentiments of Pride, even that ought to be a Reason for avoiding them. In regard to the latter, either the Candidate is Possess’d of the Qualifications requisite for acting in a publick Character, or he is not. If not, or even if there are other Candidates who are possess’d of them, in a much greater Degree, he commits a Fault in pursuing, or even barely accepting of the Dignities in Question, for which a Man can never be too well qualified. But if one is convinced not only in one’s own Opinion, in which one may deceive himself; but also by the impartial Judgment of understanding Persons, that one is much more capable of acquitting one’s self of an honourable Employ, to which one is called, than others who aspire at them, it would be either Sloth or false Modesty to decline it, and it could not be reasonably done, but when the Person is engaged so to do by some stronger Obligation, or knows he has great Reason to apprehend the Influence of Temptations to Vanity, which might prompt him to frequent Abuses of the Power and Privileges with which he would be invested. Fourthly, Lactantius does not allow a Christian to trade by Sea. For why should he go to Sea, says that Father, or what should be seek for in a foreign Country, when his own furnishes him with all Necessaries? Lib. V. Cap. XVII. But the Apostle St. James manifestly supposes it lawful to go from Coast to Coast for the sake of Traffick and Gain. Chap. iv. v. 13, 14. The thing therefore is in itself indifferent; so that as we may Trade either innocently, or in a manner contrary to some Virtue; to abstain from trading, unless it be with a View of avoiding an insatiable Avidity of Gain, to which a Man finds himself disposed, or some other dangerous Temptation, has nothing in it deserving Commendation. In this Case it is no longer a pretended Counsel of extraordinary Perfection, but an indispensible Obligation incumbent on every Christian. Fifthly, taking an Oath is sometimes indispensibly necessary, as when things which regard the Glory GOD, or the Good of Mankind are concerned; or when the Magistrate for just Reasons requires it. As to these Cases, where our Interest only is concerned, and where the Distinction of Counsels and Precepts might take Place most, we are to judge of them by the Principles already laid down in regard to Law-Suits. Sixthly, to all these Examples given by Grotius, let us add one alledged by Dr. Hammond, who, out of respect to Ecclesiastical Antiquity, had likewise adopted the Distinction of Counsels and Precepts, as appear from his long Note on Colos. ii. 23. It is taken from St. Paul’s Generosity, in preaching the Gospel without receiving any Salary. 1 Cor. ix. 15. 18. But on a close Examination of the Matter, we shall find nothing in it relating to a Counsel properly so call’d. Though the Apostle glories in not having made use of his Power of demanding a Salary, and expects to be rewarded for his Conduct, it does not thence follow that the said Act was entirely free in regard to him, and had no relation to his Duty. He himself clearly gives us to understand the contrary, when he says, that if he had not made use of his Power, it was that the Gospel might be without Charge. In Reality, it was a Matter of the last Importance, that the first Preachers of the Gospel should carefully avoid all that could give the least Suspicion of their publishing the Christian Religion for their own Profit and Advantage: And it may be said in general that all who undertake to instruct others in that holy Religion, can never appear too disinterested, or be too humble. Thus, though the Persons to whom the Apostles preached, could with no shew of Reason require them to do it without some Salary; and that, strictly speaking, St. Paul was not obliged to do it; yet as soon as he was persuaded his Ministry would by that Means prove more efficacious (which probably he had room to conclude from some particular Reason unknown to us; and he seems elsewhere to insinuate that he had one, 2 Cor. xi. 9, 10, 11, 12, 13.) he lay under a real Obligation so to do; an Obligation founded on the general Engagement, which requires every Man to seek and employ all Means necessary for acquitting himself of an important Charge, in the best manner he is able. However, as in such Cases Persons make an Abatement of their Right in Favour of those with whom they have to do; and therefore a greater Stock of Virtue is requisite for resolving on such a Sacrifice, than barely refusing to take what others have in Rigour a Right to demand, we have likewise more Reason to congratulate ourselves on so happy a Disposition, and may expect from the Divine Goodness a greater Recompence. Besides, the Apostle here considers the Disinterestedness, for which he applauds himself, as a Duty, not formally enjoin’d him by particular Order from Heaven, or at least not necessarily join’d with the Exercise of the Evangelical Ministry, in Opposition to the Necessity imposed on him of preaching the Gospel, v. 16. for which he had received an express Command from our Lord JESUS CHRIST, Acts xxii. 14, 15. See what Grotius himself has said on this Point, in his Notes on Luke xvii. 10. And this leads us to what gave Occasion to this false Distinction of Precepts and Counsels, which comes now to be consider’d. The Apostles made use of the Word Counsel, when speaking to Christians of the Conduct they ought to observe in certain Circumstances, in regard to things either indifferent in themselves, or concerning which they had neither any particular Order from JESUS CHRIST, nor any general Rule in the Gospel, imposing an evident and indispensible Obligation of acting or not acting in such or such a manner. Thus St. Paul, 1 Cor. vii. treating of Marriage, and considering the Afflictions and Persecutions, to which Christians were then exposed, says, that in Reality such as are not favour’d with the Gift of Continence might, and even ought to engage in that State, and that married Persons ought not to refuse one another the Marriage Debt, unless it be done by mutual Consent; nor separate, even though one of the Parties were not a Christian, But that he had rather those who had never been married, and those whose conjugal Tie had been dissolved by the Death of one or the other, should remain as they are. He declares, however, that he has no Commandment of the Lord, concerning that Matter; but that he gives his Judgment, or Counsel, as one who hath obtain’d Mercy of the Lord to be faithful, and who hath the Spirit of the Lord, v. 25. 40. that is as a good Interpreter of the Will of GOD, in determining what was to be done in regard to the Circumstances of those Times. In which, however, he could not avoid laying down some general Rules, which each Person was to apply for his own Use and Direction, according to his State and Condition, v. 17. so that as he was obliged to leave the Matter to each Man’s Judgment and Conscience, he therefore calls his Exhortations bare Counsels, or Advice. He does the same, when he admonishes the Corinthians to practise Liberality to the Poor, the Exercise of which Virtue ought to be voluntary and proportion’d to each Man’s Abilities, 2 Cor. viii. 10. Hence some have, without sufficient Grounds, taken Occasion to imagine there are some things, which, though of an excellent Nature, and in themselves highly agreeable to GOD, are left to every one’s Liberty, so that there is no evil in the neglect of them, nor any Reason to be apprehensive of Punishment for such Omission; but if any Man forms the noble Design of aspiring to them, he arises to an extraordinary degree of Perfection, and performs such Acts of Virtue as merit a singular Reward. Another Reason, not unlike this, which may have given Birth to the Distinction under Consideration, is, that as GOD requires of Men more extensive Duties and in greater Number, in Proportion to their Knowledge and Assistance on the Practice of them; these are certain virtuous Acts, and even certain Virtues, not expected from great Numbers, because there are but few in Circumstances will oblige them to such Practices. It has been particularly observed that GOD requires greater Sanctity from Christians, than he demanded of the antient Jews. But it ought to be consider’d that, if any one, under the Jewish Dispensation, had by Force of Meditation and Reflection, acquired as exact and extensive a Knowledge of his Duties, as that to be found in the Gospel, which might have been done by a careful Examination of the Principles, dispersed through the Writings of Moses and the other Prophets; such a Jew would then have been obliged to as regular and holy a Conduct, as that of true Christians. Lastly, it is to be observed that the Distinction of Counsels and Precepts, is so far from having any Tendency toward making Men virtuous, that in certain Cases, it may divert them from the Practice of Virtue. As Men are fond of the Wonderful, and of every thing that flatters their Vanity; they are in great Danger of being dazzled with the pompous Ideas of an imaginary Perfection, which raises them above the common level; and, while in pursuit of such Chimeras, neglecting several Branches of their real Duty, the Practice of which their Passions sometimes render more difficult, than the Sacrifice they make by abstaining from Things permitted. It is even possible for Man, under Pretence of extraordinary Sanctity, to deceive himself grosly in regard to plain and common Duties, and imagine himself excused the Practice of them, to make himself Amends for the Violence committed on his Inclinations; by this Abstinence from certain Things. Experience shews the Truth of this Reflection in such as make Vows of Celibacy and Poverty. See Mr. Le Clerc’s Addition to Dr. Hammond’s Note, already cited; as also his Notes on the second Epistle of Sulpicius Severus. Edit. Leipsic. 1709.

