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

Between whom Right and Justice takes place.

AS after all that hath been said, it may be questioned among whom Right and the vi∣olation of Right, and consequently Justice and Injustice, which are Opposites, take place: This, in my Judgment, is to be understood by compa∣ring Men with other Animals.

Therefore as there is no kind of Right and In∣jury, of Just or Unjust between the rest of Ani∣mals, because it was not possible to make any agreement between them, that they should do no Mischief to one another: So there ought not to be between the Nations which could not or would not make any such Compact, to do no wrong one to another.

For Just or Right, the observance whereof is named Justice, is only in a mutual Society, there∣fore Justice is the Tie of that Society; so that every one of its Members might live in Security, and free from the apprehensions of Dangers and Disturbances that a continual fear of being Assault∣ed or recieving damage may raise in us. So that all Animals, whether Men or others, who can∣not or will not enter into a Society, and conse∣quently be concerned in such Agreements, are de∣prived of this advantage, and have not among them∣selves any obligation of Right and Justice, to make them live in Security. So that there remains to them no other means of Security than to prevent one another, and to treat them so hardly, that they may not have Power to do them any Mis∣chief.

For this Cause, as among those Animals that have agreed upon nothing among themselves, if it happens that one injures another, one may say that he who does the Evil to the other is Mischie∣vous, or hurts the other who is injured, but not that it is unjust in this respect, or that it does wrong, because there is no manner of Right, no Agreement, no Law precedent to restrain 'em from doing Mischief; so among Men who have made no Compact, nor are not enter'd into any Society, if any treats another rudely or barbarously, one may say that he doth him Damage, or doth him Mis∣chief, but not that he is unjust to him, or that he wrongs or injures him, because there is no Law to bind him to do no Mischief to such an one.

But between Men and other Animals can there be any Justice? None at all. 'Tis true, That if Men could with other Animals, as with Men, make Agreements and Contracts not to kill one another, we could then between them and us demand Ju∣stice,

for that would tend to a mutual Security; but because it cannot be, that Animals that are without Reason should be obliged or tied to us by any common Laws, therefore we cannot take any more security from the other Animals, than from the inanimate Creatures. So that to secure our selves, there remains for us no other means than to make use of that Power that we have, either to kill them, or to force them to obey us.

You may perhaps here by the by ask why we kill those Creatures also, which we have no rea∣son to fear? I confess we may do this sometimes through Intemperance and Cruelty, as by Inhu∣manity and Barbarity we often abuse such some∣times who are out of our Society, and of whom 'tis not possible that we should apprehend any dan∣ger of Evil. But 'tis one thing to offend against Temperance, or any of its Species, viz. such as Sobriety, Gentleness, or Humanity and a natural Goodness, and another to offend against Justice, which supposeth Agreements and Laws. Besides, of all Animals which are not injurious to humane Race, there is no kind but may be so if we suffer 'em to increase and multiply beyond measure.

As to what at present concerns the pretended savage Life of the first Men, 'tis not Epicurus who was the first Broacher of this Fancy, for the most ancient Poets make mention of it, and say, That it was Orpheus, that sacred Interpreter of the Gods, and Amphion, the Founder of the City of Thebes, who by their sage and eloquent Discourses, with∣drew those Men from their unsettled and wandring way of Living, changing their cruel and barbarous Customs and Manners.

Orpheus, inspir'd by more than Human Power, Did not (as Poets feign) tame savage Beasts; But Men as Lawless and as Wild as they, And first dissuaded them from Rage and Blood. Thus when Amphion Built the Theban Wall, They feign'd the Stones obey'd his Magick Lute.

Cicero himself, as if having almost forgotten that he had so highly exalted the dignity of the human Nature, declaring it to be altogether Celestial and Divine, yet acknowledges, That there was a time when Men were wandring like Vagabonds about the Fields, in some manner resembling the Brutes; That nei∣ther Reason, Religion, Piety nor Humanity were then known among them; That they were Strangers to Wed∣lock and a lawful Issue; That they neither used natural nor civil Right; That they were in a gross Ignorance, and that their unbridled Lust put 'em upon exerting the Powers and Abilities of their Bodies, to satiate it self, every one possessing more or less, according as he was able to take away and keep from another. But, says he, afterward some Men were found to be of a better Tem∣per and more Judgment and Reason than the rest, who reflecting on this miserable way of Living, and withal considering the tractableness of Mankind, were resolved to represent to their Companions how advan∣tageous it would be to joyn together in Societies. And by this means, by degrees, they reclaimed them from their first barbarous manner of Living, and re∣duc'd them to a civil Behaviour; who inventing both divine and humane Rights, gathered Men into Com∣panies, erected Towns and Cities, made Laws, and af∣terwards constituted Kings and Governours to check the Insolent and to protect the Feeble and Week against the Stronger.

Others are of Opinion that the first Age began with the famous Golden Age, which was so happy, that Men were not then bound up by any Laws, nor frighted with the fear of Punishment, but lived to∣gether innocently, having regard to Piety, Justice and Equity.

