What can be grander or nobler than jurisprudence?
Marcus Tullius Cicero (106-43 BC)
De legibus – Liber I
[BOOK I]
Atticus.
—This is the very grove, and this the oak of Arpinum, whose description in your poem on Marius, I have often read. If, my Marcus, that oak is still in being, this must certainly be it, but it appears extremely old.
Cicero.
—Yes, my Atticus, my brother’s oak tree still exists, and will ever flourish, for it is a nurseling of genius. No plant can owe such longevity to the care of the agriculturist as this derives from the verse of the poet.
Atticus.
—How can that happen, my Quintus? How can poets bestow immortality on trees? It seems to me that in eulogizing your brother, you flatter your own vanity.
Quintus.
—You may rally me as much as you please, but as long as the Latin language is spoken, this oak of Marius will not lose its reputation; and as Scævola said of my brother’s poem on Marius, it will
“Extend its hoary age, through countless years.”
Do not your Athenians maintain that the olive near their citadel is immortal, and that tall and slender palm tree which Homer’s Ulysses says he beheld at Delos, do they not make an exhibition of it to this very day? and so with regard to other things, in many places, whose memorial endures beyond the term of their natural life. Therefore this acorn–bearing oak, on which once lighted
“Jove’s golden Eagle, dazzling as the sun,”
still flourishes before us. And when the storms of centuries shall have wasted it, there will still be found a relic on this sacred spot, which shall be called the Oak of Marius
Atticus.
—I don’t doubt it, my Quintus; but there is one question I would ask, not of you, but of the poet Marcus himself, whether the tree is indebted for its celebrity to his verses alone, or whether the circumstance they record really happened in the history of Marius?
Cicero.
—I will answer you frankly, my Atticus. But you must first inform me what you think of the tradition which asserts, that not far from your house at Rome, Proculus Julius beheld our first king Romulus walking after his decease, and that he heard him declare his desire of being invoked as a God, of being entitled Quirinus, and of having a temple there dedicated to his memory? Tell me also what you think of the tradition of the Athenians, who maintain that not far from your Athenian villa, Boreas made a stolen match with Orithya, for so runs the story.
Atticus.
—For what purpose do you ask me such questions as these?
Marcus-Cicero
—For no purpose at all, unless it be to convince you that we had better not enquire too critically into those remarkable accounts which are thus handed down by tradition.
Atticus.
—But this ingenious apology will not deter some from enquiring whether many of the statements in your Marius are true or false; and some will expect the greater accuracy from you, since Arpinum was your own birth place as well as that of Marius, and the events of his life must be fresh in your memory.
Marcus.
—I have certainly no ambition to gain the reputation of a liar. But some of these inquisitors, my Atticus, are really too severe. It is preposterous to expect an exact statement of matters of fact in a poem of this nature, as if I had written it not as a poet, but as an eye witness upon oath. I doubt not the same critics would make the same objections if I were to versify on Numa’s intercourse with Egeria, and the Eagle which dropped a coronet in the head of the first Tarquin.
Quintus.
—I understand you, my brother; you think that the historian must maintain a closer adherence to fact than the poet.
Marcus.
—Certainly. History has its laws, and poetry its privileges. The main object of the former is truth in all its relations: the main object of the latter is delight and pleasure of every description. Yet even in Herodotus, the father of Greek history, and in Theopompus, we find fables scarcely less numerous than those which appear in the works of the poets.
Atticus.
—Stop there; I have found the occasion I wanted, and I shall not hesitate to urge my suit.
Marcus.
—What suit, Atticus?
Atticus.
—We asked you, long ago, or rather implored you, to write a History of the Roman empire, for we conceive if you undertook this literary enterprise, even in the historical department, we should yield no palms or laurels to Greece. And if you will listen to my opinion, it seems to me that you owe this gift, not only to the affection of those who are delighted with your writings, but you likewise owe it to your country, that since you have saved her constitution, you should endeavour to adorn her annals, A good history of our country is a desideratum in our national literature, as I know by my own experience, and as I have often heard you declare. Now there is no man more likely than yourself to give general satisfaction in a work of this kind, since by your own avowal, it is of all the forms of composition that which most demands the eloquence of the orator. You would therefore be doing us a great favour if you would undertake this work, and devote your time to a complete history of Rome, which is unknown to most of our fellow–citizens, or at least neglected by them. For after the annals of the chief Pontiffs, which are very contracted, if we come to the book of Fabius, or Cato, whom you are always eulogizing, or the treatises of Piso, Fannius, and Venonius, though one of them may excel another, are they not all extremely defective? The cotemporary of Fannius, Cœlius Antipater, adopted a bolder style of expression. His energy was indeed somewhat rude and rough, without polish or point, but he did what he could to recommend a manly and truthful eloquence. But unfortunately he had for his successors a Claudius, an Asellio, who, far from improving on him, relapsed into the former dullness and insipidity.
I scarcely need to mention Attius. His loquacity is not without its fine points, though he has derived them not so much from the great Grecian authors, as from the Latin scribblers. His style is full of littlenesses and atrocious conceits. His friend Sisenna, far surpasses all our historical writers whose compositions have yet been published, for of the rest we cannot judge. He has, however, never gained a name among the orators of your rank; and in his history he betrays a sort of puerility. He seems to have read no Greek author but Clitarchus, and him he imitates without reserve, but even when he succeeds in his imitation, he is still far enough from the best style. Therefore the task of historian of right belongs to you, and we shall expect you to accomplish it, unless Quintus can bring forward any reasonable objections.
Quintus.
—I have nothing to say against it. Indeed we have often talked over the subject together, and I have made the same request as yourself; but we could never quite agree in our views of the subject.
Atticus.
—How so?
Quintus.
—Why we differed respecting the epoch from whence such a history should commence its narrative. In my opinion, it ought to begin with the origin of our state and nation, for the accounts that have hitherto been published respecting our primitive antiquities are so written as never to be read. My brother, on the other hand, wishes to confine himself to the events that have happened in our own times, so as only to describe those public affairs in which he himself bore a part.
Atticus.
—In this respect I rather agree with him. For the grandest events in Roman history are probably those that have taken place within our own recollection. He would then be able to illustrate the praises of our noble friend Pompey, and describe the memorable year of his own consulship. These memoirs, I imagine, would be far more interesting than any thing he could tell us respecting Romulus and Remus.
