latives was not easy, but by their manner of doing benefit, and their material relations. To which we are inclined by Nature. That which is usually called the law of nature,' is, of itself, nothing else but convenientia cum natura rationali,' 'a consonancy to natural reason and being.' Some, in drawing the tables of the natural law, estimate those only to be natural laws which are concerning appetites and actions common to man and beast. "Jus naturale est, quod natura omnia animalia docuit;" said Ulpian": "That is the law of nature, which is, by nature, taught not only to men, but even to beasts;" for they also are under her power, Magnis agitant sub legibus ævum. The same definition is also given by Aquinas, and many lawyers after Justinian", and almost all divines after Aquinas; but Laurentius Valla will, at no hand, endure it: "Nam jus naturale dicere quod natura omnia animalia docuit, ridiculum:""It is ridiculous to affirm that to be the law of nature, which nature teaches to all living creatures;" such as are, conjunction of sexes for conversation of the kind, nursing and educating children, abstinence from some certain mixtures and copulations, abhorring the conjunction of some very near persons. Concerning which it is, therefore, certain, that though the matter of these laws is hugely agreeable to nature, and some of them are afterwards made into laws, and, for their matter sake and early sanction, are justly called natural (as I have otherwhere discoursed), yet they are made laws in nature only dispositivè,' that is, by nature they are made candidates of laws, they are prepared by nature, but completed by God in other ways than by our nature and creation. The reason is, because that which is natural is one, but these laws admit variety; and amongst wise nations, in several cases, have and have not obligation. The religious, and the priests, and wise men among the Persians, did not account themselves bound by all these, as I shall discourse in the following numbers; and yet they were then to be reckoned amongst the wisest men in the world, because of their great empire and government, which, by reason of their great necessities and communications with mankind, cannot be done without its proportion of wisdom. But if nature did make these into a law, that is, if it comes, by creation, and from thence also the penalty and coercion is derived (for without these there is no law), then it were impossible the wise Persians should think it commendable to do that which others called abominable, since in all those things in which they do a thing which they call unlawful, they, as other men, felt an equal sharpness and pungency of conscience. But that I may speak closer to the particular, that a thing is common to men and beasts is no indication of a law of nature, but only of a common necessity, instinct, or inclination respectively. For they do it without a law, and therefore, so may we, unless something else besides nature makes it a law to us; for nature or natural desire in them and us is the same; but this desire is in them where a law cannot be, and, therefore, in us also it may be without a law. Beasts do all they can do, and can love, and are no more capable of law than of reason; and if they have instincts and inclinations, it is no otherwise than their appetites to meat, concerning which nature hath determined all, but without proper obligation: and all those discourses concerning the abstinence of beasts, their gratitude, their hospitality, their fidelity, their chastity and marriages, are just like the discourses of those that would make them reasonable. certain and true is that which was said of old, Ιχθύσι μὲν καὶ θηρσὶ καὶ οἰωνοῖς πετεηνοῖς, More "Fishes, and birds, and beasts eat one another, because they have no justice or laws amongst them," said Hesiod; and the like is in Homer, Ως οὐκ ἔστι λέουσι καὶ ἀνδράσιν ὅρκια πιστά. And, therefore, although it is a good popular argument, which is used against unnatural conjunctions, which is in the Greek epigrams, Δέρκεο τῶν ἀλόγων ζώων γένος· ἡ γὰρ ἐκείνων 6 "Abstain from such impurities, for the very beasts preserve their natural customs and conjunctions inviolate;" yet this is an infinitely uncertain and fallacious way of estimating any particular laws of nature, because it may as well be said to be against the law of nature to be drunk as to be incestuous, upon this account, because cows will drink no more than to quench their thirst; and although in the law of Moses, beasts were put to death if they were instrumental in bestiality or murder, yet this was in pœnam Domini,' or a matter of dominion over beasts; and the word 'poena,' or 'punishment,' was improper, and no otherwise to be understood than that of Suidas, in his story of Nicon, whose statue when an envious person had whipped, to disgrace his memory, because in the Greek games he had won fourteen hundred crowns, the statue fell upon his head and crushed him to death. Τοῦ δὲ οἱ παῖδες ἐπεξίεσαν φόνου ἐπὶ τῇ εἰκόνι, καὶ οἱ Θάσιοι κατεποντισαν αὐτὴν κατὰ τὸν νόμον τὸν Δράκοντος Αθηναίου· "His sons accused the statue as guilty of murder, and the Thasians threw it into the sea; for so was the law of Draco, the Athenian,” ὑπερορίζειν φονεύοντας