19.

The fourth Council of Carthage forbids Bishops to go to Law for temporal Concerns, even though actually attacked. See St. Ambrose, de Offic. Lib. II. Cap. XXI. and Gregory the Great, Lib. II. Ind. XI. Epist. LVIII. Grotius.

20.

See our Author’s Notes on Mat. v. 34. and Tillotson’s XXII. Sermon.

21.

In Rom. i. 9. 2 Cor. i. 18. 23. Gal. i. 20. Philip. i. 8. 1 Thes. ii. 5.

22.

Apolog. Cap. XLVI.

23.

For why should he (the just Man) go to Sea, or what should he look for in a foreign Country, who is supplied with all he wants in his own? Why should he go to War, and engage in other Men’s mad Quarrels, whose Soul is always at Peace with all the World? Instit. Divin. Lib. V. Cap. XVII. num. 12. Edit. Cellar.

1

Our Author’s Thoughts were probably on what that antient Doctor says in his Stromata, Lib. I. Cap. XXVI, XXVII. p. 420. and of Edit. Oxon. where we meet with the Sense, but not expressed in the same Words.

2.

Paedag. Lib. II. Cap. XI. p. 240.

3.

Lib. VII. Cap. III.

4.

Lib. VIII. Cap. XXXII.

5.

Apolog. Cap. XLII.

6.

Ibid. Cap. XXXVII.

7.

Cap. V. Father Pagi, in his Criticisms on Baronius, Tom. I. has shewn that this Story has a great Mixture of Fables. But it is sufficient for our Author’s Purpose, that Marcus Aurelius had Christians in his Army; a Fact which can never be disputed, and which has given Occasion to all the Wonders invented concerning the thundering Legion, as it is called by Eusebius, and others.

8.

Cap. I.

9.

Add to all these a Soldier, baptized by Cornelius, mentioned by Ado, in his Martyrology. Grotius.

10.

Epist. XXXIX. Edit. Oxon. (34. Pamel.)

11.

Capitalibus suppliciis. Thus the Words stand in all Editions; but what follows makes it evident that the Author design’d to have said Capitalibus Judiciis, at Trials for Life. The Question is about acting as a Judge, not as a bare Spectator of the capital Executions, as Tesmar ridiculously explains this Passage, who quotes Quintilian and Seneca. It appears from Tertullian, that the Obligation of being present at such Trials, was one of the Reasons why the primitive Christians made a Difficulty of bearing Arms; and that Father uses the very Terms which I have placed here, pursuant to my Author’s Meaning. De Idol. Cap. XIX. Grotius has before quoted what follows, and immediately precedes that Sentence, to which he probably alludes.

12.