Marcus.
—I know, my Atticus, that you and other friends have long urged me to this undertaking, nor should I be at all unwilling to attempt it, if I could find more free and leisure time. But it is vain to enter on so extensive a work while my mind is harassed with cares, and my hands are full of business. Such literary enterprises demand a perfect freedom from anxieties and political embarassments.
Atticus.
—How then did you find leisure and vacation enough to compose more books than any of our Roman authors?
Marcus.
—Why certain spare times (subcisiva tempora) occur to every man, and these I was unwilling to lose. For instance, if I spent a few days in rusticating at my country seat, I employed them in composing a part of the essays I had determined to write. But for an historical work, it is impossible to do it justice unless one can procure a regular vacation for a considerable period. My mind is thrown into a miserable state of suspense, when after fairly commencing a literary task, I am obliged to defer its conclusion to a future occasion; nor can I so easily recover the train of ideas in works so interrupted, as bring my essays to their appropriate conclusion, without rest or intermission.
Atticus.
—You therefore require a prolonged vacation for the historical treatise we propose, and a full allowance of holidays, with all their freedom and tranquility.
Marcus.
—I conceive myself the better entitled to such vacations as I advance in life, since I am desirous, after the method of our ancestors, to continue the custom of giving magisterial advice to my clients, and thus to discharge the offices of old age gracefully and honourably. In such a situation, I should be able to compose not only the historical work you require, but others, still more extensive and diversified, with all desirable accuracy.
Atticus.
—I fear that few will accept such an apology for your retirement, and that you will be obliged to speak in public as long as you live. I regret this the more, as the lapse of years will compel you to change your manner of delivery, and your style of eloquence. Thus, your friend Roscius the actor, in his old age, was forced to give up his most brilliant modulations, and to adapt the instrumental accompaniments to a slower measure. Thus you also, my Cicero, will find it necessary daily to relax from those lofty conflicts of oratory to which you have been accustomed, till your eloquence gradually assimilates to the bland garulity of the philosophers. Since, however, the extremest old age is still capable of executing some duties of patriotism, I see that your retirement will not hinder you from advising your clients.
Quintus.
—I think that the citizens of Rome would readily grant you this kind of secession from public affairs, if you still consented to advise in legal matters. It is at your own option to try the experiment whenever you please.
Marcus.
—Your advice, my Quintus, would be excellent if there were no danger in taking such a step. But I fear in thus seeking to diminish my labours I should rather increase them. I have an objection to thus aggravating the toil of public causes and prosecutions (which I never attempt to plead without full and mature study) by the addition of this professional interpretation of the laws, which would not distress me so much by its wearisomeness as by its tendency to deprive me of that preparation for speaking, without which I never dared to enter on any considerable pleadings.
Atticus.
—Whichever course, you resolve on, my Cicero, we have some spare time, as you call it, at present, and I should be very glad if you would employ it in enlightening us respecting the laws of the state. On this subject I am sure you can give us something better than has hitherto been published. For even from your earliest youth, I remember, you have studied the laws, when I went like yourself to hear the lectures of Scœvola, nor did I ever find you so addicted to oratorical pursuits as to neglect your legal ones.
Marcus.
—You seek to engage me in a long discussion, my Atticus. However, I will not hesitate to undertake it unless Quintus prefers some other subject. If not, I will frankly tell you all I know about it, since at present we seem to be at leisure.
Quintus.
—I shall listen to you with the greatest pleasure, for what better subject can be discussed, or how can the day be spent more profitably?
Marcus.
—Let us go then to our accustomed promenade, where they have placed the benches on which we may recline after we have had sufficient exercise. I flatter myself that our discussion will be agreeable enough, since we shall be able each of us to throw light on the several topics with which we are personally most familiar..
Atticus.
—Let us go then, and enter on our investigations, as we walk along the bank of the river under the shadow of its foliage. And to begin with the beginning, let me ask I pray you, what is your opinion respecting the nature of Law?
Marcus.
—What is my opinion?—I hardly dare to deliver it, lest it should appear presumptuous. For we have had many great men in Rome, who have made it their profession to expound it to the people, and explain its doctrines and practice. But though they professed to be acquainted with its majestic theory, they were rather familiar with its minuter technicalities. What can be grander or nobler than jurisprudence? or what can be more insignificant and quibbling than the practice of lawyers?—necessary as it is for the people. Not that I think that those who adopt this profession are altogether ignorant of the principles of universal legislation; but they are far more attentive to the civil law, which gives them a hold on the interests of the people. Are then the sublime and recondite principles of jurisprudence less necessary or less useful? Certainly not. It is these you wish me to elucidate and illustrate, and not the formal regulations of our civic economy. You ask me not to write treatises on the rights (stillicidiorum ac parietum) of common sewers and partition walls; and to compose forms of stipulations and judgments. These have been already most diligently prepared by clerks in office, and are decidedly lower than the topics which, I suppose, you expect me to discuss.
Atticus.
—For my part, if you ask my opinion, I should reply, that after having given us a treatise on the Commonwealth, you cannot consistently refuse us one on the Laws. In doing so, you will imitate the example of your favorite Plato, the philosopher whom you chiefly admire and love with an especial affection.
Marcus.
—Do you wish then, that we should emulate that conversation which Plato held with Clinias of Crete, and Megillus of Lacedæmon, which he describes as taking place one summer day under the cypress trees of Cnossus, and in its sylvan avenues: where, after discoursing and arguing respecting the best kind of commonwealths and their appropriate laws, he sauntered with his delightful friends?—Do you wish that thus we also, walking beneath these lofty poplars, along these green and umbrageous banks, and sometimes reposing, should investigate the same subjects somewhat more profoundly than is usual among barristers?
Atticus.
—I am delighted with your proposal.
Marcus.
—But what says my brother Quintus?
Quintus.
—I can imagine nothing more agreeable.
Marcus.
—I admire your choice. For in no kind of discussion can we more advantageously investigate the facilities which man owes to nature, and the capacity of the human mind for the noblest enterprises. We will discuss the true objects of thought and action, for which we were born and sent into the world, and the beautiful association and fellowship which bind men together by reciprocal charities: when we have fathomed these grand and universal principles of morals, we shall discover the true fountain of laws and rights.
