Chapter XIII (3)

71. Every adulteration of coin, to which Bodin proceeds, and every change in its value is dangerous, as it affects the certainty of contracts, and renders every man’s property insecure. The different modes of alloying coin are then explained according to practical metallurgy, and, assuming the constant ratio of gold to silver as twelve to one, he advises that coins of both metals should be of the same weight. The alloy should not be above one in twenty-four; and the same standard should be used for plate. Many curious facts in monetary history will be found collected in this chapter.[1120]

[1120] c. 3.

|Superiority of monarchy.|

72. Bodin next states fully and with apparent fairness, the advantages and disadvantages both of democracy and aristocracy, and, admitting that some evils belong to monarchy, contends that they are all much less than in the two other forms. It must be remembered, that he does not acknowledge the possibility of a mixed government; a singular error, which, of course, vitiates his reasonings in this chapter. But it contains many excellent observations on democratical violence and ignorance, which history had led him duly to appreciate.[1121] The best form of polity, he holds to be a monarchy by agnatic succession, such as, in contradiction to Hottoman, he maintained to have been always established in France, pointing out also the mischiefs that have ensued in other countries for want of a Salic law.[1122]

[1121] c. 4.

[1122] c. 5.

|Conclusion of the work.|

73. In the concluding chapter of the work, Bodin, with too much parade of mathematical language, descants on what he calls arithmetical, geometrical, and harmonic proportions, as applied to political regimen. As the substance of all this appears only to be, that laws ought sometimes to be made according to the circumstances and conditions of different ranks in society, sometimes to be absolutely equal, it will probably be thought by most rather incumbered by this philosophy, which, however, he borrowed from the ancients, and found conformable to the spirit of learned men in his own time. Several interesting questions in the theory of jurisprudence are incidentally discussed in this chapter, such as that of the due limits of judicial discretion.

|Bodin compared with Aristotle and Machiavel.|

74. It must appear, even from this imperfect analysis, in which much has been curtailed of its fair proportion, and many both curious and judicious observations omitted, that Bodin possessed a highly philosophical mind, united with the most ample stores of history and jurisprudence. No former writer on political philosophy had been either so comprehensive in his scheme, or so copious in his knowledge; none, perhaps, more original, more independent and fearless in his inquiries. Two names alone, indeed, could be compared with his: Aristotle and Machiavel. Without, however, pretending that Bodin was equal to the former in acuteness and sagacity, we may say that the experience of two thousand years, and the maxims of reason and justice, suggested or corrected by the gospel and its ministers, by the philosophers of Greece and Rome, and by the civil law, gave him advantages, of which his judgment and industry fully enabled him to avail himself. Machiavel, again, has discussed so few, comparatively, of the important questions in political theory, and has seen many things so partially, according to the narrow experience of Italian republics, that, with all his superiority in genius, and still more in effective eloquence, we can hardly say that his Discourses on Livy are a more useful study than the Republic of Bodin.

|And with Montesquieu.|

75. It has been often alleged, as we have mentioned above, that Montesquieu owed something, and especially his theory of the influence of climate, to Bodin. But, though he had unquestionably read the Republic with that advantage which the most fertile minds derive from others, this ought not to detract in our eyes from his real originality. The Republic, and the Spirit of Laws bear, however, a more close comparison than any other political systems of celebrity. Bodin and Montesquieu are, in this province of political theory, the most philosophical of those who have read so deeply, the most learned of those who have thought so much. Both acute, ingenious, little respecting authority in matters of opinion, but deferring to it in established power, and hence apt to praise the fountain of waters whose bitterness they exposed; both in advance of their age, but one so much that his genius neither kindled a fire in the public mind, nor gained its own due praise, the other more fortunate in being the immediate herald of a generation which he stimulated, and which repaid him by its admiration; both conversant with ancient and mediæval history, and with the Roman as well as national law; both just, benevolent, and sensible of the great object of civil society, but displaying this with some variation according to their times; both sometimes seduced by false analogies, but the one rather through respect to an erroneous philosophy, the other through personal thirst of praise and affectation of originality; both aware that the basis of the philosophy of man is to be laid in the records of his past existence; but the one prone to accumulate historical examples without sufficient discrimination, and to overwhelm, instead of convincing the reader by their redundancy, the other aiming at an induction from select experience, but hence appearing sometimes to reason generally from particular premises, or dazzling the student by a proof that does not satisfy his reason.[1123]

