Some chapters touching the Law of Nature.
Chapter 5 (a)Concerning the severall Heads of that Lex Naturalis, whereof before;
In the former Chapter, we have been searching into those /fol. 66v/ Media, from whence by induction we may gather what those common propensions or notions (b) are in the human Nature which are the Matter of the Law we call Morall or Naturall; For as I have before observed, these nor (c) any of these Media goe no further than the Discovery of the Matter of the Laws of Nature. But do not either contein or give the formall reason of their Obligation as Laws, for this depends upon a higher Principle.
And now (d) I come to give some account of the particulars of these Natural Laws, or at least of some of them for it is besides (e) my purpose and possibly beyound the capacity of any one Man to give an exact (f) adaequate account of all the particulars of Natural Law in all its ramifications, and under al the variety of Circumstances that make a difference in the particular Applicacion of it, for what the Prophet saith of the Law of God in general is verifed (g) in a special Manner of this, Psal. (h) 119.96. I have seen an End of (i) all perfection but thy Commandments (j) is exceeding broad. (k)
Both the amplitude and perfection of the Natural or morall Law appeares (a) by these Considerations.
1. It was instituted and given (b) to Man by the great & wise Rector of the World in the first institution of the humane Nature, to be the great Rule and direction of all the most important morall actions of human life, and to conduct & guide and manage him not only (c) in the temporary concerns of his temporal (d) life, but (e) also to bring him to his cheif End, his felicity and happines, and therefore a Law proceeding from such an Author, directed to such an End, must needs be a most Excellent Law, and in its full amplitude and extent very great and extensive; /fol. 67r/
2. After the (f) great Concussion that this Law had in the Nature of a (g) Man by his fall; All those various Oeconomies (h) of the Divine speciall Providence relating to Man have been principally directed to restore Man unto that primitive Law, and to reduce, contain and preserve (i) Mankind unto, and in the conformity unto it, & obedience of it, (1) this is the reason of those adminicula divinae gratiae (j) [supports of divine grace] that secret striving of the Spirit of God with the Old World [Gen. 6:3], and in all succeeding ages of the World secretly contending (k) against the Corruptions of Nature, which arose (l) by evil Customs and (m) unrulines of the sensual appetite; The reason of raising up Men in all ages, even in the Gentile world, wise Philosophers and Law-givers and other wise men, to reduce Men to the obedience of this Law, and containing them in it; (n) the reason of those Extraordinary (o) and Speaking Providences Manifesting to the Children of Men the Regiment of Almighty God and his indignation against the violation of this Law; The reason of his giving out the Compendium of the (p) Cheif Moral or Naturall Laws to Noah and his Sons, namely the septem praecepta Noachidarum; (a) The reason of the reinforceing of this Natural Law by the Precepts of the Decalogue given from Sinai in Thunder and Fire; (b) The reason of Raising up Prophets in all ages of the (c) Church of the Jews inforcing (d) this Law, and giving a testimony of the truth of their Mission by Miracles and predictions;
And altho these two latter were immediately given to one particular Nation, the Jewish Church he (e) made that Nation signal and eminent and conspicuous to all the world by signes wounders and observable providence; that /fol. 67v/ they might be like a Beacon upon a hill, like a mighty and stately Piller set up in the middle of the World to hange up upon it those Tables of Natural righteousnes which might be conspicuous and legible to the greatest part even of the Gentile world for many Ages. And, lastly this was one of the great reasons the (f) Mission of the Messias, his admirable doctrine Miracles, Death, Resurrection to republish this Natural Law given to Mankind, unto all the World to reinforce it with such new and Further Manifestations of Divine Truthes with such admirable and effective (g) Motives that never before were so fully declared bringing life and immortality to Light by the Gospel; shewing explicitely and evidently the rewards of a due conformity to this Law of Nature the (h) punishment of the disobedience thereof; So that (excepting some positive institutions which nevertheless do reasonably and clearely tend to the same great End) the whole Doctrine of the Gospel of Christ drives at nothing more then the discovery of the true Law of Nature, and (i) conformity of the human Nature thereunto in order to a perfect state of living here and the perfect injoying of an intimate Communion with God in this life, and the consummate and everlasting injoying of him hereafter: (2) And therefore let any Man run over all the Doctrine of the Gospel deliver'd by Christ and his Apostles he shall find nothing in it derogatory to that Law of Nature whereof we speak, (a) but a full System of all the excellent and morall Precepts of the Natural Law commanding all things that are good and /fol. 68r/ vertuous and becoming the Dignity of the human Nature, & prohibiting the contrary, so that whereas by the bare help of Nature, we may be under some difficultys of sifting out that pure Gold namely the Natural Law from the corrupt Usages & Customes under which it many times is (b) covered, and where as by the help barely of the Natural Conscience and the conduct of reason a Man (without a great exercise of his understanding and self (c) deniall) cannot follow the traine of consequences to the discovery of all the Laws of Nature; And where as most Men either by reason of the incompetence of their parts or the want of exercise of them or by reason of the prejudice or unhappines of their Education or by reason of self Love or self interest are under great deficiencies (d) in discovery of the full extent of Naturall Laws; (e) The Gospel of Christ (f) gives to all Men quasi per saltum [as if without intermediate steps], and without the Great Exercise of ratiocination a plain easy obvious Catalogue of all these Naturall Laws only (g) superadds this, namely, a command of faith to beleive it, and a sufficient Evidence to oblige Men to that faith.
And that the great Scope of the Gospel of Christ (h) is to reimprint and reinforce, this Natural Law upon the human Nature appears by the whole tenor of the Gospel. take some instances among many, when the Lawyer asked Christ (i) what was the great Commandment of the Law, he sends him to those two great Natural Laws, the Love of God, and the Love of his Neighbour. Math. 22:36. (3) when he gives an account of these things that defle and imbase the human Nature, the Catalogue he gives is of moral iniquitys Math. (j) 15.19. when he gives a account of the various rewards /fol. 68v/ of the good and evil his instances are in (k) particulars of the observance and (l) violation of the Natural Law of Charity Math. 25.31. (m) when he gives an Abstract of the Law and the Prophets that (a) he gives this short excellent precept of Nature, all Justice (b) whatsoever ye would that Men should do to you that do ye to them, Math. 7:12. (c) when he gives the necessary Preliminary to the Kingdome of heaven, it is such a (d) righteousnes as exceeds the righteousnes of the Scribes & Pharisees, the strictest Sect (e) of the Jews; Math. (f) 5.20. and teacheth the perpetuity of the moral Law, Math. (g) 5.17.18. The whole tenor both of his Doctrine and Life was Humility, Sincerity purity, Patience Justice, Peace, Beneficence, Submission and Obedience to the Divine will, adoration, and invocation of him, and the whole train of those vertues which we call the Naturall Law. (4)
If we come to the Doctrine deliver'd by his Apostles we shall find in every place this Natural Law commended and the contraries forbidden, Take but a few instances for many: Rom. 14:17. (h) The Kingdom of God is righteousnes, peace & joy in the Holy ghost, Ephe. 2.10 For we are his Workmanship created in Christ (i) Jesus unto good works which God hath before ordained that we should walk in them. Ephe: 4:24. (j) put ye on the New Man which after God is created in righteousnes and true Holines.
1 Thess. 4.3 This is the will of God even your Sanctification that ye should abstaine from fornication; that every one should know how to possess his vessel in Sanctification & honor &c. 1 Tim. 1:5. (k) Now the End of the /fol. 69r/Commandments (l) is Charity, out of (m) Pure heart and Good Conscience and faith unfained Tit. 2.11. For the Grace of God bringing Salvation hath appear'd unto all Men, teaching us that denying Ungodliness and Worldly lust (n) we should live soberly righteously and Godly in this present World looking for the blessed hope and glorious appearance of the Great God & our Saviour Jesus Christ (o) who gave himself for us that he might redeem us from all iniquity, and purify unto himself a peculiar People zealous of good Works.
By these and the like instances that might be given out of the new Testament, and by what is said in this digression, I would have these things observed: 1. That the great End of the Gospel is the conforming (a) of Men to the true Standard of (b) Naturall Law, consisting in godliness sobriety and righteousnes. 2. That consequently by this natural Law is a most Excellent Law, the institution of God touching Man and the Image of God in Man. 3. That this Natural Law is most excellently and incomparably set forth evidenced and deliver'd in the Gospel more explicitely and fuller then ever it was done since the Creation of Man, and evinced (c) to be such not only by the Divine Person that publish'd it by the supernatural Miracles that attest'd it, but by the exact Consonancy of it to the true and solid Suffrage even of reason and the Naturall Conscience.
And therefore my business of recollecting the Laws of Nature may seem impertinent since the Evangelical Doctrine containes a perfect System of it, yet (d) because the Christian Doctrine was not known to the Heathen World and yet /fol. 69v/the Law of Nature even then oblige them even upon (e) the light and evidence of Nature and reason, And because among those (f) that dare do not (g) otherwise then profess they beleive (h) the Gospel, yet realy and truely do no further beleive it then they find reason asserting it, and because it is consonant to the designe of these Papers to give out some Specimina Legis Naturalis [examples of the natural law], I shall make a short Collection of some of them under severall Rankes.
And, yet before I come to Particulars I shall give a general account touching the Generall State of Natural Laws;
[ Kinds of Natural Law ] (5)
The Laws of Nature seem therefore (i) to be of four kinds. (j)
1. Those that are most universall and most remote from any particular determination to this or that perticular action as that the Legis (k) naturae primo primae honestum est amplectendum, inhonestum (a) est fugiendum [the chief point of the first kind of the law of nature, the honorable must be embraced, the shameful must be avoided]: This, it is true is (b) in the human Law of the human Nature, but by reason of its generality and indeterminatenes it becomes equally applicable to Contradictory Conclusions according to the various Opinions of Men (c) touching the thing to be done. Hence in Arrianus in Epictetus lib. 1. cap. 22, (d) in the Controversy between Agamemnon and Archilles, touching the returning of Chreseis to her Father both assumed the same antecedent, viz: honestum est faciendum [the honorable must be done], yet from those general premisses that (e) framed Contradictory Conclusions one for, and the other (f) against her returne. (6)
2. Certain Principles of Morality which tho they are not wholly restrained to particularity, yet are of a much more restrictive Nature (g) than the former & therefore of greater (h) Use and more directive in Moral Actions Legis Naturalis /fol. 70r/ secundo (i) primo [the second kind of natural law] as that it is not Just to do that to another which we would not that another should do to me, (j) in the same Circumstance that I am not to do hurt to him that is innocent that I am to be thankfull for benefits received, and many more both in the preceptive and prohibitory instances of Moral or Natural Law's.
And tho all these be clearely deducible by discursive ratiocination to be highly reasonable and becoming the human nature, yet they have that congruity to the rational Nature, and that self evidence in them that the understanding needs not the help of (k) graduall discovery or ratiocination to gain an Assent to them, but takes them in per saltum [without intermediate steps] by a kind of intuition, altogether as the Eye perceives Light, or colour without Argumentation, and it (l) seems as it were ingraven'd in the human Nature characteris'd in it, growing up with it connaturall to it, and therefore they are taken up and assented unto, not as a conclusion, but as a Principle (m) of Naturall Righteousnes (n) just as that Common Principle (a) in Physicks or Mathematicks, totum est Maius sua parte [the whole is greater than its part], tho it be demonstrable to be true by a rationall Process, yet the evidence of the truth of it is so sensible that the Intellect assents to it without any rationall Process or induction to make it out;
3. Certain Conclusions immediately, and necessarily arising from some Common Principles admitted; for since the Conclusions of every Proposition are in truth vertually in the Premises tho they are not yet formed into the shape of a distint (b) Conclusion, so there are some /fol. 70v/ Conclusions that have that (c) evidence of inexistence in the premises, that vicinity (d) to and necessary Conjunction with them, that they are as soone known and subscribed to as the premisses themselves without the formality or Mora [delay] of a discursive process, the transition from the Supposition of the premisses unto the conclusion so natural, so easy, swift and speedy, that the assent (e) to the Conclusion seems to run hand in hand, with the assent to the premisses, whereby tho in Nature they are not Principles but Conclusions, yet they are in time congenite with them, and have the same manner of Entertainment, as if they were the very Originall Principles (f) themselves, and as before I said are (g) assented to by a kind of intuition (h) without the help of discursive ratiocination; Thus att the very same instant, that a man entertaines the Notion of Deity (which is as shall be shewn not only a Conclusion of reason but a Principle (i) connatural to Man) he presently concludes without the help of a Syllogism, that he is to be worshiped, invoked, honored and obeyed, so that (j) a Man cannot tell which is first in time (k) in the Soul, the Notion of a Deity, or the Conception of that Obligation (l) of Naturall Law, to Honor and obey him, yea many times where the Notion of a Deity is confused (m) indistinct yet a kind of distinct adoration is performed to him so that after an Offence committed against /fol. 71r/ God, it is most rational to esteem repentance (n) sorrow for what is past, and resolution to do better for the time to come, the most rational way to propitiate an offended God, because tho (o) that which is don cannot be undon yet the nearest Method to undoing of it is by sorrow for it (p) and amendment of it;
Yet even (a) naturally, repentance is taken up upon any Offence committed by those that scarce ever knew (b) the Natural Connexion and Consequence between repentance and pardon so in that most necessary precept of the Law of Nature fides est servanda any Man that can (c) give himself the leisure and can connect Consequences to another will easily shew many reasons that may discursively (d) evince this by way of Conclusion, as first that it is derogatory to the dignity and honor of the human Nature to be false to his word, that it is a means to provoke others to do the like by him; That without it (e) there can be no security to human Society, and many more yet without all this process, and even in Men that know not how to make it every Man in the World that is not lapsed into Brutishnes, takes it for granted that a man must be as good as his word: And of (f) these two last mentioned Instances in this and the former Section seem to make up the ordinary bulk of the common rudiments of the Law of Nature because easily and quickly perceived and digested by Most Men. /fol. 71v/
4. There be many (g) Natural or moral Lawes (for I use (h) the Words promiscuously Moral, because concerning the Manners (i) of Men, and Natural because implanted in Nature) that are really and truely, Natural Laws; But yet are conclusions more remote from the first rudiments of Natural Law, & therefore not easily elicited or deduced (j) without a rational Process, or Discourse and according to their distance (k) from first Principles or Conclusions before mention'd, sometimes by a Chaine of two three or more Consequences. (l) And this happens in relation to such Moral Acts or actions as are either 1. more remote or distant (m) from the self (n) evidente Principles or Conclusions. 2. or (o) such as are mingl'd with, involved or difficult Circumstances of (p) particular acts or Actions; or 3. (q) such as have a mixture or complication with other Laws of Nature that either cross or ally or are interwoven with the Moral Actions to be don;
And according to these various states and textures of actions to be done or omitted, the decisions are more difficult and inevident, and the variety of Mens Judgments give different Theorys and make different Conclusions touching them: And therefore to settle and determine these (r) is required much exercise of the reasoning faculty, much Judgment and advertence which doth not so commonly fall under ordinary Capacities, this we may easily perceive in the curious and subtile Works of Many Writers of Morall Philosophy and in the (a) Schoolmen (b) and Casuists of this and /fol. 72r/ former ages, (c) whereas tho they many times differ, yet certainly there is truth of moral or Natural Law's even in relation to these complicated and perplexed moral actions, if it can be attained, as in Anatomy there is a real Existence and use of the minutest ramifications of the veines, arterys and nerves in the body tho the discovery thereof be not so easily attained (d) and one Age discovers those vessels & motions that a former Age never thought of; (e)
And (f) yet the Divine goodness is admirable in this, that there is scarce any Man that hath the use of reason and will attentively (g) exercise it in the Consideration of the moral actions of his life, and that will keep a strict hand over his lusts and passions, and will curiously observe the secret inclination and voice of his Conscience but shall be directed to do that which is moraly good, and avoid that which is morally evil in the most intricate and complex'd morall actions of his life, tho he be unacquainted with the curious distinctions and definition (h) contained in the Writings of Casuists and Morall Philosophers, especially if he do humbly and sincerely implore the direction of Almighty God, whose secret wise and gracious advice will never be wanting to them that humbly and sincerely desire it, (i) and listen (j) unto it.
I shall not goe about to set down the particulars of these secondary or deducible Laws of Nature that may be ranged under this fourth distribution of /fol. 72v/ Natural Law's, for it (k) were too voluminous, (7) and besides my purpose but (a) shall proceed to the Enumeration of those Laws of Nature that are contained under the second and third head, namely such Principles or Conclusions as seem to be primo intuitu (b) [at first glance] evident in the Naturall Conscience or to it, or as many as I can remember or as occur to me: For I take those under the foregoing second and third head (c) to be the comon Laws of Nature, being equally obvious almost to every Capacity: But (d) those under the fourth head, tho they are or may be consonant to natural Law, yet in respect of their difficulty multiplicity and remotenes from those first Principles or neare Conclusions, I shall not range them, under this law of Nature, which is the comon Rule of a Law for all Men;
And I shall distribute them under those three relations, habitudes or ranks; 1. Such as relate to almighty God: 2. Such as relate to a Mans self; 3. Such as relate to other: (e) either in or out of the Bonds of Civil Societys;
[ I. Natural Law Relating to God ]
1. Touching the first of these; The Notion of Existence of (f) God or Supream Governor of the World, is not only evident by undeniable reason and natural Evidence, but (g) seems to be ingraven in the very Crasis (8) of (h) human Nature, and congenite with it and connatural to it; And (i) not only /fol. 73r/ so but there are also evident by the light of Nature, so very many of his Attributes, and especially that great trinary of perfect and infinite Power, wisdom and goodness as also his purity, holiness, Justice, omniscience, placability, beneficence, (j) truth (k) which are but so many branches of his wisdom & goodness: And besides there is a secret Consciousness in every (l) Man that all the things (m) in Nature had their Being from his power, their preservation from his Providence, their benefit and good from his Beneficence: These Notions are evident to be in the Nature of Man, and by the Experience of all Nations, by the testimony of the Apostles, (a) Rom. (b) 1.20. The invisible things of him from the Creation of the world are clearly (c) seen, being understood by the things that are made, even his eternal power and Godhead, so that they are without excuse;
And indeed this great Principle, is the foundation not only of all Natural Religion, but of the Obligation of all Laws, (d) hither they are to be reduced.
And altho in the particular determination of their Deitys, particular Nations differed and (e) affirming one thing to be God, another, another, yet they all in general agree in this Common Notion that there is such a being as (f) God, and that he is of immense power, wisdom and (g) goodness, which seemes to be a cleare indication, that the Notion of an Existence of a god is connatural (h) to the Common Nature (i) of Mankind; /fol. 73v/
And from this Principle thus stated in Nature, there do naturally and without any perplexed or difficult deduction fow all those ensuing Natural Consequences or conclusions which are so many Laws of Nature;
1. The affirmative or preceptive Laws of Nature necessarily and immediately resulting from hence, are (j) these that follow; 1. That there is to be a great reverence of mind towards this great and glorious God, this is the immediate Conclusion that ariseth in relation to a being of infinite Power wisdom and Goodness (k) and consequently of infinite Majesty, glory and dignity;
And this internal temper of the mind necessarily produceth the Signes thereof in the external deportment in all those external applications and addresses to him;
2. That he ought to be feared because of infinite power and wisdom able to discerne and recompence any neglect of him or disobedience to him, and because he is the Rector & Governor of the World and he upon whose pleasure all our good or evil depends.