Atticus.
—In your opinion, then, it is not in the edict of the magistrate, as the majority of our modern lawyers pretend, nor in the rules of the Twelve Tables of our Statutes, as the ancient Romans maintained, but in the sublimest doctrines of philosophy, we must seek the true source and obligation of jurisprudence.
Marcus.
—It is for this reason, my Atticus, that you do not ask me to explain to you the formalities of legal practice, and the technical replications and rejoinders of our professional pleadings. These, indeed, deserve much study and respect, inasmuch as they have occupied the attention of many great men, and are at present expounded by a most eminent lawyer (Servicius Sulpitius Rufus) with admirable ability and skill.
But the subject of our present discussion soars far higher, and comprehends the universal principles of equity and law. In such a discussion therefore on the great moral law of nature, the practice of the civil law can occupy but an insignificant and subordinate station. For according to our idea, we shall have to explain the true nature of moral justice, which is congenial and correspondent with the true nature of man. We shall have to examine those principles of legislation by which all political states should be governed. And last of all, shall we have to speak of those laws and customs which are framed for the use and convenience of particular peoples, which regulate the civic and municipal affairs of the citizens, and which are known by the title of civil laws.
Quintus.
—You take a noble view of the subject, my brother, and go to the fountain–head of moral truth, in order to throw light on the whole science of jurisprudence: while those who confine their legal studies to the civil law too often grow less familiar with the arts of justice than with those of litigation.
Marcus.
—Your observation, my Quintus, is not quite correct. It is not so much the science of law that produces litigation, as the ignorance of it, (potius ignoratio juris litigiosa est quam scientia). But more of this bye–and–bye.
With respect to the true principle of justice, many learned men have maintained that it springs from Law. I hardly know if their opinion be not correct, at least, according to their own definition; for “Law (say they) is the highest reason, implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.” This, they think, is apparent from the converse of the proposition; because this same reason, when it is confirmed and established in men’s minds, is the law of all their actions.
They therefore conceive that the voice of conscience is a law, that moral prudence is a law, whose operation is to urge us to good actions, and restrain us from evil ones. They think, too, that the Greek name for law (νομος), which is derived from νεμω, to distribute, implies the very nature of the thing, that is, to give every man his due. For my part, I imagine that the moral essence of law is better expressed by its Latin name, (lex), which conveys the idea of selection or discrimination. According to the Greeks, therefore, the name of law implies an equitable distribution of goods: according to the Romans, an equitable discrimation between good and evil.
The true definition of law should, however, include both these characteristics. And this being granted as an almost self–evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality. This indeed is the true energy of nature, the very soul and essence of wisdom, the test of virtue and vice. But since every discussion must relate to some subject, whose terms are of frequent occurrence in the popular language of the citizens, we shall be sometimes obliged to use the same terms as the vulgar, and to conform to that common idiom which signifies by the word law, all the arbitrary regulations which are found in our statute books, either commanding or forbidding certain actions.
Atticus.
—Let us begin, then, to establish the principles of justice on that eternal and universal law, whose origin precedes the immeasurable course of ages, before legislative enactments were in being, or political governments constituted.
Quintus.
—By thus ascending to first principles, the order of our discourse will be more methodical, so as to conduct us by agreeable gradations to the practical bearings of the subject.
Marcus.
—You wish, then, that we should seek for justice in its native source, which being discovered, we shall afterwards be able to speak with more authority and precision respecting our civil laws, that come home to the affairs of our citizens?
Quintus.
—Such is the course I would advise.
Atticus.
—I also subscribe to your brother’s opinion.
Marcus.
—Well then, I shall endeavour to describe a system of Laws adapted to that Commonwealth, which Scipio declares to be most desirable in those Six Books which I have written under that title. All our laws, therefore, are to be accomodated to that mixed kind of political government there recommended. We shall also treat of the general principles of morals and manners, which appear most appropriate to such a constitution of society, but without descending to particular details.
Quintus.
—You therefore derive the principles of justice from the principles of nature, to investigate which is the main object of all our discussions.
Atticus.
—Certainly, and when she is our guide, we are not very likely to err.
Marcus.
—Grant me, then, my Atticus, (for I know my brother’s opinion already),—grant me that the entire universe is overruled by the power of God, that by his nature, reason, energy, mind, divinity, or some other word of clearer signification, all things are governed and directed; for if you will not grant me this, I must proceed to prove it.
Atticus.
—Respecting the existence of God, and the superintendence of divine providence, I grant you all you can desire. But owing to this singing of birds and babbling of waters, I fear my friends can scarcely hear me.
Marcus.
—You are quite right to be on your guard, my Atticus; for even the best men occasionally fall into a passion, and what would your fellow–students, the Epicureans, say, if they heard you denying the first article of that notable book, entitled the Chief Doctrines of Epicurus, in which he says “that God takes care of nothing, neither of himself nor of any other being?”
Atticus.
—Pray proceed, for I am waiting to know what advantage you mean to take of the concession I have made you.
Marcus.
—I will not detain you long. Since you grant me the existence of God, and the superintendence of Providence, I maintain that he has been especially beneficent to man. This human animal—prescient, sagacious, complex, acute, full of memory, reason and counsel, which we call man,—is generated by the supreme God in a more transcendent condition than most of his fellow–creatures. For he is the only creature among the earthly races of animated beings endued with superior reason and thought, in which the rest are deficient. And what is there, I do not say in man alone, but in all heaven and earth, more divine than reason, which, when it becomes ripe and perfect, is justly termed wisdom?
There exists, therefore, since nothing is better than reason, and since this is the common property of God and man, a certain aboriginal rational intercourse between divine and human natures. This reason, which is common to both, therefore, can be none other than right reason; and since this right reason is what we call Law, God and men are said by Law to be consociated. Between whom, since there is a communion of law, there must be also a communication of Justice.
Law and Justice being thus the common rule of immortals and mortals, it follows that they are both the fellow–citizens of one city and commonwealth. And if they are obedient to the same rule, the same authority and denomination, they may with still closer propriety be termed fellow–citizens, since one celestial regency, one divine mind, one omnipotent Deity then regulates all their thoughts and actions.