[1123] This account of Bodin’s Republic will be found too long by many
readers; and I ought, perhaps, to apologise for it on the score
that M. Lerminier, in his brilliant and agreeable Introduction à
l’Histoire Generale du Droit (Paris, 1829), has pre-occupied the
same ground. This, however, had escaped my recollection (though I
was acquainted with the work of M. L.) when I made my own analysis,
which has not been borrowed in a single line from his. The labours
of M. Lerminier are not so commonly known in England as to render
it unnecessary to do justice to a great French writer of the
sixteenth century.

As I have mentioned M. Lerminier, I would ask whether the following
is a fair translation of the Latin of Bodin:--Eo nos ipsa ratio
deducit, imperia scilicet ac respublicas vi primum coaluisse,
_etiam si ab historia deseramur_; quamquam pleni sunt libri,
plenæ leges, plena antiquitas. En établissant la théorie de
l’origine des sociétés, il declare qu’il y persiste, _quand même
les faits iraient à l’encontre_. Hist. du Droit. p. 62 and 67.

SECT. III.--ON JURISPRUDENCE.

_Golden Age of Jurisprudence--Cujacius--Other Civilians--Anti-Tribonianus of Hottoman--Law of Nations--Franciscus a Victoria--Balthazar Ayala--Albericus Gentilis._

|Golden age of jurisprudence.|

|Cujacius.|

76. The latter part of the sixteenth century, denominated by Andrès the golden age of jurisprudence, produced the men who completed what Alciat and Augustinus had begun in the preceding generation, by elucidating and reducing to order the dark chaos which the Roman law, enveloped in its own obscurities and those of its earlier commentators, had presented to the student. The most distinguished of these, Cujacius, became professor at Bourges, the chief scene of his renown, and the principal seminary of the Roman law in France, about the year 1555. His works, of which many had been separately published, were collected in 1577, and they make an epoch in the annals of jurisprudence. This greatest of all civil lawyers pursued the track that Alciat had so successfully opened, avoiding all scholastic subtleties of interpretation, for which he substituted a general erudition that rendered the science at once more intelligible and more attractive. Though his works are voluminous, Cujacius has not the reputation of diffuseness; on the contrary, the art of lucid explanation with brevity is said to have been one of his great characteristics. Thus, in the Paratitla on the Digest, a little book which Hottoman, his rival and enemy, advised his own son to carry constantly about with him, we find a brief exposition, in very good Latin, of every title in order, but with little additional matter. And it is said that he thought nothing requisite for the Institutes but short clear notes, which his thorough admirers afterwards contrasted with the celebrated but rather verbose commentaries of Vinnius.

|Eulogies bestowed upon him.|

77. Notwithstanding this conciseness, his works extend to a formidable length. For the civil law itself is, for the most part, very concisely written, and stretches to such an extent, that his indefatigable diligence in illustrating every portion of it could not be satisfied within narrow bounds. “Had Cujacius been born sooner,” in the words of the most elegant of his successors, “he would have sufficed instead of every other interpreter. For neither does he permit us to remain ignorant of anything, nor to know anything which he has not taught. He alone instructs us on every subject, and what he teaches is always his own. Hence, though the learned style of jurisprudence began with Alciat, we shall call it Cujacian.”[1124] “Though the writings of Cujacius are so voluminous,” says Heineccius, “that scarce any one seems likely to read them all, it is almost peculiar to him, that the longer any of his books is, the more it is esteemed. Nothing in them is trivial, nothing such as might be found in any other; everything so well chosen that the reader can feel no satiety; and the truth is seen of what he answered to his disciples, when they asked for more diffuse commentaries, that his lectures were for the ignorant, his writings for the learned.”[1125] A later writer, Gennari, has given a more fully elaborate character of this illustrious lawyer, who might seem to have united every excellence without a failing.[1126] But without listening to the enemies whom his own eminence, or the polemical fierceness of some disputes in which he was engaged, created among the jurists of that age, it has since been observed, that in his writings may be detected some inconsistencies, of which whole books have been invidiously compiled, and that he was too prone to abuse his acuteness by conjectural emendations of the text; a dangerous practice, as Bynkershoek truly remarks, when it may depend upon a single particle whether the claim of Titius or of Marius shall prevail.[1127]