3. That he is to be loved with a most intensive love, both because he is the most intense & soveraigne good essentially in himself and full of Beneficence to all his Creatures, especially to the human Nature, he is not only our Soveraigne (l) Rector, but also our greatest Benefactor;
4. And upon the same account the highest gratitude of soul is due to him which is the Natural Consequence in a reasonable nature toward (a) its Benefactor; /fol. 74r/
5. That he is to be rested, trusted (b) and depended upon because he is all-sufficient and full of benificence; And all things in the world have an essentiall dependance (c) upon him, as their Creator and preserver;
6. That he is to be adored, honored and worshiped, the principal parts of which worship consist in invocation of him, because our essentiall dependance is upon (d) him, his Allsufficiency, wisdom and Goodness and praise & thanksgiving, because he is our most bountifull Benefactor. (e)
That he ought with all humility and patience to (f) be submitt'd unto, without any kind of murmuring or impatience for he is not only the Rector and Lord of all things and all Men but a most wise and gracious Lord and knows what is fittest for us, as well to suffer as to doe;
7. That he is to be obeyed, because he is the Soveraign Rector of all things, and consequently not only endued with infinite power to exact obedience to his Commands, but of Most rightful and Just authority (g) to command, & that authority (h) grounded upon the most naturall reason that can be imagined, because he is a Soveraign Lord, and Proprietor of all things: all (i) things have their Existence and preservation from the Emanation of his own most free and soveraign Will;
And this Obedience is therefore not only due to his Natural Law, but also to his positive Laws & Institutions when Manifested to us, because they are the Commands of him that hath the absolute Dominion & just Soveraignty over Us: And because we may assure our selves that the most just Law-giver in the world will impose noe /fol. 74v/ unreasonable or unjust Laws upon us, but contrarywise all his Commands are like himself full of wisdom & Justice in themselves and full of convenience & benificence to his Creaturs; (j)
8. That consequently Mankind (k) ought to give all due diligence to know what his will is whither in such Laws as are naturall or in such as are positive that there by he (l) may answer the will of his maker with a suitable and acceptable obedience;
9. That in case of any deficiency in the part of Man in his duty, he endeavour by all those ways that can be reasonable to propitiate (m) his maker to obtain his pardon to reconcile himself to him which is no fruitles endeavour, because this placability is an essential branch of his Goodness;
10. And because after an Offence comitted it is impossible to make that to be infectum quod semel factum (a) est [undone which is once done]; And repentance which consist (b) in Sorrow for Sin comitted, and a frme purpose not to do the like, it (c) is as much as can be possibly done, as it were to render that infectum quod semel factum, for it is a returning into the way of duty & obedience therefore repentance after an Offence committed is a natural duty, or due by the Law of Nature;
11. And because the mind is the Man (9) and the will in Man is that, which gives the true value and Just denomination of all Moral Actions;
And because Almighty God is of infinite wisdom, and therefore knows the thoughts & purposes of the heart hence it follows that the Obligation of Natural Laws, layes hold not only upon the outward actions but upon (d) the very thoughts /fol. 75r/ and purposes of the heart and soul; and requires those sancti recessus mentis [out of a pure conscience] (10) as well as the outward confirmity of the outward Man;
12. And upon the very same reason in all that worship service and obedience which is performed by the Law of Nature, (e) sincerity and integrity is required: The Laws of Men cannot reach to those interiores animi affectus [inner affections of the soul], because it cannot discerne them (f) nor have cognisance of them, but Almighty God is of infinite wisdom searcheth the heart and his Laws extend to the deliberations, resolutions (g) and purposes of the minds, (h) because he discerns them, and gives his Laws primarily and principally (i) to them, as being the roots of outward actions and that gives the true denomination and modification of them;
And these are some of those preceptive Natural Laws which relate to Almighty God, as being immediate and necessary Conclusions without any (a) process of ratiocination resulting from the Notion of God; more might be added and many more secondary Conclusions deducible from them but these may give a Specimen of them, and the evident reasonableness or Naturall Consequence of them;
Now as to the prohibitory Laws of Nature they will appere by the preceptive, rectum est Index sui & obliqui [A straight line is the measure of itself and a crooked line] (11) the opposite of these preceptive Laws are such as fall under the prohibitory Law (b) of Nature and the unnaturalnes and unreasonablenes of these and the reasonablenes (c) of their prohibition will appeare by the reasonablenes & naturalness of those that I have mentioned as preceptive Laws of Nature. (d) I shall but name them. /fol. 75v/
1. Such thoughts or Practises as do tend to the abasing (e) of that naturall reverence due to God, or do imbase the Notion of it in the minds of Men, or as are unbecoming (f) the Dignity of God, such (g) are the common irreverent use of the Name of God, the imbasing of the Notion of the Deity by Images, Creature, Deitys and the like; this (h) tho the corupt Customs of the gentile world made (i) common, yet certainly it was against the due (j) reverence, due (k) to almighty God, and derogatory to his dignity, therefore excellently the Apostle (l) Rom. 1:21.22.23. (m) because when they know God they glorifyed not as God, neither were thankfull but became vain in their Imaginations, (n) and their foolish heart was darken'd & changed the Glory of the incorruptable God into (o) an Image made like a corruptible Man and to Birds and four footed beasts & Creeping things; And upon the same account the Multiplication of Deitys, especialy those that they supposed supream their Dii [gods] were not only things false in themselves but (p) derogatory to the true Notion of God who being ens summe (a) perfectum [supremely perfect being] looseth both his perfection and dignity by such partition of the Divine Nature & power into many distinct Gods;
2. Upon the same reason Maledictio Manus ... [the curse of the hand ...] of (b) his own perjury is prohibited by the Law of Nature;
3. Upon the same reason hatred of God, bold defance of his power denying of the Regiment of his Providence in this inferiour World presumtuous independance upon him or dispair of assistance from him, denying all worship to him or performing it coldly, carelessly or hypocritically /fol. 76r/ resolved, and presumptuous disobedience against his known Laws, impenitence after sins comitted; And (c) a loose and ungoverned habit (d) of thoughts & secret deliberate Motions of the will as being Under no Law, these and such of these are contrary to that Natural law given to Man that respects the Glorious God;
I have not named Atheism, for as I doubt whether (e) there be any in the World that are perfectly dogmatical Atheists, so if they (f) are, the error is not so much in their will as it is in their understanding & Judgment: But he that either beleives or but (g) suspects there is a God, & wisheth there were none that he might not be within the reach of his power, but might offend with impunity is a hater of God; (12)
[ II. Natural Law Relating to Oneself ]
2. I come now to consider those Natural Laws that relate to a Mans self;
And as before I observed, that the true Notion of God is the natural roote of all these Laws of Nature, that in special Manner relate to God: so the true Notion of the human Nature and the constitution and value is the true fountain of those Naturall Laws that relate to a Mans self, wherein there are those postulata [postulates] which almost all Mankind agree in: that are (a) necessary to be premised to this purpose;
1. That Man tho he have many of the facultys, Affections and Lusts that are common to him and the animall Nature yet he (b) hath a specifical dignity belonging to his Nature far more excellent then the common Animal Nature, namely his reasonable Soul: 2. That that reasonable Soul /fol. 76v/ of his is (c) immortall and dyes not (d) with the Body: 3. That that reasonable Soul ought to have the Regiment and Regancy over the Animal Lust (e) and affections, other wise in this (f) life he should have no prelation over (g) brutall or animal nature; 4. That altho there may be accidental or adventitious preferences that may Give one Man preference & prelation above another, or (h) sharpnes of wit, excellence (i) of memory, Learning strength or health or beauty of Body, power, Denomination, (j) wealth or the like, yet essentially naturally & in the specifical Constitution all Men are equall;
Now these Natural Laws that relate to a (k) Mans self, or are immediately deducible from the due consideration (l) of his Constitution, & frame are generally the Observation of those things that are convenient & suitable to his nature, and the avoiding of these that are contrary. (m) I shall mention some of the particular instances thereof;
1. That he use (n) all due and just means for his own preservation: This it (o) is true is common, almost to all natural beings, and appears signally even in the vegetable and animal Nature, every thing desires and endeavours its own preservation, both in its species and in its Individual, and therefore it is no appropriate (p) Law of the human Nature, because common allmost to every natural (q) being, & yet because in Man it is an (r) act or disposition of a reasonable Nature, (s) and of a voluntary Agent, it comes under the Law of human Nature and Morality; /fol. 77r/
And this Law of Nature brancheth it self into many particulars, as for instance, it is agreeable to the Law of (t) Nature to preserve it self with due moderation from injurys which is a debitum moderamen inculpatae tutelae (a) [due moderation of blameless defense]: (13) It is consonant to the Law of Nature to provide for the convenient Supports of life, in the moderate (b) provision of meat, drink, cloathing habitation: It is likewise consonant to this Law of Nature, to enter into Societys, (c) Capitulations of Peace, because this is (d) a convenient means of self preservation;
And on the contrary, these that follow are against (e) this Law of Nature, self distruction, exposing a Mans self (f) to needless danger, (g) denying a Mans self the covenient Suppleys and Suports of his (h) natural life; Idlenes & neglect of due industry, for the provisions i of the necessarys of life: aversation (14) from peace, and those necessary conducibles thereunto and diverse others;
2. There is a Law of self preservation that seems more appropriate to the human Nature, as being most reasonable and suitable to the Structure of his Nature, viz that the greatest care & indeavour ought to be, to preserve that part of Man which is of Greatest value, and to avoid that which may be most noxious to it, namely, his Soul, and (j) consequently by how much the Soul is more noble than the Body, by so much the more care is to be us'd in preserving it from that which will (k) most annoy and hurt it, namely, sin and iniquity: And consequently in equal /fol. 77v/dangers to the destruction of the Body l when both cannot (m) be avoided the latter must be rather tolerated than the former, we see obvious instances, of the like disposition. when a danger is eminent to the head n the seat of life and sence the hand that is not of that Moment or value, as o lifted up to receive the stroke to defend the head; It was a truth that the father of lyes uttered, Job. 2:4. (p) Skin for Skin and all that a Man hath will he give for his life; And by how much the more the Soul is more (a) valuable then the Body, by so much the more the life of the Soul is more preferable than the life of the Body: For what equall exchange can a Man give for his Soul [Matt. 16:26]; And therefore a Man is to choose to undergo the Death of the Body from the hands of a Tyrant, then (b) knowingly and deliberately to comitt a mortal (c) Sin against God;
3. From (d) the Consideration of the Dignity of the human Nature, it is a Natural Law for a Man to avoid all such things as do degrade or imbase it: And therefore drunkeness immoderate Eating, intemperance, (e) Luxury are contrary to the Law of Nature, not only because they are contrary to the Law of self preservation being the mothers of Diseases & Death, and contrary to the Good and Convenience of human Societys to the ends which (f) they disable a Man, but are contrary (g) to the dignity & honor of the humane Nature; (15)
4. From the same Consideration of (h) those things that (i) /fol. 78r/ carry in themselves an indecorum and undecency or turpitude are contrary to this Natural Law: Such are (j) immodesty, impudence, Obsenity of Language uncleannes vagus et illicitus concubitus obsceni ponderis propalam (k) et publice depositu, pudendorum develatio [irregular and unlawful sexual intercourse, bringing forth openly and publicly what is of obscene consequence, the uncovering of private parts], Lying, ridiculous and discompos'd gestures: Those seem to be contra decorum et dignitatem humanae naturae [contrary to the decency and dignity of human nature]. For tho those or some of those do in some sort relate to the 3 (d). rank of Natural Laws, namely such as concern others, And tho it may be true that in matters of decorum and seemliness, various customs & usages do much prevail in their specification and determination, so that that may be there by (l) a decorum in one Country, which by different Usages and Customes may be indecorum in another, or under varied Circumstances, yet certainly there is a certain intrinsick reverence that a Man (a) owes to the dignity of his Nature which must be observed (b) tho no Eye behold him, and hath its Decora which becomes it, and its indecora unseemliness (c) that do blemish and imbase (d) it, antecedent to any Law, commanding the one or prohibiting the other; Reverere teipsum (e) [respect yourself] is a Dictate of the Natural Law as was of that (f) wise Philosopher that injoin'd it to his Disciples; (16)
5. From the Consideration of the Dignity of the human Nature specifical and appropriate to itself ariseth (g) that Natural Law which requires that the due Order & Subordination of his facultys be observed, that the Regent Principle (h) in him namely his Soul and his reason preside /fol. 78v/ and Govern the inferior facultys, and be not commanded or governed by them, that he keep the reines of his passions and sensual appetite in the hands (i) of reason and moderate (j) them according to that Law of Nature which is the rule of his reason; because otherwise he doth not order himself neither (k) according to the dignity nor (l) order of his Nature, but inverts it, going as it were with his heels upwards, he (m) may observe in the Brutal Nature the (n) many of the same passions that are in Man as anger, revenge, hatred &c. in the irascible part; Love delight, Joy &c. in the concupisible part; and in the Brutes, these are excited and acted in the (o) animal Nature by a kind of necessary Connexion between the Object and the passion, that they excite and for the most part they exercise them as fully and as durably as the Object or the Phantasm thereof, abides (p) before them, for they are (q) under the Regiment of the superior faculty, but are but the various habitudes & motions of the animal appetite, which is the supream imperative faculty in the Animal Nature; (17) Again, their sensuall Motions of the same animall appetite touching Eating and Drinking and venery, there are two things observable; 1. That they see Men to be carry'd by a kind of naturall necesity towards their Objects; and therefore have rarely any thing of choice or deliberation (a) touching the decency or Seasonableness or Measure less then what answers the measure of their appetite; /fol. 79r/ because they are under no superior faculty, but the (b) appetite or Phantasy: 2. That yet the motions or tendency of the sensuall appetite, are so limitted that they rarely exceed the covenience or exigence of Nature, when a Brute hath eaten or drunk (c) enough he will take no more, and even in that impetuous motions (d) of the sensuall appetite in congressus venereos cum appetitus venereus nunquam (e) se exerit inordinate postquam femella impletur, nec mas coitam (f) solicitat nec femella patitur (g) [in sexual intercourse never exerts itself inordinately with sexual appetite, as after the female is fulfilled, the male neither incites sex nor does the female suffer it]. But in the human Nature the passions and sensuall appetite are but inferior facultys, and in their just state and exercise subject to the Empire of the will, at least as to the measure Manner, time, season and other Circumstances of its exertion.
And when this Subordination and the Exercises thereof, are but suspended; Man is under a double Offence against the Law of Nature that imbaseth and degradeth himself from the dignity of his Nature to a brutall life; (h) 2, And not only so but the very advantage of his reason when prostituted to the Empire of his lusts and passions, makes him ten times worse than a brute, for the position of Nature being thus inverted becomes wild unruly and by so much the more disorderly but how much the more (a) it hath the advantage of reason to assist him in these disorders: And hence (b) it is, that whereas the passions (c) of anger in a beast never ariseth to malice or envy, nor the passion of Love (d) in a Brute never (e) /fol. 79v/ariseth to frenzy nor the Lust (f) of the brutal (g) appetite is inordinate but (h) is satisfyed within the bound (i) and Limits proportionate to his Nature: A Man on the other side whose Lusts and passions are once out of the regiment and discipline of reason becoms prodigious in his passions and lusts, improves his passions of anger & hatred into malice and envy, his Passion of Love into frenzy invents enormous and unnatural Lusts & becomes insatiable in them: So that it happens with reason displaced and the Natural Order of the facultys of the reasonable Soul inverted; as it happens by the extravasation (18) and displacing of the Animal Spirits in the Body from whence arise Spasms and Convulsions (j) & distortions and those terrible Symptoms that wholly disorder the operations & beauty of the Body and mind;
By which (k) it appears that the keeping up of the Regiment of the reasonable Soul over the passions, and Lusts of the animall Nature, and the subduing of them to the Law of reason is (l) part of that Law of Nature which conserves (m) the dignity and order of the human Nature;
6. And upon the same account those distempers of the Soul that arise from the want of regiment of the passions, like diseases that rise (n) from the putrefaction of humors are contrary to this Natural Law as malice that ariseth from the putrefaction of /fol. 80r/ anger: Envy that ariseth from the putrefication of anger and self Love; (o) Pride that ariseth from the overvaluing a (p) Mans self, and from the putrefaction of self Love, Covetousness (q) that ariseth (r) from the putrefaction of distrust and self Love; Ambition vainglory and those other diseases of the Soul that ariseth (a) principally from the putrefaction of passion (b) the neglect of the Light Law and guidance of reason and the mistake of the worth and value of things are (c) prohibited by the Law of Nature upon a double account: 1. Because they are not suitable nor covenient to the state of human Nature, because they discompose and disorder it, makes it loose its peace and tranquillity and are directly contrary to the Law of self preservation in respect of the whole Compositum (d) [composition] for they naturally tend to its dissolution, and in respect of the nobler part of the (e) Soul wherein they are as so many Ulcers, Cankers and Gangreens. 2. Because they are contrary to the dignity of the human Nature, because they dispose (f) and degrade reason, and put the human Nature below its dignity, nay below, the Very State of the Animal Nature. (g)
7. By the same Law of Nature all those (h) habits & temperaments of the mind that enoble and advance the true dignity of the human Nature or (i) commanded by this Law of Nature, especially, such as promote tranquillity /fol. 80v/ of mind and all those contrary habits or dispositions that interrupt or hinder it.
And tho all vertue conduceth to this End, and all vices are Enemys to it, yet there are two habits or temperaments of the mind, that do most directly and naturally procure it, and their (j) opposites do extreamly interrupt and hinder it, namely 1. Contentation with that Station and Condition of life and (k) Externals, which the Divine Providence allots: The contrary whereof namely murmuring and discontent like the worm at the root of Jonas gourd gnaws asunder the tranquillity of life [Jonah 4:6-7], 2. Patience under pains or affictions, The contrary whereof impatience and tumult of mind creates more disorder and troble then the affiction brings;
1. (l) The Law of Nature tho it commands the Conservation of the Dignity of human Nature, yet it (m) commands humility & lowlyness of mind (n) and forbids its opposite (o) namely Pride and haughtines, and the unresonablenes of the latter, discovers (p) the great congruity and suitablenes of the former to the human Nature;
For Pride is not only one (a) of the greatest Enemys to tranquillity of mind that can be, for it is restles never long pleased, always contending for what it would have, fretting & vexing if disappointed, and not satisfyed when it attaines;
And besides is (b) an unreasonable disease of the mind since by Nature all Men are essentially equal and that which gives the discrimination and prelation of one Man above another, whither it be excellence of parts honor, wealth, power are things that we have (c) not from our selves, but by the gift (d) of God or the collation of others, this one question what hast /fol. 81r/ thou which thou hast not received [1 Cor. 4:7], doth render all pride & haughtines (e) unreasonable;
And thus far concerning those Laws that relate to a Mans self which tho in many respects they may in som degree concern others, yet they principally concern a mans self (f) and come under that common vertue of Sobriety;
[ III. Natural Law Relating to Others ]
3. Therefore (g) I come to those Laws of Nature that concern others, which is righteousness (h) or Justice and these are of three kinds. 1. Such Laws of Nature that (i) primitively and antecedent (j) to the institution of Civil Government, and (k) abstractively from it considered; (l) 2. Such Laws of Nature as seem to be directed and ordain'd in order to the Establishment of civil or political Government: 3. Such Laws of Nature as are in order (m) to civil Government already instituted and settled;
[ III. A. Natural Law Antecedent to Civil Government ]
1. Touching the former of these it seems most evident that there are certain natural Laws antecedent to the institution of Civil and Political Government which did bind mankind and do bind to (a) this day abstractively considered from these politicall (b) Civil Constitutions. (c)
And herein I shall suppose as unquestionable, and indeed not within the verge of the present question that all those Natural Laws that relate to almighty God, or immediately to a Mans self, did unquestionably, bind Mankind without relation of (d) any Constitution of civil or politicall Laws or Societys, (e) for we are not to suppose that the wise Lawgiver of the world should be so deficient as not to institute some Laws or rules for human Nature suitable to that state wherein he stood: 1. For (f) the human Nature was well enough /fol. 81v/ capable of such Laws or Rules tho Political regiment in the World had never been instituted;
Therefore the Enquiry must proceed touching those Laws which relate from one Man to another;
And as to these it seems to me unquestionable that as to such moral actions relating to others which had in them an intrinsick congruity to the human Nature or dissonancy from it where of that state was capable: But that (g) there were and must be necessarily (h) suppos'd such moral or Natural Laws as such a state was capable of;
For there is no Man that doth acknowledge a Deity & that (i) Deity governs (j) all things by his providence, and that he is a most wise being and orders every thing to suitable Ends by suitable Means, but must needs acknowledg another Regiment of the world, then that which the Laws of Man have made; That (k) tho there were no human Monarchy Aristocrasy or Oligarchy (l) settled in the World, yet there would be the Divine Monarchy or Theocracy to the due administration where of there would be a necessity of Laws, for the regiment of the reasonable Nature;
And that altho there were no instituted human Government or Laws but Men were in that natural state wherein they were propogated into the World, yet even in that state there would be some things iusta, honesta, and decora & some things iniusta, inhonesta and indecora: (m) every thing would not be lawfull to every Man, and that Imaginary state of warr, where in every Man might lawfully do what he thinks best without any Law or Controule is but a Phantasy, or if it be admitted, it must not, cannot be supposed as the /fol. 82r/ just state of Nature, but as a Disease disorder & corruption in it. (19)
And I shall instance therefore such Natural Laws as are obliging in the state of Nature antecedently to any settled government among Men by mutuall (a) Capitulation or Consent.
1. That great Natural Law of fides est servanda, keeping faith and pacts, did as forcibly bind, tho there were noe external human Power, settled as it did after such human Government settled; for 1. It included the same congruity to intrinsick Naturall Justice for a Man to keep his Contract before human Government settled, as well as after the Institution of Coersive, (b) which only added an externall power of the exacting of the fulfilling of it; 2. Without the supposition of this truth it were impossible to maintaine the Obligation, either of human Laws or government that should be established by such pacts and promises, because such Pacts, and promises must necessarily antecede (c) the institution of such Law or Conventionall (d) Government, And therefore the Obligation of such pacts must needs be suppos'd antecedent to the Obligation of Government, and to be at first made in that state, which those Men suppose to be a State of Warr; 3. If it should be otherwise, there should no Obligation arise between Supream Princes by their promises or pacts, because neither is under the Law or government of the other, but stands as in relation one (e) to the other, as men are supposed to stand in the imaginary State of Nature, which they call a State of War: And such a Doctrine as this, would put the World into Combustion;
2. The Consequence whereof, is, that if in this state /fol. 82v/ of Nature; A. should contract with B that B. should have those or these Goods or this or that Portion of Lands, (f) though there were no other externall Law or Government in the World to enforce A de non contraveniendo hinc contractus (g) [regarding an irrevocable contract], yet by this Law of Nature A. were obliged thereunto;
3. There be some things in the world that antecedently to any contract or pact a Man hath an undoubted property in, that may not be (a) without natural injustice and violation of the Law of Nature be causelesly invaded by another, as every Man hath an unquestionable property in his own life, and in his own self; And therefore if for the purpose A gives himself up to the propriety of B. as in Matrimonial Contracts, and Contracts of Servitude as A. may not contravene his own Contract without violation of the Law of Nature, soe neither can C between whom and B. their intervenes no Contract devest B. of such his possession or property because it is given up to B. by him that had the full dominion or propriety (b) of what he so gave up, and the like is to be said touching the propriety that a Man hath in his Children; (c)
4. Consequently antecedently to any pact or Constitution Civil, no Man may take away the life of another, or do his Body any corporal injury without a Just Cause, without the violation of this Natural Law: and upon this stands the Natural Law against (d) Murder: I say without a just Cause, for there may be a Cause to take away anothers life as in case (e) of self defence, (f) cum debito /fol. 83r/ moderamine inculpatae tutelae (g) [with due moderation of blameless defense]: But it is not an imaginary (h) cause that either hath no (i) reality in it, or that ariseth not to that height as naturally to justify it, that can make such bodily injury Justifable by the Law of Nature, for tho there be no Terrene (20) Judge or Governor to punish it, yet that no more makes the thing lawfull, then the most unjust action under Heaven, that by the Power of the party comitting it, renders it (j) de facto unpunishable; (k)
5. Upon the same reason the violation (l) of another Mans wife adultery is against the Law of Nature, tho no pact intervened between the adulterer and the husband, because the Husband hath a propriety in the body of his wife, by the matrimoniall Contract which was in her power to give up and is well transfer'd to her husband;
6. And upon the very same reason, and by the same Law of Nature, C. may not take away the Servant of A. which is made his by the Contract of the Servant who had power to transfer the propriety of himself at least temporaly (a) to A.
7. And upon the same reason it is against Natural Law for C. to take away the Child (b) of A. while they are sub iure parentum [under the right of parents] because they are naturally and iure Naturae [by right of nature], the goods of A. antecedently to any Contract;
8. As touching the right of propriety that any Man in (c) the state of Nature and antecedently to any Contract or Consent touching (d) translation or acquisition of particular property, the Question seems more difficult; because most of the methods of acqusition of property seems (e) to be by institution tho (f) /fol. 83v/ possibly much may be said to maintain a secondary Law of Nature for the acquest of property by the first possession or occupation, because that in as much as before the institution of the Laws of property it is admitted, that all have an equal right to all things, the Man that hath acquir'd the first possesion hath some what (g) superadded to that primitive right in common, that puts him in a better condition, than any other & to his interest in common, there is superadded somewhat by his industry that another hath not namely a prior possession; And the same may be said in reason of such acquisitions that are made by Art or industry whereby the things so acquired are in some kind become his Effects as by planting, Semination Culture, artificial (h) Manufactures and the like;
Yet to avoid all disputes of this Nature, I will suppose that in the state of Nature all things are common and that antecedently to civill institutions, where by the Rules and Laws of Property are settled, there is no means peculiarly to appropriate any thing to any Man: (This tho it be a difficult Supposition I shall argumenti gratia [for the sake of argument] at present admitt) Yett I say in that (i) state of Community there are certaine rights of Natural Law and Justice instituted by almighty God and obliging every Person of Mankind;
For I do suppose it unquestionable that the originall Dominion and propriety of all things is in Almighty God; (a) And that he hath given the profitable use of all things in this lower world to mankind, (b) terram vero dedit fliis /fol. 84r/ hominum [truly he has given the earth to the children of men] [Ps. 115:16]: And now suppose that he gave it promiscuously to Men as they should (c) be born in the world in common, without any particular Laws of property, yet certainly in that state no Man hath a right totally to exclude another: for if every Man hath (d) a right in that state of Community, no Man can Justly be (e) excluded by another from all participation of that right, without the violation of that right that was in that state of Community or Nature which was common to all; (21) For instance, if I am Justly intitled (f) by the Laws of settled property at this day unto a piece of Land and give it to A. B. and .C. tho neither of them have a distinct or seperate propriety in this or that Acre, yet it is most certainly a wrong and against Natural Justice for A. wholly to exclude B. and .C. from any Portion of the profits; (g) tho the settled Laws of England give them not any remedy by action against (h) him that takes the whole profits;
So in that state of Nature in as much as every Man hath a right, the rule of natural justice forbids any Man to usurp (i) the whole, because it takes something from him that is agreed of all hands to have a right as well as himself tho not determined in the particular quantum [amount];
But it is true that even in the reason of Nature, in that (j) state of Community, there may be differing reasons of proportion or inequality, (k) he that hath Many Children hath reason to have a greater Share thereof then he that hath None; But when in that state of Nature antecedent /fol. 84v/ to the institution of property de facto, there might be, and was sufficient for all acording to the exigence of their condition (l) (as there was of the Manna that fell among the Israelites) it is against Natural Justice, that he that might have & had enough proportionable to his state & condition should wholly exclude another from all which had at (m) least an equall right to so much as answer'd his condition;
Again even in that state of Nature that Law or rule of Naturall Justice obtained and was equally applicable to that condition of indeterminate property, as is real or might be to (a) a state of Civil Settlement, namely, not to do to another what a Man would not have done to himself; And therefore if in that state of Community, that Man that without any reasonable or Just Cause, invades the whole, and excludes another; would not be so served himself he gives Judgment against himself as an invader, of that rule of Naturall Justice, which is applicable, even to that state of Community. (b)
Again that Law of loving a Mans Neighbour, is a Law of Nature given by God indistinctly to Men under any condition, whether of comunity or seperate interest: This our Saviour excellently instanceth in the Parable of the Jew that fell among Theeves, that (c) was releived by the Samaritane, not only as an Act of Beneficence but of Duty goe thou and do likewise [Luke 10:37] tho there was no intervenient Law, nor so much as any common Commerce between the /fol. 85r/Jewes and the Samaritans.