καὶ τὰ ἄψυχα, « to banish every thing that killed a man, though it were wood, stones, or hatchets;" as you may see in Demosthenest. These things were tragical detestations and emblematical prosecutions of the crime; but the men were wiser than to believe it really a punishment to inanimate things. The same is true of beasts in their proportion, whose cruelty, savageness, or violent revenges, is not xaxia, but olovel xaxía, as Origen" calls it, "it is like pravity or wickedness.” This thing is so much the more considerable, because it is of use against the pretences and scruples of some persons in things where they ought to be confident. St. Jerome says, that beasts, when they are impregnated, abstain from coition till the production of their young, and that this they do by s Brunck, vol. iii. page 33. t Orat. contr. Aristocratem. the law of nature; now, upon this account, to impose a law upon mankind to do so too, is weak and dangerous. But yet not only hex, but Origen, St. Ambrose, and Sedulius*, do argue to the same purpose upon that very ground; most weakly and dangerously exposing married persons to the greater dangers of fornication, and depriving them of all the endearments of society, not considering that those creatures, and those men whose custom was otherwise, or laws different, had, vagam libidinem,' or the evil remedy of polygamy. Beasts indeed are so ordered by nature, but without a law; as there is no law for lions to eat flesh, or oxen grass, but yet naturally they do it. A beast may be cruel or lustful, or monstrous and prodigious in the satisfaction of his appetites; but not injurious, or the breaker of any sanction, or laws of justice. There may be "damnum sine injuria facientis datum," says the law, and it is instanced in beasts; "Neque enim potest animal injuriam fecisse dici, quod sensu caret:"-" A beast that hath no sense," (that is, no reason)" or perception of lawful or unlawful, cannot be said to do an injury;"—and therefore is not capable of punishment, because he is incapable of a law. So Justin Martyr, or whoever is the author of the questions and answers placed in his works; τὸ ἐπὶ φαυλότητι πράξεως διαβάλλειν τῶν ἀλόγων τὰς φύσεις, οὐκ ἔστιν εὔλογον. " It is unreasonable to exact of beasts the obliquity of their actions, because they have no reason;" it is therefore as unreasonable to make the law of nature to be something common to them and us. If it be replied, that the lawyers and philosophers mean only, that these material instances, which are common to them and us, are the particulars of the law of nature, and though they be not a law to them, yet the same things which they do naturally, are natural to us, and a law besides, that is, the natural law: besides that this is not usually said by them, we are then never the nearer to know what is the law of nature by this description of it, for all things which they and we do, are not pretended to be laws; as eating and sleeping; and therefore, by what measure any other thing should be a law to us, because they and we do it, is not * Lib. i. contr. Jovin. z Lib. i. Comm. sup. Luc. 1. y Hom. 5. sup. 19. Genes. a In cap. 5. Eph. signified by this definition, or any explication of it. Let us then try the other measures which are usual. Invited by Consent. The consent of nations, that is, public fame amongst all or the wisest nations, is a great signification of decency or indecency, and a probable indication of the law of nature. Φήμη δ ̓ οὔτις πάμπαν ἀπόλλυται, ἥν τινα πολλοὶ Λαοὶ φημίξουσι It is not a vain noise, when many nations join their voices in attestation or detestation of an action; and it looks as if it were derived from some common principle, which seems either to be nature, or contract; and then, as in the first case, they are reasonable,-so, in the second, they are directly obligatory. "Quod apud multos unum invenitur, non est erratum sed traditum," said Tertulliand; like that of Heraclitus, τὰ κοινῇ φαινόμενα πιστά,—if it seems so to the communities of mankind, it is genuine, and natural, and without illusion. Now this is true up to many degrees of probability; and yet it is rather an index of a permission of nature, than of a natural obligation; it tells us rather what we may do, than what we must, it being more probable that all nations will not consent to an unnatural thing, that is, will not do violence to nature, than that whatsoever they commonly act should be a necessary law, and the measures of nature, or the indication of her sanctions; and yet it is still more probable that the consent of nations is more fit to be used as a corroborative to a persuasion or a kind of actions, than as the prime motive or introduction. Κράτιστον πάντας ἀνθρώπους φαίνεσθαι συνομολογοῦντας τοῖς ῥηθησομένοις, said Aristotle; and "argumentum est veritatis aliquid omnibus videri," said Seneca; it is a great strengthening and a powerful prevailing argument to have all men consent to our opinions and propositions. But it is in many moral instances as it is in the universal opinion, which all mankind hath concerning jewels, where they consent no man knows how, or why: and no man can give a rational account why so great value should Hesiod, Op. 761. Gaisford, p. 57. d De præscript. |