« PreviousContinue »
of nature and the law of nations), but from the quality of the matter. For what cannot be deduced from certain principles by solid reasoning, and yet is seen and observed everywhere, must have its origin from the will and consent of all.
41. I have therefore taken pains to distinguish natural law from the law of nations, as well as both from the civil law. I have even distinguished, in the law of nations, that which is truly and universally lawful, true rights; and quasi-rights, which only produce some external effect similar to that of the true rights, for instance this effect, that they may not be resisted by force or may even be defended by force, in order to avoid grave inconvenience. (Such quasi-rights are those of a master over his slave where slavery is established by law.Whewell.] How necessary this observation is, in many instances, will appear in the course of the work. No less careful have I been to separate those things which belong to jus, or right, properly and strictly so called (out of which arises the obligation of restitution), and those which are more laxly described by right, adjectively; because to act otherwise is at variance with some dictate of right reason, concerning which diversity of jus, or right, we have already said something above.
42. Among the philosophers the first place is deservedly assigned to Aristotle, whether we regard the order of his treatment of these subjects or the acuteness of his distinctions or the weight of his reasons. Only it were to be wished that his authority had not, some ages ago, been converted into a tyranny by others, so that truth, in the pursuit of which Aristotle faithfully spent his life, suffers no oppression so great as that which is inflicted in Aristotle's name. I, both here and in other places, follow the liberty of the old Christians, who did not pin their faith to any sect of philosophers, not that they agreed with those who say that nothing can be known, than which nothing is more foolish, but that they thought that there was no sect which had seen the whole of the truth and none which had not seen some part of the truth. They, therefore, aimed at collecting the truth which was diffused among individual philosophers and among sects into one body; and they thought that this result could be nothing else but the true Christian doctrine.
43. Among other points, to mention this in passing as not foreign to our purpose, it appears to me that both some of the Platonists and the ancient Christians had good reason to depart from Aristotle's doctrine, in which he placed the very nature of virtue in a medium of the affections and actions, which, having once laid down, carried him so far that he compounded liberality and frugality, two very different virtues, into one virtue, and assigned to truth two opposites which are by no means co-ordinate, boasting and dissimulation, and fastened upon some things the name of vices, which either do not exist or are not, of themselves, vices, as the contempt of pleasure and of honor and a lack of irascibility toward men.
44. That this foundation of virtue [that it is the medium between two extremes] is not a right one appears from the example of justice itself; for the too much and too little which are opposed to this, since he cannot find them in the affections and the consequent actions, he seeks in the things with which justice deals, which proceeding is, in the first place, a transition to another genus,- a fault which he justly blames in others; and, in the next place, to take less than is one's own may, indeed, have a vice adventitiously connected with it, growing out of a consideration of what a person, under the circumstances, owes to himself and those who depend on him, but certainly cannot be repugnant to justice, which resides entirely in abstaining from what is another's. And to this mistake that other is similar, that adultery as the fruit of lust, and homicide arising from anger, he will not allow to belong properly to injustice; though injustice is nothing else in its nature than the usurpation of what is another's, nor does it make any difference whether that proceeds from avarice or from lust or from anger or from thoughtless compassion, or, on the other hand, from the desire of superiority, in which the greatest examples of unjust aggressions originate.
For to resist all impulses on this account only, that human society may not be violated, is what is really the proper character of justice.
45. To return to the point from which I started, it is true that it belongs to the character of certain virtues that the affections are kept in moderation; but it does not follow that this is the proper and universal character of all virtue, but that right reason, which virtue everywhere follows, dictates that in some things a medium course is to be followed, in others the highest degree of the affection is to be aimed at. Thus, for instance, we cannot love God too much ; ior superstition does not err in this, that it loves God too much, but that its love acts perversely. We cannot desire eternal happiness too much nor fear eternal misery too much nor hate sin too much. It is, therefore, truly said by Gellius that there are some things of which the range is not to be bounded by any limits, such that the larger and fuller they are the more praiseworthy are they. So Lactantius, after discoursing much concerning the affections, says, “The procedure of wisdom is not shown in moderating them, but their causes, since they arise from external incitements; nor are we to make it our business to restrain such affections, since they may be feeble in the greatest crimes and vehement without any crime.” It is our purpose to place Aristotle very high, but with the same liberty which he allowed himself, with reference to his own master, actuated by his love of truth.