And it is (d) true, the specification of those actings of this Command of Loving one another be (e) various according to variety of Circumstances, & therein receives a great determination, even where civil institutions are settled by the secret guidance of the Judgment and Concience, yet (f) it is most certain that it is a Law of eternal rectitude and righteousness & given out by the Soveraigne Lawgiver of the world who did, & most Justly might equally oblige all Men in that state of Nature, by his Naturall Laws, as well as in a (g) state of Civil Settlement. (h) For the Obligation of his Laws, especially those that are Natural, respect Men as his own Subject, (i) whether under any settled form of Civil Government, or in the state of Nature antecedent to it, And it (j) had been clearly an evident breach of this (k) Law of Mutuall (l) Love, even in that (m) state of Comunity to have deprived another of the whole benefit of those necessarys for his life wherein he had a common Share by the consession of the Lord of the whole Earth, without any Just Cause for him so to do;
But the Objection is made that there may be a just Cause for one Man in the state of Nature to deprive another, not only of his common Share in that comon interest that every Man hath (a) in the things of this World: And if there may be such a (b) Cause it must necessarily follow (c) that every Man is naturally the Judge of that Cause, and of the reasonableness of it;
I answer, it is true, first that there may be a Just Cause in that state of Nature, (d) for one Man to invade the comon interest that another may have, yea, and to take /fol. 85v/ away the Life of another: And so there may be also even in a state of Civil Settlement; And to omitt that disputed Problem, whither in casu extremo necessitatis omnia sunt communia [in the extreme case of necessity all things are common]; (22) a Man may cum debito moderamine inculpatae tutelae (e) [with due moderation of blameless defense], as in case of a (f) necessary defence of his own life, not only temporarily (g) take away those weapons, which an Enemy hath whereby the others life is indanger'd, but may also take away the life of his Enemy, if he cannot otherwise save his own, and (h) consequently if that Natural Law of self preservation cannot be other wise observed, nor a Mans life preserved, (i) or if another Man in that State of Nature doth wrongfully invade my possession, first (j) then indeed we are in the State of War, and what by the Just Laws of War may be don, may be justifed in such a Case; Secondly (k) antecedently to civil government settled, there is no external Judge but a Mans self of what is a just or reasonable (l) Cause to invade another Mans life or to deprive him of his common interest in the things of this (m) life, because all Men as in relation to themselves are equall;
But in that Case he Judgeth at his peril and if he doth either wilfully and presumtuously or erroneously and mistakenly Judge amiss if he entertaine a vain fear or suspicion, that unless (n) he invade the other, the other will invade him, and thereupon Judgeth it expedient for his safty to be the agressor doth (o) not truely justify such an action: For 1. the Law of Nature by which he is bound not to commit (a) any unjust action, is not therefore (b) dispenced withall, /fol. 86r/ because there is no other temporall Judge to punish it; or because a Man mistakes in his Judgment, for it is an intrinsicall Obligation, other wise, it were impossible for an absolute soveraigne Prince to do (c) any thing intrinsecally unjust because he hath no superior power on Earth to Judge him, 2. Even in that state of Nature, there is a Soveraign (d) Lord & Judge who hath given this Law of Nature, by the most Just reason and authority imaginable, hath (e) authority to give it, and power to exact (f) conformity to it, and to vindicate the breach of it; when there were (g) but three Men, that we read of in the world: (h) And Cain took an Offence at his Brother & slew him; God Almighty sends him not to (i) the parental Government of Adam; but convents himself: (j) And tho there were no other Law in the world that we know of, there was then a discrimination of good and evil, and Divine vengeance for the one and reward for the other; Gen. 4.7. (k) If thou dost well shalt thou not be accepted, (l) and if thou dost not wel, Sin lyes at the Doore. (m) And it had been but a pittiful answer for Cain to have said we were both iure parentis emancipati [freed from the right of the parent], and there was no Law intervened between, (n) but we were in a state of war, and I was a competent Judge what was ft for me to do to my Brother;
And therefore, it is but a mere fancy a pleasing imagination that some men have taken up and made much of: & built goodly and fine Consequences upon: That the State of Nature antecedent to Civil Laws or government is a State of War, and that therefore whatsoever a Condition of War, /fol. 86v/ renders (o) Justifable, is justifable in the State of Nature; The falsness of which Supposition (p) appears in what follows; (23)
1. The state of Nature, is realy, and in its Nature a state of peace, under the Obligation of duty (a) to the great Soveraigne Rector of the World, which is (b) God of peace, under the Obligation of the Laws of this Soveraigne implanted in Nature which are Laws of Love and Naturall Justice;
And if they fall into a condition of war, one with another, it is not (c) connatural to the state of Nature but accidentall a Disease & disorder in the Nature of some, at least of Mankind, and to measure the state of Nature by the disorder of it, we may with as much reason conclude that intemperance cruelty & villany is the Law of Nature, because many are of that distemper;
2. It is plain, that antecedently to any positive institution the frame of human Nature, tends naturally to Society, & the law of Society and tis a vain thing to say, this ariseth from fear, for we may see this propension grow up even in Children and from them, so that it is rightly observed by the Great Philosopher, that Mankind are more sociable (d) then Bees even upon a kind of naturall propension; (24)
3. It is a mistake in fact, that there is no (e) medium between a state of warr and a state of Peace, so far forth as peace stands established by mutual pact and contract;
There is a state of peace established by mutual tongues, (f) contracts, (g) or stipulations which is varyed (h) according to the variety (i) of the Capitulations, (j) some are of mutual defence, some of simple friendship.
Again there is a state of war, which some time (k) is solemn with a solemn denunciation going before it, sometimes it (l) /fol. 87r/ hath not that solemnity, but Men or people fall into an actual hostility either by occasion of some Dammage don by one to the other, or by some other provocation or Jealousy happening between them;
But there is a Third State either between Man and Man or Nation and Nation, which hath neither the superinduction of a Capitulation or Contract to make it perfect peace, nor any hostility between them either denounced or begun, which at its best or highest advance is a mutual commerce (a) or intercourse as there is between the English and the Persian or Indian at this day, or at lest a (b) bare (c) negation of war or hostility according to the ancient Roman Law; si cum gente aliqua neque amicitiam neque hospitium neque foedus amicitiae (d) causa factum habeatur, hi (e) hostes quidem non sunt [if with any nation there is neither friendship, nor hospitality, nor an alliance made for the sake of friendship, they are certainly not our enemies], (25) and tho the corrupt Customes of some Nations permitted Pyracys & Robberys to be committed between them, yet they were always blamed (f) and stiled by the Name of Latrocinia [brigands].
And this was the true state of Men in nature (g) out of the extent of paternal government before the institution of Civil Society, neither perfect peace settled by Contract nor War, but a state of mutual intercourse and commerce, or at best or (h) worst a state undetermined to perfect peace or plaine hostility, and rather tending to the former, then to the latter, so that the affirmation that the state of Nature is a state of war, is but only a pretty phrase taken up and pleasing to the inventers of it, then (i) any thing of truth or reality in it;
9. (j) Again the paternal power of the (k) Children dureing /fol. 87v/ their minority, and while their dependance is upon the Parents, is a right settled in the Father by the Law of Nature, and accordingly was in use till civill and political Government (l) established in the World;
10. Again by the very Law of Nature there is a secret Obligation of gratitude to him from whom I freely and without reciprocal contract receive a benefit, and this held as well in the state of Nature as after the institution of Civil Government neither hath the institution of Civil Government (m) or any Laws induced, thereby alter'd this Obligation, for tho the Law of gratitude (a) be most certainly a duty by the Law of Nature, yet it stands as it then was, no Law that I know of, having made it compulsary by any Civil Action, but it is (b) as it stood before merely as a Natural Law (c) obliging in foro interiore (d) [in the inner court].
And thus far touching (e) those Laws (f) that are Natural, yet applicable to that Natural State which may be supposed antecedent to any politicall or civil Law's or government;
[ III. B. Natural Law Preparatory to Civil Government ]
2. Therefore I descend (g) to those Laws of Nature which are preparative, and in order to the attaining of civil or political Society;
And previous to this Consideration, we must premise that as the frame and order of the greater world was not digested into that comely and usefull Constitution that is still observed by Chance or Casualty (h) (26) so neither did the frame and texture of the lesser world, Man, come together by Casualty (i) or Chance but by the most high Wisdom of the most wise God, And as thus the contexture of the human Nature was the Contrivance of the most soveraigne (j) wise & intelligent /fol. 88r/ Being so all (k) the propensions, inclinations & common tendencys of the human Nature and the adaptation (l) of all his facultys to their suitable Objects in order to the well being of Man, were all ordained dispos'd and placed in that Nature by the same wise intelligent being; who foresaw all his works from the begining and knew what was most (m) convenient for the human Nature in all the various ages & circumstances of his being;
In the first ages of the world, the people were few, long lived and that natural regiment which was (n) lodged in the parental power, might possibly serve that infancy of time: But Almighty God, to whom all his works are known from the begining [Acts 15:18], easily foresaw that as people were multiply'd there necessary in order to the well Being of mankind that (a) political externall regiment and Laws would be necessary for the well ordering of Mankind: And that without it, those Laws of Nature tho sufficiently obliging to the human Nature without any positive or (b) human institutions would be usurped upon by the prevalence and Lusts of Men, did (c) therefore partly by the propensions and inclinations of the human Nature, partly by the exhibition of the reasonableness of things to the understanding (d) of Men, bend them to Coalitions into Civil Societys and Laws, as being admirable (e) congruous and suitable to the wel being of Mankind: And these are those Natural Laws, which come now to be consider'd (f) preparatively and (g) disposing to civil regiment & society;
1. Therefore there is in the human Nature a natural /fol. 88v/ propension and Love of Society which is highly improv'd by the reasonableness and usefulness thereof to his (h) well being apparent to his reason and understanding, This the great master of Observation and Learning in the first of the first of (i) his Politicks observes to my hand, wherein after some instances to this purpose he concludes ex quo patet sociale animal esse hominem magis quam omnes apes et omne gregarium animal nihil (j) enim Natura frustra facit [From which it is clear that man is a social animal more than any bee or any gregarious animal, for nature does nothing in vain], (27) two things are observable herein, namely 1. That there is a natural propension in Man to Society, even antecedent to any discursive operation of the mind: And 2. That this is no casual incidence in the Nature of Man, but an instituted Charector, imprinted upon that Nature which appears by this, that by the advantage of speech, and instituted Signes (which no Creature besides Man is capable of) he is adapted and fitted to that sociability that his Nature is inclined to; The ordering of any thing to the use of another being the greatest Evidence (a) of such an Agent that works by intention and intellect; And (b) therefore this natural propension thus accomodated with the faculty of speech so singularly apposite (c) thereunto was the work of the great and (d) wise and intelligent Being;
And therefore it is but a narrow and weak conjecture that feare was the primum Movens [prime motive] of Man to the entring into Societys, (28) since it is apparent that this natural propension placed in Man is antecedent /fol. 89r/ not only to the actings of the passions, but in some (e) measure antecedent even to any act of deliberation (f) of the mind;
But besides this natural propension which is the primum movens to Societys, there is something that seconds and inforceth it, namely that congruity and convenience which renders it usefull and beneficial (g) to the human nature, and is so presented to the Judgment of reason; first (h) it gives a Man security against his fears of injuryes from others by the mutual association, confederacy and united strength of those of the same Society, but this is not all (i) nor indeed an (j) half of the reason and reasonable of Society, and therefore they do look but half way that make fear the only or principal reason of Mankind (k) affecting Societyes. 2. Therefore (l) there is a further advantage namly the mutual communication and participation of one Man in that good that he wants, and another hath or hath in greater abundance, for Nature hath so order'd the several states and conditions of Men that one Man stands in need of what another hath, and this creates necessitude between one Man and another, and by this disposition of the Divine regiment of things, there is a Mutual necessitude and indigence of mutual Offices between Man and Man, one Man hath more wit, another more Courage, another a (m) good Naturalist or Physician, another a (n) good Orator, one dexterous (o) in Mechanicks of one kind, another of another; /fol. 89v/ And the advantage of Consociation (p) makes the Communication of the good of (a) one to another more ready, facile and usefull, and by this meanes one Man is (b) as it were mortis'd into another and contiguated (29) by the comunication of offices and supplying of wants each of other; (c)
2. By the same propension and the consonence also of reason, (d) distinction of propertys, for tho the full complement of settling of propertys and of the Laws for the acquiring & translating, was not fully obtain'd or regulated til government settled, yet it is plaine that the distinction of property (e) began early in the world, and that by a kind of natural congruity and propension to which men were inclined, without any great process of ratiocination: And the reason of the thing gave in it self a great Suffrage to it. 1. The great inconvenience and disturbance that must necessarily grow upon an indistinction of propriety. 2. The distinction of property ingaged mens industry for no Man would take pains for that wherein another should be participant that took none, neither would any take pains for that which he might equally injoy (f) without the derogation of it, and so the habitable world would run to disorder and confusion, and never be improved for the advantage and supply of the increase of Mankind, because there would be no necessity nor incouragment in it, which would be a detriment to the beauty and usefullness of the World and (g) to the common disadvantage of Mankind: And (h) /fol. 90r/therefore Plato's Community hath been deservedly (i) rejected notwithstanding the reputation of the Author (30) because in the frame of it, pernicious to industry, and consequently to the human Nature, which is advanced and improved by industry, and would like a standing Water putrify without Motion;
3. By the same preparatory Law of Nature, is the propension of (j) the Institution of Government in a Society: And hence it was that among those praecepta (k) Noachidarum, that de Iudiciis [regarding judges] was one, which was no other then a comand of institution of Government, and this is (l) upon those two grounds formerly deliver'd, there is a kind of natural propension in the human Nature, to have some imperative and coercive power lodged in the Society and tho the various formes of that government are not (a) determinate in Nature, yet the generality of Mankind have most of all fix'd in (b) monarchial government as most resembling the regiment of Almighty 2. The reasonableness of Government is apparent; for as a Society much contributes to the peace and good of Mankind, so government is the Bond of Society that holds it together, & (c) without which it would be imperfect to its End, and soon fall in sunder by factions, and that popular argument of the Equality of Mankind by Nature: The (d) Ends of Society would faile, and the Nerves and Ligaments which hold it (e) together would be cut a sunder;
4. By the same preparatory Law (f) the reasonableness /fol. 90v/ of institution of Laws for the government of a Society are (g) apparent: For. 1. there would be no sufficient externall terror to keep from evil, because the penaltys which are Naturall to Laws would not otherwise be known nor publick. (h) 2. without such Laws there would be no certain external Rule whereby the Governor or Governed should order (i) themselves; Either the Government of the Governor would (j) be arbitrary & uncertaine or else none at all, and the Govern'd would (k) be at a loss how to walk and order themselves or their actions, but of this hereafter;
And thus far (l) for those Laws of Nature that are preliminary to the institution of civil government or Laws.
[ III. C. Natural Law Subsequent to Civil Government ]
3. Therefore I (m) come to those Laws of Nature, that obtaine after politicall government and Laws established: And herein I shall be very breif, not intending a Discourse at large of Politicks, or human government of (n) Laws, for that is besides my purpose and would be too large a Subject for this time.
And these Natural Laws that abstractively (o) belong hereunto, are very few, because notwithstanding the institution of civil or political Laws and government, all those Laws of Nature whereof before still obtain and retain their force and obligation, and therefore it were but vain to repeate them over again;
1. First (a) therefore the great Law of Nature, upon which all civil or politicall government and Laws are built, and wherein the strength and stability of them among men consists, (b) it is this great Law of Nature fides est servanda: for this being that Law of God which we call Natural is fixed in Nature obligeth /fol. 91r/in Conscience and renders all human government Laws Contracts and promises reductively and consequentially under the Obligation of the Divine Laws (c) of Almighty God;
And this fides is either express and verbal or implicite and by way of reasonable interpretation;
Expressa fides is that which is given expressly as when people enter into a mutual Society or Confederacy (d) one with another, when they set up a government and oblige themselves to obey it, when they either make Laws by common Consent among themselves, or transfer that (e) power to some person or Society among them, and oblige themselves to be obedient to them, when one Man contracts with another gives to another his faith or promise to do, or not to do this or that thing, here tho the mater of the contract or agreement and the formality of its Constitution be human, yet when it is made the Signature of this Divine Law of almighty God, is set to it, servabis (f) fidem [you will keep faith], and consequently tho the Breach (g) of such faith, as to the matter of it be of some human contract or institution, yet in relation to this Signature that superadds the (h) stamp, value, and authority of Almighty God unto it, (i) is a breach of his (j) Law;
Tacita or implicita fides, when (k) a Man that was not the first party to the Contract, but comes in after and list (l) himself under that Society that was at first ingaged in this faith or that by succesion of new pacts and capitulations hath been bound to it, comes into a City Kingdom or Common wealth and participates of the benefits and ad- /fol. 91v/ vantages thereof, he (m) is tacitely obliged in the same manner as the rest of the Society is obliged, namely to keep their Laws & support the Government and to the common assistance and defence of the Society (a) wherein he Lives;
And to this head I may referr the matter of veracity, or speaking truth and avoiding lying, especiall (b) in matters of accusation, testimony and reports; certainly veracity or speaking truth from the heart is a dictate of human Nature, it (c) is suitable to the honor and dignity of the human Nature, and lying is unseemly base, and an (d) argument of an ignoble and impotent mind. 2. Nature having given to mankind the common Use of Speech to render themselves and (e) comunicate each with other, (f) there is a kind of common Obligation runs thro the whole human Nature to observe that power or faculty considerable (g) to its end and institution.
And certainly the supervenience (h) of contracted civil Society superadds a further Obligation for men to speak truth one to another, the contrary whereof is lying and deceit and to speak truth one of another, the contrary whereof is false witness both which (i) are extream violations of Civil (j) Society, & that comon faith that every one either expressly or implicitely gives to (k) other to speake truth (l) and not to testify (m) or affirme falsely: A Lye or false testimony being a breach of Faith touching a thing to be known, as a breach of contract, or promise, is a breach of faith, touching things to be done;
Secondly (n) but since the duty we owe to God as the Supream Lord of all things is greater and prior to the duty /fol. 92r/ we owe, or can owe to human (o) Government, and since the Obligation to the Laws of Men or civil Societys is subordinate and inferiour to that Obligation to the Laws of God; whether naturall or positive, therefore in all that faith between Societys or the Governors and Govern'd for the observation of such (p) there is tacitely implyed salva fide et ligeantia Deo debita [without violation of faith and allegiance owed to God], and therefore a Man is not bound to offend God by the active obeying of the Comands or Laws of Men but then let him look to it at his perill, that he hath a good warrant to Justify him in the Sight of God, for other wise his disobedience to the human Laws of Men is violatio fidei [a violation of faith], which is against the Laws (a) of God;
Thirdly, (b) but even in that Case tho in the Contradiction of the Laws and Commands of God, and of Men, there the Obligation activ'ly to obey the latter, is taken away yet according to the ordinary Constitution of Government a Man in such a Case (c) is under the Obligation of Non-resistance & passive Subjection: For tho the Governor that imposeth a Law contrary to the Law of God and punisheth for not observing it breaks the duty he owes to (d) God by comanding things contrary thereunto, yet the Subject offends no Law of God or Man in suffering and (e) not resisting and as he observes the duty he owes to the Supream Soveraigne (f) of the world, in not yeilding an active obedience to the unlawfull Commands or Laws of Men, he also observes the duty he owes to this Natural Law, which is the Law of God fides est servanda /fol. 92v/ For tho an active (g) obedience in such case be tacitely except'd, (h) yet a passive Subjection even in those Cases, is not excepted but injoined by vertue of this Natural Law fides est servanda;
And this stands with natural reason, and the convenience of human Societys, (i) without which confusion and dissolution of government would insue. (j) For every Man would thereby be put into a condition not only to dispute the Lawfulness of every thing commanded, but also the power and authority of Laws in inflicting punishment in whatsoever they should Judge not Lawfull, wherein every Man would be a Judge of the Lawfullness of the Comand the Lawfulnes (k) of inflicting the penalty and consequently of (l) the Lawfulnes of resistance when and how he please;
And thus I have run thro some Specimina Legis Naturalis [examples of the natural law], I take not upon me to give an exact Catalogue, or System of Natural Laws, I know I have omitted many, as namely Charity, Compassion, remitting offences upon repentance for injuryes Longanimity, Clemency the various partitions (m) and instances of distributive and commutative Justice; together with the various temperaments of them, my designe was not to pursue all the Capita Legis naturalis [heads of the natural law], but to give such instances to make what I say and shall say touching the Laws of Nature the more intelligible (n) and applicable;
Edited by David S. Sytsma
Introduction by David S. Sytsma
[dagger] The Scholia offers never-before-translated documents of sixteenth- and seventeenth-century Protestant and Roman Catholic moral theologians and philosophers. Our objective is to put important historical texts back into circulation and, by so doing, to assist scholars in Christian social ethics, economics, and moral philosophy to reclaim the once vibrant natural-law foundation of these disciplines.
(*) I am grateful to Matthew T. Gaetano, Todd M. Rester, and Richard A. Muller for their many helpful comments.
(1) This is not to deny that English jurists also profited from principles drawn from the civil law. See David J. Ibbetson, Common Law and Ius Commune, Selden Society Lecture (London: Selden Society, 2001); Charles Donahue Jr., "Ius commune, Canon Law, and Common Law in England," Tulane Law Review 66 (1992): 1745-80; and Richard H. Helmholz, "Continental Law and Common Law: Historical Strangers or Companions?" Duke Law Journal 1990, no. 6 (December 1990): 1207-28.
(2) For Hale's life, see Alan Cromartie, "Hale, Sir Matthew," in Oxford Dictionary of National Biography, 60 vols. (Oxford: Oxford University Press, 2004), 24:534-40; Edmund Heward, Matthew Hale (London: Robert Hale, 1972); and J. B. Williams, Memoirs of the Life, Character and Writings of Sir Matthew Hale (London: Jackson and Walford, 1835). The definitive intellectual biography remains Cromartie, Hale.
(3) Thomas Garden Barnes, Shaping the Common Law: From Glanvill to Hale, 1188-1688, ed. Allen D. Boyer (Stanford: Stanford University Press, 2008), 222. Cf. Cromartie, "Hale, Sir Matthew," 539: "Hale has continuously enjoyed the reverence of lawyers as the greatest Stuart jurist after Coke, and treatments of his place in legal history have virtually always been tinged with piety."
(4) [Sir Matthew Hale], "The Publisher's Preface Directed to the Young Students of the Common-Law," in Abridgment.
(5) Williams, Memoirs, 348; [Edward Stephens], "Preface" to Sir Matthew Hale, Contemplations Moral and Divine (London: William Godbid for William Shrowsbury and John Leigh, 1676), A3.
(6) See Francis Hargrave, Preface to A Collection of Tracts Relative to the Law of England, from Manuscripts, ed. Francis Hargrave, vol. 1 (Dublin: Lynch, 1787), i-v; Henry Home of Kames, Memoirs of the Life and Writings of the Honourable Henry Home of Kame, 2 vols. (Edinburgh: William Creech, 1807), 1:238; and The Parliamentary History of England, from the earliest period to the year 1803, 36 vols. (London: T. C. Hansard, 1806-1820), 16:169-70.
(7) Hale, Discourse, a5v; Burnet, Life, 185.
(8) For a catalogue of Hale's unprinted and printed MSS, see Cromartie, Hale, 240-44; and for content summaries, see Heward, Matthew Hale, 124-55.
(9) Cromartie, Hale, 6.
(10) William Searle Holdsworth, A History of English Law, 17 vols. (London: Methuen, 1922-1972), 6:586.
(11) Sir William Blackstone, An Analysis of the Laws of England (Oxford: Clarendon Press, 1756), vii. Cf. David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), 35, who refers to this preface as "the first of Blackstone's several profound debts to Hale's jurisprudence...."
(12) Lieberman, Province of Legislation Determined, 44, 122.
(13) J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (New York: Norton, 1967), 35-36, 171-73; Harold J. Berman, "The Origins of Historical Jurisprudence: Coke, Selden, Hale," The Yale Law Journal 103, no. 7 (1994): 1651-1738 at 1735; Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1989), 23, 66; D. E. C. Yale, "Hobbes and Hale on Law, Legislation and the Sovereign," Cambridge Law Journal 31, no. 1 (1972): 121-56 at 127; Cromartie, "Hale, Sir Matthew," 536.
(14) See the Textual Introduction below for details.
(15) Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 162-65; Cromartie, Hale, 90-97.
(16) Cromartie, Hale, 90.
(17) Gerald J. Postema, "Classical Common Law Jurisprudence (Part I)," Oxford University Commonwealth Law Journal 2, no. 2 (2002): 155-80 at 176.
(18) Berman, "The Origins of Historical Jurisprudence," 1707-8. Hale's Law of Nature is nowhere mentioned.
(19) Postema, "Classical Common Law Jurisprudence (Part I)," 176-80; Postema, "Classical Common Law Jurisprudence (Part II)," Oxford University Commonwealth Law Journal 3, no. 1 (2003): 1-28 at 22-27; Michael Lobban, "Custom, Nature, and Authority: The Roots of English Legal Positivism," in The British and Their Laws in the Eighteenth Century, ed. David Lemmings (Woodbridge: Boydell Press, 2005), 29-31, 35-36; Michael Lobban, A History of the Philosophy of Law in the Common Law World, 1600-1900, A Treatise of Legal Philosophy and General Jurisprudence 8 (Dordrecht: Springer, 2007), 61-64.
(20) Tuck, Natural Rights Theories, 162-65; Cromartie, Hale, 90-97.