[1124] Gravina, Origines, Juris Civilis, p. 219.

[1125] Heineccii Opera xiv. 203. He prefers the Observationes atque
Emendationes of Cujacius to all his other works. These contain
twenty-eight books, published, at intervals, from the year 1556.
They were designed to extend to forty books.

[1126] Respublica Jurisconsultorum, p. 237. Intactum in jurisprudentia
reliquit nihil, et quæ scribit, non tam ex aliis excerpta, quam a
se inventa, sane fatentur omnes; ita omnia suo loco posita, non
nimis protracta, quæ nauseam creant, non arcte ac jejune tractata,
quæ explicationis paullo diffusioris pariunt desiderium. Candida
perspicuitate brevis, elegans sub amabili simplicitate, caute
eruditus, quantum patitur occasio, ubique docens, ne aliqua parte
arguatur otiosus, tam nihil habet inane, nihil inconditum,
nihil curtum, nihil claudicans, nihil redundans, amœnus in
Observationibus, subtilis in Tractatibus, uber ac planus in
Commentariis, generosus in refellendis objectis, accuratus in
confingendis notis, in Paratitlis brevis ac succi plenus, rectus
prudensque in Consultationibus.

[1127] Heinecc. xiv. 209. Gennari, p. 199.

|Cujacius, an interpreter of law rather than a lawyer.|

78. Such was the renown of Cujacius that, in the public schools of Germany, when his name was mentioned, every one took off his hat.[1128] The continual bickerings of his contemporaries, not only of the old Accursian school, among whom Albericus Gentilis was prominent in disparaging him, but of those who had been trained in the steps of Alciat like himself, did not affect this honest admiration of the general student.[1129] But we must not consider Cujacius exactly in the light of what we now call a great lawyer. He rejected all modern forensic experience with scorn, declaring that he had misspent his youth in such studies. We have, indeed, fifty of his consultations which appear to be actual cases. But, in general, it is observed by Gravina that both he and the greatest of his disciples “are but ministers of ancient jurisprudence, hardly deigning to notice the emergent questions of modern practice. Hence, while the elder jurists of the school of Bartolus, deficient as they are in expounding the Roman laws, yet apply them judiciously to new cases, these excellent interpreters hardly regard anything modern, and leave to the others the whole honour of advising and deciding rightly.” Therefore he recommends that the student who has imbibed the elements of Roman jurisprudence in all their purity from the school of Cujacius, should not neglect the interpretations of Accursius in obscure passages; and, above all, should have recourse to Bartolus and his disciples for the arguments, authorities, and illustrations which ordinary forensic questions will require.[1130]

[1128] Gennari, p. 246. Biogr. Univ.

[1129] Heineccius, ibid. Gennari, p. 242.

[1130] Gravina, p. 222, 230.

|French lawyers below Cujacius; Govea and others.|

79. At some distance below Cujacius, but in places of honour, we find among the great French interpreters of the civil law in this age, Duaren, as devoted to ancient learning as Cujacius, but differing from him by inculcating the necessity of forensic practice to form a perfect lawyer;[1131] Govea, who, though a Portuguese, was always resident in France, whom some have set even above Cujacius for ability, and of whom it has been said that he is the only jurist who ought to have written more;[1132] Brisson, a man of various learning, who became in the seditions of Paris an unfortunate victim of his own weak ambition; Balduin, a strenuous advocate for uniting the study of ancient history with that of law; Godefroi, whose Corpus Juris Civilis makes an epoch in jurisprudence, being the text-book universally received; and Connan, who is at least much quoted by the principal writers on the law of nature and nations. The boast of Germany was Gifanius.