This universe, therefore, forms one immeasurable Commonwealth and city, common alike to gods and mortals. And as in earthly states, certain particular laws, which we shall hereafter describe, govern the particular relationships of kindred tribes; so in the nature of things doth an universal law, far more magnificent and resplendent, regulate the affairs of that universal city where gods and men compose one vast association.
When we thus reason on universal nature, we are accustomed to reason after this method. We believe that in the long course of ages and the uninterrupted succession of celestial revolutions, the seed of the human race was sown on our planet, and being scattered over the earth, was animated by the divine gift of souls. Thus men retained from their terrestrial origin, their perishable and mortal bodies, while their immortal spirits were ingenerated by Deity. From which consideration we are bold to say that we possess a certain consanguinity and kindred fellowship with the celestials. And so far as we know, among all the varieties of animals, man alone retains the idea of the Divinity. And among men there is no nation so savage and ferocious as to deny the necessity of worshipping God, however ignorant it may be respecting the nature of his attributes. From whence we conclude that every man must recognize a Deity, who considers the origin of his nature and the progress of his life.
Now the law of virtue is the same in God and man, and cannot possibly be diverse. This virtue is nothing else than a nature perfect in itself, and developed in all its excellence. There exists therefore a similitude between God and man; nor can any knowledge be more appropriate and sterling than what relates to this divine similitude.
Nature, attentive to our wants, offers us her treasures with the most graceful profusion. And it is easy to perceive that the benefits which flow from her are true and veritable gifts, which Providence has provided on purpose for human enjoyment, and not the fortuitous productions of her exuberant fecundity. Her liberality appears, not only in the fruits and vegetables which gush from the bosom of the earth, but likewise in cattle and the beasts of the field. It is clear that some of these are intended for the advantage of mankind, a part for propagation, and a part for food. Innumerable arts have likewise been discovered by the teaching of nature; for her doth reason imitate, and skilfully discover all things necessary to the happiness of life.
With respect to man this same bountiful nature hath not merely allotted him a subtle and active spirit, but moreover favoured him with physical senses, like so many guardians and messengers. Thus has she improved our understanding in relation to many obscure principles, and laid the foundation of practical knowledge; and in all respects moulded our corporeal faculties to the service of our intellectual genius. For while she has debased the forms of other animals, who live to eat rather than eat to live, she has bestowed on man an erect stature, and an open countenance, and thus prompted him to the contemplation of heaven, the ancient home of his kindred immortals. So exquisitely, too, hath she fashioned the features of the human face, as to make them symbolic of the most recondite thoughts and sentiments. As for our two eloquent eyes (oculi nimis arguti), do they not speak forth every impulse and passion of our souls? And that which we call expression, in which we infinitely excel all the inferior animals, how marvellously it delineates all our speculations and feelings! Of this the Greeks well knew the meaning, though they had no word for it.
I will not enlarge on the wonderful faculties and qualities of the rest of the body, the modulation of the voice, and the power of oratory, which is perhaps the greatest instrument of our influence over human society. These matters do not belong to the occasion of our present discourse, and I think that Scipio has already sufficiently explained them in those books of mine which you have read.
As the Deity, therefore, was pleased to create man as the chief and president of all terrestrial creatures, so it is evident, without further argument, that human nature has made the greatest advances by its intrinsic energy; that nature, which without any other instruction than her own, has developed the first rude principles of the understanding, and strengthened and perfected reason to all the appliances of science and art.
Atticus.
—Good heavens, my Cicero! from what a tremendous distance are you deducing the principles of justice! However, I wont hurry too eagerly to what I expect you to say on the Civil Law. But I will listen patiently, even if you spend the whole day in this kind of discourse, for assuredly these are grander topics which you introduce as a preamble than those to which they prepare the way.
Marcus.
—You may well describe these topics as grand, which we are now briefly discussing. For of all the questions on which our philosophers argue, there is none which it is more important thoroughly to understand than this, that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature. This truth will become still more apparent if we investigate the nature of human association and society.
There is no one thing more like to another, more homogeneous and analogous, than man is to man. And if the corruption of customs, and the variation of opinions, had not induced an imbecility of minds, and turned them aside from the course of nature, no one would more nearly resemble himself than all men would resemble all men. Therefore whatever definition we give of man, it must include the whole human race. And this is a good argument, that no portion of mankind can be heterogeneous or dissimilar from the rest; because, if this were the case, one definition could not include all men.
In fact, reason, which alone gives us so many advantages over beasts, by means of which we conjecture, argue, refute, discourse, and accomplish and conclude our designs, is assuredly common to all men; for the faculty of acquiring knowledge is similar in all human minds, though the knowledge itself may be endlessly diversified. By the same senses we all perceive the same objects, and that which strikes the sensibilities of the few, cannot be indifferent to those of the many. Those first rude elements of intelligence which, as I before observed, are the earliest developments of thought, are similarly exhibited by all men; and that faculty of speech which is the soul’s interpreter, agrees in the ideas it conveys, though it may differ in the syllables that express them. And therefore there exists not a man in any nation, who, adopting his true nature for his true guide, may not improve in virtue.
Nor is this resemblance which all men bear to each other remarkable in those things only which accord to right reason. For it is scarcely less conspicuous in those corrupt practices by which right reason is most cruelly violated. For all men alike are captivated by voluptuousness, which is in reality no better than disgraceful vice, though it may seem to bear some natural relations to goodness; for by its delicious delicacy and luxury it insinuates error into the mind, and leads us to cultivate it as something salutary, forgetful of its poisonous qualities.
An error, scarcely less universal, induces us to shun death, as if it were annihilation; and to cling to life, because it keeps us in our present stage of existence, which is perhaps rather a misfortune than a desideratum. Thus, likewise, we erroneously consider pain as one of the greatest evils, not only on account of its present asperity, but also because it seems the precursor of mortality. Another common delusion obtains, which induces all mankind to associate renown with honesty, as if we are necessarily happy when we are renowned, and miserable when we happen to be inglorious.
In short, our minds are all similarly susceptible of inquietudes, joys, desires and fears; and if opinions are not the same in all men, it does not follow, for example, that the people of Egypt who deify dogs and cats, do not labour under superstition in the same way as other nations, though they may differ from them in the forms of its manifestation.