By this Senatus Consultum, or Decree of the Senate, it was ordered, that if a Master happened to be assassinated in his own House, all the Slaves under the same Roof should be put to Death; even tho’ no Proof appeared of their being concerned in the Murther, or having heard any Thing when the Blow was given. We have an Example of the Case in Tacitus, Annal. Lib. XIV. Cap. XLII, &c. The Emperor Adrian, as our Author has observed in a Note, softened the Rigour of that Decree, by ordering that only they should be racked, who were near enough to the Place, where the Master was killed, to hear some Noise. Spartian, Vita Hadriani, Cap. XVIII. Our Author says likewise, in the same Note, we may add to the too rigorous Laws of the Romans, that which forbids admitting the Evidence of a Slave, but when he persisted in it on the Rack. See Cod. Lib. VI. Tit. I. De servis fugitivis, &c. Leg. IV. and Mr. Noodt’s Probabilia Juris, Lib. I. Cap. XIII.

13.

If any one is guilty of the Death of his Parent, or Son, or any other Relation, which falls under the Denomination of Parricide, —Let him be sewed up in a Sack, with a Dog, a Cock, a Viper, and an Ape— and thrown either into the neighbouring Sea, or a River, Lib. IX. Tit. XVII. De his qui parentes aut liberos occiderunt. Leg. ult. It is well known this was the antient Manner of punishing Parricides among the Romans; but the Use of it was abolished. Such Criminals were burnt, or obliged to engage with wild Beasts, for the Entertainment of the Publick. See the Commentators on the Institutes, Lib. IV. Tit. XVIII. De publicis Judiciis, § 6. and the Receptae Sententiae of Paul the Lawyer. Lib. V. Tit. XXIV. with Mr. Schulthig’s Notes.

14.

He used to say, The distempered and rotten Limb must be cut off, that it may not communicate the Infection to those that are sound; but not a sound one, or one that began to heal. Zon. Vit. Constantini, Lib. IV. Cap. XXXI. And this his Historian represents as the Result of his Tenderness for such as reformed their Lives. As the Christians complained of that Prince’s Excess of Clemency, the Danes did the same in relation to their King Harold, as we learn from Saxo the Grammarian. Northern Hist. Lib. XI. p. 193, 194. Edit. Wechel. 1576. Grotius.

15.

See the late Mr. Cuper’s Notes on Lactantius, De Mortibus Persecutorum, Cap. XLIV.

16.

Viget. De Re Militari, Lib. II. Cap. V. Edit. Plantin. Scriver.

17.

We find a like Saying of St. Augustin, inserted in the Canon Law, Caus. XXIII. Quaest. I. Can. V. as taken from his Book, De verbis Domini, Tract or Sermon XIX. And our Author quotes the same Words elsewhere, under the Name of that Father, B. II. Chap. XXV. § 9.

18.

De Offic. Lib. I. Cap. XXVII. This Passage occurs also in the Canon Law already quoted; where we have several of the like Thoughts of other Fathers of the Church.

19.

St. Augustin says, It is a Priest’s Duty to intercede for Criminals. Several Instances of such Acts of Goodness may be seen in that Father’s Epistles. Grotius.

The very Passage, here quoted by our Author, occurs in that Father’s fifty-fourth Epistle, addressed to Macedonius, a Judge, You ask me, says he, Why we say it is a Duty annexed to our sacerdotal Character to intercede for Criminals? &c. This is followed by his Reply to that Magistrate’s Objections.

20.

See St. Chrysostom, Homil. XVI. De Statuis. The Council of Orleans, Cap. III. and the Laws of the Wisigoths, Lib. VI. Tit. V. 16. Lib. IX. Tit. II. Cap. III. Grotius.

21.

As soon as the first Day of the Paschal Feast is come, let no Man remain in Prison; let every ones Chains be loosed. Cod. Lib. I. Tit. IV. De Episcopali audentiâ, &c. Leg. III. This, however, took Place only in regard to some certain Crimes, as appears from the rest of the Law. See Observationes divini & humani juris, printed at Paris in 1564. p. 43, &c. They were written by Barnabas Brisson, a President famous for his great Learning. Besides, the Custom under Consideration had been before received by the Jews, as any one may perceive from what he reads in the Gospels. Our Author, in his Notes on Matt. xxvii. 15. conjectures that this Privilege was granted them by Augustus.

22.

These Exceptions may be seen in Cassiodore, Var. Lib. XI. Cap. XL. See also the Decretals, Lib. III. Tit. XLIX. De immunitate Ecclesiarum, Caemeterii, &c. Cap. VI. Grotius.

23.

Simeon le Maitre expresses the Sense of this Canon thus, Let such as (having at first resisted the Violence used on them) have afterwards yielded to Iniquity, and engaged in the Army again, be excluded from Communion for ten Years. Balsamon, Zonaras, and Rufinus, Lib. X. Cap. VI. give this Canon the same Sense. Grotius.

24.

Tertullian, in his Treatise Of Idolatry, Cap. I. calls it, The most enormous Crime which Man can commit: The Heighth of Guilt. And St. Cyprian, gravissimum & extremum Delictum. Ep. XI. (XV. Edit. Oxon.) Grotius.

25.

In the Life of Constantine, Lib. I. Cap. LIV.

26.

We have likewise the Authority of Sulpicius Severus for this Fact. Licinius, being engaged in disputing the Empire with Constantine, ordered his Soldiers to offer Sacrifice, and dismissed those from the Service who refused to comply. Hist. Sacr. Lib. II. Cap. XXXIII. Num. 2. Edit. Vorst. Valentinian, who was afterwards Emperor, had for the same Reason been deprived of a military Employment, under Julian; as we learn from Rufinus, Philostorgius, Theodore, Sozomen, &c. Victor of Utica says somewhat like this, when he tells us, that under King Huneric, several quitted the Service, because they could not continue in it without declaring for Arianism. Grotius.