[1131] Duarenus ... sine forensis exercitationis præsidio nec satis
percipi, nec recte commodeque doceri jus civile existimate.
Gennari, p. 179.

[1132] Goveanus ... vir, de quo uno desideretur, plura scripsisse, de
cæteris vero, pauciora.... quia felix ingenio, naturæ viribus
tantum confideret, ut diligentiæ laudem sibi non necessariam, minus
etiam honorificam putare videatur. Gennari, p. 281.

|Opponents of the Roman law.|

80. These “ministers of ancient jurisprudence” seemed to have no other office than to display the excellences of the old masters in their original purity. Ulpian and Papinian were to them what Aristotle and Aquinas were to another class of worshippers. But the jurists of the age of Severus have come down to us through a compilation in that of Justinian; and Alciat himself had begun to discover the interpolations of Tribonian, and the corruption which, through ignorance or design, had penetrated the vast reservoir of the Pandects. Augustinus, Cujacius, and other French lawyers of the school of Bourges followed in this track, and endeavoured not only to restore the text from errors introduced by the carelessness of transcribers, a necessary and arduous labour, but from those springing out of the presumptuousness of the lawgiver himself, or of those whom he had employed. This excited a vehement opposition, led by some of the chief lawyers of France, jealous of the fame of Cujacius. But while they pretended to rescue the orthodox vulgate from the innovations of its great interpreter, another sect rose up, far bolder than either, which assailed the law itself. Of these the most determined were Faber and Hottoman.

|Faber of Savoy.|

81. Antony Faber, or Fabre, a lawyer of Savoy, who became president of the court of Chamberi in 1610, acquired his reputation in the sixteenth century. He waged war against the whole body of commentators, and even treated the civil law itself as so mutilated and corrupt, so inapplicable to modern times, that it would be better to lay it altogether aside. Gennari says, that he would have been the greatest of lawyers, if he had not been too desirous to appear such;[1133] his temerity and self-confidence diminished the effect of his ability. His mind was ardent and unappalled by difficulties; no one had more enlarged views of jurisprudence, but in his interpretations he was prone to make the laws rather what they ought to have been than what they were. His love of paradox is hardly a greater fault than the perpetual carping at his own master Cujacius, as if he thought the reform of jurisprudence should have been reserved for himself.[1134]

[1133] P. 97.

[1134] Heineccius, p. 236. Fabre, says Ferriere, as quoted by
Terrasson, Hist. de la Jurisprudence, est celui des jurisconsultes
modernes qui a porté le plus loin les idées sur le droit. C’etoit
un esprit vaste que ne se rebutoit par de plus grandes difficultés.
Mais on l’accuse avec raison d’Avoir decidé un peu trop hardiment
contre les opinions communes, et de s’être donné souvent trop de
liberté de retrancher ou d’Ajouter dans les loix. See too the
article Favre, in Biographie Universelle.

