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Eighteenth-Century Studies, Volume 36, Number 4, Summer 2003, pp. 473-490 (Article)

3XEOLVKHGE\-RKQV+RSNLQV8QLYHUVLW\3UHVV DOI: 10.1353/ecs.2003.0053

For additional information about this article http://muse.jhu.edu/journals/ecs/summary/v036/36.4saunders.html

Access provided by University of Queensland (2 Oct 2015 01:41 GMT) Saunders / The Natural Jurisprudence of Jean Barbeyrac 473

T HE NATURAL JURISPRUDENCE OF JEAN BARBEYRAC: TRANSLATION AS AN ART OF POLITICAL ADJUSTMENT

David Saunders

TRANSLATING AND ADJUSTING

Because words have histories, translating is not an ahistorical enterprise. Whether transferring a writing of yesterday across time for readers of today, or translocating a writing across space from its place and language of origin to a different place and language of reception, translation involves adjustment. When it confronts religious conflicts and political disputes, adjustment via translation can be a strategic art, a weapon for serious struggle. Such was the case with Jean Barbeyrac (1674–1744). Diasporic Huguenots, Barbeyrac’s family escaped from Catholic France to Calvinist Lausanne and Geneva. From Switzerland, the young Barbeyrac then followed the pathway to Berlin taken by so many other French Protestant escap- ees from Louis XIV’s persecution of their confessional minority. In Berlin from 1693 to 1710, and later in Lausanne and Groningen, Barbeyrac was to become the preeminent eighteenth-century translator into French of Latin natural-law works of the 1600s. What principally made his reputation were his ever more profusely glossed translations of the German natural jurist, Samuel Pufendorf (1632–94), notably the De jure naturae et gentium of 1672 (On the Law of Na-

David Saunders is Professor in the Faculty of Arts at Griffith University and Honorary Pro- fessor in the Centre for the History of European Discourses at the University of Queensland, Australia. His books include Authorship and Copyright (1992) and Anti-lawyers: Religion and the Critics of Law and State (1997). He is co-editor of Natural Law and Civil Sovereign- ty: Moral Right and State Authority in Early Modern Political Thought (2002) and of Sam- uel Pufendorf: The Whole Duty of Man, According to the Law of Nature. Together with Two Discourses and a Commentary by Jean Barbeyrac (2003).

Eighteenth-Century Studies, vol. 36, no. 4 (2003) Pp. 473–490.

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ture and Nations) and Pufendorf’s own 1673 abridgment of the De jure, the De officio hominis et civis juxta legem naturalem (On the Duty of Man and Citizen According to Natural Law), a digest for students of his new natural jurisprudence.1 As liberal Protestants, author and translator shared common moral ground, but it will be their differences as political-juristic thinkers that the present article addresses.2 The German jurist wrote to legitimate the political arrange- ments of an absolutist state under the rule of law in the aftermath of the Peace of Westphalia (1648) that ended the Thirty Years War. Pufendorf’s post-Westpha- lian system was radical in its definitive separating of natural law from moral theology as distinct disciplines, his object being to protect the public peace by establishing the legitimacy of a civil sovereign who quarantined political government from clerical intervention.3 Barbeyrac’s response was mixed. While endors- ing Pufendorf’s stance against the confessional state, he could not accept the con- sequences of the full secularization of civil authority that Pufendorf proposed, nor the absolute character of sovereign power resulting from this. In reconfiguring Pufendorf’s natural jurisprudence, Barbeyrac thus envisaged a quite different end: to rejoin civil duties to religious morality and delimit state authority in the face of individual conscience. The following discussion draws in part on a recent reedition of the first English translation of the De officio, by Andrew Tooke.4 Appearing in 1691, The Whole Duty of Man, According to the Law of Nature was reissued in 1698 and 1705, before undergoing major revision in 1716 at the hands of anonymous editors.5 It was in this fourth edition that the English editors added footnotes and included revised translations of key passages borrowed from the first edition of Barbeyrac’s increasingly famous French version, Les devoirs de l’homme et du citoien, published in Amsterdam in 1707.6 The 1716 English edition thus embod- ies two significant political adjustments: Tooke’s original adaptation of Pufen- dorf’s “statist” natural jurisprudence to fit an English “parliamentary” context; and the editors’ subsequent adaptation of Barbeyrac’s reconfiguring of Pufendorf for Francophone Huguenot readerships in Berlin, the United Provinces and beyond, vernacular publics whose political and moral formation was the very issue at the heart of Pufendorf’s “revisionist” guide to natural law. The 2003 reedition of The Whole Duty is augmented with the first En- glish translation of three further components that Barbeyrac included in his fourth edition of Les devoirs, published in 1718.7 First and best known of these was his translation into French of Gottfried Wilhelm Leibniz’s excoriation of Pufendorf in a Latin letter composed in 1701; the letter had been printed in 1709 as the Epistola Viri Excellentissimi ad Amicum, quâ monita quaedam ad principia Pufen- dorfiani operis, De Officio hominis et civis, continentur.8 Barbeyrac entitled the German philosopher’s monita or “warning” on Pufendorf’s principles: “Jugement d’un anonyme sur l’original de cet abrégé.”9 Taking the opportunity to defend Pufendorf from Leibniz’s attack, Barbeyrac translated the letter into French, di- viding it into twenty paragraphs between each of which he interposed his own responses. While it has been available in English translation from Latin, Leibniz’s text is now translated from Barbeyrac’s French version, with the latter’s interjections, thus restoring the format of its early eighteenth-century print circulation.10 The second and third additions are a Discours sur la permission des loix, deliv-

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ered by Barbeyrac as Rector of the Académie de Lausanne in 1715, and a Dis- cours sur le bénéfice des loix, delivered in the same office in 1716. The 1716 edition of The Whole Duty of Man could not of course have incorporated these components of Barbeyrac’s 1718 edition. But now, three centuries later, Anglo- phone readers can access an important avenue into political disputes and religious conflicts still tearing early eighteenth-century Protestantism. Three thresholds of adjustment mark these French and English versions of the De officio:11 Barbeyrac’s 1707 French translation bridging the reception context of Pufendorf’s Latin original and the Huguenot translator’s vernacular readership; Tooke’s 1691 rendering of the De officio into English for a non-Lati- nate readership and, in the 1716 edition, the editors’ further adjustment of the English text in light of Barbeyrac’s 1707 translation and notes; and Barbeyrac’s 1718 translation of and response to Leibniz’s divine-rational critique of Pufen- dorf’s politically grounded natural jurisprudence. Historically speaking, natural law was a preeminent presence in early modern intellectual life. It lay at the epicenter of profound disputes over the right boundaries to be drawn between church and state, and especially over any move to grant the political state a secular legitimacy. Given the diverse religious-political trajectories of different Western European territories and the violently con- tested concept of state sovereignty, early modern natural law was not a unified phenomenon of culture. Its doctrines could not help but be adjusted and readjust- ed in accordance with conflicts fought and settlements achieved in this or that theatre of religious dissension and political struggle. These adjustments and read- justments are manifest in vernacular translations of Latin natural-law writings that played a significant part in cosmopolitan interactions in the early 1700s.12