27.

See Sozomen, Hist. Lib. V. Cap. XVII.

28.

Eusebius, in the Life of Constantine, Lib. II. Cap. XXXIII.

29.

Epist. XC. (al. XCII.) to Rusticus, a Bishop, Cap. X. We find this Passage in the Canon Law, Caus. XXXIII. Quaest. III. De Paenitentiâ Dist. V. Can. III. And in the Capitularies of Charlemagne, Lib. VI. Cap. CCLXIV. Edit. Paris. 1640.

30.

Pope Leo, in the same Epistle to Rusticus, says, that He who obtains Pardon for doing Things unlawful, must abstain from several that are in their own Nature lawful. We have almost the same Thought, in the Letter written by the Bishops to Lewis King of Germany, Every Man ought to renounce the Use of what is in itself allowable, in Proportion to the Liberty he has allowed himself in unlawful Acts. And in the Capitularies of Charles the Bald, Let every one endeavour to enrich his Soul with good Works, of greater Value, as it has been more impoverished by Crimes. Grotius.

31.

Eusebius observes, that the Life of a Christian is of two Sorts; the one perfect, ἐντελὴς, the other short of Perfection. He adds, that such as lead the latter, ought, among other Things, to represent their Duty to those, who serve in a just War. Demonstr. Evang. Lib. I. Cap. VIII. Grotius.

32.

Let not Ecclesiasticks or Monks engage in temporal Affairs. Canon of the Council of Mentz, quoted in the Decretals, Lib. III. Tit. L. Cap. I. Grotius.

33.

See St. Jerom’s Epistle to Nepotian. Grotius. The Canon here quoted, is not the VI. but the VII. as Ziegler observes on this Place.

34.

Whoever has attempted to divert the Priests and Ministers of the Church, from the Service of the Altar, deserves not even to be mentioned in the Priest’s Prayers at the Altar: For which Reason, Victor, who, in Opposition to the Regulation lately made in a Council, dared appoint a Priest to the Charge of a Guardian, is not to be allowed any Oblation among you, for the Repose of his Soul; (pro Dormitione ejus) nor is any Prayer to be offered in the Church in his Behalf. Lib. I. Epist. IX. (Edit. Oxon. Ep. I.) Addressed to the Priests, Deacons, and Laity at Furni. See also Justinian’s Code, Lib. I. Tit. III. De Episcopis & Clericis, &c. Leg. LII. Grotius.

The Passage of St. Cyprian, to which our Author barely refers, occurs in the Canon Law, Distinct. LXXXVIII. Can. XIV. and Caus. XXI. Quaest. III. Can. IV. From which it appears, that, according to that Father, the deceased deserves some Kind of Punishment even after Death, for having dared to name a Priest Guardian; because he, on that Account, forbids Oblations, or publick Prayers to be offered in his Name, on the Anniversary of his Death, according to the Custom then introduced, which afterwards paved the Way to Superstition. See Bishop Fell’s Note on this Passage; and Dodwell’s fifth Dissertation on St. Cyprian. To which may be added, Mr. Le Clerc’s Life of St. Cyprian, in his Biblioth. Univers. Tom. XII. p. 234, &c.

35.

Examples of this Acceptation of the Word may be seen in Tertullian, De Idololatria, Cap. XIX. in his Treatise, De fuga Persecut. Cap. III. Cyprian, Epist. X. (XVI. Edit. Oxon.) XXII. XXXI. (XXX. Edit. Oxon.) De Lapsis, p. 123. Sulpicius Severus, Hist. Sacra, Lib. II. Cap. XXXII. Num. 1 & 2. Edit. Vorst. Cap. XXXIII. Num. 3. and at the Beginning of his Hist. Lib. I. Cap. I. Num. 3. Grotius.

36.

(The Emperor Julian, &c.) This Passage does not belong to St. Ambrose, tho’ attributed to him in the Canon Law, Caus. XI. Quaest. III. Can. XCIV. where it has been observed, that St. Augustin has something like it, on Psalm cxxiv. which is also produced in Can. XCVIII. See Mr. Pithou’s Note. Our Author himself elsewhere quotes a Passage not unlike this, from the Father last named, in a Note on B. II. Chap. XXVI. § 3.

37.

This Declaration is taken from the Account of the Martyrdom of the The bean Legion, attributed to St. Eucherius, Bishop of Lyons. But Mr. Dubourdieu, Minister of the French Church in the Savoy, at London, published a Dissertation in 1705, shewing that Relation to be a spurious Piece, and that the The bean Legion never had any real Existence.

38.

Our Author says nothing that can assist us in guessing from what Part of St. Basil’s Works these Words are taken.

 

BOOK II: CHAPTER I: Of the Causes of War; and first, of the Defence of Persons and Goods.

[I. What Causes of War may be termed justifiable.] I. 1. Let us now proceed to the Causes of War, I mean such as are properly said to justify it;1 for there are some Motives of Advantage, sometimes different from just Occasions, that determine us to take up Arms. Polybius2 accurately distinguishes these two Sorts of Causes, the one from the [390] other, and both from the3 Beginning of the War, or that which gave Occasion to the first Acts of Hostility, as was the Stag4 wounded by Ascanius, whence arose the War between Turnus and Aeneas. But tho’ there be a manifest Difference between those three Things, yet the Terms made Use of to [128] express them are commonly confounded. Thus Livy, in the Speech which he puts in the Mouth of the Rhodians, calls Beginnings what we call justifying Reasons.5 You Romans,6 (say the Deputies) profess to believe that the Success of your Wars are happy, because they are just; and you glory not so much in the Victory that determines them, as in the7 Beginnings, or because you do not under take them without Reason. [391] In which Sense Aelian stiles them ἀρχὰς πολέμων; and Diodorus Siculus, treating of the War of the Lacedemonians with the Aelians, calls them προϕάσεις and ἀρχὰς.