But in nothing is the uniformity of human nature more conspicuous than in its respect for virtue. What nation is there, in which kindness, benignity, gratitude, and mindfulness of benefits are not recommended? What nation in which arrogance, malice, cruelty, and unthankfulness, are not reprobated and detested! This uniformity of opinions, invincibly demonstrates that mankind was intended to compose one fraternal association. And to affect this, the faculty of reason must be improved till it instructs us in all the arts of well–living. If what I have said meets your approbation, I will proceed; or if any of my argument appears defective, I will endeavour to explain it.
Atticus.
—We see nothing to object to, if I may reply for both of us.
Marcus.
—It follows, then, in the line of our argument, that nature made us just that we might participate our goods with each other, and supply each others’ wants You observe in this discussion whenever I speak of nature, I mean nature in its genuine purity, and not in the corrupt state which is displayed by the depravity of evil custom, which is so great, that the natural and innate flame of virtue is often almost extinguished and stifled by the antagonist vices, which are accumulated around it.
But if our true nature would assert her rights, and teach men the noble lesson of the poet, who says, “I am a man, therefore no human interest can be indifferent to me,”—then would justice be administered equally by all and to all. For nature hath not merely given us reason, but right reason, and consequently that law, which is nothing else than right reason enjoining what is good, and forbidding what is evil.
Now if nature hath given us law, she hath also given us justice,—for as she has bestowed reason on all, she has equally bestowed the sense of justice on all. And therefore did Socrates deservedly execrate the man who first drew a distinction between the law of nature and the law of morals, for he justly conceived that this error is the source of most human vices.
It is to this essential union between the naturally honorable, and the politically expedient, that this sentence of Pythagoras refers:—“Love is universal: let its benefits be universal likewise.” From whence it appears that when a wise man is attached to a good man by that friendship whose rights are so extensive, that phenomenon takes place which is altogether incredible to worldlings, and yet it is a necessary consequence, that he loves himself not more dearly than he loves his friend. For how can a difference of interests arise where all interests are similar? If there could be such a difference of interests, however minute, it would be no longer a true friendship, which vanishes immediately when, for the sake of our own benefit, we would sacrifice that of our friend.
I have made these preliminary remarks, to prepare you the better for the main subject of our discourse, in order that you may more easily understand the principle, that nature herself is the foundation of justice. When I have explained this a little more at large, I shall come to the consideration of that civil law to which all my arguments refer.
Quintus.
—Then you have not much to add, my brother, for the arguments you have already used have sufficiently proved to Atticus and myself that nature is the fountain of justice.
Atticus.
—How could I maintain any other opinion, since you have proved to us, first, that the gods have been pleased to enrich and adorn us with their gifts, on purpose that we might administer them justly. Secondly, that all mankind bear a fraternal resemblance and relationship to each other. And lastly, that these natural brethren are bound together by the reciprocal obligations of friendship and affection, as well as social rights. Since we are agreed, therefore, that these principles are correct, how can we, with any consistency, separate from nature that law and justice, which are her moral developements?
Marcus.
—You are quite right, my Atticus; the argument is pretty well established. A few considerations, however, I will add, in conformity with the method of the philosophers. I do not mean the older sages of philosophy, but those modern philosophers who keep a magazine of arguments in reserve, on every imaginable topic, and who, instead of discussing questions freely and unconstrainedly, will permit us to speak only in accordance with their logical arrangements and dialectical distinctions. These gentlemen will never allow that we have done justice to our subject, unless we demonstrate that nature is just, and justice is natural, in a distinct and scientific disputation.
Atticus.
—You seem to have renounced your liberty in debate, my Cicero, and resemble a schoolman, who rather follows the authority of his predecessors, than developes his individual sentiments.
Marcus.
—I am not always in this humour, Atticus. But I wish to avail myself of authorities on the present occasion, because, as you see, the main object of this whole discussion is to strengthen the foundations of our Commonwealth, to establish its forces, and to benefit its population in all their relations. I am therefore particularly anxious to avoid any inconsiderate statements or unsound arguments. Not that I expect to demonstrate my doctrine to all men, for that is impossible; but I would make my pleadings as perfect as may be, for those who maintain that justice and honour are worthy to be cultivated even for their own sake, that nothing can he properly called a good, which is not morally estimable, and that there can exist no great good whatever, which is not desirable mainly on its own account, without reference to points of interest or emolument.
All the philosophers who flourished in the old academy with Speusippus, Xenocrates, and Polemon, or those that followed Aristotle, and Theophrastus, agreeing with them in doctrine, though they might differ in their method of explaining it—whether, like Zeno, they preserved the same principles, while they changed the terms of exposition,—or whether like Ariston, they supported that difficult and arduous sect now generally scattered and confuted, which supposed, that saving virtue and vice, all things were equal and indifferent—all these have favoured the moral theory I now unfold.
For the rest, who indulged their appetites and pampered their passions, pursuing some objects and avoiding others, for no other reason than their amount of gratification or annoyance, though they sometimes speak truth, as we candidly allow,—let them talk in their own gardens, and let them retire from all the political debates respecting the interests of the state, of which they know nothing, nor, indeed, care to know. As to that new academy of which Arcesilas and Carneades are the leaders, and who attack all sects and parties, we implore them not to interrupt us in our present discussion; for if they invade us on these subjects in which our minds are thoroughly familiar and resolved, they will seek their own ruin. But I, who wish rather to please, dare not excite their resentment; for in questions of this nature, we would fain proceed without any mixture of sophistry or anger; and any defects in our arguments, may surely be expiated without such fumigations as the invectives of criticism.
Atticus.
—As you use the word ‘expiation,’ permit me to enquire what views you entertain respecting the justice of punishment, where laws have been broken and violated. Do you think such offences against laws can be expiated without enforcing the penalty, either directly or indirectly?
Marcus.
—I think not. I conceive there is no other expiation for the crimes and impieties of men. The guilty therefore must pay the penalty, and bear the punishment. The retributions they undergo are not so much those inflicted by courts of justice, which were not always in being, do not exist at present in many places, and even where established, are frequently biased and partial; but the retributions I principally intend are those of conscience. The furies pursue and torment them, not with their burning torches, as the poets feign, but by remorse and the tortures arising from guilt.
Was it the fear of punishment, and not the nature of the thing itself that ought to restrain mankind from wickedness, what, I would ask, could give villains the least uneasiness, abstracting from all fears of this kind? And yet none of them was ever so audaciously impudent, but he endeavoured to justify what he had done by some law of nature, denied the fact, or else pretended a just sorrow for it. Now if the wicked have the confidence to appeal to these laws, with what profound respect ought good men to treat them?