BARBEYRAC’S ROLE IN THE ENGLISH RECEPTION OF PUFENDORF’S DE OFFICIO

Between the first publication of Tooke’s English translation of the De officio in 1691 and the appearance in 1716 of the fourth edition of The Whole Duty of Man with its borrowings from Barbeyrac, Louis XIV died. This death in 1715 no doubt gave pause, whether to those who still hoped for or to those who had long feared a universal Catholicization of Europe led by the imperial French king. English politics in the 1690s remained in uncertain balance between Will- iam III’s insistence on the fiscal and military prerogatives necessary to wage a defensive Protestant war against the French and Parliament’s claim to the status of an independent sovereign legislature.13 Into this context Tooke’s translation imported Pufendorf’s absolutist natural jurisprudence, originally deployed to legitimate Protestant territorial states engaged in a struggle for hegemony against Catholic Empire and local estates. To English readers for whom absolutism—and its associated raison d’état thinking—was an alien political form, the German jurist’s “Bodinian” lexicon of civitas (“state”) and summum imperium (“sovereignty”) could scarcely enter English usage without adjustment. For Tooke the lexical strategy was circumlocution. The De officio’s twen- tieth-century English translator, Michael Silverthorne, recognizes that Tooke’s reluctance to employ “state” for civitas in the Pufendorfian sense of an indepen-

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dent sovereign dominion manifested itself in a variety of alternative terms, including “society,” “civil society,” “commonwealth,” “community,” and “nation.”14 In the English political lexicon at the turn of the eighteenth century, however, as Silverthorne observes, “[w]hat we do not have authority for is ‘state.’”15 For Bar- beyrac, conversely, “Etat” appears to have posed no problem, being routinely employed for civitas:

Lors que cette union de Volontéz & de forces est entièrement faite, elle produit le Corps Politique, que l’on appelle un Etat, & qui est la plus puissante de toutes les Sociétez.16

By comparison with Barbeyrac’s 1707 rendering, Tooke’s corresponding English text of 1691 reads:

And when there is an Union made of their Wills and Forces, then this Multitude of Men may be said to be animated and incorporated into a Firm and Lasting Society.17

Silverthorne’s version underscores the difference: “Only when they have achieved a union of wills and forces is a multitude of men brought to life as a corporate body stronger than any other body, namely a state [civitas].”18 Tooke, it seems, adapted Pufendorf to express a distinctively English sensibility to the then current political weight of “state.” Yet at least one of his preferences coincided with Bar- beyrac’s alternative rendering of civitas as “société civile” which—as “civil society”—could pass more easily into English circulation than “state.”19 Unlike the anonymous editors of the 1716 edition of The Whole Duty of Man, as translator of the De officio Tooke had no access to Barbeyrac’s 1707 French version. This was not the case of his English contemporary, Basil Kennet, the translator of the De jure. As we shall see, for his 1717 edition of The Law of Nature and Nations Kennet could draw on Barbeyrac’s 1706 French translation, Le droit de la nature et des gens, and its footnote commentary.20 Kennet’s lexical choices are mostly similar to Tooke’s, however, as evidenced in the chapter “Of the Causes and Motives inducing Men to establish civil Societies,” where Kennet confronts a veritable compendium of key political terms:

For the clearing up of this whole Matter, we ought to consider, what that Condition is which Men enter into, upon their erecting a civil State; what Qualities they are which may entitle them to the Name of political Creatures; and lastly, what there is in their Frame and Constitution which seems (if we may so speak) to indispose them for a Civil Life. First then, whoever enters into a Community, divests himself of his natural Freedom, and puts himself under Government, which, amongst other Things, comprehends the Power of Life and Death over him, together with Authority to enjoin him some Things to which he has an utter Aversion, and to prohibit others, for which he may have as strong an Inclination.21

Here Kennet’s “civil State” renders Pufendorf’s unadorned civitas. Next, Kennet deletes the phrase “that is, good citizen” (i. e. bonus civis) with which Pufendorf qualifies “political creatures” (animal politicum), the jurist’s statist gloss designed to undercut the metaphysical naturalism of Aristotle’s concept of zoon politikon.

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For Pufendorf, the good citizen is an adventitious creation of civil discipline, not the inevitable realization of a moral nature. In Kennet’s second sentence, the En- glish text tells of entering a “Community” and accepting its “Government.” By contrast, in Pufendorf it is entrance to the state that is at issue, a political event that entails subjection to command or sovereignty (Civitatem qui subit . . . impe- rio se subjicit). More easily than the English versions, Barbeyrac’s French translation of the De officio allows the state supremacy as the most powerful of all social bodies. In fact, he offers an explicit justification for his usage of “Etat” at the opening of the fifth chapter of Book II, “Des motifs qui ont porté les Hommes à former des Sociétés Civiles.” The topic is how men, in exiting from the “petites Sociétéz” or small associations of the state of nature, “then formed political bodies, or civil societies, to which we give the name of State.”22 Barbeyrac’s footnote glosses “Etat” in the following terms:

Civitas, says our Author [Pufendorf], and this is good Latin: but our French word Cité, which is cognate, is no longer used in this sense. The word Etat clearly derives from [the Latin] Status, because the Société Civile is the Etat Public of those who constitute it; and this is why the Roman jurisconsults define their Public Law, Jus, quod ad STATUM rei Romanae spectat.23

There is no suggestion here that the translation of civitas by “Etat” was a neolo- gism in need of justification or an eccentricity in need of excuse.24 Yet, for Barbeyrac, a crucial normative issue remains: the relation of the state’s exercise of political supremacy to the prerogatives of the individual conscience. For Pufendorf, the domain of conscience should not extend into government of the civil sphere. This follows from his more Hobbesian view of conscience as always a judgment in accordance with a law (which may be the law of God). What is unacceptable—because it had proven so inimical to peaceful coex- istence among the rival confessions—is an exercise of civil judgment on the basis of an inner insight. This can only spread tumult, given the now irreducible con- flict of confessional beliefs. In respect to this crucial issue, however, Barbeyrac was not unlike Tooke in moderating the “statist” dimensions of Pufendorf’s writings, but with a Huguenot’s view to regrounding natural law explicitly in an inviolable right of conscience.25 If Barbeyrac insisted on the moral wrong—and practical futility—of using the secular sword to force the individual conscience, this was to defend man’s access via conscience to the irresistible moral laws written in the heart by God. Footnote commentary underscored this Lockean stance. Principled commitment to freedom of conscience might seem necessarily to comport religious toleration. Yet the confessional wars of massacre, fought not for land but for purity of faith and cleansing away of heretics, had shown over and again that a defense of conscience was not simply synonymous with a rejec- tion of violence. Viewed in this light, Pufendorfian statism was arguably a more “tolerant” politics for the task of managing the now permanent fact of religious pluralism, not least to the extent that such a politics envisaged a civil sovereign exempted from judging issues of theological truth (or error).26

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PUFENDORF, LEIBNIZ, BARBEYRAC