2. And these justifying Reasons are indeed our proper Subject here, where it will be no Ways impertinent to mention that of Coriolanus in Dionysius,8 Let it be your principal Care, that the Cause of your War be just and honest. And Demosthenes,9 As in the Building of Houses, Ships, &c. the Foundations ought to be firm and solid: So all our Actions and Enterprizes whatever, should be founded on the substantial Basis of Truth and Justice. Thus too Dion Cassius,10 We ought chiefly to look to the Justice of our Cause; for with that we have Room to conceive good Hopes of the Success of our Arms, and without it we can depend on nothing, even tho’ at first Things should succeed to our Wishes. So also says Tully,11 Those Wars are unjust that are undertaken without Cause. And in another Place12 he blames Crassus, because13 he had passed the Euphrates, When there was not the least Grounds for a War.

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3. What has been said touching the Justice of the Cause, ought to be observed in publick Wars, as well as in private. And Seneca with Reason complains of the Difference that is put in that respect,14 We punish, says he, Murders committed between private Persons: But do we act in like Manner with regard to Wars, and the Slaughter of whole Nations? It is a glorious Crime, Avarice and Cruelty reign there without Restraint.—Barbaritiesare authorised by the Decrees of the [129] Senate, and Orders of the People; and what is prohibited in private15 Persons is enjoined by the State. ’Tis true, those Wars that are commenced by publick Authority have certain Effects of Right, as the Sentences of Judges: Of which hereafter: But are therefore not less criminal, if begun without a just Foundation. Thus was Alexander, for unjustly invading the Persians, and other Nations, deservedly reproached by the Scythians as a Highwayman, in Curtius,16 and by Seneca17 and Lucan18 branded with the opprobrious Names of Thief and Robber; by the Indian Magi he was taxed19 with criminal Ambition, and by a Pirate was told he was the20 same himself. So Justin, [393] speaking of his Father Philip, said,21 that two Kings of Thrace were dethroned by the Fraud and Villany of a Thief. To which may be referred that Passage of St. Austin,22 What are Kingdoms without Equity, but so many great Robberies? So that of Lactantius,23 That Conquerors being dazzled with a vain Glory, miscall their Vices by the Name of Virtue.

4. There is no other reasonable Cause of making War, but an Injury received: So says St. Austin,24 The Iniquity of one Side, that is, the Injury received, furnishes a just Occasion of War. Iniquitas in this Place is taken for Injuria; as if we should use the Greek Word ἀδικία instead of ἀδίκημα. So the Roman Herald,25 I declare, and call you to witness, says he, that that People has acted unjustly, and does not make us due and proper Satisfaction.

[II. Justifiable Causes of War are, when for Defence; for the Recovery of one’s Property, or one’s Debt; or for the Punishment of an Offence committed.] II. 1. Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of1 a Loss that is apprehended; and other Things included in2 the Decrees of the superior Judge, which prohibited any Violence. [394] For the Second, that Reparation may be made, or Punishment inflicted; two Sources of Obligation, which3 Plato, and before him Homer,4 have judiciously [130] distinguished. As for Reparation, it belongs to what is or was properly our own, from whence5 real and some6 personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law. To which also we may refer those Things which are [395] said to be due by a7 Sort of Contract, or a8 Sort of Default: From which Heads all other personal Actions are derived. The Punishment of the Injury produces Indictments and9 publick Judgments.

[Baldus ad Leg. 2. Cod de serv. & aqua. n. 71. Wilh. Matt. de Bello justo, & licito.] 2. Most Men assign three just Causes of War, Defence, the Recovery of what’s our own, and Punishment: Which three you have in Camillus’s Declaration against the Gauls.10 Omnia quae defendi repetique & ulcisci fas est: Whatever may be defended, recovered, or revenged; in which Account, if the Word Recovered be not taken in a greater Latitude than usually it is, it will not include the suing for that which is our Due; which suing was not omitted by Plato, when he said,11 That War is not only undertaken when one is insulted, or plundered; but also when imposedupon, [396] or treated in any fraudulent Manner. To which agrees that of Seneca,12 It is a very equitable Saying, and founded on the Law of Nations, Pay what you owe. And it was a Part in the Form used by the Roman Herald,13 That they neither gave, paid, nor did, what they ought to have given, paid, and done: And as Salust has it in his History,14 I demand my own by the Law of Nations. Saint Austin,15 when he said, that Those Wars which are to revenge our Injuries, are [131] generally termed16 Just: He took the Word Revenge in a general Sense, which implies all Removal, Cessation, Abolition, and Reparation of Injuries, which appears by the Sequel, where there is not so much an Enumeration of the Parts, as an Illustration by Examples. So, says he, That Nation or City may be invaded, that shall neglect to punish the bad Actions of those that depend on it, or to restore what’s unjustly taken from another.

3. Conformable to this Principle of natural Equity did the Indian King (as Diodorus17 informs us) accuse Semiramis, that she had commenced War against him, without having received any Manner of Injury. Thus the Romans argued18 with the Senones, that they ought not to make War on a People that had given them no Provocation. Aristotle observes,19 that Men usually make War on those who first have done some Injury. So [397] Curtius20 speaking of the Abian Scythians, They were reputed the most just of the Barbarians; they never took up Arms, but in their own Defence:21 The first Cause therefore of a just War, is an Injury, which tho’ not done, yet threatens our Persons or our Estates.