There is the greater need, therefore, of insisting on the natural and unavoidable penalties of conscience. For if either direct punishment, or the fear of it, was what deterred from a vicious course of life, and not the turpitude of the thing itself, then none could he guilty of injustice, in a moral sense, and the greatest offenders ought rather to be called imprudent than wicked.
On the other hand, if we are determined to the practice of goodness, not by its own intrinsic excellence, but for the sake of some private advantage, we are cunning, rather than good men. What will not that man do in the dark who fears nothing but a witness and a judge? Should he meet a solitary individual in a desert place, with a large sum of money about him, and altogether unable to defend himself from being robbed, how would he behave? In such a case the man whom we have represented to be honest from principle, and the nature of the thing itself, would converse with the stranger, assist him, and show him the way. But as to the man who does nothing for the sake of another, and measures every thing by the advantage it brings to himself, it is obvious, I suppose, how such a one would act; and should he deny that he would kill the man or rob him of his treasure, his reason for this cannot be that he apprehends there is any moral turpitude in such actions, but only because he is afraid of a discovery, and the bad consequences that would thence ensue. A sentiment this, at which not only learned men, but even clowns must blush.
It is therefore an absurd extravagance in some philosophers to assert that all things are necessarily just, which are established by the civil laws and the institutions of the people. Are then the laws of tyrants just, simply because they are laws? If the thirty tyrants of Athens imposed certain laws on the Athenians, and if these Athenians were delighted with these tyrannical laws, are we therefore bound to consider these laws as just? For my own part, I do not think such laws deserve any greater estimation than that past during our own interregnum, which ordained, that the dictator should be empowered to put to death with impunity, whatever citizens he pleased, without hearing them in their own defence.
There can be but one essential justice, which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.
But if justice consists in submission to written laws and national customs, and if, as the Epicureans persist in affirming, every thing must be measured by utility alone, he who wishes to find an occasion of breaking such laws and customs, will be sure to discover it. So that real justice remains powerless if not supported by nature, and this pretended justice is overturned by that very utility which they call its foundation.
But this is not all. If nature does not ratify law, all the virtues lose their sway. What becomes of generosity, patriotism, or friendship? Where should we find the desire of benefitting our neighbours, or the gratitude that acknowledges kindness? For all these virtues proceed from our natural inclination to love and cherish our associates. This is the true basis of justice, and without this, not only the mutual charities of men, but the religious services of the gods, would become obsolete; for these are preserved, as I imagine, rather by the natural sympathy which subsists between divine and human beings, than by mere fear and timidity.
If the will of the people, the decrees of the senate, the adjudications of magistrates, were sufficient to establish justice, the only question would be how to gain suffrages, and to win over the votes of the majority, in order that corruption and spoliation, and the falsification of wills, should become lawful. But if the opinions and suffrages of foolish men had sufficient weight to outbalance the nature of things, might they not determine among them, that what is essentially bad and pernicious should henceforth pass for good and beneficial? Or why should not a law able to enforce injustice, take the place of equity? Would not this same law be able to change evil into good, and good into evil?
As far as we are concerned, we have no other rule capable of distinguishing between a good or a bad law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous. For common sense has impressed in our minds the first principles of things, and has given us a general acquaintance with them, by which we connect with Virtue every honourable and excellent quality, and with Vice all that is abominable and disgraceful.
Now we must entirely take leave of our senses, ere we can suppose that law and justice have no foundation in nature, and rely merely on the transient opinions of men. We should not venture to praise the virtue of a tree or a horse, in which expression there is an abuse of terms, were we not convinced that this virtue was in their nature, rather than in our opinion. For a stronger reason, it is mainly with respect to the moral nature of things, that we ought to speak of honour and shame among men.
If opinion could determine respecting the character of universal virtue, it might also decide respecting particular or partial virtues. But who will dare to determine that a man is prudent and cautious in his moral disposition, from any external appearances. For virtue evidently lies in perfect rationality, and this resides in the inmost depths of our nature. The same remark applies to all honour and honesty, for we judge of true and false, creditable and discreditable, rather by their essential qualities, than their external relations. Thus we judge according to their intrinsic nature, that rationality of life, which is virtue, must be ever constant and perpetual, and that inconstancy must necessarily be vicious.
We form an estimate of the opinions of youths, but not by their opinions. Those virtues and vices which reside in their moral natures, must not be measured by opinions. And so of all moral qualities, we must discriminate between honourable and dishonourable by reference to the essential nature of the things themselves.
The good we commend, must needs contain in itself something commendable. For as I before stated, goodness is not a mode of opinion: it is what it is, by the force of its very essence. If it were otherwise, opinion alone might constitute virtue and happiness, which is the most absurd of suppositions. And since we judge of good and evil by their nature, and since good and evil are the true constituents of honour and shame, we should judge in the same manner all honourable and all shameful qualities, testing them by the law of nature, without prejudice or passion. But our steady attention to this moral law of nature is often too much disturbed by the dissention of men and the variation of opinions. We might perhaps obey this law of nature more exactly, if we attended more accurately to the evidence of our senses, which being absolutely natural, are less likely to be deceived by artificial objects. Those objects, indeed, which sometimes present to us one appearance, sometimes another, we term fictions of the senses; but it is far otherwise. For neither parent, nor nurse, nor master, nor poet, nor drama, deceive our senses; nor do popular prejudices seduce them. But our delusions are connected with corruption of our mental opinions. And this corruption is either superinduced by those causes of error I have enumerated, which, taking possession of the young and uneducated, betray them into a thousand perversities, or by that voluptuousness which is the mimic of goodness, implicated and interfused through all our senses—the prolific mother of all human disasters. For she so corrupts us by her bewitching blandishments that we no longer perceive that things may be essentially excellent, though they have none of this deliciousness and pruriency. (Quæ natura bona sunt quia, dulcedine hac et scabie carent.)
