804 DE AUGMENTIS SCIENTIARUM 



utilitatis aut voluptatis illius participes non sunt, sed exemplum 

 ad se pertinere putant. Itaque facile coeunt in consensum, ut 

 caveatur sibi per Leges ; ne injuriae per vices ad singulos red- 

 eant. Quod si ex ratione temporum et communione culpse id 

 eveniat, ut pluribus et potentioribus per legem aliquam peri- 

 culuni creetur quam caveatur, factio solvit legem ; quod et 

 saepe fit. 1 



APHORISMUS 3. 



At Jus Privatum sub tutela Juris Publici latet. Lex enim 

 cavet civibus, magistratus legibus. Magistratuum autem au- 

 thoritas pendet ex maj estate imperii, et fabrica politiae, et 

 legibus fundamentalibus. Quare, si ex ilia parte sanitas fuerit 

 et recta constitutio, leges erunt in bono usu ; sin minus, parum 

 in iis prsesidii erit. 



1 The doctrine of this aphorism resembles that of Hobbes, inasmuch as there is no 

 recognition of the principle that moral ideas lie at the root of civil rights. All the 

 evidence of which the nature of the subject admits tends to show that society has 

 always been held together, not by fear, but by notions more or less perfectly developed 

 of the distinction between right and wrong ; and to assert that in the absence of "any 

 such notions selfish fear could serve as the " firmamentum juris privati," is at best 

 to assert that which never has been proved and never can be. 



Of course it is not meant to deny that fear is the principle by means of which the 

 moral force of society becomes efficient in the repression of crime. . 



[Thnt a notion of the distinction between right and wrong in general lies at the 

 bottom of all our notions of individual rights and wrongs ; that when we think of one 

 man as doing an injury to another, we think of him as doing something not only in 

 its effect hurtful, but in its nature unjust ; I do not think Bacon would have denied. 

 That in the absence of any such notion the interest which all men have in protection 

 from injuiy would lead them to concur in the measures necessary to secure protec- 

 tion to each, he would not, I think, have affirmed. But such questions did not enter 

 into the practical problem with which he had to deal ; which was this : Given our 

 common notions of right and wrong, jus and injuria, with all their constituent ele- 

 ments, what is the principle by which they are made to bear upon the protection of 

 individuals ? To this he answers : It is the interest which each individual has in being 

 himself protected. That the personal interest would be insufficient without the sanc- 

 tion of the " moral idea " to stimulate and support it, is probably true ; for we see 

 that actions the most dangerous to society, if committed by madmen, and therefore 

 not objects of moral disapprobation, are exempted from punishment ; the necessity of 

 self-defence requiring only that measures be taken to prevent the recurrence of them, 

 and the sense of justice refusing to sanction any further severity. But that the 

 " moral idea," unassisted by the sense of personal interest, could be still less relied upon 

 as a "firmamentum privati juris," seems to me still more certain ; for we see that the 

 penalties exacted or denounced by the laws, though proportioned with tolerable accu- 

 racy to the danger of the offence, bear no proportion at all to the moral disapprobation 

 of which it is the object. Actions which are morally wrong in the highest degree, if 

 they be such as every man may protect himself against, are not punished at all. 

 Actions which the moral sense scarcely condemns, if such that the general permission 

 of them would entail a general insecurity of property, are punished with great severity. 

 And the truth seems to be, that to make an action seem a fit object of punishment, 

 there must be something morally offensive in it, but that the nature and amount of 

 punishment varies according to the interest of society in preventing it, and the diffi- 

 culty of effecting that end. Men are not content with less severity than they think 

 necessary for their protection, nor do they feel justified in using more. J. S.] 