[III. War in Defence of Life, lawful.] III. We have before observed, that if a Man is assaulted in such a Manner, that his Life shall appear in inevitable Danger, he may not only make War upon, but very justly destroy the Aggressor; and from this Instance,1 which every one must allow us, it appears that such a private War may be just and lawful.[Sylvest. verbo Bellum, p. 1. n. 3. & p. 2.] It is to be observed, that this Right of Self-Defence, arises directly and immediately from the Care of our own Preservation, which Nature recommends to every one, and not from the Injustice or Crime of the Aggressor; for if the Person be no Ways to blame, as for Instance, a Soldier who2 carries Arms with a good Intention;[Bartol. ad Leg. 3 Dig. de just. & jure. Bald. in l. 1. Cod. unde vi. Bann. 2, 2. Q. 10. Art. 10. Dub. ult. Soto, l. 4. Disp. 5. Art. 10. Val. 2, 2. Disp. 5. Q. 10. p. 7.] or a Man that should mistake me for another; or one distracted,3 or delirious, (which may possibly happen) I don’t therefore lose that Right that I have of Self-Defence: For it is sufficient that I am not obliged to suffer the Wrong that he threatens to do me, no more than if it was a Man’s Beast that came to set upon me.

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IV. 1. It is a Matter of Dispute, whether an innocent Person,1 who happens to be in our Way, and hinders that Defence or Escape that is absolutely necessary for the Preservation of our Lives, may be run through, or crushed in Pieces. There are some, even among Divines, who think it lawful.[IV. But only against the Aggressor.] And certainly, if we have regard to Nature only, the Engagement we lye under to maintain Society, is of less Moment than the Preservation of ourselves: But the Law of Charity, especially the Evangelical, which has put our Neighbour upon2 a Level with our Selves, does not permit it. [132]

[Card. Q. 33. l. 1. Pet. Navar. l. 2. c. 3. n. 147. Cajetan. 2. 2. Art. 67. Qu. 2.] 2. It was well observed of Thomas Aquinas, if apprehended rightly, that in our own Defence we do not purposely kill another; not but that it may be sometimes lawful, if all other Means prove ineffectual, to do that purposely by which the Aggressor may die; but we take this Course, as the only Means left to preserve our selves, and not as the principal End proposed, just as in the Judgment of Criminals condemned to Death: For he that is actually attacked, ought even then to chuse rather to do any Thing else, that may stop the Fury of the Aggressor, or disable him,[Second. second. Qu. 64. Art. 1.] than to secure himself by killing him.

[V. In a present and certain Danger, but not in such a one as is only Matter of Opinion.] V. 1. But here ’tis necessary that the1 Danger be present, and as it were, contained in a Point. I grant, if a Man takes Arms, and his Intentions are visibly to destroy another, the other may very lawfully prevent his Intentions; for as well in moral as in natural Things, there is no Point but what admits of some Latitude: But they are highly mistaken, and deceive others, who admit that any Sort of Fear gives a Right to take [399] away the Life of another. ’Tis very justly observed by Cicero,2 that one frequently commits Injustice, by attempting to hurt another, in Order to avoid the Evil which he apprehends from him. So Clearchus in Xenophon,3 καὶ γὰρ ὀίδα, &c. I have known many People moved either by some false Report, or by Suspicion, who for Fear of others, and to be before hand with them, have done most horrible Injuries to those, who never would have offered, nor ever designed to offer them any Hurt in the World. So Cato, in his Oration for the Rhodians,4 Shall we ourselves be first guilty of that which we alledge they intended to do? It was excellently said by Aulus Gellius,5 That a Gladiator’s Condition is such, that he must either kill or be killed; but human Life is not under such unhappy Circumstances, that we are necessitated to do an Injury to prevent the receiving one. And as Tully in another Place no less admirably expresses it,6 Whoever maintained, or to whom can it be allowed without exposing the Life of every one to the greatest Dangers, that a Man may lawfully destroy another, through a Pretence of Fear, lest the other should one Day kill him? To which this Passage of Euripides may be applied,7

Ἐι γὰρ σ’ ἔμελλεν, &c.

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Your Husband, say you, would have killed you: You should have staid till he actually attempted it. So Thucydides,8 What is to come is yet uncertain, nor should any one be so far transported with the Apprehensions of what may happen, as to engage in a declared Enmity, accompanied with present Acts of Hostility. The same Author, where he eloquently describes the Evils that Faction had brought upon the States of Greece,9 blames those People, because It was thought commendable in a Man to [133] injure another first, for Fear of being injured himself. A very shameful Thing, as10 Livia calls it in Dion Cassius. Livy says,11 that By taking Precautions against what we apprehend from another, we give Occasion first to apprehend something from us,12 and we do to others the Injury we would repel, as if there were a Necessity either of doing or receiving Wrong. One may [401] apply to such as act in that Manner, that of Vibius Crispus, so much celebrated by Quintilian,13 Who gave you an Authority thus to fear?

[Bann. q. 64. Art. 7. Dub. 4. Bald. in Leg. 17. Cod. De Liberali Causa, & in. l. 1. Cod. unde vi, Less. l. 2. c. 9. Dub. 8. Soto, l. 5. qu. 1. art. 8.] 2. Tho’ we were certainly informed, that a Person has conspired against us, or designs to lay an Ambush for us, or is preparing to poison us, to bring a false Accusation against us, to suborn false Witnesses, and to corrupt the Judges: Yet whilst we have nothing to fear for the present, on the Part of that Person, I maintain that we cannot lawfully kill him; if either such a Danger can be possibly avoided any other Way, or even if it does not then sufficiently appear that it may not be avoided. For Time gives us frequent Opportunities of Remedy, and there may many Things happen, as the Proverb has it,14 betwixt the Cup and the Lip. There are however both Divines and Lawyers, who are a little more indulgent in this Affair: But the other Opinion, which is certainly the safer and better, has also its Partisans.