(21) Heward, Matthew Hale, 132.
(22) The theology of the treatise is discussed briefly in Cromartie, Hale, 90-91, 167; and Murray Raff, "Matthew Hale's Other Contribution: Science as a Metaphor in the Development of Common Law Method," Australian Journal of Law and Society 13 (1997): 73-117, at 112-13.
(23) Sir Henry Finch, Law, or, A Discourse Thereof (London: [Adam Islip] for the Societie of Stationers, 1627), 6-7; William Noy, A Treatise of the Principall Grounds and Maximes of the Lawes of the Kingdome (London: R.H., 1641), 1; Michael Hawke, The Grounds of the Lawes of England (London: H. Twyford, T. Dring, Jo. Place, and W. Place, 1657), 1-2.
(24) Burnet, Life, 5-6.
(25) Sidney Graves Hamilton, Hertford College (London: F. E. Robinson & Co., 1903), 108.
(26) Anthony a Wood, Athenae Oxonienses, 3rd ed., 4 vols. (London: F. C. and J. Rivington, et al., 1813-20), 3:1090.
(27) See the preface to Hale, Discourse, a3v. Cf. Charles B. Schmitt, John Case and Aristotelianism in Renaissance England (Kingston: McGill-Queen's University Press, 1983), 64-67. Cromartie attributes the preface in Discourse to Baxter, but J. B. Williams attributed it to Edward Stephens. See Cromartie, Hale, 141; and Williams, Memoirs, 408. Williams was likely correct, since the author refers to himself as "Mr. S," and he took responsibility for publishing Hale's Contemplations (1676), which we know was edited by Stephens. See Hale, Discourse, *3r, *4r. According to Baxter, Add. Notes, A7r, Stephens was "most familiar" with Hale and had planned to write on Hale's life.
(28) E.g., on the doctrine of creation: Hale, Primitive, 72, 81. Hale refers here to Suarez's Metaphysicae Disputationes. See also B1, 106r.
(29) See citations to Suarez's De legibus regarding the natural law and law of nations in Richard Byfeld, The Doctrine of the Sabbath Vindicated (London: Felix Kyngston for Philemon Stephens and Christopher Meredith, 1631), 12-13, 46-48; Anthony Tuckney, Praelectiones theologicae (Amsterdam: Stephan Swart, 1679), pars secunda, 316-20; and Nathaniel Culverwell, An Elegant and Learned Discourse of the Light of Nature, ed. Robert A. Greene and Hugh MacCallum (Toronto: University of Toronto Press, 1971), xxii-xxix, 28-31, 37, 51-53, 56. Cf. J. P. Sommerville, Royalists and Patriots: Politics and Ideology in England, 1603-1640, 2nd ed. (New York: Longman, 1999), 76-77; and John Selden, The Table Talk of John Selden, ed. Frederick Pollock (London: Quaritch, 1927), 23.
(30) Richard Baxter, Catholick Theologie: Plain, Pure, Peacable: For the Pacification of the Dogmatical Word-warriours (London: Robert White, 1675), Part I, 53; cf. Baxter, Preface to Methodus Theologiae Christianae (London: M. White & T. Snowden, 1681), [5]. On Baxter's Suarezian natural-law theory, see David S. Sytsma, "Richard Baxter's Philosophical Polemics: A Puritan's Response to Mechanical Philosophy" (PhD diss., Princeton Theological Seminary, 2013), chap. 7.
(31) Richard Baxter, The Second Part of the Nonconformists Plea for Peace (London: John Hancock, 1680), 129. For a late seventeenth-century example that confirms this remark, see George Dawson, Origo Legum, or, A treatise of the origins of laws, and their obliging power (London: Richard Chiswell, 1694), 3-4. Juan Azor, S.J. (d. 1603) was known for his Institutionum moralium, 3 vols. (Rome, 1600-1611).
(32) Burnet, Life, 28.
(33) See the preface to Hale, Discourse, a2r. Cf. Cromartie, Hale, 141.
(34) Cf. Cromartie, Hale, 149-55.
(35) Hale, Discourse, 156-57. Cf. The humble advice of the Assembly of Divines, now by authority of Parliament sitting at Westminster, concerning a Confession of Faith [hereafter WCF] (London: E. Tyler, 1647), 7.2, 19.1.
(36) Hale, Discourse, 160-61; 201-2, 245. Cf. WCF 6.1-3.
(37) Hale, Discourse, 276-81. Cf. WCF 6.2.
(38) Hale, Discourse, 229. Cf. WCF 9.3.
(39) Hale, Discourse, 129-33. Cf. WCF 5.2.
(40) Hale, Discourse, 170-73. Cf. WCF 3.6, 10.1.
(41) Hale, Discourse, 227-28, 230. Cf. WCF 8.5.
(42) Hale, Discourse, 407-9. Cf. WCF 17.1.
(43) On the strong presence of Reformed Anglicanism throughout the seventeenth-century, especially at Oxford, see Stephen Hampton, Anti-Arminians: The Anglican Reformed Tradition from Charles II to George I (Oxford: Oxford University Press, 2008).
(44) Robert C. Evans, Stephen Paul Bray, and Christina M. Garner, "The 'Christmas Poems' of Sir Matthew Hale: Brief Preface and Annotated Texts," Ben Jonson Journal 20, no. 1 (2013): 95-125; Burnet, Life, 112-15; Chris Durston, "Lords of Misrule: The Puritan War on Christmas 1642-60," History Today 35 (December 1985): 7-14.
(45) Hale, Discourse, 328-79 (watchfulness), 370-71 (Lord's Day). Cf. Theodore Dwight Bozeman, The Precisianist Strain: Disciplinary Religion & Antinomian Backlash in Puritanism to 1638 (Chapel Hill: University of North Carolina Press, 2004), 110-17.
(46) Burnet, Life, 76; Baxter, Add. Notes, 23-24; Preface to Hale, Discourse, A3v; Hale, "Directions touching the keeping of the Lord's Day," in Works, 1:194-204; Hale, "Concerning the Observation of the Lord's Day or the Christian Sabbath," in A Letter of Advice to his Grand-children, Mary, Gabriel, Anne, Mary and Frances Hale (London: Taylor and Hessey, 1816), 72-78; and Hale, "Considerations concerning the Present and Late Occurrences, for my own use and observation," in Williams, Memoirs, 62. Cf. WCF 21.8; John H. Primus, Holy Time: Moderate Puritanism and the Sabbath (Macon, GA: Mercer University Press, 1989); and Kenneth L. Parker, The English Sabbath: A Study of Doctrine and Discipline from the Reformation to the Civil War (Cambridge: Cambridge University Press, 1988).
(47) Hale, Discourse, 23 (God); 33-35, 37-38 (providence); 46-47, 52-55, 92-96 (humanity); 102-3, 110-14 (Scripture); 153-57 (covenant of works); 228, 254-55 (redemption); 277-79, 367-69 (mortification); 438-46 (sanctification).
(48) Hale, Discourse, 46-47, 51-55, 154-56.
(49) See the treatment of natural law in William Ames, De conscientia et eius iure, vel casibus (Amsterdam, Joan. Janssonius, 1631), 5.1.1-36. Cf. Lee W. Gibbs, "The Puritan Natural Law Theory of William Ames," Harvard Theological Review 64, no. 1 (1971): 37-57.
(50) Hale, Discourse, 436-43. Cf. John Witte Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), chap. 4; Stephen Grabill, Rediscovering the Natural Law in Reformed Theological Ethics (Grand Rapids: Eerdmans, 2006), 88-90, 145-47, 165, 168. For medieval background, see Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Grand Rapids: Eerdmans, 1999); and Michael B. Crowe, The Changing Profle of the Natural Law (The Hague: Martinus Nijhoff, 1977), 81, 114-15.
(51) See Nicholas Bownd, Sabbathum Veteris et Novi Testamenti: Or the true doctrine of the Sabbath (London: Felix Kyngston, 1606), 7-8, 18-22, 31-32, 50-51, 61, 65, 70-71, et passim (citing Zanchi, Junius, et al.); John Sprint, Propositions Tending to Proove the Necessarie Use of the Christian Sabbaoth or Lord's Day (London: H.L. for Thomas Man, 1607), 5-6, et passim (citing Zanchi, Junius, et al.); Henry Burton, The Law and the Gospell reconciled (London: I.N. for Michael Sparkes, 1631), 45-47 (citing Junius); George Walker, The Doctrine of the Sabbath (Amsterdam, 1638), 80 (citing Zanchi); and Andrew Willet, Hexepla in Genesin, that is, A Sixfold Commentarie upon Genesis (London: Tho. Creede for Thomas Man, 1608), 40-43, praising Bownd's treatise as containing "a most sound doctrine of the Sabbath, as layde downe in the former positions" of himself. Cf. Patrick Collinson, "The Beginnings of English Sabbatarianism," Studies in Church History, vol. 1, ed. C. W. Dugmore and Charles Duggan (London, 1964), 207-21, at 212-15; Primus, Holy Time, 148-50; and Parker, The English Sabbath, 29-32, 97-98, 167-68.
(52) Hale, "Directions touching the keeping of the Lord's Day," in Works, 1:197-98.
(53) Hale, Discourse, a1v. The editor is likely Edward Stephens (see note 27). Remonstrants and Contra-Remonstrants refer respectively to the Arminian party and their traditional Reformed opponents in the Netherlands.
(54) Cromartie, Hale, 164 (at note 43). Cf. Hale, Discourse, 92, 228-29; Canons of Dort, head 3/4, art. 1-5 and rejectio errorum 5, in Philip Schaff, ed., The Creeds of Christendom, 3 vols. (New York: Harper & Brothers, 1877), 3:564-65, 569.
(55) Hale, Works, 1:252, 255-56, 191-92; Cromartie, Hale, 159, 167. Cf. Hampton, Anti-Arminians, 59-60, 69-70. Contrast Hale's early perspective of faith and justification in Discourse, 246-47, 264-70.
(56) Sir Matthew Hale, The Judgment of the late Chief Justice Sir Matthew Hale, of the nature of True Religion, the Causes of its Corruption, and the Churches Calamity, by Mens Additions and Violences: With the desired Cure (London: B. Simmons, 1684), First Discourse, 6, 13.
(57) Cromartie, Hale, 157-58, 167-68; Baxter, Add. Notes, 30, 33-34; Baxter, Preface to Hale, Judgment, A3r-v.
(58) Baxter, Add. Notes, 6.
(59) Richard Baxter, Reliquiae Baxterianae, or, Mr. Richard Baxter's narrative of the most memorable passages of his life and times, ed. Matthew Sylvester (London: T. Parkhurst et al, 1696), Part II, 386; Part III, 19-20; S. P. [Simon Patrick], A Brief Account of the new Sect of Latitude-Men, Together with some reflections upon the New Philosophy. By S. P. of Cambridge. In answer to a Letter from his Friend at Oxford (London, 1662); Joseph Glanvill, "Anti-Fanatical Religion, and Free Philosophy. In a Continuation of the New Atlantis," in Essays on Several Important Subjects in Philosophy and Religion (London: J.D., 1676); John Gascoigne, Cambridge in the Age of the Enlightenment: Science, Religion and Politics from the Restoration to the French Revolution (Cambridge University Press, 1989), 40-68. According to Baxter, Latitudinarians embraced both new philosophy and Arminianism.
(60) Baxter, Add. Notes, 9-10. Cf. Sir Matthew Hale, Preface to Observations touching the Principles of Natural Motions (London: W. Godbid for W. Shrowsbury, 1677), A4v-A5v.
(61) Hale, Primitive, 9-11. He is equally critical of Aristotelian, Gassendian, and Cartesian assumptions in this regard. For discussion of this aspect of Hale's thought, see Cromartie, Hale, 195-17.
(62) Hale, Primitive, 52-64.
(63) Hale, Principles of Natural Motions, 7-24. Cf. Cromartie, Hale, 206-9, 218-19, 223-24.
(64) Hale, Principles of Natural Motions, 2, A4v.
(65) I have not found a single example of the Helmontian terms virtus activa, vis activa, virtutes essentiales, vires essentiales, or ferments which Hale uses elsewhere, e.g., Principles of Natural Motions, 8-15.
(66) Hale, Discourse, 57; Works, 1:385; Primitive, 57; Pleas, 1:15. Cf. Aquinas, Summa theologiae, I-II q. 9, a. 1; and Hugues Parent, "Histoire de l'acte volontaire en droit penal anglais et canadien," McGill Law Journal 45 (2000): 975-1020, at 994-97. The description of the will's "power to suspend" (B1, 46v) may also point to an eclectic Scotist accent.
(67) Roscoe Pound, The Development of Constitutional Guarantees of Liberty (New Haven: Yale University Press, 1957), 74, as cited along with other examples in Richard H. Helmholz, "Natural Law and Human Rights in English Law: From Bracton to Blackstone," Ave Maria Law Review 3, no. 1 (2005): 1-22, at 3.
(68) Helmholz, "Natural Law and Human Rights," 1-22; Richard H. Helmholz, "The Law of Nature and the Early History of Unenumerated Rights in the United States," University of Pennsylvania Journal of Constitutional Law 9 (2007): 401-21; David J. Ibbetson, "Natural Law and Common Law," Edinburgh Law Review 5 (2001): 4-20. See also James W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, MD: Johns Hopkins University Press, 2000), 158-59; and Mark W. Bailey, "Early Education in the United States: Natural Law Theory and Law as a Moral Science," Journal of Legal Education 48, no. 3 (1998): 311-28. For medieval background on the judicial use of natural law, see Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge: Cambridge University Press, 1990), 70-83.
(69) Richard H. Helmholz, "Judicial Review and the Law of Nature," Ohio Northern University Law Review 39 (2013): 417-34, at 419.
(70) Cf. Richard H. Helmholz, "Bonham's Case, Judicial Review, and the Law of Nature," Journal of Legal Analysis 1, no. 1 (2009): 325-54, at 333-35.
(71) Helmholz, "Natural Law and Human Rights," 17-18; Helmholz, "Bonham's Case," 335-36; Helmholz, "Judicial Review," 424-27, 430-33; Tubbs, The Common Law Mind, 93-109, 121-26, 176.
(72) Helmholz, "Bonham's Case," 345-46; Helmholz, "Judicial Review," 427-30; cf. Mark D. Walters, "St. German on Reason and Parliamentary Sovereignty," Cambridge Law Journal 62, no. 2 (2003): 335-70, at 343-44 and 361-66; Tubbs, The Common Law Mind, 185-86.
(73) For the following I am indebted to Alan Cromartie, "The idea of common law as custom," in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, ed. Amanda Perreau-Saussine and James B. Murphy (Cambridge: Cambridge University Press, 2007), 203-27; and Tubbs, The Common Law Mind, 148-78. See also Alan Cromartie, "General Introduction" to Hobbes' A Dialogue Between a Philosopher and a Student, of the Common Laws of England, ed. Alan Cromartie, in The Clarendon Edition of the Works of Thomas Hobbes, vol. 11, Writings on Common Law and Hereditary Right, ed. Alan Cromartie and Quentin Skinner (Oxford: Clarendon Press, 2005), xxvi-xxxii; Sommerville, Royalists and Patriots, 87-90.
(74) Alan Cromartie, "The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England," Past & Present 163 (May 1999): 76-120, at 82, 86.
(75) Tubbs, The Common Law Mind, 167-78; Wilfred Prest, "The Dialectical Origins of Finch's Law," Cambridge Law Journal 36, no. 2 (1977): 326-52, at 327-28.
(76) Burnet, Life, 19-20.
(77) William Noy, A Treatise of the Principall Grounds and Maximes of the Lawes of the Kingdome (London: R.H., 1641). Many printings followed: 1642, 1651, 1660, 1663, 1667, 1677, 1757, 1794.
(78) Sir John Doddridge, The English Lawyer (London: I. More, 1631), 152. Cf. Hawke, "To the Candid and Courteous Gentlemen and Students of the Colledges and Seminaries of the Lawes," in The Grounds of the Lawes of England, A7, a5 (r).
(79) Doddridge, The English Lawyer, 153.
(80) Finch, Law, or, A Discourse Thereof, 5.
(81) Doddridge, The English Lawyer, 242.
(82) Sir Francis Bacon, A Collection of Some Principall Rules and Maximes of the Common Lawes of England (London: [Robert Young for] the assignes of I. More Esq., 1630), B2 (r).
(83) Doddridge, The English Lawyer, 242; Sir Edward Coke, The first part of the Institutes of the Lawes of England (London: [Adam Islip] for the Societie of Stationers, 1628), sect. 80b. Cf. Cromartie, "The Constitutionalist Revolution," 83, 86-87; Cromartie, "General Introduction" to Hobbes' Dialogue, xxxi; Cromartie, Hale, 17-19; and Sommerville, Royalists and Patriots, 89. For differences between Doddridge and Coke, see Tubbs, The Common Law Mind, 167-70.
(84) Finch, Law, or, A Discourse Thereof, 75.
(85) Noy, A Treatise of the Principall Grounds, 21.
(86) See Cromartie, "The idea of common law as custom," 220-27.
(87) This appears plainly, e.g., in chapter one of our text (B1, 51v-52r).
(88) Hale, Pleas, 1:1.
(89) See Cromartie, Hale, 106-7, who instances Hale, History, 40.
(90) Hale, History, 18.
(91) Hale, History, 46.
(92) Sir Matthew Hale, "Considerations Touching the Amendment or Alteration of Laws," in A Collection of Tracts Relative to the Law of England, from Manuscripts, ed. Francis Hargrave, vol. 1 (Dublin: Lynch, 1787), 272.
(93) Cromartie, "General Introduction" to Hobbes' Dialogue, xxxii.
(94) Hale, Dialogue, 501-2; Cromartie, Hale, 101-3.
(95) Baxter, Add. Notes, 40.
(96) Burnet, Life, 22-28.
(97) Cromartie, Hale, 48, argues that Hale's views on sovereign power likely derive from Grotius. For Selden's praise of Grotius' De jure belli, see John Selden, De jure naturali & gentium, juxta disciplinam Ebraeorum, libri septem (London: Richard Bishop, 1640), 34-35: "...Hugo Grotius, qui in eximiis illis de Jure Belli ac Pacis libris..."; and 125: "...ex incomparabili illo viri Amplissimi Hugonis Grotii opere de Jure Belli ac Pacis..." Cf. G. J. Toomer, John Selden: A Life in Scholarship, 2 vols. (Oxford: Oxford University Press, 2009), 2:496, 505.
(98) Hale, Discourse, A3v; Baxter, Add. Notes, 31.
(99) Hale, Contemplations Moral and Divine, A2r; Hale, Discourse, A4r. See Cromartie, Hale, 6 who provides manuscript evidence showing this was Hale's own stated reason for writing.
(100) Hale, Discourse, A4.
(101) Cf. Sir Matthew Hale, "Notes on circuitus autumnalis" [1668], fols. 15r-16r, the James Marshall and Marie-Louise Osborn Collection, Beinecke Rare Book and Manuscript Library, Yale University, New Haven, CT. These initial notes of a plan for the present treatise organize the natural law into its efficient, final, formal, and material causes (fol. 16r). See the Textual Introduction for further details.
(102) Hale, "Notes on circuitus autumnalis," fol. 16r, Osborn Collection, places promulgation under the formal cause of natural law.
(103) Cicero, De legibus, 1.6; Aquinas, Summa theologiae, I-II q. 90 a. 4.
(104) Cromartie, Hale, 90. This view is succinctly expressed in Selden, De jure naturali, 92-93: "For pure, unaided reason merely persuades or demonstrates; it does not order, nor bind anyone to their duty, unless it is accompanied by the authority of someone who is superior to the man in question." (Quin ratio, quatenus talis solum & simplex, suadet & demonstrat, non jubet, aut ad officium, nisi superioris eo qui jubetur accedat simul autoritas, obligat.). I follow the translation provided in Tuck, Natural Rights Theories, 93-94.
(105) Tuck, Natural Rights Theories, 162.
(106) J. P. Sommerville, "John Selden, the Law of Nature, and the Origins of Government," The Historical Journal 27, no. 2 (1984): 437-47, at 443.
(107) Hale, Discourse, 22-23: "In respect of Obligation ... A Law commanding or forbidding a thing under a pain.... A power to exact an Obedience to that Law, and to inflict the punishment that follows upon the breach of this Law." The same view appears in Discourse, 155-57. That law properly applies to rational, and not irrational, creatures, can be gathered from Hale's comments at Discourse, 22; and Discourse, 54: "We find in the Creatures, several Instincts, incident almost to every Creature, which are connatural with it ... yet are not Laws or Principles of Nature." On Hale's education see above.
(108) Postema, "Classical Common Law Jurisprudence (Part II)," 25, suggests a parallel to Suarez but does not develop the point further.
(109) Francisco Suarez, Tractatus de legibus et legislatore Deo, 1.1.1, 1.1.5, in Opera omnia, 28 vols. (Paris: L. Vives, 1856-1866), 5:1, 2.
(110) Suarez, De legibus, 1.3.2-3 (Opera, 5:7-8).
(111) Ames, De conscientia, 5.1.13.
(112) Sir John Fortescue, De Natura Legis Naturae, I.v, I.xlii, in Works, ed. Thomas (Fortescue), Lord Clermont, 2 vols. (London, 1869), 1:68, 1:107 (citing Aquinas, Summa theologiae, I-II q. 96 a. 2 ad 3; and I-II q. 91 a. 2 co); Christopher St German, Doctor and Student, ed. T.F.T. Plucknett and J.L. Barton (London: Selden Society, 1974), 13. Cf. Doe, Fundamental Authority in Late Medieval English Law, 61 (Fortescue), 113n23 (St German).
(113) Sir Henry Finch, Nomotechnia; Cestascavoir, Vn Description Del Common Leys Dangleterre Solonqve les Rules del Art (London: [Adam Islip] for the Societie of Stationers, 1613), 1-2.
(114) Ames, De conscientia, 5.1.3-5.
(115) Selden, De jure naturali, 102.
(116) Ames, De conscientia, 5.1.6: "Jus naturale, vel lex naturalis est eadem quae dici solet lex aeterna. Sed aeterna dicitur, quatenus est in ipso Deo ab aeterno: naturalis aute[m] quatenus indita est, & impressa naturae hominum ab authore naturae."
(117) Selden, De jure naturali, 102: "Primum autem aiunt [*] esse participationem Legis aeternae in rationali creatura, adeoque divinum." The marginal note at [*] reads: "Alexander Alensis part. 3, quaest. 26. art. 4. S. Thom. I. secundae q. 19 [= 91]. art. 2. Suarez. de legibus lib. I. cap. 3. & lib. 2. cap. 6. [section]. 13. &c." Selden continues to cite a number of theologians (Luis de Molina, Alonso de Castro) and jurists (Fernando Vazquez de Menchaca, Joachim Mynsinger von Frundeck, et al.).
(118) Aquinas, Summa theologiae, I-II q. 91 a. 1-2; q. 93 a. 1; Suarez, De legibus, 1.3.6-8 (Opera, 5:8-9).
(119) Suarez, De legibus, 1.1.2 (Opera, 5:1); Ames, De conscientia, 5.1.13; Richard Baxter, A Holy Commonwealth, or, Political Aphorisms, Opening the true Principles of Government (London: Thomas Underhill and Francis Tyton, 1659), 317-20; Francis Turretin, Institutes of Elenctic Theology, 3 vols. (Phillipsburg, NJ: P&R Publishing, 1992-1997), 11.1.5, 11.1.10.
(120) Suarez, De legibus, 2.1.7 (Opera, 5:87). Cf. Tattay Szilard, "Reason, Will, Freedom: Natural Law and Natural Rights in Later Scholastic Thought" (PhD diss.: Pazmany Peter Catholic University, 2012), 89-90.
(121) Cf. Suarez, De legibus, 2.1.5 (Opera, 5:86-87).
(122) Suarez, De legibus, 2.6.3-5 (Opera, 5:104-5). The question of the ratio formalis is raised in De legibus, 2.5.1. Cf. M. B. Crowe, "The 'Impious Thesis': A Paradox in Hugo Grotius?" Tijdschrift voor Filosofe 38, no. 3 (Sep. 1976): 379-410, at 390-95; and Szilard, "Reason, Will, Freedom," 94-110.
(123) Cf. Suarez, De legibus, 2.6.13 (Opera, 5:108-9).
(124) Cf. Suarez, De legibus, 2.6.11-12 (Opera, 5:108).