Between Leibniz and Pufendorf no love was lost. As Leibniz famously wrote to Kästner in 1709, he considered the jurist parum jurisconsultus et minime philosophus, “an inadequate lawyer and a worse philosopher.” His monita or “warning” against Pufendorf’s principles of natural law was no less famous.27 Reviewing the metaphysical philosopher’s confrontation with Pufendorf’s new political jurisprudence, Norberto Bobbio identifies their confrontation with the conceptual clash of rationalism and voluntarism.28 But the discord between the “philosopher-jurist” (Leibniz) and the “jurist-philosopher” (Pufendorf) was far more consequential than a purely intellectual exchange. It was, writes Bobbio, the confrontation of a “theological” and a “secular and worldly” conception of law, marking a decisive cleavage between old and new.29 At this historical divide between theology and jurisprudence, the two fundamental ways of addressing legal philosophy found their two great representatives in Leibniz and Pufendorf. The political jurist stipulated a limit to natural law at the very threshold where the metaphysical philosopher claimed insight into the transcendent moral reason that alone could guide—and judge—the civil laws.30 The political stakes were very high. Did civil laws continue in a state of debility until informed by the universal moral norms of natural law secundum disciplinam Christianorum, “according to the teaching of the Christians”? Were clerical powers and Christian morality always to superintend state sovereignty and political authority? In publishing Leibniz’s anti-Pufendorf warning in 1718, Barbeyrac in no way offers a thoroughgoing “defense” of the political jurist. In fact he jeopardizes Pufendorf’s intellectual strategy of legitimating an absolutist state that would not subordinate civil authority to confessional ends. True, Barbeyrac also takes his distance from Leibniz, where the latter reasserts the traditional nexus of natural law and metaphysics and thus reserves a role for theologico-rational superinten- dence over individual consciences. As a Huguenot facing Louis XIV’s state program of Catholic reconformity, Barbeyrac can contemplate what Leibniz could not: the separation of religion and church from law and state. Conversely, Pufen- dorf’s detheologized natural law might ground a secularized civil authority but it did not secure the moral value most prized in the Huguenot perspective: an inviolable right of conscience.31 By reimplanting the primacy of conscience, Barbey- rac reimplants natural law in moral theology. But in such a complex matter there is more to say. Leibniz, as noted, set transcendent moral reason above Pufendorf’s worldly natural law, and universal justice above the civil justice of a human tribunal whose end was mere security. Here Barbeyrac surely paused. What if an “unreasonable” moral reason were endorsed and enforced by a civil authority—in the name of religious conformity and political unity—such that dissenters were constrained, on pain of sanction, to go against their conscientious belief? The dilemma confronting Barbeyrac would have given point to the exclusion of inner states—mental, moral or spiritual— from the jurisdiction of natural law that Pufendorf envisages in the De officio:

[A]s human jurisdiction is concerned only with a man’s external actions and does not penetrate to what is hidden in the heart and which gives no external effect or sign, and consequently takes no account of it, natural law too is largely concerned with forming men’s external actions.32

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Confinement of natural law to the forming of “external actions” appals Leibniz. He counters Pufendorf’s withdrawal of natural law from the inner life with the expansive claim that “in a universal society governed by God every virtue, as has already been said many times, is comprehended among the obligations of universal justice; and not only external acts, but also all of our sentiments are regulated by a certain rule of law.”33 Correctly, Leibniz recognizes that Pufendorf’s demarcation between external actions and “what is hidden in the heart” signifies the emergence of a juridical regime over which moral theologians—and metaphysical philosophers—would have no say. This prospect provokes the charge that the author of the De officio would remove “Christian philosophers,” those essential masters of the inner life, from the domain of natural law. Absent the “Christian philosophers,” Leibniz threatens, natural law would be disconnected from the “eternal truths” of “universal jurisprudence” with whose transcendent standard all law, human and divine, must comply if it is to be legitimate. The applicable maxim is “that not everything should be measured by the goods of this life.”34 Leibniz can only refuse Pufendorf’s further argument that—regardless of their inner state of moral good or spiritual grace—men can meet the demands of a civil ethics provided they conduct themselves in a manner that conforms externally to the rules of worldly sociability. Leibniz, by contrast, believed that heretical belief could be punished as a crime.35 Inner states were perfectly justiciable. Between Leibniz and Pufendorf, Barbeyrac is ambivalent. He endorses Leibniz’s extending of natural law to embrace matters of the inner life. Individual conscience is thus the true adjudicator of external acts because, alone, it offers unmediated access to the will of God. Implausibly, Barbeyrac would have us believe that Pufendorf too maintains the binding force of conscience as the nexus between external acts and inner states, the link between law and eternity.36 But Barbeyrac knew what had happened in France, when an all-powerful civil authority acted to enforce its version of eternity.37 Against Leibniz, he could therefore endorse Pufendorf’s conception of the inner sphere as out-of-bounds to civil intervention, agreeing that obligations under natural law apply only to those external acts that others are entitled to expect of us:

Once one has done [by way of external action] . . . all that one was required to do, whether the internal act was as vicious as you please, nobody can ask any more of us, nor, finally, must they do so, even though the internal principle of the action by which one has acquitted oneself of what was required had something about it that the divine tribunal and our own conscience would condemn.38

This concession aside, for Barbeyrac it is not the civil sovereign but the inviolable rights of the individual conscience that delimit the reach of political authority. But this is to reinstate the very threat that Pufendorf was seeking to exclude. For the jurist, we recall, to allow the rule of conscience to preempt the authority of civil government was to renew the risk of social disruption and religious war. If individuals believed that their own moral views entitle them to judge the civil sovereign’s lawful command, they would also believe that subversion was justified. As to this threat Pufendorf is crystal-clear—to subordinate law to conscience and political authority to inner insight is to return to social instability: “[I]f one wishes to ascribe to the practical judgment or conscience some particu-

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lar power to direct actions, which does not emanate or arise from law, he ascribes the power of laws to any fantastic idea of men, and introduces the utmost confu- sion into human affairs.” Therefore, observes Pufendorf, “a place is allowed the conscience in directing the actions of man, only in respect that it can take cogni- zance of laws.”39 Is Barbeyrac incoherent in seeking to realign law with conscience while seeking to avoid enforcement of conscience by the law? If there is incoherence, it may be less a fault of logic than testimony to the historical circumstances of the Huguenots, a people with a binding religion but without a political state. What- ever, in the face of Leibniz’s critique, Barbeyrac’s “defense” of Pufendorf is rather a matter of serial adjustments that would transform the latter’s natural jurisprudence towards a Huguenot perspective.40 The impulses driving this transformation surface in a footnote-essay in which Barbeyrac takes his distance from Pufendorf’s argument in the De jure that the political state originates in men’s fear of mutual predation, rather than in their desire for sociability or need for moral completion. These are issues of fundamental political conception rather than of simple lexicon, issues whose explication goes beyond referral to a Huguenot response to circumstance. To throw doubt on Pufendorf’s singular “original” of the political state, Barbeyrac assembles philosophical and biblical accounts of the origins of sovereignty, with particular em- phasis on a gradual historical emergence of political rights from agreements, trea- ties and compacts. Throughout, Barbeyrac speaks not of sovereignty and the state, but of government and civil society. The political point of this language is made explicit in one of his multiple references to Locke:

Mr. Locke has, likewise, treated of the Origin of civil societies in his second Treatise of civil Government, Ch. vii, &c. As for the Rest, all I have said here in this Note, upon the different Motives which gave Birth to civil society, does not exclude Conventions either express or tacit. These must always be supposed to intervene here to found the Authority of those who command, and the Obligation of those who obey; as well as to regulate the respective limits of Power and Subjection.41