From what I have said on this subject, it may then easily be concluded, that Justice and Equity are desirable for their own sake. For all virtuous men love Justice and Equity, for what they are in themselves; and we cannot believe that such virtuous men should delude themselves by loving something which does not deserve their affection. Justice and Right are therefore desirable and amiable in themselves; and if this is true of Right, it must be true of all the moral virtues with which it is connected. What then shall we say of liberality? Is it to be exercised gratuituously, or does it covet some reward and recompense? If a man does good without expecting any recompense for his kindness, then it is gratuitous: if he does expect compensation, it is a mere matter of traffic. Doubtless, he who truly deserves the reputation of a generous and good–natured man, performs his philanthropical duties without consulting his secular interests. In the same way the virtue of justice demands neither emolument nor salary, and therefore we desire it for its own sake, because it is its own reward. And for this reason we should entertain the same estimate of all moral virtues.
Besides this, if we weigh virtue by the mere utility and profit that attend it, and not by its own merit, the virtue which results will be in fact a species of vice (malitia rectissime decitur.) For the more a man’s views are self–interested, the further he recedes from probity. It therefore necessarily happens, that those who measure virtue by profit, acknowledge no other virtue than this usurious vice. For who could he called benevolent, if none endeavoured to do good for the love of others? Where could we find the grateful person, if those who are disposed to gratitude could meet no benefactor disinterested enough to deserve it? What would become of sacred friendship, if we were not to love our friends for their own sake with all our heart and soul? In pursuance of this pseudo–benovelence, we must desert our friend, as soon as we can derive no further assistance from him. What can be more inhuman! But if friendship ought rather to be cultivated on its own account, for the same reason are society, equality, and justice, desirable for themselves. If this were not so, there could be no justice at all, since nothing is more opposite to the very essence of virtue than selfish interest.
What then shall we say of temperance, sobriety, continence, modesty, bashfulness, and chastity? Is it the fear of laws, or the dread of judgments and penalties, which restrain intemperance and dissoluteness? Do we then live in innocence and moderation, only to acquire a certain secular reputation? And when we blush at licentious discourse, is it only through a squeamish prudery, lest our reputation should be stained? How I am ashamed at those philosophers, who assert that there are no vices to be avoided but those which the laws have branded with infamy. Can it be said that those are truly chaste, who abstain from adultery, merely for the fear of public exposure, and that disgrace which is only one of its many evil consequences? Indeed, my dear Atticus, what can you praise or blame with reason, if you depart from that great law and rule of nature, which makes the difference between right and wrong? Shall corporal defects, if they are remarkable, shock our sensibilities, and shall those of the soul make no impression on us?—Of the soul, I say, whose turpitude is so evidently proved by its vices. For what is there more hideous than avarice, more ferocious than lust, more contemptible than cowardice, more base than stupidity and folly? Well, therefore, may we style unhappy, those persons in whom any one of these vices is conspicuous, not on account of the disgraces or losses to which they are exposed, but on account of the moral baseness of their sins.
We may apply the same ethical test to those who are distinguished for their virtue. For if virtue be not the highest excellence to which we aspire, it necessarily follows that there is something better than virtue. Is it money, fame, beauty, health? All these appear of little value to us when we possess them, especially when we consider that the duration of their enjoyment is altogether uncertain. Is it that basest of all things, voluptuousness? Certainly not; for nothing gives so much dignity to virtue, as its capacity of overruling and despising all the gratifications of secular and sensual life.
You see the long series of facts and arguments I have brought forward. Such is the connection between one doctrine of truth and another,—I should have proceeded further still, if I had not kept myself in check.
Quintus.
—To what point do your arguments tend, my brother?—for I would willingly go hand in hand with you through this discussion.
Marcus.
—The point they bear on, is the moral end of our actions, (ad finem bonorum) to which all things are to be referred, and for the sake of which all things are to be undertaken. This subject is, however, one of great controversy, and full of debate among the learned; yet I shall some day venture to publish my opinions respecting it.
Atticus.
—How can you think of such a thing, since Gellius is no longer alive?
Quintus.
—What difference does that make?
Atticus.
—More than you imagine,—since by his death your brother has lost an excellent advocate of his benevolent design of conciliating your wrangling disputants. When I was at Athens, I recollect Phædrus told me that your friend Gellius, when he came as a Consul into Greece, after his prætorship, assembled all the Athenian philosophers in one spot, and very learnedly favoured them with his advice that they should endeavour to come to some unanimous agreement in their controversies; that if they were so disposed, and wished to spend their lives in peace rather than discord, such an agreement might be formed; at the same time promising them his best assistance, if this scheme of mutual conciliation and concession met their views.
Marcus.
—Your story is amusing enough, my Atticus, and it excited much merriment at the time; but raillery apart, I do not see so much difficulty in harmonizing the views of the ancient Academy and the Stoics,—at least, on this point.
Atticus.
—How can you form such an opinion?
Marcus.
—Because they differ on one point only, and agree to admiration in all the rest.
Atticus.
—What! do they contend on one point of debate only?
Marcus.
—Yes. I think they have only a single issue, so far as concerns this question of morals. For the ancient Academicians are unanimously agreed that true good consists in accordance with nature, and natural order. The Stoics, on the other hand, allow of no good but honor and virtue.
Atticus.
—This is indeed a very insignificant controversy, and not sufficient to account for their general opposition.
Marcus.
—That is true, but it was the thing itself on which they differed, rather than the terms.
Atticus.
—You seem rather to agree with my friend Antiochus; I will not call him my master, since I lived with him so sociably. It was he who at one time almost persuaded me to desert my Epicurean gardens, and betake myself to those of the Academy.
Marcus.
—This Antiochus was a wise and clever man, and highly accomplished in his way. He was, as you know, a friend of mine; and if I could agree with him in all those respects which I shall hereafter investigate, the whole controversy might easily be settled.
Atticus.
—Why do you prosecute this enquiry?
Marcus.
—Because if, as Ariston of Chios pretended, there is no other good than the honourable, no other evil than the dishonourable; that all other things are altogether indifferent, and that their presence or absence are of no kind of consequence, then Zeno has departed very far from Xenocrates, Aristotle, and all the school of Plato, and there is an entire difference between them respecting a principle which influences the whole course of life. But, as Antiochus observes, though the ancients assert that honour is the sovereign good, and its antagonist the sovereign evil,—the one being according to Zeno and the Stoics, the only good, the other the only evil—they likewise account riches, health and beauty, among the advantages, commodities and conveniences of life; and poverty, grief, and pain, among its inconveniences. And therefore they in fact agree in opinion with Xenocrates and Aristotle, though they express it by different terms. From this difference, not respecting things, but words, the controversy concerning moral ends arose. In relation to which, inasmuch as our Roman Law of the Twelve Tables granted a neutral space of five feet wide between the territories of different landlords, we will not allow the venerable estate of the Academy to be trespassed on by this crafty Stoic: and though the Mamilian law appointed but one surveyor to determine the rights of these neutral spaces, in this ethical question all three of us will undertake to arbitrate respecting the moral ends of philosophy.