(125) Richard Tuck, "The 'Modern' Theory of Natural Law," in The Languages of Political Theory in Early-Modern Europe, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1987), 99-119. Others have argued a secular turn beginning with Grotius: A.P. D'Entreves, Natural Law: An Introduction to Legal Philosophy (London: Hutchinson's University Library, 1951), 52-53; and Knud Haakonssen, Natural Law and Moral Philosophy from Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 29.
(126) Merio Scattola, "Scientific Revolution in the Moral Sciences: The Controversy between Samuel Pufendorf and the Lutheran Theologians of the Late Seventeenth Century," in Controversies within the Scientific Revolution, ed. Marcelo Dascal and Victor D. Boantza (Amsterdam: John Benjamins, 2011), 251-75; Scattola, "Before and After Natural Law: Models of Natural Law in Ancient and Modern Times," in Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment, ed. T. J. Hochstrasser and P. Schroder (Dordrecht: Kluwer, 2003), 1-30; Scattola, "Scientia Iuris and Ius Naturae: The Jurisprudence of the Holy Roman Empire in the Seventeenth and Eighteenth Centuries," in A History of the Philosophy of Law in the Civil Law World, 1600-1900, ed. Damiano Canale, Paolo Grossi, and Hasso Hofmann, A Treatise of Legal Philosophy and General Jurisprudence 9 (Dordrecht: Springer, 2009), 1-41.
(127) For compelling critiques of a Grotian revolution, see Terence Irwin, The Development of Ethics: A Historical and Critical Study, vol. 2, From Suarez to Rousseau (Oxford: Oxford University Press, 2008), 70-99; Scattola, "Scientia Iuris and Ius Naturae," 18-21; Johann P. Sommerville, "Selden, Grotius, and the Seventeenth-Century Intellectual Revolution in Moral and Political Theory," in Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn and Lorna Hutson (New Haven: Yale University Press, 2001), 318-44; and Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Atlanta: Scholars Press, 1997), 317-24.
(128) Hobbes, De cive, 1.7; Leviathan, 14.1-3.
(129) Johann P. Sommerville, Thomas Hobbes: Political Ideas in Historical Context (New York: St. Martin's Press, 1992), 49; Samuel I. Mintz, The Hunting of Leviathan: Seventeenth-Century Reactions to the Materialism and Moral Philosophy of Thomas Hobbes (Cambridge: Cambridge University Press, 1962), 143-46. This is a reading also taken by various modern scholars, e.g., Irwin, Development of Ethics, 2:126-28; and Sommerville, Thomas Hobbes, 32-33.
(130) See John Witte Jr., "A Demonstrative Theory of Natural Law: Johannes Althusius and the Rise of Calvinist Jurisprudence," in Johannes Althusius, On Law and Power, trans. Jeffrey J. Veenstra (Grand Rapids: CLP Academic, 2013), xlix-lxxiii; adapted from Witte, "A Demonstrative Theory of Natural Law: The Original Contribution of Johannes Althusius," in Public Theology for a Global Society: Essays in Honor of Max L. Stackhouse, ed. Deirdre King Hainsworth and Scott R. Paeth (Grand Rapids: Eerdmans, 2010), 21-36.
(131) Hugo Grotius, De jure belli ac pacis libri tres (Amsterdam: Joannes Blaeu, 1667), 1.1.12.
(132) Grotius, De jure belli, Prol. 39-40; Culverwell, Discourse of the Light of Nature, 72-73.
(133) Hobbes, De cive, 2.1; Samuel Pufendorf, De jure naturae et gentium (Lund: Adam Junghans, 1672), 2.3.7; John Locke, Essays on the Law of Nature, ed. W. von Leyden (Oxford: Clarendon Press, 1954), 37, 161n3. On Hobbes, Pufendorf, and the later reception, see Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias in International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Leiden: Martinus Nijhoff, 2011), 25-39.
(134) Selden, De jure naturali, 86-91; Sommerville, "Selden, Grotius," 336-37.
(135) Contra Tuck, Natural Rights Theories, 163: "[Hale] proceeded to outline the source of the natural laws in very Seldenian terms: they were not naturally intuited, but had been made known historically to mankind, first through the seven praecepta Noachidarum and then through the Decalogue." Hale's view is exactly opposite: the natural law is naturally intuited.
(136) Hale, Discourse, 102-3, 110-12.
(137) Suarez, De legibus, 2.8.3-4 (Opera, 5:116-17).
(138) Aquinas, Summa theologiae, I-II q. 94 a. 4-6. Cf. R. A. Armstrong, Primary and Secondary Precepts in Thomistic Natural Law Teaching (The Hague: Martinus Nijhoff, 1966).
(139) Suarez, De legibus, 2.7.5 (Opera, 5:113). This division of conclusions into more or less easily known is similar to Aquinas, Summa theologiae, I-II q. 100 a. 1. Cf. Armstrong, Primary and Secondary Precepts, 99-107.
(140) Cf. Cromartie, Hale, 38-39; and comments in our text at B1, 72v.
(141) Grotius, De jure belli, Prol. 15, 2.11.1-5; Selden, De jure naturali, 107; Selden, Table Talk, 70, 100; Selden, Mare clausum seu de dominio maris (London: R. Meighen, 1635), 16. Cf. Cromartie, Hale, 91-92.
(142) See Tierney, Idea of Natural Rights, 43-77; Tuck, Natural Rights Theories, 13-15; and Witte, Reformation of Rights, 20-37. For recent studies, see Virpi Makinen, ed., The Nature of Rights: Moral and Political Aspects of Rights in Late Medieval and Early Modern Philosophy, Acta philosophica Fennica 87 (Helsinki: The Philosophical Society of Finland, 2010).
(143) Brian Tierney, "Dominion of Self and Natural Rights Before Locke and After," in Transformations in Medieval and Early-Modern Rights Discourse, ed. Virpi Makinen and Petter Korkman (Dordrecht: Springer, 2006), 173-203, at 176, 180. On permissive natural law, see Tierney, "Permissive Natural Law and Property: Gratian to Kant," Journal of the History of Ideas 62, no. 3 (2001): 381-99.
(144) Cf. Tierney, "Dominion of Self," 192, who reads Hale as similar to Suarez.
(145) Tierney, "Permissive Natural Law and Property," 384-85.
(146) Tierney, Idea of Natural Rights, 137-45, 306-7. See also Francisco Suarez, "What Kind of Corporeal or Political Life Men Would Have Professed in the State of Innocence," Journal of Markets & Morality 15, no. 2 (Fall 2012): 527-63, translated and with an introduction by Matthew T. Gaetano.
(147) Cf. Suarez, De legibus, 2.14.16-17 (Opera, 5:140-41); and James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980), 80.
(148) Cromartie, Hale, 93-94; Tuck, Natural Rights Theories, 164-65. Like Tuck, Cromartie rightly views Hale as going to an opposite "extreme" from Selden and Hobbes, but omits the traditional pedigree of Hale's position.
(149) Scott G. Swanson, "The Medieval Foundations of John Locke's Theory of Natural Rights: Rights of Subsistence and the Principle of Necessity," History of Political Thought 18, no. 3 (1997): 399-459; Virpi Makinen, "Self-preservation and Natural Rights in Late Medieval and Early Modern Political Thought," in The Nature of Rights, 93-108.
(150) Hale, Pleas, 1:54-55.
(151) Cromartie, Hale, 95-96.
(152) Cromartie, Hale, 91, 168-70.
(153) Hale, Primitive, 60-61, 317-18, 352-53, 365; Hale, Discourse, 37, 46.
(154) Philip Melanchthon, Loci communes rerum theologicarum (1521), in Opera quae supersunt omnia, ed. C.G. Bretschneider and H.E. Bindseil, vol. 21 (Braunschweig: C.A. Schwetschke, 1854), cols. 116-17; ET: Commonplaces: Loci Communes 1521, trans. Christian Preus (St. Louis: Concordia, 2014), 62. John Calvin, Commentary on the Epistle of Paul the Apostle to the Romans, trans. John Owen (Edinburgh: Calvin Translation Society, 1849), 96-97; and Andrew Willet, Hexapla: that is, A Six-fold Commentarie upon the most Divine Epistle of the Holy Apostle S. Paul to the Romanes (Cambridge: Cantrell Legge, 1611), 117-18.
(155) Cf. Hale, Discourse, 37; Aquinas, Summa Theologica, I q. 80 a. 1; Ames, De conscientia, 5.1.14-16; Girolamo Zanchi, On the Law in General, trans. Jeffrey J. Veenstra (Grand Rapids: CLP Academic, 2012), 10-11; DLGT, s.v. appetitus.
(156) Ames, De conscientia, 1.1.8-11; Rudolph Goclenius, Lexicon philosophicum (Frankfurt: Matthias Becker, 1613), s.v. conscientia (p. 447); Johann Heinrich Alsted, Theologia casuum, exhibens anatomen conscientiae et scholam tentationum (Hanau: Conrad Eifrid, 1630), 11; Robert Sanderson, Bishop Sanderson's Lectures on Conscience and Human Law, trans. Christopher Wordsworth (Lincoln: James Williamson, 1877), 10-13; Jeremiah Dyke, Good Conscience (London: I.D. for Robert Milbourne, 1624), 22-23. Like Ames, Hale elsewhere labels the acts of conscience as synteresis (general principle), syneidesis (minor premise), epicrisis (concluding judgment). See Hale, Primitive, 64. On conscience's practical syllogism, see also Hale, Discourse, 51-55.
(157) Hale, Discourse, 51: "Conscience ... is a high act of the Understanding..."; Hale, Primitive, 57 (within acts of the soul, pp. 55-57).
(158) Robert Sanderson, Bishop Sanderson's Lectures on Conscience and Human Law, trans. Christopher Wordsworth (Lincoln: James Williamson, 1877), 14: "Aquinas ... resolves it to be an Act, whose opinion is received not only by Scholastic Writers ... but by the Divines of the Reformed Churches.... But, if I may speak freely, this most common opinion is altogether to be disapproved...." See, e.g., Ames, De conscientia, 1.1.5-6 (for Aquinas); and Immanuel Bourne, The Anatomie of Conscience (London: G.E. and M.F. for Nathaniel Butter, 1623), 6-7, 10 (against Aquinas).
(159) See D. W. Dockrill, "'No other Name': The Problem of the Salvation of the Pagans in Mid-seventeenth Century Cambridge," in The Idea of Salvation, ed. D. W. Dockrill and R. G. Tanner (Auckland, New Zealand: University of Auckland, 1988), 117-51. For confessional statements, see Augsburg Confession, art. 18; Formula of Concord, art. 2; Heidelberg Catechism, q. 20; Thirty-Nine Articles, art. 13, 18; Canons of Dort, head 3/4, art. 1-5 and rejectio errorum 5; WCF 9.3 (Creeds of Christendom, 3:18-19, 106-14, 313, 495, 499, 564-65, 569, 623).
(160) Baxter, Reliquiae Baxterianae, Part II, 386.
(161) John Humfrey, Peaceable Disquisitions (London: Thomas Parkhurst, 1678), 55. Cf. Jacob Arminius, Works, trans. James Nichols, vol. 1 (London: Longman, et al., 1828), 14-16.
(162) Burnet, Life, 74. Cf. John Coffey, John Goodwin and the Intellectual Revolution: Religion and Intellectual Change in 17th-Century England (Woodbridge: Boydell Press, 2006), 227; John Gascoigne, "Isaac Barrow's Academic Milieu: Interregnum and Restoration Cambridge," in Before Newton: The Life and Times of Isaac Barrow, ed. Mordechai Feingold (Cambridge: Cambridge University Press, 1990), 250-90, at 257-61; Hampton, Anti-Arminians, 60-63.
(163) Nicholas Tyacke, Anti-Calvinists: The Rise of English Arminianism, c. 1590-1640 (Oxford: Clarendon Press, 1987), 145-46; Selden, Table Talk, 123; Selden, De jure naturali, 832-33.
(164) The late-medieval expression is "to those who do what is in them God does not deny grace" (facientibus quod in se est Deus non denegat gratiam). Cf. DLGT, s.v. facere quod in se est. For Arminius' usage, see J.V. Fesko, "Arminius on Facientibus Quod in Se Est and Likely Medieval Sources," in Church and School in Early Modern Protestantism: Studies in Honor of Richard A. Muller on the Maturation of a Theological Tradition, ed. Jordan J. Ballor, David S. Sytsma, and Jason Zuidema (Leiden: Brill, 2013), 347-60.
(165) Anthony Tuckney, None but Christ, or a Sermon Upon Acts 4.12. (London: John Rothwell and S. Gellibrand, 1654), 109; Turretin, Institutes of Elenctic Theology, 10.5.2, 10.5.11. Both cite Augustine, Contra Julian, 4.3. On Baius and the Jansenists, see T. H. Irwin, "Splendid Vices? Augustine For and Against Pagan Virtues," Medieval Philosophy and Theology 8 (1999): 105-27, at 105-7.
(166) Cf. Cromartie, Hale, 170-72, 231-32.
(167) Culverwell, Discourse of the Light of Nature, 165-67; John Wilkins, Of the Principles and Duties of Natural Religion (London: T. Basset, et al., 1678), 396-97; Richard Baxter, The Reasons of the Christian Religion (London: R. White, 1667), 396-400. On Wilkins as a broad-minded Reformed theologian, see Hampton, Anti-Arminians, 16-17.
* I am grateful to Zoe Stansell and the staff of the manuscript collections at the British Library for their assistance regarding these manuscripts and their digital reproduction.
(168) Burnet, Life, 191.
(169) Cf. Cromartie, Hale, 240-42; and Burnet, Life, 190-94.
(170) Sir Matthew Hale, "Notes on circuitus autumnalis" [1668], fols. 15r-16r, the James Marshall and Marie-Louise Osborn Collection, Beinecke Rare Book and Manuscript Library, Yale University, New Haven, CT. The top of fol. 15r reads "De lege naturali tractatus". There are two pages of notes under the heading "de lege in genere" which reflect details of the content of chapter one of the finished treatise (fols. 15v-16r). On the last page under the heading "de lege naturali" is the outline "1 Quid sit lex naturalis / 2 An sit aliqua talis lex / 3 De causis huius legis" and under this some notes regarding the efficient, final, formal, and material causes of natural law (fol. 16r). The material cause includes subpoints "in habitudine ad / deum / alium / seipsum" (in relation to God, others, oneself), which correspond to the "three relations, habitudes or ranks" of natural law in chapter five of the finished treatise (B1, 72v). For a partial transcription of this MS, lacking the last pages, see Maija Jansson, "Matthew Hale on judges and judging," Journal of Legal History 9, no. 2 (1988): 201-13. I am grateful to June Can of the Beinecke Library for help with this MS.
(171) Cf. Cromartie, Hale, 90, 167n61.
(172) See Cromartie, Hale, 225-29, who shows that creationism is present in Hale's 1672 treatise "De generatione vegetabilium et animalium" (Lambeth MS 3504). Creationism is also present in Hale's Primitive, 352, which was composed at intervals between the late 1660s and his death (Cromartie, Hale, 198).
(173) Cromartie, Hale, 218n3, 226n51.
(174) See Cromartie, Hale, 206-9, 223; and Sir Matthew Hale, Preface to Observations touching the Principles of Natural Motions (London: W. Godbid for W. Shrowsbury, 1677), 8-15. Key Helmontian terms include virtus activa, vis activa, virtutes essentiales, vires essentiales, and ferments.
(175) Acquired by the British Museum in 1850. Catalogue of Additions to the Manuscripts in the British Museum, in the years MDCCCXLVIII-MDCCCLIII ([London]: The Trustees, 1868), 91.
(176) Acquired by the British Museum as part of the Harleian collection in 1753. A Catalogue of the Harleian Collection of Manuscripts, purchased by Authority of Parliament for the Use of the Publick, and preserved in the British Museum, vol. 2 (London: Dryden Leach, 1759), no. 7159; A Catalogue of the Harleian Manuscripts in the British Museum, 4 vols. (London: The British Museum, 1808-1812), 3:518.
(177) Acquired by the British Museum as part of the Hargrave collection in 1813. A Catalogue of Manuscripts, Formerly in the Possession of Francis Hargrave, Esq., one of His Majesty's Counsel Learned in the Law, and Recorder of Liverpool. Now Deposited in the British Museum. (London: G. Woodfall, 1818), 131.
(178) James McMullen Rigg, "Hale, Sir Matthew," in Dictionary of National Biography, ed. Leslie Stephen and Sidney Lee, 63 vols. (London: Smith, Elder & Co., 1885-1900), 24:22.
(179) Cromartie, Hale, 240-41.
(180) N. E. Osselton, "Spelling-Book Rules and the Capitalization of Nouns in the Seventeenth and Eighteenth Centuries," in Historical and Editorial Studies in Medieval and Early Modern English, ed. Mary-Jo Arn, Hanneke Wirtjes, and Hans Jansen (Groningen: Wolters-Noordhoff, 1985), 49-61, at 49-50.
(181) Osselton, "Spelling-Book Rules," 58-59.
(182) Francis Hargrave, Preface to A Collection of Tracts Relative to the Law of England, from Manuscripts, ed. Francis Hargrave, vol. 1 (Dublin: Lynch, 1787), i-v.
(183) Francis Hargrave, Preface to Sir Matthew Hale, Jurisdiction of the Lords House, or Parliament, Considered according to Antient Records, ed. Francis Hargrave (London: T. Cadell, Jun. and W. Davies, 1796), ii.
(184) B1, fols. 67r-69r, 71r, 73r, 74r, 75r, 76r, 77r, 78r, 80v, 82r, 83r-88r, 90r, 92v-93r, 94r-96r, 97r, 98r-v, 99v-100v, 101v, 106r, 109r, 110r-v, 112v-113r, 115r, 121r-125r, 128r-130r, 131r, 138r, 139r, 140r, 141r, 142r, 145r-v.
(185) See "Appendix IV: The editorial method of Peter Nidditch," in John Locke, Drafts for the Essay Concerning Human Understanding, and Other Philosophical Writings, ed. Peter H. Nidditch and G. A. J. Rogers (Oxford: Clarendon Press, 1990), 294-95; and Michael Hunter, Editing Early Modern Texts: An Introduction to Principles and Practice (New York: Palgrave Macmillan, 2007), 79-80.
(186) Osselton, "Spelling-Book Rules," 54.
(187) Osselton, "Spelling-Book Rules," 51, 55-56.
(188) For the format of the apparatus I am indebted to the examples in John Locke, An Essay Concerning Human Understanding, ed. Peter Nidditch (Oxford: Clarendon Press, 1975); and Rhodri Lewis, William Petty on the Order of Nature: An Unpublished Manuscript Treatise (Tempe, AZ: Arizona Center for Medieval and Renaissance Studies, 2012).
(a) Chapter 1] em. | Caput primum. (b) expressions] B1, B2 | expressions B3 (c) render] B1, B2 | <to> render B3 (d) though] em. | thought B1 | tho B2 | though B3 (e) appropriate] em. | appropiate (f) Philologers;] B1, B3 | Philogors: B2 (g) artificiall] em. | artificall
(a) and to] and <to> B1 | and B2, B3 (b) a] om. B2 (c) First] B1, B2 | <I.> [begin strikethrough]First[end strikethrough] B3 (d) a] om. B3 (e) Naturall] [begin strikethrough][?]ll[end strikethrough] <Naturall> (f) hath] [begin strikethrough][?]e[end strikethrough] <hath> (g) perswation] and perswasion B2 | persuasion B3 (h) the] <the> (i) for] B1, B3 | of B2 (j) the] om. B2
(1.) Cf. Hale's early description of law in relation to obligation:
In respect of Obligation; for there can be nothing imaginably Unjust, without these two considerations, viz.
1. A law commanding or forbidding a thing under a pain: whatsoever falls not within the command or Prohibition is permitted, and cannot be unjust.
2. A power to exact an Obedience to that Law, and to inflict the punishment that follows upon the breach of this Law. Otherwise the Law were ridiculous and vain. (Discourse, 22-23)
(a) this] B1, B2 | his B3 (b) observe] B1, B2 | observes B3 (c) but] em. | by B1 | But B2 | but B3 (d) and] B1, B3 | or B2 (e) fruite] [begin strikethrough][ ? ][end strikethrough] fruite (f) own] om. B2 (g) one] om. B2 (h) and] B1, B2 | and <that he> B3 (i) End] em. | Ended B1 | end B2, B3 (j) him,] him, unless there were some Superior that gave this Rule to him B2, B3 (k) observing] B1, B3 | the observing B2 (l) Obligations] obligation B2, B3 (m) himselfe,] em. | himsefe,
(2.) Cf. Suarez, De legibus, 1.1.1, 1.5.24-25; John Selden, De jure naturali & gentium, juxta disciplinam Ebraeorum, libri septem (London: Richard Bishop, 1640), 92-93.
(3.) Cf. Suarez, De legibus, 2.5.6-7. Contrast Grotius, De jure belli ac pacis, Prol. 11.
(a) still] om. B2 (b) and] om. B3 (c) himselfe] em. | himsefe (d) perfect] the perfect B2, B3 (e) seclude] [begin strikethrough][?ex][end strikethrough]<se>clude B1 | seclude B2 | preclude B3 (f) himself] B1, B2 | him<self> B3 (g) Lord.] Lord[.] (h) may] om. B2 (i) stil] B1, B2 | still B3 (j) it] em. | it is B1 | it B2, B3 (k) Government] om. B3 (l) Rules,] em. | Rules; (m) abstractively] B1, B2 | abstractedly B3
(a) the] <the> (b) Animall;] B1, B3 | things Animall: B2 (c) preinstituted] em. | prestituted B1, B2 | preinstituted B3 (d) order] em. | order. (e) where] whereof B2, B3 (f) 2. There] B1, B2 | [begin strikethrough]2. T[end strikethrough]<t>here B3 (g) quo talis] qua talis B2, B3 (h) eat] em. | aet B1 | Eat B2 | eat B3 i Elections,] B1, B2 | [begin strikethrough]elections[end strikethrough] <actions>, B3
(a) brutall] em. | brutuall (b) that] B1, B2 | [begin strikethrough]that[end strikethrough] B3 (c) Phantasy] Phant<a>sy (d) inlighten'd] B1, B2 | <is> enlight<e>ned B3 (e) became] beca[begin strikethrough]us[end strikethrough]<m>e B1 | became B2 | bec[begin strikethrough]a[end strikethrough]<o>me B3 (f) And] B1, B2 | [begin strikethrough]And[end strikethrough] B3 (g) mixt] om. B3 (h) these] B1, B3 | the B2 (i) Modification;] modifications B2, B3 (j) understanding] B1, B2 | <the> Understanding B3 (k) to be] [begin strikethrough]of being[end strikethrough] <to be> (l) Again
(3.) There] And 3: There B2 | Again, [begin strikethrough]3.[end strikethrough] There B3 (m) such are] B1, B3 | And such B2
(4.) OED, s.v. phantasy, def. 1a: "Mental apprehension of an object of perception; the faculty by which this is performed."
(a) either are] are Either B2 | are either are B3 (b) and] B1, B2 | and the B3 (c) properly so] B1, B3 | so properly B2 (d) 1.] B1, B3 | First B2 (e) promulgation ... This] B1, B2 | <promulgation of that law to the persons whom it is intended to oblige. This> B3 (f) a Law] the Law B2 | a law [begin strikethrough]<which>[end strikethrough] B3 (g) manner] manner[.] (h) by] <by> (i) was in] was by B2 | <it> was in B3 (j) known] em. | know B1 | knowne B2 | known B3 (k) find] B1, B2 | <find,> B3 (l) were] B1, B2 | are B3 (m) occasion] em. | accasion (n) stil voice, that] B1, B2 | <this> still voice, [begin strikethrough]that[end strikethrough] <this> B3 (o) true] true a B2, B3
(a) Person] persons B2, B3 (b) understanding] em. | understanding, (c) without it the Law] B1, B3 | the Law without it B2 (d) a] <a> (e) cannot] em. | cannat (f) reward, or punishment] B1, B3 | Rewards or punishments B2 (g) necessarily] em. | necesary B1 | necessarily B2, B3 (h) (I] em. | [(]I (i) if] B1, B2 | <&> if B3 (j) ad oppositum] and oppositum B2 | and <option> [begin strikethrough]oppositum[end strikethrough] B3 (k) consist whither] consist w<h>ither B1 | consists: whither B2 | consists, whether B3 (l) Angels] em. | Angles
(5.) The faculties of understanding and will are treated at greater length in Discourse, 45-60; and Primitive, 54-64. See also Pleas, 1:14-15; and Works, 1:385.
