A Methodical System of Universal Law. Johann Gottlieb Heineccius

      SECTION CLXIII

      What if the necessity proceeds from human malice?

      All this holds true, if the necessity we are under be merely providential (§142); but if it proceeds from the malice of men, they do it either that we may perish, or that they may lay us under the necessity of acting wrong. And in the former case, since we are not bound to love any other better than ourselves, much less a bad person (§94); he is justly excusable who suffers another to perish rather than himself. In the latter case, the cruelest things ought to be submitted to, rather than do any thing dishonourable to God (§131).^* <115>

      SECTION CLXIV

      An admonition with regard to the application of these rules to particular cases.

      Having mentioned these rules, most of which have been fully explained by others,^† it will not be difficult to determine the cases proposed by Pufendorff and others. Indeed, if we attend narrowly to the matter, we will find that many proposed on this subject are such as very rarely happen, and many others are of such a nature, that all is transacted in an instant, so that there is hardly time or room for calling in reason to give its judgment of the justice, or injustice of an action; to which cases, we may not improperly apply what Terence says,

      Facile omnes, quum valemus, recta consilia aegrotis damus,

      Tu, si hic esses, aliter sentires. Andr. 1. 1. v. 9.¹

      For which reason, it is better to leave many of these cases to the mercy of God, than to enter into too severe a discussion of them.

      SECTION CLXV

      Whether it be lawful to cut off a member.

      Thus none can doubt but necessity will excuse a person who must let a member be cut off to prevent his perishing; or that the other parts may not be endangered by it. For tho’ we owe both these duties to ourselves, viz. to preserve our life, and to preserve every member intire, yet the least of two physical evils is to be chosen (§160); and it is certainly a lesser evil to be deprived of a member than to lose life. It is therefore a lawful <116> mean of saving life to do it by the loss of a member.^*

      SECTION CLXVI

      Whether it be lawful to eat human flesh in extreme necessity?

      There is no doubt but that they are excusable, who in extreme hunger and want have recourse to any food, even to the flesh of dead men: for since here there is a contest between two duties towards ourselves; of two physical evils, death and detestable food, the least ought to be chosen (§160). But he is by no means excusable who kills another, that he may prolong a little his own miserable life by eating his flesh; for however direful and imperious the necessity of long hunger may be, it does not give us a right to another’s life that we ourselves may be saved, because here the condition and necessity^* of both persons are equal (§162). <117>

      SECTION CLXVII

      Whether in shipwreck?

      The case is not the same, when one in shipwreck, having got upon a plank only sufficient to save himself, keeps others from it with all his force; or with those who leaping first into a boat, will not allow others, whom it cannot contain with safety, to come into it, but precipitate them into the sea; because in these cases, he who first seized the plank, or they who first got into the boat, are in possession, and therefore others have no right to deprive them of it, tho’ they be in the same danger. And who will not own, that it is a less evil that a few, than that all should perish, or a greater good that a few, than that none should be saved?^† <118>

      SECTION CLXVIII

      Whether necessity excuses an executioner commanded to put an innocent person to death.

      I can by no means think an executioner, or any other, excusable, who being commanded to put an innocent person to death, thinks he ought to obey, and that his own danger is sufficient to exculpate him. For this necessity proceeds from the wickedness of men; and in such a case every one ought to bear every thing, rather than do any thing tending to dishonour God (§163).^*

      SECTION CLXIX

      Whether it be lawful to throw down one who is in our way when we fly.

      But an innocent person, to save his life, may, in flying from his enemy, push out of his way, or throw down any person who stops or hinders his flight, even tho’ he may have reason to suspect the person may thereby be hurted. For if one stops the person who flies with a bad intention, this necessity proceeds from human malice, and such a person really does what he can to make the person flying perish. And if one be in his way, without any intention to hurt him, this necessity is providential in respect of the flyer. But in both cases, every way of saving one’s self is allowable (§163).^* <119>

      SECTION CLXX

      Whether in case of necessity we may lawfully seize upon another’s goods?

      The same must be said of those cases in which one is necessitated by hunger or cold to lay hold of the goods belonging to others;^† or when, in the danger of shipwreck, the goods of others must be thrown over board. For, in the first case, the necessity arises from the malice of men in suffering any to be in imminent danger from hunger or cold, (§163); and, in the last case, of two physical evils the least is chosen, when, in the danger of shipwreck, men perceiving that they must either perish themselves together with the goods, or make reparation to others for their goods which are cast in this necessity into the sea (§160),^‡ throw them over board. <120>

      SECTION CLXXI

      The conclusion of this chapter.

      But numberless such cases may happen, or at least may be put, some of which are truly perplexed and dubious; and therefore let us not forget the admonition already mentioned (§164). We shall add no more upon the subject, leaving other questions to those who assume to themselves the province of commanding or guiding mens consciences.

      REMARKS on This Chapter

      The principles our author hath laid down in this chapter, are most exact, and proper to decide all questions which can be proposed concerning the right, the privilege, the favour, the leave, or whatever we call it, that arises from necessity. It is however well worth while to look into what the learned Barbeyrac² hath said upon this difficult subject in his notes upon Pufendorff ’s sixth chapter, book second, of the law of nature and nations. Pufendorff, in the beginning of that chapter, quotes an excellent passage of Cicero with regard to necessity, in which the general rule is very clearly stated. It is towards the end of his second book of invention; too long indeed to be inserted here, but deserving of attentive consideration. The chief design of our Author’s scholia being to refer his readers to passages in ancient authors, where moral duties are rightly explained and urged by proper arguments, in order to shew that the duties of the law of nature are discoverable by reason, and were actually known in all ages to thinking persons, at least, he might very properly have on this occasion referred us to that place in Cicero. For this is no doubt the most perplexed subject in morals, The right and priviledge of necessity. And upon it we find Cicero reasoning with great accuracy and solidity: insomuch, that if we compare with this passage the 25th chapter of his second book of offices, where he treats of comparing things profitable one with another; and the 3, 4, 5, and following chapters in the third book, where he considers competition between honesty and interest, or profit, we will find full satisfaction upon this head. In the 4th chapter of the 3d book he hath this remarkable passage.—“What is it that requires consideration on this subject? I suppose it is this, that it sometimes happens men are not so very certain, whether the action deliberated upon be honest or not honest.” For that which is usually counted a piece of villainy is frequently changed by the times or circumstances, and is found to be the contrary. To lay down one instance, which may serve to give some light to a great many others: pray what greater wickedness can there be upon earth (if we speak in general) than for any one to murder not only a man, but a