Barbeyrac thus cites a Lockean account of the governed and their governors reach- ing mutual agreement over the respective limits of obedience and authority. This is wholly at odds with Pufendorf’s Hobbesian account of men, driven by mutual fear, appointing a sovereign who in fulfilling his civil duties is accountable to no one. Instead, the Lockean rationale of civil authority constrained by natural rights and consensual agreements was Barbeyrac’s preferred resolution of the otherwise irresolvable clash of perspectives between Pufendorf’s secularization of the state in the name of worldly peace and public security, and Leibniz’s counter-propopo- sition: a resacralization of the state in the name of divine harmony and rational- moral perfection.42

TWO DISCOURSES ON MORALITY AND THE CIVIL LAWS

Pufendorf composed the De officio as the textbook for students of his new natural jurisprudence. It was designed to be the instrument that would allow them to attune themselves—politically and professionally, ethically and personal-

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ly—to the common rules of duty in a post-Westphalian security state. The civil education of the young was a priority also for Barbeyrac, who included as appendices in the 1718 edition of Les devoirs de l’homme et du citoien two of his own “academic discourses.” These were formal end-of-year orations, delivered in French as Rector of the Académie de Lausanne to which he had been appointed in 1710 to teach law and history: a Discours sur la permission des loix in 1715, followed a year later by a complementary Discours sur le bénéfice des loix.43 Both Discours expound the theme of a higher moral law as the normative platform from where one’s own conduct and the provisions of the positive (or civil) laws must be assessed. The Rector left his audience—city officials, the academic community of teachers and students—in no doubt: strict laws and proce- dures are necessary but not sufficient. A subject’s mere conformity to the laws is no guarantee of their goodness as a creature. He had been hired to say this sort of thing. The rules of law (règles du droit) might serve the civil courts but the precepts of right (préceptes du droit) serve all humanity before the court of conscience:

The civil laws and the laws of virtue thus form as it were two distinct jurisdictions, which may well converge up to a certain point, but beyond this point virtue alone remains, and commands absolutely. Or rather virtue is always the supreme mistress.44

Positive laws (loix civiles) might constrain the external acts of men and thus en- sure civil peace (repos de la société), but they can neither make men virtuous according to the laws of virtue (loix de la vertu) nor exonerate them from the duties imposed by God and “the natural empire that virtue holds over men.”45 Though contingent on time and place, the positive laws are not necessarily amiss. They might, if all is well, accord with the unchanging precepts of right. This partial concession aside, Barbeyrac’s Discours scarcely constitute a Pufendorfian eulogy of civil authority in general, or of the civil laws—statute and custom—in particular.46 Before receiving their prizes, the students were thus forced to confront a stark discrepancy between positive law and moral principle. In the Discours sur la permission des loix—now translated as “Discourse on what is permitted by the laws”—the discrepancy is thematized in Barbeyrac’s subtitle: “Where it is shown that what is permitted by the laws is not always just and honest.”47 Adopting the aspirational mode of Christian-Stoic humanism and drawing on his immense trea- sury of classical and biblical citations, Roman and civil laws, travellers’ tales and popular errors, the speaker told his audience that legality and public order are not enough, ever. There are two lines of argument on actions that are “permitted”—not forbidden—by the civil laws: one, the permission d’impunité, regarding actions that can be undertaken with “impunity,” because the civil laws are silent on the matter; the other, the permission d’approbation, regarding actions that can be undertaken with “innocence,” because the moral law approves of them. For moral delicts there were penalties: the shame of failing to do all one could do to develop one’s virtue for the moral good of “society,” and the fear of appearing in this shameful condition before the heavenly tribunal of God. To persuade them to

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look beyond the mundane order of the civil laws to a moral future accessible through conscience and reflective moral reason, the students heard instance after instance where actions permitted by the civil laws contravened a moral law of nature, “these immutable laws, written in our hearts.”48 Having been reminded that their youth made them easy prey to passion, the students were given the predictable advice: even if you can do it legally, don’t! The Discours sur le bénéfice des loix—now translated as “Discourse on the benefits conferred by the laws”—demonstrates “that in good conscience one cannot always take advantage of benefits conferred by the most explicit civil laws.”49 Barbeyrac again explained to his young listeners why the actions of a “good man” were, morally speaking, other than those of a merely law-abiding citizen. Thus “[t]here are laws the benefits of which we can always enjoy without doing harm to anyone, yet what strict justice then allows, some other virtue in certain cases forbids.”50 The civil laws cannot do everything, “[b]ut even regarding what lies within the ambit of the civil laws, things cannot always be regulated in the manner most conforming to the immutable laws of justice that apply to everything and everywhere.”51 Cicero—not Pufendorf—is cited in support: “The laws redress injustices in one way, but the philosophers correct them in another.”52 The argument and the multifarious examples demonstrate the moral gain in renouncing benefits conferred by laws that “are themselves most often just, but they do not embrace all that is just.”53 As a result, “one may act only in accordance with the laws and, notwithstanding this, still fall short in an infinity of things that true probity demands.”54 It is, in short, a matter of obeying “natural obligation,” not civil command. Despite being Pufendorf’s now established French translator, Barbeyrac makes few references in the two Discours to the author of the De jure and the De officio. As published, the Permission des loix contains three such references in margin notes, two of which in fact refer to Barbeyrac’s own notes in the Pufen- dorf translations. No less space is given to Le Clerc, Bayle, and Noodt. As for the Bénéfice des loix, there are references to Bodin, Grotius, Noodt, and Thomasius, but again just three to Pufendorf, one of which is self-referential to a note of Barbeyrac’s. These bare statistics underscore a feature of the Discours: when speaking in his own voice, the translator makes little call on Pufendorf. If Pufendorf was the original, Barbeyrac was no transparent copy.

JEAN BARBEYRAC: MEDIATOR OR ADJUSTOR?

Through accumulated views of his writings, especially his Pufendorf translations and commentaries, Barbeyrac has come to be recognized as a mediator of opposed positions in early modern conflicts within natural jurisprudence. Histo- rians of ideas place the great translator in the middle ground between the “voluntarism” of a Pufendorf and the “rationalism” of a Leibniz.55 There is no gainsay- ing the acceptance of such philosophical categorisations. On the textual evidence, however, it would seem more accurate to characterize Barbeyrac as a serious adjustor of Pufendorf’s radical retheorizing of natural law, not its mediator. This suggestion finds conceptual support in an important discussion of Barbeyrac’s “anti-Hobbesian mentality,” a mentality that marks the translator’s political and juridical distance from the author.56