—When Man yet new, No Rule, but uncorrupted Reason knew; And with a native bent did good pursue, Ʋnforc'd by Punishment, unaw'd by Fear, His Words were simple and his Soul sincere. No suppliant Crowds before the Judge appear'd, No Court erected yet, no Cause was heard, But all was safe, for Conscience was their Guard.

Seneca renders it thus, according to Posidonius, They were not yet Corrupted nor Debauched in their Prin∣ciples, but followed the dictates of Nature, which di∣rected and awed them from doing ill. In the Choice of their Governour they neither respected his Strength nor outward appearance, but his Temper and Goodness. O happy Nations! where none but the honestest Man was to bear sway, for he can do what he pleaseth, who doth no∣thing but what he thinks he ought to do; 'Twas there∣fore in this Golden Age that the Government was com∣mitted to the Wisest. They prevented Quarrels, pro∣tected the Weak against the oppression of the Stronger; they advised, dissuaded and represented what was most useful, and what not. Their Prudence provided for the necessities of those who were under their Conduct, their Valour drove away all Dangers, and their good Deeds purchased daily new Subjects. To Command was more a Burden than a Profit, and the greatest threatning that a King could then offer to such as were not Obedient, was to forsake them and depart the Kingdom. But since Vice and Corruption had changed Rulers into Tyrants,

hence sprung the necessity of having Laws, and wise Men were the first contrivers of them.

But without standing to examin these several Opinions which Lactantius looks upon as frivolous. O ingenia hominum indigna quae has ineptias protulerunt! Miseros at{que} miserabiles, qui stultitiam suam literis me∣moriae{que} mandaverunt: Let us rather consider, That the Laws according to Epicurus's Judgment being established for the publick benefit of Mankind, that every one might enjoy his Right, might live peace∣ably and securely; and seeing there is nothing more agreable to Nature than this, I think none has reason to upbraid him, quod Leges & Jura a Natura sejunxerit, That he separated from Nature the Laws and Right, seeing that he had rather join'd them in∣separably together, by the Tie of common Interest, which is the firmest Bond, according to the Rules of Nature. Nor does there seem any reason to blame him because he hath rather derived the Laws and Right from Profit than from Nature, seeing he could never have derived them from Profit, but at the same time he must needs derive them from Na∣ture. Nay, let us go further, What cause have we to reprove him, seeing there is no Person but will allow that both the primitive and modern Legisla∣tors had always this thing of Profit or publick Ad∣vantage still in their Eye, and that no Laws can be just and useful but what tend to the publick Bene∣fit and Advantage? Civil Societies, saith Aristotle, seem to have not only their Rise, but their Continuance also, in this Foundation of Profit; the Law-givers still aimed at this End, and generally termed that Right, which was found to be useful. Cicero retain'd the same Opinion, We must, saith he, intend all our Laws for the publick Good, not interpreting them according to the strict Letter, but what suits best with the publick Good and common Benefit. For our Ancestors always

used this Wisdom and Prudence, that in making their Laws they still chiefly proposed to themselves nothing more than the Safety, Welfare and Advantage of the Pub∣lick. The Safety of the People, saith he in another Place, is the supreme Law, Salus populi suprema lex. He saith further, That all Magistrates and Rulers ought to stick close to these two Maxims of Plato; the First, To be so careful of the benefit of their Subjects, that they ought chiefly to aim at it in all their Proceedings, for∣getting even their own private Profit and Advantage, when it comes in Competition. Secondly, To take heed in their Governments, that they lose not one part, by en∣deavouring to preserve the other.

Truly Cujas acknowledges that the civil Right, or the Right of every particular Government, is de∣rived from the common Benefit; but he denies it to be so in relation to the Right of Nations, or of all Mankind in general, for he supposeth that pro∣ceeds from Nature. But since he owns that this Right, which is common to particular Places, pro∣ceeds from Interest, which also is common to them all, why may not he admit that the Right which is common to all Men, is derived also from that Pro∣fit which is common to all Men? So that natural Right is as it were the Genus Generalissimum, of which the Right of Nations or of Men is an inferior Species, and likewise this Right of Nations, as a Genus more contracted, whereof the civil Right or the Right of every City is a Species.

As to what Epicurus says, That a true Law supposeth a mutual Compact, or every Law is a kind of an Agree∣ment, 'tis no more than what Plato, Aristotle, De∣mosthenes, Aristides and several others assert. Nay, the divine Law it self (so far as it concerns our Fel∣low Subjects, may be reputed the noblest part of the civil Right) is nothing else but a Covenant be∣tween God and Man. There is nothing more com∣mon

in Holy Writ, than to hear them speak of the First and Second Law, both the Old and the New, as of a Covenant and an Agreement. There is no∣thing more frequent in the Holy Scriptures, than to read that God makes a Covenant, as with Noah, Abraham and Jacob, who likewise engage recipro∣cally to God who had made this Promise to him; I will be with thee and keep thee wheresoever thou goest, and I will bring thee back into thine own Country, &c. Unto which Jacob answered, If the Lord be with me, and will keep me in the way that I go, and will give me Bread to Eat, and Raiment to put on, so that I come again to my Father's House in Peace, then shall the Lord be my God, Erit mihi Dominus in Deum.