(a) &] [begin strikethrough][ ? ][end strikethrough] <&> (b) of] B1, B2 | <of> B3 (c) opposita] and opposita B2 | ad opposita B3 (d) where in] B1, B2 | <which> [begin strikethrough]w[end strikethrough]herein B3 (e) a] om. B2 (f) (his ... Liberty)] (his phantasy carryes something analogicall to intellect, and his Apetite something analogicall to Will and his spontaneity some thing analogicall to Liberty) B2 | , his phantasy carries<ying> something analogical to intellect, and his appetite something analogical to will, and his spontaneity something analogical to liberty; B3. Ed. note: text from B2 and B3 supplied in brackets.
(6.) Ovid, Metamorphoses, 7.20: "video meliora proboque, deteriora sequor." This saying was associated with Romans 7:14-28 and cited by seventeenth-century moral philosophers. See Norman S. Fiering, "Will and Intellect in the New England Mind," William and Mary Quarterly 29, no. 4 (1972): 515-58, at 527-29.
(a) there are these ... Law] B1, B2 | <there are these things implied or expressed. 1. That for the constitution of a law> BR3 (b) there] B1, B2 | <(1.)> [begin strikethrough]t[end strikethrough]<T>here B3 (c) legislator.] legislator[.] (d) Law-giver] Law giver or B2 | lawgiver or B3 (e) formerly] B1, B2 | properly B3 (f) obligacions,] obligation B2, B3 (g) correlata] em. | corrolata B1, B2 | correlata B3 (h) from] em. | form B1 | from B2, B3 (i) to be afterwards] B1, B3 | afterwards to be B2 (j) of] of the B2, B3 (k) as these] B1, B2 | [begin strikethrough]as these[end strikethrough] <or those> B3 (l) Transacted;] B1, B2 | [begin strikethrough]transacted[end strikethrough] <entrusted>. B3 (m) a] om. B3 (n) paction] B1, B2 | [begin strikethrough]partition[end strikethrough] <paction> B3 (o) which such] B1, B3 | which B2
(7.) OED, s.v. nomothetes: "In ancient Greece: a lawgiver; a legislator (now hist.)." From vo{io (law) and [tau][iota][theta][??]v[alpha][iota] (to put, place).
(a) it] em. | in B1 | it B2, B3 (b) End.] End[.] (c) pact] em. | part B1, B2 | pact B3 (d) again.] again[.] (e) mankind] em. | mahkind (f) and Earth.] em. | and Eearth. B1 | and Earth. B2 | om. B3 (g) up] <up> B1 | up B2, B3 (h) Laws] B1, B3 | of Lawes B2
(8.) Cf. Selden, De jure naturali, 46, 93-94, 107; Grotius, De jure belli ac pacis, Prol. 15.
(a) Constitutions] Constitution B2 | constitution B3 (b) Governor] B1, B2 | governors B3 (c) them.] [begin strikethrough]in[end strikethrough] them. B1 | them. B2 | them, B3 (d) business.] business[.] (e) Persons] Person<s> B1 | persons B2, B3 (f) 1.] First B2 | <1.> [begin strikethrough]first[end strikethrough] B3 (g) Comonalty. 2.] Commonalty, or bound by the Lawes of the Mayor and Commonalty 2 (ly) B2 | commonalty or bound by the lawes of the mayor and commonalty. 2. B3 (h) this] om. B3 (i) alter'd.] alter'd[.] (j) as] B1, B2 | <thus,> as B3 (k) distance] B1, B2 | [begin strikethrough]distance[end strikethrough] <difference> B3
(a) Person there] person thereof B2 | thereof B3 (b) as] B1, B2 | <as> B3 (c) had] B1, B2 have B3 (d) nothing;] [begin strikethrough][?g][end strikethrough] <nothing>; B1 | nothing: B2 | nothing. B3 (e) strength] em. | strengh (f) Law] <Law> (g) under] B1, B2 | [begin strikethrough][?][end strikethrough]der <under> B3 (h) that Law ... of] <that Law, Titius demands as long as the matter of> B1 | that Law Titius remaines so long as the matter of B2 | that law Titius remains so long as the matter of B3 (i) is] B1, B2 | <it> is B3 (j) That Nomothetical] em. | That Nomothtical B1 | That Nomotheticall B2 | 1. That nomothetical B3 (k) to] <to>
(a) the] That B2 | that B3 (b) have their original ... things,] em. | <have their original Being and their preservation [MS. trimmed]> B1 | have their original Being and their preservation from Him, and their dependance upon Him; / And therefore he is most Absolute Lord Governor and proprietor of all things, B2 | have their original being and their preservation from him and their dependance upon him; and therefore he is most absolute Lord governor and proprietor of all things, B3. Ed. note: the insertion in B1 was written perpendicularly in the margin at the edge of the page, which was subsequently trimmed, resulting in partial loss of text. The missing text, which is now unverifable from B1, but presumably available to the copyist of B2, has been supplied from B2 in the bracketed portion. (c) to which he not] to which he <not> B1 | to which he hath not B2 | which he not B3 (d) Being.] [begin strikethrough]B[?]g[end strikethrough] Being. (e) Angels] Ang<e>ls (f) Nomotheticall] em. | Nemotheticall (g) do most ... an universal] B1, B3 | most naturally owe an B2
(a) as his] B1, B2 | as [begin strikethrough]to[end strikethrough] his B3 (b) Creature] B1, B2 | creatures B3 (c) 1.] 1 (st). B2 | 2. B3 (d) first] B1, B2 | <1.> [begin strikethrough]first[end strikethrough], B3 (e) causality] causal<i>ty B1 | Causality B2 [begin strikethrough]casualty[end strikethrough] <causality> B3 (f) 1. By Nature,] first by nature B2 | [begin strikethrough][ ? ][end strikethrough] By <by> nature: <1.> B3 (g) owe] ow[begin strikethrough]n[end strikethrough]e (h) Parental] B1, B3 | paternal B2 (i) infancy] <in>fancy (j) and] And so B2 | and so B3 (k) abridged] [begin strikethrough]a[?][end strikethrough] [begin strikethrough]ged[end strikethrough] <abridged> (l) abridged.] abridged[.]
(a) authority] om. B2 (b) sometimes ... hath it,] <sometimes by Investitive Ordination from another that hath it,> B1 | Sometimes by investiture Ordination from another that hath it: B2 | sometimes by investiture <or> ordination from another that hath it: B3 (c) Governors] B1, B2 | governor B3 (d) Capitulation] Capitulations B2 | capitulations B3 (e) future Government] em. | futer Government B1 | future Governments B2 | future governments B3 (f) or] B1, B2 | and B3 (g) the] om. B3 (h) is] B1, B2 | [begin strikethrough]is[end strikethrough] <are> B3 (i) modelled] B1, B3 | modifyed B2
(9.) For Hale's views on sovereignty, see Dialogue, 506-13; and Cromartie, Hale, 42-57, 102-3.
(10.) OED, s.v. dedition: "Giving up, yielding, surrender."
(a) whether] w<h>ether (b) or] <or> B1 | or B2, B3 (c) [epsilon][xi][omicron][upsilon][sigma][iota][alpha] em. | [epsilon][chi][omicron][upsilon][sigma][iota][alpha] B1 | [xi][omicron]usia B2 [begin strikethrough][EPSILON][XI][OMICRON][?[upsilon]][end strikethrough] <[EPSILON][XI][OMICRON][UPSILON][SIGMA][IOTA][ALPHA]> B3 (d) a] B1, B2 | the B3 (e) accounts] Ed. note: the catchword on fol. 51v has 'accounts' but fol. 52r has 'account'. (f) profection] perfection B2 | [begin strikethrough]protection[end strikethrough] <promanation> B3 (g) in] B1, B3 | om. B2 (h) relation] em. | realation (i) [epsilon][xi][omicron][upsilon][sigma][iota][alpha]] em. Exousia B1, B2 | <[EPSILON][XI][OMICRON][UPSILON][SIGMA][IOTA][ALPHA]> B3 (j) authoritas] B1, B2 | authorita[begin strikethrough]s[end strikethrough] B3
(11.) DLGT, s.v. exousia (??[xi][omicron][upsilon][sigma][iota][alpha]): "the freedom or right to act, choose, or decide; thus, ability, authority, or power."
(12.) OED, s.v. profection, def. 1: "The setting forward or promotion of a person or thing; furtherance, advancement. Obs."
(13.) Cf. History, 16-17.
(14.) DLGT, s.v. dynamis ([delta][??][upsilon][alpha][mu][iota][??]): "power; in philosophy, the power to accomplish change, i.e., potency."
(a) not] <not> (b) commotion] em. | Commontion (c) as to the] B1, B2 | [begin strikethrough]as to[end strikethrough] <to the> B3 (d) ineffectuall] em. in Effectuall (e) end] Ends B2 | ends B3 (f) distinguish'd] distingu<i>sh'd (g) bare] em. | bear (h) consist] consists B2, B3 (i) permissiva] em. | promissiva B1, B2 permissiva B3
(a) this] in this B2, B3 (b) penalty ... violation] B1, B3 | pain or violation B2 (c) arbitrium] em. | arbitrimum B1 | Arbitrium B2 | arbitrium B3 (d) is] om. B2, B3 (e) there] om. B3 (f) penalty] B1, B2 | penalty of B3 (g) Secondly] em. | Secoundly (h) Legislator.] Legislator[.] B1 | Legislator: B2 | legislature. B3 (i) sepimentum Legis] B1, B3 | sepimented Legis, B2
(15.) OED, s.v. mulct, def. 1: "A fine imposed for an offence."
(a) institutions] institution B2, B3 (b) contemptuous] em. | comte<m>tuous (c) as] as a B2 | is a B3 (d) vindictae] em. | vindicte B1, B2 | vindictae B3 (e) poena] B1, B2 | penae B3 (f) as an instituted] of an instituted B2 | as an inflicted B3 (g) ataxy] em. | at. axy (h) that] B1, B2 | the B3 (i) poena] em. | pena B1, B2 | poena B3 (j) poena] em. | pena B1, B2 | poena B3 (k) As the] B1, B2 | <as> [begin strikethrough]/ As to the[end strikethrough] B3 (l) feaver] em. | favor | Feaver B2 | feaver B3 (m) of] B1, B2 | [begin strikethrough]of[end strikethrough] <to> B3 (n) Man] em. | Man (o) punishment] pu<nish>[begin strikethrough][?][end strikethrough]ment
(16.) DLGT, s.v. poena: "[Protestant scholastics] distinguish eternal punishment into poena damni, the punishment of the damned, which is the pain of eternal separation from God, and poena sensus, the punishment of the senses, which is the actual torment in body and soul suffered by those who are denied the fellowship of God in eternity."
(a) fault;] fa<u>lt; (b) of] <of> (c) or] B1, B2 | [begin strikethrough]or[end strikethrough] <as> B3 (d) Mosaical] em. | Mosiacal (e) not] <not> (f) with it self and in it self] B1, B3 | in it selfe and with it selfe B2 (g) touching] em. | touch B1 | touching B2, B3
(17.) On ataxy and punishment, see also Discourse, 52-53, 83.
(a) Chapter 2] em. | Caput 2(dum). (b) Effects] effect B2, B3 (c) are] B1, B2 | [begin strikethrough]are[end strikethrough] <is> B3 (d) of] B1, B2 | [begin strikethrough]of[end strikethrough] <on> B3 (e) conveniences] B1, B3 | conveniency B2 (f) submission] em. sumission (g) Effects of Law's] B1, B2 | effect of law B3
(a) two] [begin strikethrough][ ? ][end strikethrough] two (b) consist] em. consist . BL1 | consist B2 | consists B3 (c) imaginable.] imaginable[.] (d) Secondly,] em. | Secounly, (e) that] B1, B2 | that <this> B3 (f) Experimentall Observation,] E<x>perimentall Obsevation, (g) their] B1, B2 | their own B3 (h) ratiocination] ratioci[begin strikethrough][?ot][end strikethrough]nation
(1.) Protestant theologians commonly identified two kinds of knowledge of God--implanted and acquired--with Rom. 1:19-20. See, e.g., Andrew Willet, Hexapla: that is, A Six-fold Commentarie upon the most Divine Epistle of the Holy Apostle S. Paul to the Romanes (Cambridge: Cantrell Legge, 1611), 59-60; and Francis Turretin, Institutes of Elenctic Theology, 3 vols. (Phillipsburg, NJ: P&R Publishing, 1992-97), 1.3.6. Cf. DLGT, s.v. cognitio: "Neither the Reformers nor the Protestant scholastics argue the existence of innate ideas in the Platonic sense; instead, they argue the presence in the mind of certain ideas that arise out of the initial encounter of mind and sense with externals. Cognitio Dei insita, implanted knowledge of God, and sometimes even the term cognitio Dei innata, innate or inborn knowledge of God, indicate neither an unmediated act of God by which knowledge is implanted nor an inward illumination, but rather that fundamental sense of the divine mediated by the created order and known by the mind's apprehension of externals, rather than by the process of logical deduction."
(a) Power;] Power[;] (b) a] <a> (c) Benefactor] em. | Benefector (d) not] om. B2 (e) it] B1, B2 | that it B3 (f) Supream;] B1, B2 | supream <one> B3 (g) a] as B2, B3 (h) obedience] em. | bedience (i) subordination.] subordination[.] (j) Laws] Law B2 | law B3 (k) Soveraign] em. | Severaign (l) faith] fat B2, B3
(a) the] om. B2 (b) be] B1, B2 | be <between> B3 (c) it] B1, B2 | [begin strikethrough]it[end strikethrough] B3 (d) as] B1, B2 | <as> B3 (e) Governors] Governour B2 | governor B3 (f) possibly] possible B2, B3 (g) communicative] communicat[begin strikethrough][?][end strikethrough]<ive> B1 | communicative B2 | commut[begin strikethrough][?][end strikethrough]ative B3 (h) distributive] B1, B2 | distributative B3 (i) all] om. B3 (j) his] B1, B2 | the B3
(2.) OED, s.v. withe, def. 1a: "A band, tie, or shackle..."
(a) Chapter 3] em. | Caput 3(um). (b) Law's] B1, B3 | the Lawes B2 (c) indifferent] <in>different (d) Eating] [begin strikethrough]not[end strikethrough] Eating B1 | not eating B2, B3
(a) re-enact by] re-enact[begin strikethrough][?][end strikethrough] <by> (b) inhanceth] em. | inhaunceth (c) against] [begin strikethrough][?][end strikethrough]t <against> (d) Law] Law [begin strikethrough]Law[end strikethrough] (e) was,] B1, B3 | were B2 (f) nature,] M[begin strikethrough][?][end strikethrough] <nature>, (g) powerfull] power full
(1.) Cf. Discourse, 156-57, 441-42.
(2.) Cf. Discourse, 436-40.
(a) Causalitys] Casualtyes B2 | casualties B3 (b) Consecution] B1, B3 | Constitution B2 (c) came] B1, B2 | come B3 (d) which] B1, B2 | [begin strikethrough]which[end strikethrough] <&> B3 (e) order & ... admirable] <order & method which [MS. trimmed]> B1 | Order and Method which the Divine Will hath with admirable B2 | order and method, which the divine will hath with admirable B3. Ed. note: the insertion in B1 was written perpendicularly in the margin at the edge of the page, which was subsequently trimmed, resulting in partial loss of text. The missing text has been supplied from B2 in the bracketed portion. (f) the] in the B2, B3 (g) Secondly, but] B1, B2 | <But> Secondly [begin strikethrough]but[end strikethrough] B3 (h) intellected] intellectuall B2 | intellectual B3 (i) Angels] em. | Angles (j) supreame] em. | spreame (k) or] and B2, B3 (l) is] B1, B2 |[begin strikethrough]is[end strikethrough] <are> B3 (m) implanted] em. | implainted (n) shall be] em. | shall [be] B1 | shall be B2, B3
(3.) Cf. Primitive, passim; Discourse, 33-37.
(a) Law of Nature] em. | [Law] of Nature B1 | Law of Nature B2 | law of nature B3 (b) or] or <the> B2 | or the B3 (c) thereof;] there<o>f; (d) belong] b<e>long (e) in] om. B2 (f) follows] em. | fellows (g) Nature.] Nature[.] (h) Principle] Principles, B2 | princip[begin strikethrough]le[end strikethrough]<al> B3 (i) that] B1, B2 | [begin strikethrough]that[end strikethrough] <it> B3 (j) Explication] em. | E<x>plication
(a) Chapter 4] em. | Caput 4(tum). (b) whencec B1, B2 | [begin strikethrough]when[begin strikethrough] <whence> B3 (c) most] must B2, B3 (d) sets] sett B2 | set B3 (e) give] give some B2, B3 (f) it,] B1, B2 | it<self,> B3 (g) appropriate] approp<r>iate (h) he] B1, B2 | [begin strikethrough]he[end strikethrough] <man [begin strikethrough][?men] the human nature>[end strikethrough] B3 (i) it] B1, B2 |[begin strikethrough]It[end strikethrough] <He> B3 (j) it] B1, B2 | [begin strikethrough]it[end strikethrough <he> B3
(a) those Laws ... to] <those Laws of sensation that animalls are subject to> B1 | those Lawes of sensation that Animals are subject to: B2 | those lawes of sensation, that animals are subject to. B3 (b) as] as [begin strikethrough][ ? ][end strikethrough] (c) that] om. B2 (d) observed] em. | obseved (e) part] B1, B2 | <part> B3 (f) and] and a B2, B3 (g) vegetable] em. | vegetabe (h) will.] will[.] (i) opening ... under the] <opening of my Eyelids is spontaneous and under the> B1 | opening of my Eye Lids is spontaneous and under the B2 | opening of my eye lids is spontaneous, and under the B3 (j) as] are B2, B3 (k) a] em. | a a (l) that] B1, B2 | [begin strikethrough]that[end strikethrough] <which> B3
(a) therefore] <therefore> B1 | therefore B2, B3 (b) Secondly] em. | Secoundly B1 | Secondly B2 | <(2.)> [begin strikethrough]Secondly[end strikethrough] B3 (c) but as] em. | [but] as B1 | but as B2, B3 (d) per totum.] per totum[.] (e) anticipations,] Anticipationes B2 | anticipationes B3 (f) Naturall] om. B2 (g) heart.] heart[.] (h) But] B1, B2 | But <although> B3 (i) altho] altho they B2 | [begin strikethrough]altho they[end strikethrough] B3
(1.) Protestant theologians generally followed Philip Melanchthon (1497-1560) in identifying Stoic common notions or preconceptions with the law written on the heart (Rom. 2:14-15). See Philip Melanchthon, Loci communes rerum theologicarum (1521), in Opera quae supersunt omnia, ed. C. G. Bretschneider and H. E. Bindseil, vol. 21 (Braunschweig: C. A. Schwetschke, 1854), cols. 116-17; ET: Commonplaces: Loci Communes 1521, trans. Christian Preus (St. Louis: Concordia, 2014), 62; John Calvin, Commentary on the Epistle of Paul the Apostle to the Romans, trans. John Owen (Edinburgh: Calvin Translation Society, 1849), 96-97; and Willet, Commentarie upon ... Romanes, 117-18.
(a) it] em. | it. (b) finely] B1, B3 | fairely B2 (c) and nor never] B1, B2 | nor [begin strikethrough]never[end strikethrough] B3 (d) heard] hard B2, B3 (e) in] B1, B3 | it in B2 (f) consectaryes] B1, B2 |[begin strikethrough]consectaries[end strikethrough] <consequences> B3
(2.) OED, s.v. clew, def. 3a: "A ball of thread, which in various mythological or legendary narratives (esp. that of Theseus in the Cretan Labyrinth) is mentioned as the means of 'threading' a way through a labyrinth or maze; hence, in many more or less figurative applications: that which guides through a maze, perplexity, difficulty, intricate investigation, etc."
(3.) OED, s.v. consectary, def. a: "A consequence, deduction, conclusion, corollary."
(4.) Cf. Hobbes, De cive, 1.7; Leviathan, 14.1-3.
(a) parsimonious:] parsimonious[:] B1 | parsimonious B2 | parsimonious, as B3 (b) designed] designe B2 | design B3 (c) therefore] [begin strikethrough][ ? ][end strikethrough] <therefore> (d) <and the great ... possibly>] <and the great variety and discrepancy that possibly> B1 | and the great variety and discrepancy that possibly B2 | and the great variety and dis<c>repancy, that possibly B3 (e) moratiores] em. | moraliores B1 | Moraliores B2 | moratiores B3 (f) an] om. B2 (g) to] B1, B2 | [begin strikethrough]to[end strikethrough] B3
(a) soveraigne] em. | soverainge (b) inscription] B1, B2 | <&> inscription B3 (c) in the] em.| [in] the B1 | the B2 | <in> the B3 (d) farther] B1, B2 | further B3 (e) but] B1, B2 | but <it> B3 (f) Consonancy] a Constancy B2 | a consonancy B3 (g) is] B1, B2 | [begin strikethrough]is[end strikethrough]is <are> B3 (h) seems] B1, B2 | <it> seems B3 (i) For altho] em. | For altho. (j) that] the B2 | <that the> B3 (k) Gen. 6:3.] em. | gen. 6.3. B1 | Gen: 6.3 B2 | Gen. <c> 6. <v.> 3. B3 (l) Joh. 1:9.] em. | joh. [1:]9. B1 | Joh: 9 B2 | Joh. <c> 9. B3 (m) world] wor<l>d (n) produced] B1, B3 | hath produced B2 (o) Men] em. | Man B1 | Men B2 | men B3 (p) morallity] em. | mortallity B1 | Morality B2 morality, B3 (q) not] om. B2 (r) there] [begin strikethrough][ ? ][end strikethrough] there (s) them] B1, B2 |[begin strikethrough]them[end strikethrough] <it> B3 (t) the] om. B2
(a) Soveraign] em. | Severaign (b) 3 That the] 3(dly). That the B2 | 3. [begin strikethrough]That t[end strikethrough]<T>he B3 (c) definitively] em. | deffinitively (d) with] B1, B3 | which B2 (e) partly] B1, B2 | <This is> partly B3 (f) perchance ... universall] may perchance subscribe to the same more universall B2 | perchance subscribe to the same universal B3 (g) And partly] B1, B2 | partly [begin strikethrough]/ And partly[end strikethrough] B3 (h) Elations] [begin strikethrough]A[?]ti[?][end strikethrough] <Elations> B1 | illations B2, B3 (i) which] B1, B3 | of B2 (j) wits] [begin strikethrough]w[?]its[end strikethrough] <wits> B1 | Witts B2 | wits B3 (k) that] B1, B2 | [begin strikethrough]that[end strikethrough] B3 (l) them other] others B2 | them others B3 (m) and] B1, B2 | [begin strikethrough]&[end strikethrough] <which> B3 (n) not] <not> (o) inferences] B1, B2 inf<l>erences B3 (p) a] <a> (q) tho] B1, B2 | <which,> tho B3
(5.) OED, s.v. elation, def 2a: "Elevation of mind arising from success or self-approbation, pride of prosperity; pride, vainglory."
(a) were] B1, B2 | are B3 (b) sufficient] B1, B2 | [begin strikethrough]defficient[end strikethrough] <sufficient> B3 (c) And] And they B2 | and they B3 (d) civiliz'd] civilizd and B2 | civilized and B3 (e) many] em. | may B1 | many B2, B3 (f) and] B1, B2 | and <appeared> B3 (g) difficulty.] difficulty[.]
(6.) By this time reports of human sacrifice and cannibalism in the New World had become widely known. See Girolamo Benzoni, History of the New World, trans. W. H. Smyth (London: Hakluyt Society, 1857), 9, 45, 72-73, 108, 112, 248; Richard Hakluyt, The Principal Navigations, Voiages, Traffiques and Discoueries of the English Nation, Made by Sea or Overland, 3 vols. (London: G. Bishop, R. Newberie & R. Barker, 1598-1600), 3:465, 504, 507, 516; and Sir Walter Raleigh, The History of the World (London: Walter Burre, 1614), 370. Hale was familiar with Hakluyt's account of the West Indies (Hakluyt, Principal Navigations, 3:498-627). See Pleas, 1:55. The "Northern countries" is likely a reference to the Gauls' acceptance of human sacrifice and theft, according to the account of Julius Caesar, De bello gallico, 6.16. This example was used by Aquinas as evidence of differing degrees of the knowledge of natural law. See Aquinas, Summa theologiae, I-II q. 94 a. 4.
(7.) OED, s.v. menage, def. 2: "A domestic establishment, or its members collectively; a household, a home ..."