|Anti-Tribonianus of Hottoman.|

82. But the most celebrated production of this party is the Anti-Tribonianus of Hottoman. This was written in 1567, and though not published in French till 1609, nor in the original till 1647, seems properly to belong to the sixteenth century. He begins by acknowledging the merit of the Romans in jurisprudence, but denies that the compilation of Justinian is to be confounded with the Roman law. He divides his inquiry into two questions: first, whether the study of these laws is useful in France; and secondly, what are their deficiencies. These laws, he observes by the way, contain very little instruction about Roman history or antiquities, so that in books on those subjects we rarely find them cited. He then adverts to particular branches of the civil law, and shows that numberless doctrines are now obsolete, such as the state of servitude, the right of arrogation, the ceremonies of marriage, the peculiar law of guardianship, while for matters of daily occurrence they give us no assistance. He points out the useless distinctions between things _mancipi_ and _non mancipi_, between the _dominium quiritarium_ and _bonitarium_; the modes of acquiring property by mancipation, _cessio in jure_, _usucapio_, and the like, the unprofitable doctrines about _fidei commissa_ and the _jus accrescendi_. He dwells on the folly of keeping up the old forms of stipulation in contracts, and those of legal process, from which no one can depart a syllable without losing his suit. And on the whole he concludes, that not a twentieth part of the Roman law survives, and of that not one tenth can be of any utility. In the second part, Hottoman attacks Tribonian himself, for suppressing the genuine works of great lawyers, for barbarous language, for perpetually mutilating, transposing and interpolating the passages which he inserts, so that no cohesion or consistency is to be found in these fragments of materials, nor is it possible to restore them. The evil has been increased by the herd of commentators and interpreters since the twelfth century; those who have lately appeared and applied more erudition rarely agreeing in their conjectural emendations of the text, which yet frequently varies in different manuscripts, so as to give rise to endless disputes. He ends by recommending that some jurisconsults and advocates should be called together, in order to compile a good code of laws; taking whatever is valuable in the Roman system, and adding whatever from other sources may seem worthy of reception, drawing them up in plain language, without too much subtlety, and attending chiefly to the principles of equity. He thinks that a year or two would suffice for the instruction of students in such a code of laws, which would be completed afterwards, as was the case at Rome, by forensic practice.

|Civil law not countenanced in France.|

83. These opinions of Hottoman, so reasonable in themselves, as to the inapplicability of much of the Roman law to the actual state of society, were congenial to the prejudices of many lawyers in France. That law had in fact to struggle against a system already received, the feudal customs which had governed the greater part of the kingdom. And this party so much prevailed, that by the ordinance of Blois, in 1579, the university of Paris was forbidden to give lectures or degrees in civil law. This was not wholly regarded; but it was not till a century afterwards, that public lectures in that science were re-established in the university, on account of the uncertainty, which the neglect of the civil law was alleged to have produced.

|Turamini.|

84. France now stood far pre-eminent in her lawyers. But Italy was not wanting in men once conspicuous, whom we cannot afford time to mention. One of them, Turamini, professor at Ferrara, though his name is not found in Tiraboschi, or even in Gravina, seems to have had a more luminous conception of the relation which should subsist between positive laws and those of nature, as well as of their distinctive provinces, than was common in the great jurists of that generation. His commentary on the title De Legibus, in the first book of the Pandects, gave him an opportunity for philosophical illustration. An account of his writings will be found in Corniani.[1135]

[1135] Vol. vi. p. 197.

|Canon law.|

85. The canon law, though by no means a province sterile in the quantity of its produce, has not deserved to arrest our attention. It was studied conjointly with that of Rome, from which it borrows many of its principles and rules of proceeding, though not servilely, nor without such variations as the independence of its tribunals and the different nature of its authorities might be expected to produce. Covarruvias and other Spaniards were the most eminent canonists; Spain was distinguished in this line of jurisprudence.

|Law of nations. Its early state.|

86. But it is of more importance to observe, that in this period we find a foundation laid for the great science of international law, the determining authority in questions of right between independent states. Whatever had been delivered in books on this subject, had rested too much on theological casuistry, or on the analogies of positive and local law, or on the loose practice of nations, and precedents rather of arms than of reason. The fecial law, or rights of ambassadors, was that which had been most respected. The customary code of Europe, in military and maritime questions, as well as in some others, to which no state could apply its particular jurisprudence with any hope of reciprocity, grew up by degrees to be administered, if not upon solid principles, yet with some uniformity. The civil jurists, as being conversant with a system more widely diffused, and of which the equity was more generally recognised than any other, took into their hands the adjudication of all these cases. In the fifteenth and sixteenth centuries, the progress of international relations, and, we may add, the frequency of wars, though it did not at once create a common standard, showed how much it was required. War itself, it was perceived, even for the advantage of the belligerents, had its rules; an enemy had his rights; the study of ancient history furnished precedents of magnanimity and justice, which put the more recent examples of Christendom to shame; the spirit of the gospel could not be wholly suppressed, at least in theory; the strictness of casuistry was applied to the duties of sovereigns; and perhaps the scandal given by the writings of Machiavel was not without its influence in dictating a nobler tone to the morality of international law.