We need but mention the mutual Compact and Agreement between God and the People of Israel, when God was pleased by the Mediation of Moses, to proclaim the antient Law. Thus God speaks, If you hear my Voice and keep my Covenant, I will look upon you as my peculiar Treasure, and will have more care of you than of all other People. And the People answered, We will do all that the Lord hath command∣ed. In relation to the new Law, this is the Prophe∣sy of Jeremiah, The Days shall come, saith the Lord, that I will make a new Covenant with the House of Israel, and with the House of Judah; not according to the Co∣venant that I made with their Fathers, in the Day that I took them by the Hand to bring them out of the Land of Egypt, which my Covenant they brake, &c. But this shall be the Covenant that I will make with the House of Israel after those Days, saith the Lord, I will put my Law in their inward Parts, and write it in their Hearts, and will be their God, and they shall be my People. But not to insist longer on this, let us only observe, That tho from what hath been said we may conclude, that to speak properly, There is no Law of Nations, and consequently no Right of Nations, because there

never hath been any Covenant or Agreement be∣tween all Nations; nevertheless we may say that this common Precept, Thou shalt not do to another, what thou wilt not that another should do to thee, ought to be esteemed as the first natural Law, or accord∣ing to Nature; not only because there is nothing more Natural, or more according to Nature than Society, and Society being not able to subsist with∣out this Precept, it ought also to be esteemed Natural: But also because God seems to have imprinted it in the Hearts of all Men, and that this Law contains in such a full manner all the other Laws of Society, that no Man can invade the Right of another, but he must violate this Law; Therefore this Law alone ought to be look'd upon as the Rule of all our Actions that concern our Neighbour.

And truly as every one desires that his Right may be Religiously preserved to him, so that no Man may attempt upon it, he need but think the same thing of others, and to put himself in their Place and Condition, to understand what he ought or what he ought not to do.

Therefore as there is nothing nearer at Hand, and more ready nor more infallible than our own Con∣science, every one may consult himself, and he a∣lone may be his own proper and true Casuist. So that he who seeks for others, seems not so much dis∣posed to be willing to do to another, what he would not have done to himself, as to not dare to do it if he hath not some Body upon whom he may cast the Blame. And upon this Point Cicero treats very well in his Offices, That those who prohibit any thing to be done, whereof there is a Question whe∣ther it be Just or Unjust, cannot prescribe any Rule nor Precept more useful and reasonable, because Equity here appears and is plainly discoverable, and that our doubting is a sign that we think or design

to do Evil. Bene praecipiunt qui vetant quidquam agere quod dubites aequum sit an iniquum; aequitas enim lucet ip∣sa per se, dubitatio autem cogitationem significat injuriae. Upon this Subject I remember what Monsieur de la Moignon, first President of the Parliament of Paris, a wise and learned Judge, said to us one Day as we were walking in his shady Retirement, in the Wood de Baville, That that Maxim of Cicero, if it were du∣ly practis'd among Men, would be of a wonderful use, and that for what concerns those who have such sort of doubts, and trouble themselves to seek for Casuists to support them, he had read an excellent Saying in a Spa∣nish Author, That such Persons seek to pick a Quarrel or to play the Cheat with the Law of God. Quieren pley tear contra la lay de Dios.

Let us observe more-over that the Holy Scrip∣tures have said very well, That the Law was not made for the Just; because he who is truly Just observes it, not out of fear of the Punishments that the Law threatens, but out of a love for Ju∣stice it self, and out of a respect for it; so that if there were no Law nor Magistrates, he would not∣withstanding still live in Obedience to Law and Ju∣stice. Therefore that excellent Expression of Me∣nander is thought praise-worthy, If you be Just, your Manners will be to you instead of Laws. And the Answer of Aristotle is remarkable when he was questioned, what Profit he had found and received from the study of Philosophy? To do, said he, of my own accord and without constraint, what others do for fear of the Laws. This obliged Horace to say, That we ought not to do any thing for fear of Punish∣ment. Nihil esse faciendum formidine poenae. From whence we may remark, that Corrections and Punish∣ments are not only ordained for the Wicked and Criminals, that they may perish and be extinct, but that by their Destruction, they may also terrify

and restrain others, as Seneca observes; and accord∣ing to Lactantius, who brings in Plato, saying, That a wise and prudent Man punishes not because 'tis a Crime, for he cannot make that which is already done to be undone, but that others may not commit the same Crimes. But let us hearken to Epicurus, discoursing of the great Advantages that there are in observing Justice.