(a) like.] like[.] (b) whither] w<h>ither (c) Measures] em. | Meassures (d) Children,] em. | Chilldren, (e) Nature:] B1, B2 | reason; B3 (f) is] B1, B2 | [begin strikethrough]is[end strikethrough] <to be> B3
(8.) The Reformed pastor, Jean de Lery (1534-1611), in his Histoire d'un voyage fait en la terre du Bresil, autrement dite Amerique ([La Rochelle]: Chuppin, 1578), chs. 15-17, described Brazilians as practicing cannibalism, irreligion, and polygamy. The work was translated into Latin in 1586. English translations of extracts appeared in Johann Boemus, The manners, lawes, and customes of all nations, trans. Edward Aston (London: G. Eld, 1610), 485-502; and Samuel Purchas, Hakluytis Posthumus or Purchas His Pilgrimes, 4 vols. (London: William Stansby for Henrie Fetherstone, 1625), 4:1325-47. For English translation, see Jean de Lery, History of a Voyage to the Land of Brazil, Otherwise Called America, trans. Janet Whatley (Berkeley: University of California Press, 1990), 122-57.
(9.) The words gentes moratiores appear in Grotius, De jure belli ac pacis, 1.1.12: "... quod apud omnes gentes, aut moratiores omnes tale esse creditur." The same notion expressed as communis consensus appears in Grotius, De jure belli, Prol. 40. Cf. Nathaniel Culverwell, An Elegant and Learned Discourse of the Light of Nature, ed. Robert A. Greene and Hugh MacCallum (Toronto: University of Toronto Press, 1971), 72-73.
(a) Notions] B1, B2 | nations, B3 (b) governments,] B1, B2 | <&> governments, B3 (c) Anomalous,] em. | Anamoulous, (d) number] [begin strikethrough][ ? ][end strikethrough] <number> (e) the] <the> (f) Sentiments] B1, B2 | sentiment B3 (g) proper] om. B3 (h) greatest] em. | greates (i) one] B1, B2 | [begin strikethrough][?of a][end strikethrough] <one> B3 (j) 1(st). That this] First that this B2 | <1 st).> [begin strikethrough]That t[end strikethrough]<T>his B3 (k) and] B1, B2 | [begin strikethrough]And[end strikethrough] B3 (l) Universality] Unive<r>sality (m) distint Nations,] em. | distint Notions, B1 | distinct notions B2 | distinct nations, B3 (n) have] B1, B2 | <And though this concurrence may> have B3 (o) of] of mutuall B2 | of mutual B3 (p) commerce,] commerce[,] B1 | Commerce, B2 | commerce, <by> B3 (q) or] B1, B2 | or <by> B3 (r) tradition] em. | tradiction
(10.) Cf Discourse, 55: "Hence several Nations, that we know not ever to have had correspondence one with another, yet agree in many Natural Observations and Customs, as agreeing to the common Reason of both ..."
(a) tradition] em. | tradiction B1 | Tradition, B2 | tradition <& [?this]> B3 (b) which yet hath] B1, B2 | [begin strikethrough]which yet hath[end strikethrough] <which have> B3 (c) positive] em. | pasitive (d) but stil ... hath] B1, B2 | [begin strikethrough]hath[end strikethrough] <have> B3 (e) That] B1, B2 | <&> That B3 (f) Connaturality,] Connfonaturality B2 | connaturality; <for> B3 (g) could] B1, B3 | would B2 (h) appropriate.] appropriate[.] (i) 2. But] 2 (dly). But B2 | But <(2.)> B3 (j) word] B1, B2 | wor<l>d B3 (k) These] Those B2 <&> those B3 (l) them).] them)[.]
(11.) OED, s.v. elixir, def. 3b: "The quintessence or soul of a thing; its kernel or secret principle."
(12.) OED, s.v. placit, def. 1: "What is decided or determined upon; an opinion, a judgement, a decision; a decree, an ordinance."
(a) decorum et turpe] B1, B3 | Decorum and <et> Turpe B2 (b) commended,] B1, B3 | condemned B2 (c) them] em. | then B1 | them B2, B3 (d) lib.] l[ib]. (e) 13] em. | 15 (f) enim] [begin strikethrough][ ? ][end strikethrough] <enim> (g) nullum habeunt] nullum habeunte B2 | nullam habeant B3
(13.) Pierre Gassendi (1592-1655) was the most well-known apologist of Epicurean philosophy. Among English authors, see Walter Charleton, "An Apologie for Epicurus," in Epicurus's Morals (London: W. Wilson, 1656); John Evelyn, "The Interpreter to Him that Reads," in An Essay on the First Book of T. Lucretius Carus De rerum natura (London: Gabriel Bedle and Thomas Collins, 1656); and Thomas Stanley, The History of Philosophy, The Fifth Part: Containing the Epicurean Sect (London, 1659), "Epicurus, His Life and Doctrine. Written by Petrus Gassendus," in The History of Philosophy, The Third and Last Volume, in Five Parts (London: Humphrey Moseley and Thomas Dring, 1660), 105-275.
(14.) Aristotle, Rhetoric, 1.13 (1373b6). Hale's Latin citation is nearly identical to that of Selden, De jure naturali, 75-76, who cites Rhetoric, 1.13 and 1.15. If Hale was working from Selden's text, it may explain his erroneous citation of Rhetoric, 1.15.
(a) That] B1, B2 | [begin strikethrough]That[end strikethrough] <And> B3 (b) Titius] em. | Titus B1 | Titius B2, B3 (c) Sempronius] em. | Sempronious B1 | Sempronius B2, B3 (d) Titius] em. | Titus B1, B2 | Titius B3 (e) Sempronius] em. | Sempronious B1 | Sempronius B2, B3 (f) And therefore] B1, B2 | [begin strikethrough]And[end strikethrough] [begin strikethrough]therefore[end strikethrough] B3 (g) specifically] B1, B2 | superficially B3 (h) the] B1, B2 | <that> the B3 (i) particular Judgment] em.] particular[?s] Judgments B1 | <particular> Judgment B2 | particular judgment B3 (j) miserable] miserably B2, B3 (k) impartially] em. | inpartially (l) blames] blame B2 | <doth not> blames B3 (m) is] B1, B2 | is <& is not> B3 (n) in] B1, B2 | into B3 (o) reflection upon] reflection up<on> B1 | reflection upon B2 | reflections upon B3
(a) hipocrisy] em. | hipocr[begin strikethrough]i[end strikethrough]<o>sy (b) censoriousnes] em. | senseriousnes B1 | sensoriousnes B2 | censoriousness B3 (c) brings] B1, B2 | bring[begin strikethrough]s[end strikethrough] B3 (d) the] the same B2, B3 (e) excites Mens passions and] Excites Men passions to B2 | excite[begin strikethrough]s[end strikethrough] mens passions and B3 (f) transports] B1, B2 | transport[begin strikethrough]s[end strikethrough] B3 (g) conversation] em. | coversation (h) that] B1, B2 | <who> B3 (i) Intemperance] B1, B2 | intemperance <&> B3 (j) children] em. | clildren (k) them] em. then B1 | them B2, B3 (l) faults,] fa<u>lts, (m) unwilling] | uwilling (n) but] bu<t> (o) avarice] <a>varice (p) even] om. B2 (q) so] B1, B2 | [begin strikethrough]So[end strikethrough] B3 (r) the] <the> (s) number] em. Noumber (t) sober] B1, B3 | the sober, B2 (u) unpassionate] B1, B2 | impassionate B3 (v) Lust] Lusts B2 | lusts B3
(a) interest] inter<e>st (b) & hold ... gain] B1, B3 | as to gain B2 (c) but] that B2 | [begin strikethrough]that[end strikethrough] <but> B3 (d) and] and a B2, B3 (e) reason.] reason[.] (f) that] B1, B2 | [begin strikethrough]that[end strikethrough] <such> B3 (g) excellent Usefulnes] Excellence, usefulness B2 | excellence B3 (h) And] B1, B2 | [begin strikethrough]And[end strikethrough] B3 (i) that] B1, B2 | that <they> B3 (j) as a suitable] as a su<i>table B1 | as a suitable B2 | <as> [begin strikethrough][?of[end strikethrough] a] suitable B3 (k) praecepta Noachidarum] em. | precepta Noachidar[um] (l) virtute praecepti] em. | vertute precepti B1 | virtute precepti B2, B3
(15.) See Selden, De jure naturali, 118-29 (summary) and 130-847 (individual precepts).
(a) seem] em. | seen B1 | seem B2, B3 (b) praecepta Noachidarum,] em. | precepta Noachidar[um],
(a) Chapter 5] em. | Caput 5 (tum). (b) or notions] <or notions> (c) nor] B1, B2 | [begin strikethrough]n[end strikethrough]or B3 (d) now] om. B2 (e) besides] em. | besids (f) exact] [begin strikethrough][ ? ][end strikethrough] <exact> B1 | Exact and B2 | exact and B3 (g) verifed] em. | varifed (h) Psal.] em. | psal. (i) of] em. | tof B1 | of B2, B3 (j) thy Commandments] [begin strikethrough][ ? ][end strikethrough] <thy> Commandments B1 | thy Commandment B2 | thy commandment B3 (k) broad.] B1, B3 | large. B2
(a) appeares] B1, B2 | appears B3 (b) given] em. | give B1 | given B2, B3 (c) not only] om. B3 (d) temporal] B1, B3 | temporary B2 (e) but] B1, B2 | and B3 (f) the] B1, B3 | this B2 (g) a] B1, B2 | a B3 (h) Oeconomies] [begin strikethrough][ ? ][end strikethrough] <Oeconomies> (i) preserve] [begin strikethrough]pr[?]erve[end strikethrough] <preserve> (j) adminicula divinae gratiae] em. | [begin strikethrough][ ? ][end strikethrough] <adminicula> divinae gatiae (k) contending] B1, B2 | contend B3 (l) arose] B1, B3 | are B2 (m) and] B1, B2 | and the B3 (n) it;] it[;] (o) Extraordinary] em. | Extaordinary (p) the] B1, B2 | <the> B3
(1.) Cf. Discourse, 46-47: "Thus without question at first, God did indite his Law in the Heart of Man; but this being not essential to the Soul, though he retained his Intellectual Soul; his Principles of this kind were obliterated: and therefore it was the Mercy of God from time to time to inculcate them into Man's Posterity."
(a) praecepta Noachidarum;] em. | precepta Noachidarum[;] (b) Fire;] em. | first; B1 | Fire: B2 | fre: B3 (c) of the] em. | [of] the B1 | of the B2, B3 (d) inforcing] in forcing (e) he] yet he B2, B3 (f) the] B1, B2 | <of> the B3 (g) effective] effectuall B2 | effectual B3 (h) the] B1, B2 | <&> the B3 (i) and] and the B2, B3
(2.) This strong identification of the gospel with the natural law likely reflects the moralism of Hale's later shift to a more Arminian and Latitudinarian position. See Cromartie, Hale, 165-66. By contrast, in Hale's early thought, which reflects a Reformed understanding of the third use of the law (DLGT, s.v. usus legis), the natural law is significant as a rule of righteousness in sanctification (Discourse, 438), but the law holds a subordinate place in relation to the great end of Christ's work in accomplishing the "Remission of sin and guilt, and Reconciliation, and Eternal Happiness in Christ" (Discourse, 170).
(a) speak,] B1, B3 | spake B2 (b) many times is] B1, B3 | is many times B2 (c) self] em. seff (d) deficiencies] em. | deficiencis (e) Laws;] Laws[;] (f) Christ] em. | Chirst (g) only] B1, B2 | & only B3 (h) Christ] em. | Chirst i Christ] em. | Chirst (j) Math.] em. | math: (k) in] B1, B3 | of B2 (l) and] B1, B2 | of and B3 (m) Math. 25.31.] em. | math. 25.31[.]
(3.) Cf. Hale, "Of doing as we would be done unto," in Works, 1:378-416; and Discourse, 447-57.
(a) that] B1, B2 | [begin strikethrough]that[end strikethrough] B3 (b) Nature, all Justice] em. | Nature, all. Justice B1 | nature; All Justice B2 | natur[begin strikethrough]e [end strikethrough]all justice: B3 (c) Math. 7:12.] em. | math. [7:12] B1. Ed. note: B1, B2, and B3 all leave a blank for the chapter and verse reference. (d) a] om. B3 (e) Sect] B1, B2 | set B3 (f) Math.] em. | math, (g) Math.] em. | math (h) many: Rom. 14.17.] em. | many[:] rom. 14[:]17. (i) Christ] em. | Chirst (j) 4:24.] em. | 4[:]24. (k) 1 Tim. 1:5.] em. | 1 tim. 1[:]5[.] (l) of the Commandments] of Commandement B2 | of the commandment B3 (m) of] of a B2, B3 (n) lust] Lusts B2 | lusts B3 (o) Christ] em. | Chirst
(4.) On Christ's life and teaching as a model of the natural law, see Discourse, 443-44.
(a) conforming] confo<r>ming (b) of] of the B2, B3 (c) evinced] B1, B2 | evidenced B3 (d) yet] B1, B2 | But B3 (e) oblige ... upon] obliged them, Even upon B2 | obliged them upon B3 (f) those] B1, B3 | them B2 (g) not] no B2, B3 (h) beleive] B1, B3 | doe beleive B2 (i) seem therefore] B1, B3 | therefore seem B2 (j) kinds.] kinds[.] (k) Legis] Leges B2 | leges B3
(5.) A nearly identical description of the following principles and conclusions of natural law is found in Suarez, De legibus, 2.7.5.
(a) inhonestum] in honestum (b) is] om. B3 (c) Men] <Men> (d) lib. 1. cap. 22,] l[ib]. 1. c[ap]. 22[,] (e) that] [begin strikethrough][ ? ][end strikethrough] that B1 | that B2 | they B3 (f) the other] B1, B3 | another B2 (g) Nature] B1, B2 | <nature> B3 (h) greater] em. | greator (i) Legis Naturalis secundo] em. | Legis Naturalis secoundo B1 | Leges naturales secundo B2, B3 (j) me,] B1, B2 | me <us> B3 (k) of] B1, B2 | of the B3 (l) it] B1, B2 | [begin strikethrough]i[end strikethrough]t <they> B3 (m) Principle] B1, B2 | princip[begin strikethrough]al[end strikethrough]<le> B3 (n) Righteousnes] em. | Rightuousnes
(6.) Epictetus, Discourses, 1.22. Cf. Abridgment, [3], [7]; and Dialogue, 502-3.
(a) Principle] em. | Prinple (b) distint] distinct B2 | [begin strikethrough]distant[end strikethrough] <distinct> B3 (c) that] om. B2 (d) vicinity] [begin strikethrough][ ? ][end strikethrough] <vicinity> (e) assent] B1, B2 | consent B3 (f) Principles] Princ<i>ples (g) are] om. B2 (h) intuition] em. | institution B1 | Intuition B2 | intuition B3 (i) Principle] em. | Principal B1 | principle B2, B3 (j) that] om. B2 (k) time] B1, B3 | him B2 (l) Obligation] B1, B3 natural obligation B2 (m) confused] B1, B2 | confused & B3 (n) repentance] B1, B2 | repentance, <&> B3 (o) tho] om. B2 (p) to undoing ... for it] B1, B2 | of it is by sorrow for [begin strikethrough]it[end strikethrough] B3
(a) even] B1, B2 | even <as> B3 (b) knew] know B2, B3 (c) can] om. B2 (d) discursively] em. | discursivly (e) it] <it> (f) of] B1, B2 | [begin strikethrough]of[end strikethrough] B3 (g) be many] must be B2 | may be many B3 (h) use] [begin strikethrough][ ? ][end strikethrough] <use> (i) Manners] B1, B2 | morals B3 (j) deduced] em. | reduced B1 | deduced B2 | deducted B3 (k) distance] B1, B3 | first distance B2 (l) Consequences.] Consequences[.] (m) or distant] B1, B3 | or more distant B2 (n) self] em. | seff (o) 2. or] 2 (dly). or B2 | <or> 2. [begin strikethrough]or[end strikethrough] B3 (p) of] of the B2, B3 (q) or 3.] or 3 (dly). B2 | <or> [begin strikethrough]Or[end strikethrough] 3. B3 (r) these] B1, B2 | [begin strikethrough]these[end strikethrough] <them, there> B3
(a) the] om. B3 (b) Schoolmen] School[begin strikethrough]e[end strikethrough]men (c) former ages,] former[begin strikethrough][?][end strikethrough] <ages>, (d) attained] attainable: B2 | attainable, B3 (e) of;] Ed. note: paragraph followed by "/ subsoleme" in B1, perhaps a variant of sub solem, "under the sun". (f) And] B1, B2 | [begin strikethrough]And[end strikethrough] B3 (g) attentively] em. | attendtivly (h) definition] B1, B2 | definition<s> B3 (i) it,] B1, B2 | [begin strikethrough]it[end strikethrough] B3 (j) listen] em. | lissen (k) it] B1, B3 | if it B2
(7.) Hale could have in mind collections of common law "maxims" in addition to the casuists and schoolmen mentioned above. Seventeenth-century common lawyers identified the deductions or secondary principles of natural law as either the "maxims" of their science or the basis thereof. See Sir John Doddridge, The English Lawyer (London: I. More, 1631), 191-94, 208-9; Sir Henry Finch, Law, or, A Discourse Thereof (London: [Adam Islip] for the Societie of Stationers, 1627), 3; and Michael Hawke, The Grounds of the Lawes of England (London: H. Twyford, et al., 1657), A8 (r). For examples of these maxims, see Doddridge, The English Lawyer, 154-90; Finch, Law, or, A Discourse Thereof, 6-73; and Hawke, Grounds of the Lawes of England, passim.
(a) but] B1, B2 | But <I> B3 (b) intuitu] em. | intuita B1 | intuitu B2, B3 (c) head] B1, B2 | head<s> B3 (d) But] B1, B2 | [begin strikethrough]But[end strikethrough] <but as to> B3 (e) other] B1, B2 | other<s> B3 (f) of] of a B2, B3 (g) but] B1, B2 | but it B3 (h) of] of the B2, B3 (i) And] B1, B2 | And <it is> B3 (j) beneficence,] em. | beneficonce, (k) truth] B1, B2 | <&> truth, B3 (l) every] [begin strikethrough]e[?]y[end strikethrough] <every> (m) things] B1, B2 | things in every man and that all the things B3
(8.) OED, s. v. crasis, def. 1a: "As a permanent characteristic: Composition, constitution, temperament, 'complexion'. Obs."
(a) Apostles,] Apostle: B2 | apostle B3 (b) Rom.] em. | rom: (c) clearly] B1, B2 | thereby B3 (d) Laws,] B1, B2 | Laws, <&> B3 (e) and] B1, B2 | one B3 (f) as] [begin strikethrough]of[end strikethrough] <as> B1 | of B2 | as B3. Ed. note: Ed. note: different hand for strike-through and insertion. (g) and] em. | a B1 and B2, B3 (h) connatural] [begin strikethrough]N[?atura]l[end strikethrough] connatural (i) Nature] em. | Naturall B1 | nature B2, B3 (j) are] B1, B2 | as B3 (k) Goodness] Go<o>dness (l) Soveraigne] em. | Severaigne
(a) toward] towards B2, B3 (b) be rested, trusted] rested trusted B2 | be rested trusted <& rested> B3 (c) dependance] em. | deppendance (d) upon] [begin strikethrough][ ? ][end strikethrough] <upon> (e) Benefactor.] Benefactor[.] (f) to] om. B2 (g) authority] em. | authory (h) authority] B1, B2 | authority <is> B3 (i) all] B1, B2 | <&> all B3 (j) Creaturs;] Creaturs[;] (k) Mankind] B1, B3 | all Mankind B2 (l) he] B1, B2 | [begin strikethrough]he[end strikethrough] <each> B3 (m) propitiate] em. | propriate B1 | propitiate B2, B3
(a) factum] B1, B2 | est factum B3 (b) consist] consists B2, B3 (c) it] om. B2, B3 (d) upon] upo<n> (e) of Nature,] em. | [of] Nature[,] B1 | of nature B2 | of nature, B3 (f) them] <them> (g) resolutions] resolut<i>ons (h) minds,] Mind B2 | mind, B3 (i) primarily and principally] B1, B2 | principally and primarily B3
(9.) A saying associated with Plato, Alcibiades 1 130c.
(10.) Cf. Aulus Persius Flaccus, Satires, Satire 2, vv. 73-74: "Justice and right blended in the spirit, the mind pure in its inner depths and a breast imbued with noble honour." (compositum ius fasque animo sanctosque recessus / mentis [sic] et incoctum generoso pectus honesto.) Susanna Morton Braund, ed. and trans., Juvenal and Persius (Cambridge, MA: Harvard University Press, 2004), 70-71.
(a) any] any long B2, B3 (b) Law] om. B3 (c) reasonablenes] B1, B2 | unreasonableness B3 (d) Nature.] Nature[.] (e) abasing] [begin strikethrough]abtaining[end strikethrough] <abasing> B1 | abateing B2 | abating B3. Ed. note: different hand for strike-through and insertion. (f) unbecoming] em. | ubecoming (g) such] [begin strikethrough][ ? ][end
strikethrough] <such> (h) this] B1, B2 | [begin strikethrough]This[end strikethrough] B3 (i) made] B1, B2 | made <this> B3 (j) due] em. | dure B1 | due B2, B3 (k) due] om. B3 (l) Apostle] B1, B2 | Apostle <says> B3 (m) Rom. 1:21.22.23.] em. | rom: 1.21.22:23. (n) Imaginations,] em. | Imginations, (o) into] B1, B3 | unto B2 (p) but] [begin strikethrough]by[end strikethrough] <but>
(11.) A saying attributed to Aristotle, De anima, 1.5 (411a5-7). Cf. Thomas Aquinas, Scriptum super Sententiis, I d. 36 q. 1 a. 2; II d. 42 q. 2 a. 4; and Summa theologiae, II-II q. 9 a. 4 ob. 1.
(a) summe] [begin strikethrough]s[?]e[end strikethrough] <summe> (b) Maledictio Manus ... of] Maledictio Manus [blank space] of B1 | maledictio manus pr.... [sic] of B2 | maledictus manus [blank space] B3 (c) And] And Also B2 | <&> [begin strikethrough]/ And[end strikethrough] B3 (d) ungoverned habit] em. | ugoverned babit B1 | ungoverned Habit B2 | ungoverned habit B3 (e) whether] w<h>ether (f) they] B1, B2 | th[begin strikethrough]ey[end strikethrough]<re> B3 (g) but] om. B2
(12.) Atheism was a major concern of Hale's later years. He spent seven years writing a multi-part apologetic work, of which only the first part on creation was published as The Primitive Origination of Mankind (1677). The second, third, and forth parts covered, respectively, the nature of the soul, God's attributes and providence, and the Scriptures. See Burnet, Life, 81-82; and Baxter, Add. Notes, 4.
(a) are] B1, B2 | <are> B3 (b) he] B1, B2 | [begin strikethrough]he[end strikethrough] B3 (c) is] <is> (d) not] <not> (e) Lust] Lusts B2 | lusts B3 (f) this] B1, B2 | his B3 (g) over] over the B2, B3 (h) or] B1, B2 | [begin strikethrough]or[end strikethrough] <as> B3 (i) excellence] em. | excellent B1, B2 | excellence B3 (j) Denomination,] domination, B2, B3 (k) a] B1, B2 | <a> B3 (l) consideration] em. | cosideration (m) contrary.] contrary[.] (n) use] em. | used B1 | use B2, B3 (o) it] <it> (p) appropriate] em. | appriate B1 | appropriate B2, B3 (q) natural] om. B2 (r) an] B1, B3 | the B2 (s) Nature,] B1, B3 | Creature B2 (t) Law of] em. | Law [of] B1 | Law of B2 | law of B3
(a) moderamen inculpatae tutelae] em. | medoramen inculpate tutele B1, B2 | moderamen inculpatae tutelae B3 (b) moderate] [begin strikethrough][ ? ][end strikethrough] <moderate> (c) Societys,] B1, B2 | societies <&> B3 (d) is] B1, B2 | <is> B3 (e) against] em. | againt (f) Mans self] em. | Manself (g) danger,] dangers B2, B3 (h) his] B1, B3 | this B2 (i) provisions] B1, B2 | provision[begin strikethrough]s[end strikethrough] B3 (j) and] B1, B2 | [begin strikethrough]and[end strikethrough] B3 (k) will] om. B3 (l) to the destruction of the Body] B1, B2 | destructive to the body, B3 (m) cannot] em. | cannont (n) head] B1, B2 | hea<r>t B3 (o) as] B1, B2 | [begin strikethrough]as[end strikethrough] <is> B3 (p) Job. 2:4.] Job. 2[:]4.
(13.) A concept originating with Ulpian and further developed by medieval civil lawyers. See Justinian, Digest, 43.16.3.9; and Frederick H. Russell, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975), 42-44.