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In the face of the backlash against his Hobbesian reconceptualising of natural law as a secular ethics distinct from the concerns of moral theology, Pufen- dorf himself felt the need to adjust the De jure. His detheologizing of natural law made Pufendorf the favored target of the neoscholastic orthodox—Protestant as well as Catholic—for whom religion alone could be foundational for political sovereignty and civil law. Theologians accused him of profanity, impiety, and even heresy for having set apart what they bound together: natural law and moral theology, civil authority and clerical religion, state and church. So virulent was the criticism that in a second edition of the De jure, published in 1684, Pufendorf masked his civil radicalism by adding an anti-Hobbesian camouflage, though re- taining almost everything that he had written in the first edition of 1672. The scholarly authority here is Fiammetta Palladini. Having presented “Pufendorf the Hobbesian” in the first part of her book, Palladini devotes the second part to answering the question: “Why did Pufendorf pass for anti-Hobbesian?” Her ex- planation hinges on reading the changes made by Pufendorf between the two editions as a ploy to mislead his theologian enemies with false clues as to his being a regular critic of Hobbes. The changes included an insertion of critical remarks on Hobbes and extensive references to Richard Cumberland, the English anti- Hobbes, for whom bene naturale and universal benevolentia were the founda- tions of natural law doctrine. Palladini does not mute her scholarly outrage: “What remains is [our] resentment at hearing this talk of a natural goodness, after all the effort to show that ‘omnes motus et actiones hominis, remota omni lege tam divina quam humana sint indifferentes.’”57 Or again: “There is more (and worse) to come” as Pufendorf’s “great theorization of the ineliminable difference between nature and law” is blurred. The concepts imported into the second edition of the De jure, Palladini argues, act “like monstrous foreign bodies that attach themselves to the fabric of a doctrine fashioned, as we have seen, without them and, in fact, against them.”58 Yet it was just this blurring of Pufendorf’s distinction between nature and law, religious justification and political duty, that an anti-Hobbesian Barbeyrac promulgated through his translations. The point, of course, is not to charge Bar- beyrac with inaccuracy as a translator. Technically speaking, he was not unreflec- tive on the question of fidelity to originals. In a public oration delivered at Lau- sanne in 1714, the Discours sur l’utilité des lettres et des sciences, he commented on the status of Latin—the “common tongue of the learned everywhere”—and the usage of vernaculars:

And no one should think they can exonerate themselves by reading [vernacular] translations. These have their use: but they suffice only to encourage readers to strive to acquire that adequate degree of enlightenment [Latinity] to which every good man aspires who has the means to do so.59

Not only do “Originals always lose much” in translation; they are “as if traves- tied in the hands of those who dress them in the fashion of their own nation.” As for translations that have been published,

There are few that are such as to allow one to count on the faithfulness and the accuracy of the translators, even with regard to histories, where

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everything is sacred, and the least alteration, the least slip, is of fatal consequence. After all, one is obliged to see with the eyes of another when one is obliged to have recourse to a translated version.60

This “originalist” posture is struck again with regard to Barbeyrac’s own “faithfulness and accuracy” where his translation of Leibniz’s monita is concerned. Hence the provision in the text of the Jugement of selected citations from the metaphysician’s Latin. As the translator indicates in a prefatory paragraph: “I shall attempt to express the anonymous writer’s thoughts with the utmost exactitude; and I shall record in the margin, or in footnotes, the exact terms of his original, whenever I fear I might not have caught the sense, or for some other reason.”61 In fact, as argued here, Barbeyrac was an “activist” translator, a political adjustor of his source . . . when that source was Pufendorf. Appraising a lack in the latter, Barbeyrac translated Pufendorf out of a secular politics and into a fore- ordained horizon of individual conscience. This assessment is underscored if his editing and commentary are included in this work of adjustment. Not for nothing, in the prefatory remarks to his translation of the De jure, does Barbeyrac advise the reader that he has “rectified the ideas of the author” (although he does add “and my own”). Nor were the rectifications trivial. The distinction between “civil society” and “state of nature” is fundamental to Pufendorf’s natural jurisprudence, marking the new threshold that protects civil institutions against reli- giously grounded derivations from or metaphysically grounded reductions to “nature.”62 Such protection is the conceptual guarantee of an institutional autonomy for politics and law.63 For Barbeyrac, however, Pufendorf’s praising of civil society, that is, of the political state under the rule of law, and his disparaging of life in the state of nature, are both excessive. At his most naturalist and anti-institutional, the translator here turns editor with a vengeance. In his French version of the De officio, he excises from the key opening chapter of Book II Pufendorf’s unmistakably bleak account of life in the state of nature.64 Later in the same chapter Barbeyrac repeats this editorial gesture, excising what Pufendorf had written on man’s existence among the “inconveniences” of the natural state:

For if you form in your Mind the Idea of a Man even at his full Growth of Strength and Understanding, but without all those Assistances and Advantages by which the Wit of Man has rendered Human Life much more orderly and more easie than at the beginning; you shall have before you, a naked Creature, no better than dumb, wanting all Things, satisfying his Hunger with Roots and Herbs, slaking his Thirst with any Water he can find, avoiding the extremities of the Weather by creeping into Caves or the like, exposed an easie Prey to the ravenous Beasts, and trembling at the Sight of any of them.65

Instead of commenting, Barbeyrac censors—so important was it to remove an image that showed existence in the state of nature as an existence to be abrogated. Excisions that subtract basic elements of Pufendorf’s natural jurisprudence are complemented by voluminous footnotes that add Barbeyrac’s serial adjustments. In his glossing of the De jure, for instance, he intervenes with a sequence of ten critical footnotes, some of them explicitly anti-Hobbesian.66 The

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final note of the sequence charges Pufendorf with overstating the positive aspects of the civil state:

Civil Government being a proper Means to restrain the Malice of Men, the Civil State, without Contradiction, may be more sociable and happy than the State of Nature; but then we must suppose the Civil Society to be well governed, otherwise, if a King abuses his Power, or devolves the Management of civil Affairs to Ministers both ignorant and vicious, as it often happens, a Civil State is then more unhappy than the State of Nature; which appears by the Wars, Calamities and Vices which spring up from such Abuses, and from which the State of Nature would be free.67

The roseate image that Pufendorf had drawn of existence in the civil state was to be forfeit. Such critical notes, together with excisions and reorderings of the original text and lexical inflections in translation, make up the case: faced with Pufen- dorf’s political and juridical principles, Barbeyrac was no mere mediator. Nor was he just a moderate adjustor of Pufendorf. On the evidence of these interven- tions, there was a more aggressive Barbeyrac. We see a moral philosopher assim- ilating the political jurist to his own position. We see a resacralized natural jurisprudence in which the political science of civil duties was rendered once again continuous with moral theology. To restore this continuity was Barbeyrac’s re- minder call: there was a moral law of God higher than the civil laws of states. The effect of Barbeyrac’s adjustments was to blunt the impact of a Pufen- dorf whose political thought is unequivocally statist. To individuals increasingly imbued with a Lockean quotient of natural rights and its attendant anti-statism, such thought was and will remain alien.68 Whereas Barbeyrac now granted conscience the capacity to determine the limits of legitimate political authority, Pufen- dorf’s scandalously civil natural jurisprudence had quarantined the civil duties of the citizen-subject from the religious obligations of the Christian. He had hoped in this way to keep confessional zeal from once again commandeering political authority and undermining civil security, as it had done in the years of religious civil war. The fact is clear: such a radically political jurisprudence as Pufendorf’s can be adjusted in one direction only, a direction that returns politics to divine providence, and rejoins law to a religious-metaphysical grounding.

NOTES

1. Barbeyrac’s other major translations include Hugo Grotius’ De jure belli ac pacis (Le droit de la guerre et de la paix, 1724) and Richard Cumberland’s De legibus naturae disquisitio philosophica (Traité philosophique des lois naturelles, 1744).