[VI. For the Preservation of a Limb or a Member. Card. in Clem. l. 5. tit. 4. De Homicid. &c. leg. si furiosus, &c. Covarr. ib. part 4 § 1 n. 2. Sylvest in Verbo Homicidium, 3. q. 4.] VI. But what shall we then say of the Danger of1 losing a Limb, or a Member? When a Member, especially if one of the principal, is of the highest Consequence, and almost equal to Life itself; and ’tis besides doubtful whether we can survive the Loss; I am of Opinion, if there be no Possibility of avoiding the Misfortune, the Aggressor may be lawfully killed.

VII. That the same may be done on Account of1 Chastity, can scarce be here any Matter of Dispute; when not only the2 Opinion of the World, [402] but even the3 Law of GOD,[VII. Especially in Defence of Chastity. Sylvest. in Verbo Homicidium, c. 3. q. 4. Pro Milon. c. 4. Declamat. Tribunus Marianus. Vit. Mar. p. 413. Ed. Wech.] has made it equivalent to Life itself. So Paulus the Law- [134] yer,4 that to defend ones Chastity, tho’ with the Death of him who would violate it, is but an Act of Justice. We have an Example of this in Cicero, Quintilian, and Plutarch, in the Person of one of Marius’s Tribunes, who was killed by a Soldier. Among Women5 who have vindicated their Chastity, Heliodorus records that Act of Heraclea, which he calls ἀμύνης νόμον, &c.6 A just Defence of her injured Honour.

VIII. Tho’ some agree with me in what I observed before,1 that tho’ I may lawfully kill him who attempts to take away my Life, ’tis more commendable [403] to die one’s self than to kill another:[VIII. Self-Defence may sometimes be omitted. Soto ubi supra, Sylvest. de verbo Bellum, p. 2. n. 2.] Yet they will only grant it upon this Condition, that we2 except Persons that are useful to many others. But it seems to me not very safe to maintain, that all those whose Lives are of Advantage to others, are under such an Obligation as that, so contrary3 to Patience; and therefore I think this ought to be limited to those only whose particular Office and Duty it is to defend others, such as those who are ingaged to guard Travellers; or the Governors of the State, to whom we may apply that of Lucan,4 Since the Life and Safety of so many Nations depend on your Preservation, and so large a World has established you for their Head; it would be Cruelty in you to be willing to die.

[IX. Self-Defence against a Person, very useful to the Publick. A Crime from the Law of Charity. Soto ubi supra.] IX. 1. It may happen, on the contrary, that because the Aggressor’s Life may be serviceable to many, it would be criminal to take it from him; and this not only by the Divine Law, both of the Old and New Testament, of which we have spoke before, when we shewed that the King’s Person is sacred and inviolable, but also by the very Law of Nature. For natural Right, considered as a Law,1 does not only respect what we call expletive Justice, but comprehends the Acts of other Virtues, as of Temperance, Fortitude, and Prudence; so that in certain Circumstances they are not [404] only honest, but of an indispensable Obligation. Besides that, as to what we were now speaking of,2 Charity does also oblige us.

[Lib. 1. Contr. illust. 18.] 2. Neither am I ever the less of this Opinion, on Account of what Vasquez asserts, that A Prince who attacks the Life of an innocent Person, is ipso facto no more a Prince. A Proposition not only absurd, but even very dangerous too. For as the Right of Property, so the Right of Sovereignty is not lost3 by an evil Action, unless [135] it be decreed by some particular Law; but what Law was there ever enacted, that Kings should be dethroned for an Injury done to a private Person? Surely there is no such Law yet in Being, nor I believe ever will, for what a Confusion would it make? But what Vasquez lays down as the Foundation for this, and other Conclusions of the like Nature, is, that All Governments regard the Good of the People, and not that of the Prince; which, were it universally true, would be nothing to the Purpose. For a Thing is not destroyed,4 as soon as the Advantage of it ceases in some Respect. What he further urges, that every Man does only for his own Sake wish well to the Commonwealth, and that therefore he ought to prefer his own Good to that [405] of the Publick, is likewise a weak Argument. ’Tis true every Man for his own Sake wishes well to the Commonwealth, but not for his own Sake only, it is also5 for the Sake of others.

3. The most judicious Philosophers have with Reason rejected the Opinion6 of those who think that Friendship is only founded on Indigence; for it is evident we are prompted to it by natural Inclination: And to prefer the Advantage of many Persons to my own single Interest, is what Charity often advises, sometimes commands. So Seneca,7 ’Tis no Wonder that Kings and Princes, and in general all the Governors of the State, whatever Title they bear,8 should be loved by every one, and even more than private Persons, to whom we are nearly related; for if ’tis agreed by all wise Men, that the publick Good should rather be consulted than any private Interest whatever; it follows, that nothing should be dearer to us than the Person of him on whom the Welfare of All depends. St. Ambrose says,9 that Every one finds more Pleasure in saving his Country, than in extricating [406] himself out of Difficulties. So the same Seneca;10 Callistratus and Rutilius, the former an Athenian and the latter a Roman, refused to be recalled from Exile, because it was better that two Persons should suffer unjustly, than that their Return should expose the State to any Danger.

