Three discourses of happiness, virtue, and liberty collected from the works of the learn'd Gassendi, by Monsieur Bernier ; translated out of French.

Of Retaliation.

THat Retaliation, or as the Latins term it, Per∣pessio reciproca, a mutual Suffering, is no Right or Equity, simply so taken, whatever Pythagoras's Disciples pretend to, who seem to approve of the Justice that is ascribed to Radamanthus, Aequum jus fuerit, si quae egit, quis patiatur; To make a Man suffer the same Evil which he hath committed.

The Reason of this is, because Retaliation cannot be found in distributive Justice, where a respect is to be had to the Worth and to the Person. For Ex∣ample, if a Magistrate strikes any Body, he ought not therefore to be struck in the same manner; and it would not be sufficient that he who should give a box on the Ear to a Magistate should only receive such another for it, but he ought to be punished more severely. I shall not here mention that a re∣gard ought to be had chiefly to that which is done willingly, and that which is acted against our Will. Neither hath it any room in that part of Commuta∣tive Justice, which respects the Actions, and which is properly called Corrective; for if for a Tooth pull'd out we only pull out a Tooth, or an Eye for an Eye, we don't hereby do Right, because there is no amends made for the Injury or Wrong done; but we must as much as is possible recompense the mischief done, either by Mony, or some other ex∣pedient which the Judge shall think convenient. Therefore it may have place in the other part of Commutative Justice, which respects the Things, or the exchange made in recompence of it,

Aristotle observes in the second Place, That for this kind of Justice there is nothing could be invent∣ed more convenient than Gold, Silver, or some∣thing of like Value; for as human Society subsists by a necessary supply of one anothers Wants, we cannot otherwise redress this defect than by ex∣change or commutation, and that this is to be done by some equality that is to be found out. Now what equality can we find between two Things so diffe∣rent (for Example) as a Horse and Box on the Ear. As therefore we cannot find any equality as to the Thing, nevertheless, as by Custom we have made Mony an equivalent to every thing else, by

this as by a common Measure we may adjust to every Man his due Right.

Thirdly, A Judge ought sometimeis to do Right, not strictly as the Law prescribes, but as we usual∣ly say, according to Equity, Ex aequo & bono. For as the Law orders nothing but under general Terms, and that often there happens particular Ca∣ses, in which, because of certain Circumstances none can judge according to the strict Letter of the Law without great Unjustice; For that Reason, saith he, If a Legislator hath omitted or failed in any thing which he hath absolutely enjoyn'd, here we must supply what was defective in this Law-giver, and what he himself would have ordain'd by this Law if he had been now present, or had known of it before. Nay, the Interpreters of the Laws go yet farther, and say; If the Law had commanded that no Strangers should walk upon the Bulwarks, we must not therefore put to death one who is gone thither to defend the Town, and repulse the Enemy; for if the Law-giver had foreseen such a Case, he doubtless had made such an Exception. For this Reason 'tis commonly said, That under strict and severe Laws we ought to implore the Assistance of the Judge, to make a rea∣sonable and equitable Construction.

Judicis auxilium sub iniqua lege rogato: Ipsae etenim leges cupiunt ut jure regantur.

But to return to the Definition of Justice. As this part of the Definition, viz. To render to eve∣ry one his Right, obliges us to understand and seek more at large what this Right is, and from whence it derives its Original: Let us consider, first, that this word being taken in several senses, its primi∣tive Signification is, that Right is a Faculty to do something, to have something, to enjoy, and to do

ones self Right in something; from thence we say, to keep, to retain, to recover, to pursue ones Right, to yield, to abate and surrender ones Right, to enjoy ones Right, or to be at our own Com∣mand, Esse sui juris, &c. 'Tis also from hence that the Law, by a Metaphor, is called Right, be∣cause it declares and prescribes what belongs to every one as his Right, what Authority, Power and Command every one hath over any thing. And this by a like Metaphor, That we call Right the Court or Tribunal where Right is done; that is to say, where the Party injured hath his Right re∣stor'd or Justice done him.

Nay, we may go yet farther, and say, That Right seems by consequence to be originally more ancient than Justice; for as Justice is the same thing with that Affection or habitual Desire or In∣clination which we have to wrong no body, and that every one may enjoy their Right as we enjoy ours; 'tis certain, that this Justice supposeth that there is in other Men a Right, not depending upon it, and which nevertheless would be, tho' it self were not in Being. Therefore it seems in the first place, we ought to acknowledge the Right that every one hath, tho' it be different from what Na∣ture gives, or tho' it be by Contract or by Law. Secondly, That the Injury is nothing else but a Violation of this Right it self. Thirdly, Justice, or the Will to render unto every one his own, which repairs the Wrong, restores Right, and gives the Title of Just to him who possesseth it. Fourthly, The Proceedings or Work of Justice, or the Right restored, which is also called Just, or that which is Just; Justice giving it that Denomi∣nation. But because Epicurus, whom, both many of the ancient and modern Authors have follow∣ed, hath derived the very beginning of Right and

whatever is agreeable with Equity, from Utility or Profit; let us listen to what he says in the four fol∣lowing Paragraphs. 'Tis in this manner that he discourses of Justice in general Terms.