2. In confessional matters, Pufendorf was a Lutheran, Barbeyrac a Calvinist with Socinian lean- ings. In his later writings—such as the Jus feciale divinum sive de consensu et dissensu protestant- ium, posthumously published in 1695—Pufendorf envisaged a Protestant church unified by norms that, he hoped, would be acceptable both to Lutherans and Calvinists (though he remained close to mainstream Lutheranism and entirely excluded a predestinarian doctrine of election). As a diasporic Huguenot, Barbeyrac made the case for toleration of religious minorities in majoritarian confessional states. So too did Pufendorf, but on worldly grounds, whether as prudent politics on the part of a sovereign faced with the all-too-real problem of maintaining civil peace among rival confessions, or as a justified observance of the legal terms of the Peace of Westphalia.

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3. Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed. J. Tully, trans. M. Silverthorne (Cambridge: Cambridge Univ. Press, 1991), 8–9. “[N]atural law is confined within the orbit of this life, and so it forms man on the assumption that he is to lead his life in society with others. Moral theology, however, forms a Christian man, who, beyond his duty to pass this life in goodness, has an expectation of reward for piety in the life to come and who therefore has his citizenship in the heavens while he lives here merely as a pilgrim or stranger.”

4. I. Hunter and D. Saunders, eds., Samuel Pufendorf. The Whole Duty of Man, According to the Law of Nature. Together with Two Discourses and a Commentary by Jean Barbeyrac (Indianap- olis: Liberty Fund, 2003). I appreciate Ian Hunter’s comments, helpful as always, on the draft of this article.

5. The Whole Duty was reissued as the fifth and final edition in 1735.

6. Samuel Pufendorf, Les devoirs de l’homme et du citoien, tels qu’ils lui sont préscrits par la loi naturelle, trans. J. Barbeyrac (Amsterdam, 1707). In the present article, all references are to the fifth edition (Amsterdam, 1735). The English editors borrowed 52 of 89 footnotes in Barbeyrac’s 1707 edition. In later editions, as he built his own distinctive position on natural jurisprudence, Barbeyrac vastly expanded this critical apparatus. Despite requests, Barbeyrac declined to author in his own name a treatise on natural law, seeming to prefer the role of glossator. See Simone Goyard-Fabre’s introductory essay in Jean Barbeyrac, Écrits de droit et de morale (Paris: Centre de philosophie du droit, 1996), 11–12.

7. At the suggestion of Professor Knud Haakonssen, general editor of the Liberty Fund series: Natural Law and Enlightenment Classics.

8. Leibniz composed his critique at the instigation of Gerhardt van der Muelen, Abbot of Loc- cum and Director of the Lutheran Consistory in the Electorate of Brunswick, responding to the cleric’s concern that Pufendorf’s De officio would occasion harm among the young. The letter had circulated in manuscript, anonymously, since 1701.

9. Since Leibniz had chosen not to identify himself as the letter’s author, Barbeyrac disclosed the identity for him, albeit posthumously—Leibniz having died shortly before Barbeyrac sent the 1718 edition of Les devoirs to press.

10. Gottfried Wilhelm Leibniz, “On the Principles of Pufendorf,” in Leibniz: Political Writings, ed. and trans. P. Riley (Cambridge: Cambridge Univ. Press, 1988), 64–75.

11. Alongside the vernacular translations of the De officio further Latin editions appeared, including that of the Scottish philosopher, Gerschom Carmichael: De officio hominis et civis juxta legem naturalem libri duo supplementis et observationibus in academicae juventutis usum auxit et illustravit Gerschomus Carmichael (Edinburgh, 1724). Barbeyrac’s French notes were themselves translated into Latin in Masson’s 1728 Giessen edition of the De officio.

12. While the present study concerns Barbeyrac’s rendering of Pufendorf’s Latin into French, with specific reference to the translation of the De officio, the following section comments on the role of Barbeyrac’s Pufendorf in early modern English translations. One can speculate that Barbeyrac’s “Lock- eanized” Pufendorf gave the latter a certain purchase in Whig circles where the German jurist’s separation of state from church could perhaps be used in defending constitutional liberties against encroachments by an Anglican church-state. However, a different research program would be need- ed to determine the precise extent to which, as translator of Latin natural-law writings for Francoph- one readers, Barbeyrac’s choice of key terms in the political lexicon was idiosyncratic or in keeping with that of other French writers. The research could consider Barbeyrac’s fellow Huguenot réfugiés- translators such as Jean Le Clerc and Pierre Coste, intellectual activists such as Pierre Bayle, and self- translators, including from vernacular to Latin, such as Jean Bodin.

13. See Jonathan Scott, England’s Troubles: Seventeenth-Century English Political Instability in European Context (Cambridge: Cambridge Univ. Press, 2000), 454–73.

14. Michael J. Silverthorne, “Civil society and state, law and rights: some Latin terms and their translation in the natural jurisprudence tradition,” in Acta Conventus Neo-Latini Torontonensis: Proceedings of the Seventh International Congress of Neo-Latin Studies, eds A. Dalzell, C. Fantazzi and R.J. Schoeck (New York: Medieval and Renaissance Texts and Studies, 1991), 677–88. In his 1991 translation of the De officio (see note 3), Silverthorne is not constrained by Tooke’s inhibition

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regarding “state.” For instance, where Tooke wrote: “It is always one Prerogative of the Government by which any Community is directed, in every form of Commonwealth whatsoever, to be invested with the supreme Authority.” (Pufendorf, Whole Duty, II.ix.1), Silverthorne proposes: “Every authority [imperium] by which a state [civitas] in its entirety is ruled, whatever the form of government, has the characteristic of supremacy.” Pufendorf, On the Duty of Man and Citizen, 146.

15. Silverthorne, “Civil society and state,” 680.

16. Pufendorf, Les devoirs, II.vi.6, 279

17. Pufendorf, Whole Duty, II.vi.6, 253.

18. Pufendorf, On the Duty of Man and Citizen, 136.

19. Dominique Colas has reconstructed the historical semantics of societas civilis/société civile/ “civil society.” He suggests that the Latin formulation served to render koinonia politike, the literary path having led from Aristotle’s Politics through Leonardo Bruni to Philipp Melanchthon’s Loci comunes. Its formulation in Melanchthon is a probable source for the first French usage of “société civile,” a term whose “wide diffusion” Colas relates to “[t]he very intensity of . . . disputes in connec- tion with the French Wars of Religion.” Dominique Colas, Civil Society and Fanaticism: Conjoined Histories (Stanford: Stanford Univ. Press, 1997), 22. Subsequently, “civil society” was variously differentiated from state of nature, family, barbarism, and the ecclesiastical order. On the career of the term “society” (and “société civile”) across the eighteenth century and to the French Revolution, see Daniel Gordon, Citizens Without Society. Equality and Sociability in French Though, 1670-1789 (Princeton: Princeton University Press, 1994). Because Gordon’s study suffers from an evident disin- terest in anything like a statist perspective, there is unfortunately no follow-up to his (correct) obser- vation that “Paradoxical as it may seem, absolutist writers were the first to deploy this language [of sociability] in France,” 59. Today, “civil society” is habitually opposed to “state” (usually as moral to legal).

20. Samuel Pufendorf, Le droit de la nature et des gens, ou Système général des principes les plus importants de la morale, de la jurisprudence, et de la politique, trans. J. Barbeyrac (Amsterdam, 1706). A second edition appeared in 1712, with subsequent re-editions in 1732, 1734, 1740, and 1744, this last appearing in the year of Barbeyrac’s death. Kennet was thus in a position to draw on the “revised and corrected” second edition of Le droit de la nature. On the notable literary fact that only seven of thirty-one editions of the De jure appearing after 1706 were without Barbeyrac’s notes and commentary, see Sieglinde Othmer, Berlin und die Verbreitung des Naturrechts in Europa. Kul- tur- und sozialgeschichtliche Studien zu Jean Barbeyracs Pufendorf-Ubersetzung und eine Analyse seiner Leserschaft (Berlin: Walter de Gruyter, 1970).