[X. That it is not lawful for Christians to murder a Man for a Box on the Ear, or such other slight Injury, or to avoid running away.] X. 1. There are some of Opinion, that if a Man is in Danger of receiving a Box on the Ear, or any Injury of the like Nature, he has a Right of revenging so small a Crime, even by the Death of him that attempts it.1 If Regard be here only had to expletive Justice, I don’t deny it; for tho’ there be no Manner of Proportion betwixt Death, and so slight an Injury; yet, whoever shall attempt to wrong me, gives me from that Time an unlimited2 Right, that is, a certain Mo- [136] ral Power against him in infinitum; upon a Supposition, that I am not otherwise capable of diverting such an Injury from my own Person. Neither does Charity of itself lay us under an indispensible Obligation of sparing the Offender in that Case; but the Gospel does expressly forbid this, for CHRIST commanded his Apostles rather to receive a Blow than to hurt their Adversary.[Soto, ubi supra. Navarr. c. 15. n. 3. Sylvest. in Verbo Homicidium, 1. q. 5. Lud. Lopez, c. 62. Ubi supra.] How much more then does he forbid the Killing of a Man to avoid the Blow? By this Example we are admonished to beware of what Covarruvias advances on this Topick, that The Ideas of natural Right being within the Extent of human Knowledge, it cannot be said, that any Thing is permitted by natural Reason, which is not at the same Time permitted before GOD, who is Nature itself.3 For GOD, who is so the Author of Nature, that he can, whenever he pleases, act above Nature, has a Right [407] also of prescribing Laws to us, even in those Things which are in their own Nature free and indifferent. How much more then can he command us to do that which is naturally honest, tho’ not obligatory?

[Navarr. c. 15. Henr. de Irreg. c. 11. Victor. de jure belli, p. 5.] 2. It is therefore very surprising, that when GOD has so manifestly declared his Will in the Gospel, we should find Divines, nay Christian Divines, who maintain, that ’tis not only lawful to kill a Man, in Order to avoid a Blow, but even after it is received, if he that gave it endeavours to escape: For then, say they, one ought to recover one’s Honour: Which to me seems as well contrary to Reason as to Piety. For Honour being the Opinion of some Excellency or Merit, he that can put up such an Affront, expresses a particular Excellency of Temper; and therefore, rather adds to his Honour than detracts from it. But if some Persons, through a false Notion of Honour, call this Virtue of Patience by a wrong Name, and so turn it into Ridicule, it is not material: For those false Judgments do not alter the Nature of the Thing, nor diminish its Value; nor did the primitive Christians only think so, but even the Philosophers, who said, that It argued a Meanness of Soul in Man, not to be able to bear an Affront. As we have elsewhere observed.

[Soto, art. 8. ubi sup. q. 5. Doct. in Leg. 3. Dig. de Just. & Jure, & in Leg. 1. Cod. Unde vi. Vasquez ub. sup. c. 18. n. 13, 14. Sylvest. in Verbo Bellum. p. 2. n. 4. In Addit. ad Alex. Cons. 119.] 3. From hence it appears too, that we ought not to approve what many Casuists assert, that even by the Divine Law, a Man in his own Defence may kill another; (indeed if we consider the Law of Nature only, ’tis beyond all Manner of Dispute) nay, tho’ at the same Time he may escape from him without any Danger: Because, say they, to turn one’s Back is mean and reproachful, and below a Gentleman: Whereas in Reality ’tis no Ways a Disgrace, but only a vain Imagination, which ought to be despised by all that have a Regard to Virtue and Wisdom; in which Matter I am not a little pleased, that amongst Lawyers I have the excellent Charles Du Moulin of my Sentiments. Now what has been said of a Box on the Ear, and making one’s Escape, may be equally applied to all other Cases where Man’s true Honour is not injured. But what if a Man shall report any Thing of us, by which that Reputation we have with good Men, may possibly suffer? There are those who assert, that a Man may lawfully kill such Persons too;[Pet. Navarr. l. 11. c. 3. n. 376.] but this is not only extreme false, but highly repugnant to the Laws of Nature; for such an Action is no proper Means of preserving one’s Character.

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[XI. Murther in Defence of our Goods permitted by the Law of Nature.] XI. We now proceed to those Injuries that affect our Estates or Possessions;1 and here, if we have Regard to expletive Justice, I must own, that for the Preservation of our Goods ’tis lawful, if there’s a Necessity for it, to kill him that would seize upon them. For the Inequality betwixt the Goods of one Man and the Life of another is made up, by the Difference betwixt the favourable Cause of the innocent Person, and the odious Cause of the Robber, as was before observed: From whence it follows, that if we have Regard only to this Right, I may shoot that Man who is making off with my Effects, if there’s no other Method of my recovering them. So Demosthenes in his Oration against Aristocra- [137] tes:2 Is it not, says he, highly unjust, and contrary not only to written Laws, but also to that which is common to all Mankind, that I shall not be suffered to use Force against him that robs me, and so commits an Act of Hostility against me? Nor does Charity, by Way of Precept, (if we consider it abstractedly from all Human and Divine Laws) disallow of this; unless in those Things that are in themselves too inconsiderable to be regarded; which Exception some Authors do very justly subjoin.

[XII. How far permitted by the Law of Moses. Soto ubi supra. Mathesilanus Notabil. 135. Jas & Gom. in Inst. de Act. princ. Covar. ubi sup. § 1. n. ib. decimo., Less. Dub. 11. n. 68. Covar ubi sup. August. cit. in C. si perfodiens. De Homicid. Lessius, D. c. 9. Dub. 11. n. 66.] XII. 1. But let us see in what Sense the1 Mosaick Law2 is to be understood, to which agrees that3 old Law of Solon, which Demosthenes urges against Timocrates, from whence4 the Law of the Twelve Tables was taken, and5 Plato’s Maxim, in his ninth de Leg. all which consent in this, [409] that they make a Distinction betwixt a Night and a Day Thief. But it is not agreed upon what Reason that Diff