(14.) OED, s.v. aversation, def. 1: "The action of turning away; the turning of one's back in fight. Obs."
(a) more] <more> (b) then] B1, B2 | <rather> than B3 (c) mortal] em. | moral B1 | mortal B2, B3 (d) 3. From] em. | [3.] From B1 | From B2 | 3. From B3 (e) intemperance,] em. | intemporance B1 | intemperance B2 | intemperate B3 (f) which] of which B2, B3 (g) but are contrary] but contrary B2 | but <because they> are contrary B3 (h) of] om. B2, B3 (i) that] B1, B2 | <which> B3 (j) are] B1, B2 | <are> B3 (k) propalam] em. | propalum B1 | propalam B2, B3 (l) there by] B1, B2 | hereby B3
(15.) Hale had a reputation for exercising moderation in his eating, attire, and residence. See Burnet, Life, 29-30, 150-51, 167.
(a) Man] em. | Mans B1 | man B2, B3 (b) be observed] em. | [be] observed B1 | be observed B2, B3 (c) unseemliness] em. | umseenlineses (d) imbase] em. | unbase (e) Reverere teipsum] B1, B3 | Revere teipsum B2 (f) was of that] B1, B2 | well as of that B3 (g) ariseth] [begin strikethrough]ar[?][end strikethrough] <ariseth> (h) Principle] em. | Princple (i) hands] B1, B3 | hand B2 (j) moderate] em. | moderat[begin strikethrough][?][end strikethrough] (k) neither] B1, B2 | [begin strikethrough]n[end strikethrough]either B3 (l) nor] B1, B2 | [begin strikethrough]n[end strikethrough]or B3 (m) he] B1, B2 | [begin strikethrough]He[end strikethrough] <We> B3 (n) the] B1, B2 | [begin strikethrough]the[end strikethrough] B3 (o) the] om. B2 (p) abides] [begin strikethrough][?]des[end strikethrough] <abides> (q) are] om. B2
(16.) This is a Latin version of the saying [alpha][iota][sigma][chi][??][nu][epsilon][omicron] [sigma]alpha][upsilon][tau][??][nu] from the Golden Verses of Pythagorus often cited by early modern English authors. See O. Ritter, "Lesefruchte," in Festschrift Wilhelm Vietor zum 25. Dezember 1910 dargebracht [Die Neueren Sprachen 18 (1910-1911), supp.] (Marburg: Elwert, 1910), 121-26 at 125-26.
(a) deliberation] delib<e>ration (b) the] om. B2 (c) drunk] B1, B2 | drank B3 (d) motions] B1, B2 | motion[begin strikethrough]s[end strikethrough] B3 (e) venereus nunquam] em. | venerus nunquam B1 | venereus nunquam B2 | venereus unuquam B3 (f) coitam] em. | costum B1, B2 | coitam B3 (g) patitur] em. | patitur <impletur> B1 | patitur B2, B3. Ed. note: in B1 "patitur" appears to be written over another word with "impletur" above it in another hand. (h) life;] B1, B3 | Beast B2
(17.) Cf. Discourse, 304-5. This description of the passions as motions located in the sensitive soul (in common with animals), and generally divided according to irascible and concupiscible powers, is broadly Aristotelian and was recognized as Thomistic in the seventeenth century. See Aquinas, Summa theologiae, I-II q. 22 a. 3; I-II q. 23 a. 1; and David S. Sytsma, "The Logic of the Heart: Analyzing the Affections in Early Reformed Orthodoxy," in Church and School in Early Modern Protestantism: Studies in Honor of Richard A. Muller on the Maturation of a Theological Tradition (Leiden: Brill, 2013), 471-88.
(a) disorderly ... more] om. B2 (b) hence] em. | hench (c) passions] passion[?s] B2 | passion[begin strikethrough]s[end strikethrough] B3 (d) Love] em. | Law B1, B2 | love B3 (e) never] B1, B2 | n[begin strikethrough]or[end strikethrough]<ever> B3 (f) Lust] Lusts B2 | lust[begin strikethrough]s[end strikethrough] B3 (g) brutal] em. | bruital (h) but] <but> (i) bound] Bounds B2 | bounds B3 (j) Convulsions] em. | Covulsions (k) which] B1, B2 | [begin strikethrough]which[end strikethrough] <this> B3 (l) is] [begin strikethrough][ ? ][end strikethrough]<is> (m) conserves] B1, B3 | concerns B2 (n) rise] B1, B3 | arise B2 (o) Envy ... self Love;] Envy that ariseth from the putrifaction of Anger and selfe Love: B2 | and self love; B3 (p) a] B1, B3 | of a B2 (q) Covetousness] em. | Covetuousness (r) ariseth] em. | arisheth
(18.) OED, s.v. extravasation, def. 1a: "Pathol. The escape of an organic fuid (e.g. blood, sap) from its proper vessels into the surrounding tissues; an instance of this."
(a) ariseth] B1, B2 | arise[begin strikethrough]th[end strikethrough] B3 (b) passion] passions; B2 | passions, B3 (c) are] B1, B2 | <These> are B3 (d) Compositum] B1, B2 | composition B3 (e) of the] em. | [of] the B1, B2 | of the B3 (f) dispose] B1, B2 | depose B3 (g) Nature.] Nature[.] (h) those] B1, B3 | the B2 (i) or] B1, B2 | [begin strikethrough]or[end strikethrough] <are> B3 (j) their] <their> (k) and] B1, B2 | and <those> B3 (l) 1.] 1 (st). B2 | [begin strikethrough]1.[end strikethrough] B3 (m) it] B1, B2 | [begin strikethrough]it[end strikethrough] B3 (n) mind] mi<n>d (o) opposite] B1, B2 | opposites, B3 (p) discovers] [begin strikethrough]d[?][end strikethrough] <discovers>
(a) one] <one> (b) is] em. | in B1, B2 | i[begin strikethrough]n[end strikethrough]<s> B3 (c) have] B1, B2 | [begin strikethrough]are[end strikethrough] <have> B3 (d) gift] em. | gilt (e) haughtines] hau<gh>tines (f) mans self] em. | man self (g) Therefore] Ther<e>fore (h) righteousness] em. | rightuousnes (i) that] B1, B2 | [begin strikethrough]that[end strikethrough] <as exist> B3 (j) antecedent] B1, B2 | antecedently> B3 (k) and] B1, B2 | and <are to be considered> B3 (l) considered;] B1, B2 | [begin strikethrough]considered[end strikethrough]. B3 (m) are in order] B1, B2 | [begin strikethrough]are in order[end strikethrough] <relate> B3
(a) to] B1, B2 | it B3 (b) these politicall] these political or B2 | [begin strikethrough]these[end strikethrough] political or B3 (c) Constitutions.] Constitutions[.] (d) of] to B2, B3 (e) Societys,] Society: B2 | society; B3 (f) 1. For] 1 (st). For B2 | [begin strikethrough]1. F[end strikethrough]<f>or B3 (g) where of... But that] whereof that State was capable; But B2 | [begin strikethrough]whereof that state was capable. But[end strikethrough] B3 (h) necessarily] necessar<il>y (i) that] that That B2 | that that B3 (j) governs] B1, B3 | does govern B2 (k) That] B1, B2 | <& that,> [begin strikethrough]That[end strikethrough] B3 (l) Oligarchy] [begin strikethrough][ ?? ][end strikethrough] <Oligarchy> (m) indecora:] indecora[:]
(a) mutuall] [begin strikethrough]Natural[end strikethrough] <mutuall> (b) Coersive,] Cohersive B2 | coercive <laws> B3 (c) antecede] em. | anteceed (d) Conventionall] em. | Contentionall (e) one] B1, B3 | the one B2 (f) Lands,] Land, B2 | land, B3 (g) hinc contractus] huic Contractus B2 | huic contractus<i> B3
(19.) A reference to Hobbes' natural state of "war of all against all." See Hobbes, De cive, 1.12-13; and Leviathan, 13.8, 14.4.
(a) be] B1, B2 | be B3 (b) dominion or propriety] B1, B3 | Denomination or property B2 (c) Children;] B1, B3 | owne Children B2 (d) against] ag<a>inst (e) case] B1, B3 | a Case B2 (f) defence,] em. | deffence, (g) moderamine inculpatae tutelae] em. | moderamine in culpate [begin strikethrough][ ? ][end strikethrough] <tutele> B1 | moderamine inculpate tutele B2 | moderanime inculpatae tutelae B3 (h) an imaginary] em. | <an> immaginary (i) no] B1, B3 | not B2 (j) renders it] B1, B2 | <is> render[begin strikethrough]s[end strikethrough]<ed> [begin strikethrough]it[end strikethrough] B3 (k) unpunishable] unpunishable[;] (l) violation] violating B2, B3
(20.) OED, s.v. terrene, def. 1: "Belonging to the earth or to this world; earthly; worldly, secular, temporal, material, human (as opposed to heavenly, eternal, spiritual, divine)."
(a) temporaly] temporally B2 | tempora<ri>ly B3 (b) Child] B1, B2 | child<ren> B3 (c) in] B1, B2 | <may have> in B3 (d) touching] B1, B2 | <&> touching B3 (e) seems] B1, B2 | seem[begin strikethrough]s[end strikethrough] B3 (f) tho] B1, B2 | [begin strikethrough]tho[end strikethrough] <However> B3 (g) some what] B1, B3 | some thing B2 (h) artificial] em. | artificial, (i) that] B1, B3 | the B2
(a) and obliging every ... God;] om. B2 (b) mankind,] em. | makind (c) should] s<h>ould (d) hath] <hath> (e) be] <be> (f) intitled] em. | instituted B1 | Intituled B2 | intit[begin strikethrough][?][end strikethrough]led B3 (g) profits;] p<r>ofts; (h) against] again<s>t (i) usurp] [begin strikethrough][ ? ][end strikethrough] <usurp> (j) that] B1, B3 | the B2 (k) inequality,] em. | in Equality, B1 | in Equality: B2 | inequality. B3 (l) condition] co<n>dition (m) at] em. | a B1 | att B2 | at B3
(21.) Cf. Suarez, De legibus, 2.14.17.
(a) to] om. B2 (b) Community.] Community[.] (c) that] B1, B2 | [begin strikethrough]that[end strikethrough] <&> B3 (d) it is] tho it is B2 | tho it be B3 (e) be] <be> (f) yet] B1, B3 | And yet B2 (g) a] <a> (h) Settlement.] Settlement[.] (i) Subject,] Subjects, B2 | subjects, B3 (j) it] <it> (k) this] B1, B3 | the B2 (l) Mutuall] B1, B2 | natural B3 (m) that] B1, B3 | the B2
(a) hath] B1, B2 | <hath> B3 (b) a] om. B2 (c) follow] <follow> (d) of Nature,] em. | of, Nature, (e) inculpatae tutelae] em. | inculpate tutele B1, B2 | inculpatae tutelae B3 (f) a] om. B3 (g) temporarily] B1, B3 | temporally B2 (h) and] B1, B2 | [begin strikethrough]and[end strikethrough] B3 (i) preserved,] B1, B3 | otherwise preserved: B2 (j) my possession, first] B1, B2 | any possession, [begin strikethrough]first[end strikethrough] B3 (k) Secondly] em. | Secoundly B1 | Secondly B2 | 2. [begin strikethrough]secondly[end strikethrough] B3 (l) of what ... reasonable] what is a just or a reasonable B2 | of what is a reasonable B3 (m) this] B1, B3 | his B2 (n) unless] em. | uless (o) doth] B1, B2 | <it> doth B3
(22.) This topic is discussed in Pleas, 1:54-58.
(a) commit] em. | limit B1 | limitt B2 | [begin strikethrough]limit[end strikethrough] <commit> B3 (b) therefore] B1, B2 | thereby B3 (c) to do] em. | to [do] B1 | to [blank space] B2 | to do B3 (d) Soveraign] em. Severaign (e) hath] B1, B2 | <&> hath B3 (f) exact] Exact a B2 | exact a B3 (g) were] om. B2 (h) world:] wor<l>d: i to] em. | to <be> B1 | to B2, B3 (j) himself:] em. | himseff: him himselfe: B2 | him[begin strikethrough]self[end strikethrough] himself. B3 (k) Gen. 4.7.] em. | gen. 4.7[.] (l) accepted,] em. | excepted, B1 | accepted, B2 | accepted? B3 (m) Doore.] Doore[.] (n) between,] B1, B2 between us, B3 (o) renders] om. B3 (p) Supposition] em. | Spposition
(23.) Hobbes, De cive, 1.12-13.
(a) duty] B1, B3 | a Duty B2 (b) is] is a B2, B3 (c) is not] em. | is [not] B1 | is B2 | is <not> B3 (d) sociable] soci<a>ble (e) is no] em. | is [no] B1 | is B2 | is <no> B3 (f) tongues,] tongues[,] B1, B2 | [begin strikethrough]tongues[end strikethrough] <leagues> B3 (g) contracts,] em. | contraccts, (h) varyed] B1, B3 | urged B2 (i) variety] em. | vriety | variety B2, B3 (j) Capitulations,] Capitulation; B2 | capitulation; <&> B3 (k) some time] B1, B2 | sometimes B3 (l) it] B1, B2 | <it> B3
(24.) Aristotle, Politics 1253a7-8.
(a) commerce] B1, B3 | Converse B2 (b) a] B1, B2 | <is> a B3 (c) bare] em. | bear (d) foedus amicitiae] em. | fides amicit[i]ae B1 | fides amicitiae B2, B3. Ed. note: fides is a corruption of foedus in Digest, 49.15.5.2. (e) hi] si B2, B3 (f) were always blamed] are alwayes blamed B2 | were alwayes claimed B3 (g) nature] [begin strikethrough][ ? ][end strikethrough] <nature> (h) best or] em. | beast or B1 | best or B2 | best, or <at> B3 (i) then] B1, B2 | [begin strikethrough]then[end strikethrough] <without> B3 (j) 9.] om. B2 (k) of the] of B2 | [begin strikethrough]of[end strikethrough] <over> the B3 (l) Government] B1, B2 | government <was> B3 (m) neither ... Government] om. B2 | <Neither hath the institution of civil government> B3
25 . Justinian, Digest, 49.15.5.2: "...si cum gente aliqua neque amicitiam neque hospitium neque foedus amicitiae causa factum habemus, hi hostes quidem non sunt..." Paul Krueger, ed., Corpus iuris civilis, 3 vols. (Berlin: Weidmann, 1915-1928), 1:884. Cf. the use of this citation in Grotius, De jure belli ac pacis, 3.9.18.
(a) gratitude] B1, B3 | nature B2 (b) is] B1, B2 | is <being> B3 (c) Natural Law] em. | Natural [Law] B1 | naturall Law B2 | natural law B3 (d) interiore] B1, B2 | interior[begin strikethrough]e[end strikethrough]<i> B3 (e) touching] em. | touch[ing] B1 | touching B2, B3 (f) Laws] em. | Law[s] B1 | Lawes B2 | lawes B3 (g) descend] des<c>end (h) Casualty] em. | Causualty B1 | casualty B2, B3 (i) Casualty] em. | Causualty (j) soveraigne] [begin strikethrough][ ? ][end strikethrough] <soveraigne> (k) all] B1, B3 | also B2 (l) adaptation] B1, B3 | adoption B2 (m) most] om. B2 (n) was] B1, B2 | was so B3
(26.) OED, s.v. casualty, def. 1: "Chance, accident (as a state of things)."
(a) there necessary ... that] B1, B2 | [begin strikethrough]there necessary in order to the well being of mankind[end strikethrough] [begin strikethrough]that[end strikethrough] B3 (b) or] [begin strikethrough][?of][end strikethrough] <or> (c) did] B1, B2 | <[?And] He> did B3 (d) understanding] em.| understand[ing] B1 | Understanding B2 | understanding B3 (e) admirable] B1, B2 | admirably B3 (f) consider'd] B1, B2 | considered, <as> B3 (g) and] B1, B2 | [begin strikethrough]and[end strikethrough] B3 (h) his] B1, B2 | [begin strikethrough]his[end strikethrough] <man's> B3 (i) the first of the first of] B1, B2 | the first [begin strikethrough]of the first[end strikethrough] of B3. Ed. note: the citation is to Aristotle's Politics, book 1, chapter 2, so this may be an instance of dittography. (j) nihil] [begin strikethrough][ ? ][end strikethrough] <nihil>
(27.) Aristotle, Politics 1253a7-8.
(a) Evidence] em. Evident B1 | Evidence B2 | evidence B3 (b) And] B1, B2 | [begin strikethrough]and[end strikethrough] B3 (c) apposite] em. | oposite | apposite B2, B3 (d) and] om. B2 (e) some] B1, B2 | <some> B3 (f) deliberation] em. | delibration (g) beneficial] benefic<i>al (h) first] B1, B2 | [begin strikethrough]First[end strikethrough] <1.> B3 (i) not all] em. | moral B1, B2 | [begin strikethrough]moral[end strikethrough] <not all>, B3 (j) an] om. B2 (k) Mankind] B1, B2 | mankind's B3 (l) Therefore] B1, B2 | [begin strikethrough]Therefore[end strikethrough] B3 (m) a] B1, B2 | <is> a B3 (n) a] B1, B2 | <is> a B3 (o) dexterous] em. | dextor<o>us B1 | dextrous B2 | <is> dextrous B3 (p) Consociation] Cons<o>ciation
(28.) Cf Hobbes, De cive, 1.2.
(a) of] om. B2 (b) is] om. B2 (c) each of other;] B1, B2 | <of> each [begin strikethrough]of[end strikethrough] other. B3 (d) reason,] B1, B2 | reason <there is> B3 (e) property] [begin strikethrough]p[?]y[end strikethrough] <property> (f) injoy] B1, B3 | joy B2 (g) and] B1, B2 | and <would be> B3 (h) And] B1, B2 | [begin strikethrough]and[end strikethrough] B3 (i) deservedly] B1, B3 | reservedly B2 (j) of] to B2, B3 (k) praecepta] em. | precepta (l) is] B1, B3 | was B2
(29.) OED, s.v. contiguate: "Contiguous to; in immediate contact with."
(30.) Cf. Plato, Republic 416d, 449c.
(a) are not] em. | are B1, B2 | are <not> B3 (b) fix'd in] em. | fiex'd in B1 | fixed in B2 | fixed on B3 (c) &] and B2 | [begin strikethrough]and[end strikethrough] B3 (d) The] B1, B2 | <&> the B3 (e) it] om. B2 (f) Law] Law of nature B2 | law of nature B3 (g) are] B1, B2 | <is> B3 (h) publick.] em. | pulick. (i) order] B1, B3 | governe B2 (j) would] B1, B2 | should B3 (k) would] B1, B2 | should B3 (l) far] om. B2, B3 (m) Therefore I] B1, B3 | I therefore B2 (n) of] | or B2, B3 (o) abstractively] em. | obstractively
(a) First] om. B3 (b) consists,] B1, B2 | consist[begin strikethrough]s[end strikethrough]. B3 (c) Laws] Law B2 | law B3 (d) Confederacy] Confed<e>racy (e) that] B1, B3 | the B2 (f) servabis] em. | sevabis B1 | Servabis B2 | servabis B3 (g) Breach] Br<e>ach (h) the] B1, B2 | <unto it> the B3 (i) unto it,] B1, B2 | [begin strikethrough]unto it[end strikethrough], B3 (j) his] B1, B3 | this B2 (k) when] B1, B2 | <is,> when B3 (l) list] lists B2, B3 (m) he] B1, B2 | <Here> he B3
(a) Society] em. | Society. (b) especiall] Especially B2 | especially B3 (c) it] B1, B2 | 1. It B3 (d) an] <an> (e) and] B1, B2 | <useful to> and <to> B3 (f) each with other,] B1, B2 | <with> each [begin strikethrough]with[end strikethrough] other; B3 (g) observe ... considerable] B1, B2 | [begin strikethrough]observe[end strikethrough] <preserve> that power or faculty [begin strikethrough]considerable[end strikethrough] <conformable> B3 (h) supervenience] em. | supervarience B1 | super . . . ience [sic] B2 | supervenience B3 (i) witness both which] B1, B2 | witness<ing>: both [begin strikethrough]with[end strikethrough] which B3 (j) Civil] B1, B3 | humane B2 (k) to] B1, B2 | to <the> B3 (l) truth] B1, B2 | [begin strikethrough]well[end strikethrough] truth B3 (m) testify] B1, B2 | justify B3 (n) 2.] Secondly B2 | 2. [begin strikethrough]Secondly[end strikethrough] B3 (o) human] em. | humany (p) such] B1, B2 | such <human lawes,> B3
(a) Laws] B1, B2 | law B3 (b) Thirdly,] B1, B2 | 3. [begin strikethrough]Thirdly[end strikethrough] B3 (c) a Case] Case B2 | case B3 (d) to] <to> (e) and] or B2, B3 (f) Soveraigne] B1, B3 | Governour B2 (g) active] actively B2, B3 (h) except'd,] B1, B2 | [begin strikethrough]ac[end strikethrough]<ex>cepted, B3 (i) Societys,] em. | Scietys, (j) insue.] B1, B2 | issue B3 (k) of the Lawfullness ... Lawfulnes] B1, B2 | of the lawfulness B3 (l) of] om. B2 (m) partitions] par<ti>tions (n) intelligible] em. | <intilligible>
Abbreviations
Manuscripts
British Library, London
B1 Add. 18235, fols. 41-147 ("Some Chapters touching the Law of
Nature")
B2 Harley 7159, fols. 1-266 ("Some Chapters touching the Law of
Nature")
B3 Hargrave 485 ("Treatise of the Nature of Lawes in Generall and
touching the Law of Nature")
Printed Works
Abridgment [Sir Matthew Hale], "The Publisher's Preface Directed
to the Young Students of the Common-Law," in Henry
Rolle, Un abridgment des plusieurs cases et resolutions
del common ley (London: A. Crooke, 1668)
Baxter, Add. Richard Baxter, Additional Notes on the Life and Death
Notes of Sir Matthew Hale, the late universally honoured and
loved Lord Chief Justice of the Kings Bench (London:
Richard Janeway, 1682)
Cromartie, Alan Cromartie, Sir Matthew Hale, 1609-1676: Law,
Hale Religion and Natural Philosophy (Cambridge: Cambridge
University Press, 1995)
Dialogue Sir Matthew Hale, "Reflections on Hobbes' Dialogue," in
William Searle Holdsworth, A History of English Law, 15
vols. (London: Methuen, 1922-1965), 5:500-13
Discourse Sir Matthew Hale, A Discourse of the Knowledge of God,
and of Our Selves (London: William Shrewsbery, 1688)
DLGT Richard A. Muller, Dictionary of Latin and Greek
Theological Terms: Drawn Principally from Protestant
Scholastic Theology (Grand Rapids: Baker, 1985)
History Sir Matthew Hale, The History of the Common Law of
England, ed. Charles M. Gray (Chicago: University of
Chicago Press, 1971)
Burnet, Life Gilbert Burnet, The Life and Death of Sir Matthew Hale,
Kt. sometime Lord Chief Justice of His Majesties Court
of Kings Bench (London: William Shrowsbery, 1681)
OED Oxford English Dictionary Online, http://www.oed.com
Pleas Sir Matthew Hale, Historia placitorum coronae. The
History of the Pleas of the Crown, 2 vols. (Savoy
[London]: E. and R. Nutt, and R. Gosling, 1736)
Primitive Sir Matthew Hale, The Primitive Origination of Mankind,
considered and examined according to the Light of Nature
(London: William Godbid, for William Shrowsbery,
1677)
Works Sir Matthew Hale, The Works, Moral and Religious, ed.
T. Thirwall, 2 vols. (London: H. D. Symonds, 1805)
Contents
Abbreviations iii
"Sir Matthew Hale (1609-1676) and Natural Law in the
Seventeenth Century" by David S. Sytsma v
General Introduction v
Textual Introduction xlviii
Title Page 1
1. Touching the Nature of Law in Generall. 3
2. Touching the Effect of Laws in generall; 25
3. Touching the several kinds of Law's. 29
4. Touching the Discription of the Law of Nature in Man and
whence it is to be Gathered; 33
5. Concerning the severall Heads of that Lex Naturalis,
whereof before; 49
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| Title Annotation: | p. 305-346 |
|---|---|
| Author: | Sytsma, David S. |
| Publication: | Journal of Markets & Morality |
| Article Type: | Report |
| Geographic Code: | 1USA |
| Date: | Mar 22, 2014 |
| Words: | 32901 |
| Previous Article: | Some chapters touching the Law of Nature. |
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