21. Samuel Pufendorf, Of the Law of Nature and Nations, ed. J. Barbeyrac, trans. B. Kennet, 5th ed. (London, 1749), VII.i.4, 622–3.

22. Pufendorf, Les devoirs (5th ed. Amsterdam, 1735), II.v.1, 287–8. “formèrent dans la suite des Corps Politiques, ou des SOCIETEZ CIVILES, auxquelles on donne le nom d’ETAT.”

23. See Pufendorf, Les devoirs, 5th ed. (Amsterdam, 1735), II.v.1, n.1, 288–9.

24. Barbeyrac can thus translate Pufendorf’s “arcana reipublicae” as “secrets d’Etat” (“secrets of state”), whereas Tooke euphemistically chooses “the Secrets and Resolutions of a Community.” Pufendorf, Whole Duty, I.x.9, 137.

25. See T. J. Hochstrasser, “Conscience and Reason: the Natural Law Theory of Jean Barbeyrac,” Historical Journal 36.2 (1993): 289–308.

26. See Pufendorf, Law of Nature, VII.iv.11, n. 2, 661–2. Having warned against the dangerous tensions in a regime conjointly ruled by temporal and spiritual authorities (whereby “the State must sink into an irregular System, a Monster with two Heads”), Pufendorf cuts short the line of thought: “What farther Power the Sovereign hath, as to sacred Matters under Christian Government, is a Point which we leave to be more distinctly stated by others.”

27. It is perhaps the spiritual prestige adhering to the discipline of metaphysics—more so than to political jurisprudence—that explains why Anglophone readers have for some time had access to an English translation of the monita only in the form of a philosophical essay from which Barbeyrac’s interjections have been excised. See Leibniz, “Principles,” 64–75.

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28. Norberto Bobbio, “Leibniz e Pufendorf,” in Da Hobbes a Marx (Napoli: Morano, 1965), 129–45. For Leibniz, justice could not be contingent on what God might will (the voluntarist view); it depended “rather on eternal truths, objects of the divine intellect, which constitute, so to speak, the essence of divinity itself; and it is right that our author [Pufendorf] is reproached by theologians when he maintains the contrary.” Leibniz, “Principles,” 71.

29. Bobbio, “Leibniz e Pufendorf,” 145.

30. For recent discussion of this dispute, see Ian Hunter, Rival Enlightenments: Civil and Meta- physical Philosophy in Early Modern Germany (Cambridge: Cambridge Univ. Press, 2001); also “The Love of a Sage or the Command of a Superior,” in T. J. Hochstrasser and P. Schröder, eds., Early Modern Natural Law Theories: Strategies and Contexts in the Early Enlightenment (Dor- drecht: Kluwer, forthcoming).

31. See T. J. Hochstrasser, “The Claims of Conscience: Natural Law Theory, Obligation, and Resistance in the Huguenot Diaspora,” in J. C. Laursen, ed., New Essays on the Political Thought of the Huguenots of the Refuge (Leiden: E. J. Brill), 15–51. Also Petter Korkman, “Voluntarism and Moral Obligation—Barbeyrac’s Defence of Pufendorf Revisited,” in Hochstrasser and Schröder, eds. Early Modern Natural Law Theories.

32. Pufendorf, On the Duty of Man and Citizen, 9.

33. Leibniz, “Principles,” 73.

34. Leibniz, “Principles,” 67.

35. See Gottfried Wilhelm Leibniz, “Sur Thomasius, Utrum haeresis sit crimen,” in G. W. Leib- niz: Textes inédits, ed. Gaston Grua, 2 vols. (Paris: Presses Universitaires de France, 1948), 1: 210– 12. Also Hunter, Rival Enlightenments, 146–7.

36. Pufendorf had written that natural law is “largely” (that is, not exclusively) concerned with externalities. An astute cross-referencer, Barbeyrac supports this “redeeming” of Pufendorf by recall- ing the latter’s remarks on “conscience” in the De jure, and pointing to the discussion of “duties to oneself” in the De officio. These moves are not conclusive. Pufendorf’s discussion of “duties to oneself” concerns the education men need if they are to acquire self-restraint and to control their passion—including their religious passions—as sociable living demands.

37. With the revocation of the Edict of Nantes in 1685, Huguenots lost their legal existence as French Protestants: Calvinist churches were closed and Calvinist worship prohibited; non-abjuring Calvinist clergy were expelled and those remaining on French territory faced service in the royal galleys; Huguenots’ right to emigrate was denied and Catholic baptism and upbringing were made compulsory for their children. What one roi très chrétien had established, another abolished.

38. Jean Barbeyrac, Jugement d’un anonyme sur l’original de cet abrégé. Avec des réflexions du traducteur, in S. Pufendorf, Les devoirs, 5th edition (Amsterdam, 1735), 399. “Or ce droit ne s’étend pas plus loin que l’acte extérieur: du moment qu’on a fait à cet égard tout ce à quoi on était tenu, que l’acte intérieur soit vicieux tant qu’il vous plairra, personne n’a plus rien à nous demander, & au fond on ne doit plus rien; quoi que le principe intérieur de l’action, par laquelle on s’est aquitté de ce qu’on devait, puisse avoir eu quelque chose de condamnable devant le Tribunal Divin, et devant celui de nôtre propre Conscience.”

39. Samuel Pufendorf, De jure naturae et gentium libri octo/The Law of Nature and Nations in Eight Books, trans. C. H. & W. A. Oldfather, vol. 2 (Oxford: Clarendon Press, 1934), I.iii.4, 41.

40. Barbeyrac refashions Pufendorf in respect to the role of desire for divine reward (or fear of divine punishment) in enforcing compliance with the rules of natural law. For Pufendorf, the command of the civil sovereign is ultimate authority in this life. Barbeyrac’s reluctance to exclude divine justice (or punishment) from man’s duties under natural law fundamentally blurs Pufendorf’s “disci- plinary” demarcation between natural jurisprudence and moral theology.

41. Pufendorf, Law of Nature, VII.i.7, n. 2, 627.

42. The first (1707) edition of Les devoirs included no reference to Locke (although the volume includes a catalogue of books published by Henri Schelte, among them Pierre Coste’s French translation of An Essay Concerning Human Understanding). In the expanded footnote apparatus of the

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fifth edition of Les devoirs (1735), Barbeyrac does cite Locke, but only twice (at I.i.11, 15 and I.x.8, 177). Citations of Locke multiply in the glosses in successive editions of Le droit de la nature.

43. Unusually for the genre, Barbeyrac’s two Discours appeared in print in 1715 and 1716. They circulated more widely as appendices in the 1718 and subsequent editions of Les devoirs.

44. Barbeyrac, Permission, 455. “Ainsi les Loix Civiles, & les Loix de la Vertu, forment comme deux Jurisdictions séparées, qui peuvent bien concourir jusques à un certain point, mais au delà la Vertu demeure seule, & commande absolument. Ou plûtôt elle est toujours la Maîtresse Souveraine.”