Quintus.
—What then shall be our decision?
Marcus.
—I think we should seek the boundaries which Socrates has laid down in relation to this question, and abide by them.
Quintus.
—There cannot be a better proposal my brother. And now I pray you let us proceed to the consideration of civil Justice and Laws, on which topics we expect you will give us some useful information, for the subject is particularly important, as I have often heard you say. And certainly we have sufficiently established the principle we have been discussing, and proved that to live according to nature, is the highest good; that is to lead a life regulated by conscience, and conformed to virtue and temperance. Thus to follow nature, and to live according to her law, and to obey all her just commands; this surely is the most lawful and virtuous mode of living. As to the discussions of philosophers, I know not whether we shall ever arrive at a decision, but we certainly shall not do so in our present conference, at least, if we prosecute our original design, and come to the practical investigation of the civil law, as established in our country.
Atticus.
—I shall most willingly proceed to that part of our disquisition!
Quintus.
—Then let us defer this dispute on moral ends to some future occasion; and let us proceed to a more practical view of laws, especially since these dialectics respecting the sovereign good and evil have but little reference to our national legislation.
Marcus.
—What you say, my Quintus, is most wise and excellent, but I should not have kept you so long in these preliminary doctrines, had I not thought they would throw more light than you seem to imagine on the affairs of Jurisprudence.
Quintus.
—And when you treat of this Jurisprudence, my brother, we are not so anxious to hear of the laws of Lycurgus, and Solon, and Charondas, and Galencus, nor our Roman Twelve Tables, and popular degrees; but I wish you to describe, in this familiar conversation, not only the laws fitted for all nations, but also the rules and maxims of conduct that may apply to individuals.
Marcus.
—I would to heaven, my Quintus, that what you desire were so commensurate to my ability, that it might gracefully harmonize with the subjects I discuss. But you must allow me, that since it was necessary there should be a Law, which by censuring vice and advocating virtue, becomes the source of the precepts we most need to direct us in our conduct; it is also necessary that there should be a wisdom from the love of which, the Greeks have composed the word Philosophy, which is the parent of all the fine arts; for it is beyond contradiction the richest, the brightest, and the loveliest of the gifts the gods have bestowed on us. She has taught us, among other things, the most difficult of all lessons, namely, to know ourselves, a precept so forcible and so comprehensive, that it has been attributed not to a man, but to the God of Delphos himself, and that not without reason.
For he who knows himself must be conscious that he is inspired by a divine principle. He will look upon his rational part as a resemblance to some divinity consecrated within him, and will always be careful that his sentiments, as well as his external behaviour, be worthy of this inestimable gift of God. A serious and thorough examination of all his powers, will inform him what signal advantages he has received from nature, and with what infinite help he is furnished for the attainment of wisdom. For, from his first entrance into the world, he has, as it were, the intelligible principles of things delineated on his mind, by the enlightening assistance of which, and the guidance of wisdom, he may become a good, and, consequently, a happy man.
And what can be conceived more truly happy, than the state of that man, who, having attained to an exact knowledge of virtue, throws off all the indulgences of sensual appetite, and tramples on voluptuousness as a thing unbecoming the dignity of his nature—the man who is not terrified at the approach of affliction, or even at death itself—who maintains a benevolent intercourse with his friends, and under that endearing name includes the whole race of mankind, as being united together by one common nature; who preserves, in short, an unfeigned piety and reverence towards the gods, and exerts the utmost force of his rational powers to distinguish good from evil, just as we strain our eyes, in order to view a beautiful object with greater attention.
When this man shall have surveyed the heavens, the earth, and the seas, studied the nature of all things, and informed himself whence they were generated, to what state they return, the time and manner of their dissolution, what parts of them are mortal and perishable, and what divine and eternal?—when he shall have attained in a great measure, the knowledge of that Being who superintends and governs them, and shall look on himself as not confined within the walls of one city, or as the member of any particular community, but as a citizen of the universe, considered as a single Commonwealth:—on such a grand representation of things as this, and on such a prospect and knowledge of nature, how well, O heavens! would such a one understand the precepts of the Pythian Apollo by knowing himself? How insignificant would he then esteem, how thoroughly would he contemn and despise, those things which by vulgar minds are held in the highest admiration.
All these acquirements he would secure and guard as with a fence, by the science of distinguishing truth from falsehood, and that logical art of reasoning which teaches him to know what consequences follow from premises, and how far one proposition clashes with another. When such a person was convinced that nature designed him for society, he would not rest contented with these subtle disquisitions, but would put in practice that comprehensive eloquence, which is necessary for governing nations, enacting laws, punishing malefactors, defending the honest part of mankind, and publishing the praises of great men. He would likewise use his persuasive eloquence to recommend salutary maxims to his countrymen, to rouse them to the practice of virtue, and turn them from wickedness, to comfort the afflicted, and, in fine, by his writings, to immortalize the wise consultations and noble actions of the prudent and brave, and to punish the shame and infamy of wicked men. So many excellent capacities will be found in man, by those who desire to know themselves, of all which Wisdom is the parent and director.
Atticus.
—You have made a very sublime and just eulogium on self–knowledge. But how do you mean your remarks to bear?
Marcus.
—In the first place, my Atticus, I mean them to bear on those jurisprudential topics which we shall hereafter discuss, which are well nigh as important as the preceding. For these moral principles we have already developed, would not be so grand and so interesting, if their practical consequences were not full of sublimity and beauty. And for the rest, I prosecute this enquiry with pleasure, and I trust with fairness; for law is my favourite study, and since it has made me all that I am, I cannot with any conscience pass it by without due panegyrics.
Atticus.
—So indeed it seems, if I may judge by your practice. And I commend you for it,—it is but proper to bestow all the praises we can on the topics under discussion.