46. Passages of history are of twofold use to us. They supply both examples of our arguments and judgment upon them with regard to examples. In proportion as they belong to better times and better nations, they have the more authority; and, therefore, we have preferred those taken from the Greeks and the Romans. Nor are the judgments delivered in such histories to be despised, especially when many of them agree. For natural law, as we have said, is, in a certain measure, to be proved by such consent; and, as to the law of nations, there is no other way of proving it.
47. The opinions of poets and orators have not so much weight; and these we often use, not so much in order to claim assent to what they say as that we may give to what we say something of ornament from their modes of expression.
48. The books written by men inspired by God, or approved by then, I often use as authority, with a distinction between the Old and the New Law. There are writers who allege the Old Law as a proof of the law of nature, but, undoubtedly, without sufficient reason; for many parts of that law proceed from the free will of God, which, however, is never at variance with the true law of nature. And, so far, an argument may rightly be drawn from it, provided we distinguish accurately the command and will of God, which God sometimes executes by means of men, and the rights of men toward one another. We have therefore shunned, as far as we could, both that error and the error contrary to that, of those who think that after the promulgation of the New Covenant there is no longer any use for the old one. We hold the contrary both for the reasons which we have now alleged and because the nature of the New Covenant is such that with relation to the precepts which are given in the Old Testament pertaining to the moral virtues the New Testament commands the same or greater virtues of the same kind; and we see that the ancient Christian writers have used the testimony of the Old Covenant in this
49. But, in order to see what is the knowledge which the books of the Old Testament contain, the Hebrew writers may help us no little, and especially those who were best acquainted with the discourses and manners of their countrymen. 50. I use the New Testament for this purpose,
that I may show, what cannot be shown in any other way, what is lawful for Christians, which, however, contrary to what most writers have done, I have distinguished from the law of nature, holding it for certain that in that more holy law a greater holiness is enjoined upon us than the law of nature of itself requires. Nor have I omitted to note, where there are matters which are rather recommended to us than commanded, that we may understand that to deviate from the commands is wicked and makes us liable to punishment. To aim at the highest excellence is the work of a nobler and more generous spirit, which will not want its reward.
51. The Synodical Canons, which are authentic, are collections from the general precepts of the divine law, adapted to special occurrences. And these either show what the divine law commands or exhort us to that which God enjoins. And this is the office of a truly Christian Church, — to deliver to Christians the precepts which God has delivered to it, and in the manner in which God has delivered them.
Also, the customs which were received or commanded among those ancient Christians who were truly worthy of that great name may, with reason, have the force of canons.
Next to these is the authority of those who, each in his own time, flourished among the Christians, with the reputation of piety and learning, and who were never charged with gross
What these assert with great positiveness, as matters of which they are convinced, must be allowed to have no small weight in the interpretation of what is obscure in the sacred writings; and this the more in proportion as we have the assent of a greater number, and as they approach nearer to the times of original purity, when neither the domination of one nor the combination of several had operated to adulterate primitive truth.
52. The Schoolmen, who succeeded them, often show no ordinary powers of intellect; but they fell upon evil times, ignorant of good literature, and, therefore, it is the less wonderful if, among many things which merit praise, there are some which need excuse. Yet, when they agree in points of morals, they are not likely to be wrong, since they are very clear-sighted in discerning what may be found fault with in the doctrines of others; while in their mode of maintaining opposite sides of a question they afford a laudable example of moderation, contending against each other with arguments, and not, as the custom has been of late, to the dishonor of learning, with railing and abuse, the foul offspring of illregulated minds.
53. Of the teachers of the Roman law there are three kinds. The first, those whose works appear in the Pandects, the Codex of Theodosius and that of Justinian, and the laws called Novells. The second class contains those who succeeded Irnerius; namely, Accursius, Bartolus, and so many others who have long borne supreme sway in the courts of law. The third class includes those who have combined the study of elegant literature with the study of the law. For the first I have great deference; for they often supply the best reasons to prove what belongs to the nature of jus and give their testimony both to natural law and to the law of nations, yet in such a way that they, no less than others, often confound these provinces. Indeed, they often call that jus gentium, the law of nations, which is only the law of certain peoples, and that not even by consent, but what one nation has received by imitation of another or by accident. Also, what truly belongs to jus gentium they often treat promiscuously and indiscriminately with points which belong to the Roman law, as appears in the titles concerning Captives and Postliminium. We have endeavored to keep these subjects distinct.
54. The second of these classes, regardless of divine law and of ancient history, attempted to define all the controversies of kings and peoples on the grounds of the Roman law, sometimes taking into account the canons. But these writers, too, were prevented, by the unhappiness of their times, from understanding those laws rightly, being, in other respects, sufficiently intelligent in investigating the nature of right and