45. Barbeyrac, Permission, 455. “l’empire qu’elle [la Vertu] a sur les hommes.”

46. Legislators of Dracon’s ilk—his laws were “written in blood”—are cited to exemplify statute- making that breaches the law of nature. Customary law is deemed a “very poor master,” being “the opinion and decision of a blind multitude, rather than of the wise.” Barbeyrac, Permission, 441.

47. Jean Barbeyrac, Discours sur la Permission des Loix, Où l’on fait voir, que ce qui est permis par les Loix, n’est pas toûjours juste & honnête, in Les devoirs, 5th ed. (Amsterdam, 1735).

48. Barbeyrac, Permission, 445. “ces Loix immuables, écrites dans nôtre cœur.”

49. Barbeyrac, Bénéfice, 473. “qu’on ne peut pas toûjours se prévaloir en conscience du Bénéfice des Loix Civiles les plus expresses.”

50. Barbeyrac, Bénéfice, 473. “Il y a des Loix, du bénéfice desquelles on peut toûjours se prévaloir sans faire tort à personne; mais ce que la Justice rigoureuse permet alors, quelque autre Vertu le défend en certains cas.”

51. Barbeyrac, Bénéfice, 483. “Mais en matiére même de ce qui est du ressort des Loix Civiles, les choses ne sauroient être toûjours réglées de la manière la plus conforme en tout & partout aux Loix invariables de la Justice.”

52. Barbeyrac, Bénéfice, 484. “autre est la maniére dont les Loix redressent les injustices, & autre celle dont les Philosophes les corrigent.”

53. Barbeyrac, Bénéfice, 485. “les Loix Civiles sont justes pour l’ordinaire, mais elles n’embrassent pas tout ce qui est juste.”

54. Barbeyrac, Bénéfice, 508. “On peut ne rien faire contre les Loix, & manquer néanmoins à une infinité de choses que demande une vraie Probité.”

55. See Jerome B. Schneewind, The Invention of Autonomy. A History of Modern Moral Philos- ophy (Cambridge: Cambridge Univ. Press, 1998), 250–9; Tim Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge Univ. Press, 2000).

56. See Fiammetta Palladini, “Il fattore Barbeyrac,” in Samuel Pufendorf discepolo di Hobbes. Per una reinterpretazione del giusnaturalismo moderno (Bologna: Il Mulino, 1990), 273. My translation.

57. Palladini, Samuel Pufendorf, 202.

58. Palladini, Samuel Pufendorf, 210–14.

59. Barbeyrac, Discours sur l’utilité des lettres et des sciences, in Écrits de droit et de morale, ed. Simone Goyard-Fabre (Paris: Centre de philosophie du droit, 1996), 111–12. “Et qu’on ne croie pas pouvoir se dédommager par la lecture des Traductions. Elles ont leur usage: mais il s’en faut bien qu’elles suffisent pour mettre en état d’aquérir passablement ce degré de lumiéres auquel tout hon- nête homme, qui en a les moiens, doit aspirer.” My translation.

60. Barbeyrac, Utilité, 112. “il y en a peu qui soient telles, qu’on puisse compter sur la fidélité & l’exactitude des Traducteurs, en matiére même d’Histoire, où tout est sacré, & où la moindre altéra- tion, la moindre bevuë, est de la derniére consequence. Après tout, c’est voir par les yeux d’autrui, que de s’être obligé de s’en rapporter à une Version.”

61. Barbeyrac, Jugement, 382. “Je tâcherai d’exprimer les pensées de l’Anonyme avec la derniére exactitude: & je rapporterai en marge, ou au bas des pages, les propres termes de l’Original, lors que je craindrai de n’avoir pas bien pris le sens, ou que je jugerai à propos pour quelque autre raison.”

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62. On Pufendorf’s natural jurisprudence as institutionalist and conventionalist, see Knud Haa- konssen, “The Significance of Protestant Natural Law,” in N. Brender and L. Krasoff, eds., Reading Autonomy (Cambridge: Cambridge Univ. Press, 2002).

63. The restriction of civil jurisdiction’s upper limit to matters of worldly security reflects Pufen- dorf’s definitive limiting of natural law to externals, but it is a restriction that Leibniz found com- pletely out of step with “the great enlightenment of our century.” See Barbeyrac, Jugement, 397. For the metaphysical philosopher, these are the negative limits of a law that is imperfect; for the political jurist, they are the positive limits of a law that is independent (from clerical interference). See David Saunders, “‘Within the Orbit of this Life’—Samuel Pufendorf on the Autonomy of Law,” Cardozo Law Review 23, 6 (2002): 2173–98.

64. See Pufendorf, Whole Duty, II.i.4, 208–9: “In the second way we may contemplate the Natu- ral State of Man, by seriously forming in our minds an Idea of what his Condition would be, if every one were left alone to himself without any help from other men, especially considering the present Circumstances under which we at this time find Human Nature: Which would certainly be much more miserable than that of a Beast, if we think with our selves, with what weakness man enters this World, so that he must immediately perish, except he be sustained by others, and how rude a Life he must lead, if he could procure nothing for himself, but by means of his own single Strength and Skill. But ’tis plain, that we owe it all to the aid of other persons, that we are able to pass through so many Infirmities from our Infancy to Manhood; that we enjoy an infinite number of Conveniences; that we can improve our Minds and Bodies to such a degree as to be useful to ourselves and our Neighbour. And in this sense the Natural State is opposed to a Life not cultivated by the Industry of men.” Barbeyrac retained only the first and last sentences of this graphic paragraph. In fact, he acknowl- edges his editorial decision to omit this statement, but justifies the cut on grounds of convenience, alleging that it removes unnecessary repetition. Tooke had included this passage in 1691, but the editors of the 1716 English version followed Barbeyrac’s omission.

65. Pufendorf, Whole Duty, II.i.9, 214–15. The English editors retained this passage that Barbey- rac had excluded from his French version of the De officio. Earlier—at II.i.4—they had followed Barbeyrac in deleting a bleak account of life in the state of nature that Tooke retained in his 1691 edition. See note 64 above.

66. See Pufendorf, Law of Nature, II.ii.2, 101–2. Kennet reproduces these notes in his translation.

67. Pufendorf, Law of Nature, II.ii.2, n. 4, 102. “Le Gouvernement Civil étant le moien le plus propre à reprimer la malice humaine; l’Etat Civil peut sans contredit être plus sociable & plus heureux, que l’Etat Naturel. Mais il faut supposer pour cela que la Société Civile soit bien gouvernée: autrement si le Souverain abuse de son pouvoir, ou qu’il se décharge du soin des affaires sur des Ministres ou ignorans, ou vicieux, comme il arrive très-souvent, l’Etat Civil est beaucoup plus mal- heureux que l’Etat Naturel; ce qui paroit par tant de guerres, de calamitez, & de vices qui naissent de ces abus, & dont l’Etat Naturel seroit exempt.” The note continues with a reference to Locke’s Second Treatise of Government, and a further rebuke to Hobbes.

68. For a contemporary’s view of Locke as “a man of very bad principles” and a current scholarly assessment of Locke as “largely irrelevant to English political disputes” of his time, see J. C. D. Clark, English Society 1660–1832, 2nd ed. (Cambridge: Cambridge Univ. Press, 2000), 137–9.

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