|Francis a Victoria.|

87. Before we come to works strictly belonging to this land of jurisprudence, one may be mentioned which connects it with theological casuistry. The Relectiones Theologicæ of Francis a Victoria, a professor in Salamanca, and one on whom Nicolas Antonio and many other Spanish writers bestow the highest eulogy, as the restorer of theological studies in their country, is a book of remarkable scarcity, though it has been published at least in four editions. Grotius has been supposed to have made use of it in his own great work; but some of those who since his time have mentioned Victoria’s writings on this subject, lament that they are not to be met with. Dupin, however, has given a short account of the Relectiones; and there are at least two copies in England--one in the Bodleian Library, and another in that of Dr. Williams in Redcross Street. The edition I have used is of Venice, 1626, being probably the latest; it was published first at Lyons in 1557, at Salamanca in 1565, and again at Lyons in 1587; but had become scarce before its republication at Venice.[1136] It consists of thirteen relections, as Victoria calls them, or dissertations on different subjects, related in some measure to theology, at least by the mode in which he treats them. The fifth, entitled De Indis, and the sixth, De Jure Belli, are the most important.

[1136] This is said on the authority of the Venetian edition. But
Nicolas Antonio mentions an edition at Ingoldstadt in 1580, and
another at Antwerp in 1604. He is silent about those of 1587 and
1626. He also says that the Relectiones are twelve in number.
Perhaps he had never seen the book, but he does not advert to its
scarcity. Morhof, who calls it _Prælectiones_ names the two
editions of Lyons, and those of Ingoldstadt and Antwerp. Brunet,
Watts, and the Biographie Universelle do not mention Victoria at
all.

|His opinions on public law.|

88. The third is entitled, De Potestate Civili. In this he derives government and monarchy from divine institution, and holds that, as the majority of a state may choose a king whom the minority are bound to obey, so the majority of Christians may bind the minority by the choice of an universal monarch. In the chapter concerning the Indians, he strongly asserts the natural right of those nations to dominion over their own property and to sovereignty, denying the allegations founded on their infidelity or vices. He treats this question methodically, in a scholastic manner, giving the arguments on both sides. He denies that the emperor, or the pope, is lord of the whole world, or that the pope has any power over the barbarian Indians or other infidels. The right of sovereignty in the king of Spain over these people he rests on such grounds as he can find; namely, the refusal of permission to trade, which he holds to be a just cause of war, and the cessions made to him by allies among the native powers. In the sixth relection, on the right of war, he goes over most of the leading questions, discussed afterwards by Albericus Gentilis and Grotius. His dissertation is exceedingly condensed, comprising sixty sections in twenty-eight pages; wherein he treats of the general right of war, the difference between public war and reprisal, the just and unjust causes of war, its proper ends, the right of subjects to examine its grounds, and many more of a similar kind. He determines that a war cannot be just on both sides, except through ignorance; and also that subjects ought not to serve their prince in a war which they reckon unjust. Grotius has adopted both these tenets. The whole relection, as well as that on the Indians, displays an intrepid spirit of justice and humanity, which seems to have been rather a general characteristic of the Spanish theologians. Dominic Soto, always inflexibly on the side of right, had already sustained by his authority the noble enthusiasm of Las Casas.

|Ayala, on the rights of war.|

89. But the first book, so far as I am aware, that systematically reduced the practice of nations in the conduct of war to legitimate rules, is a treatise by Balthazar Ayala, judge-advocate (as we use the word), to the Spanish army in the Netherlands, under the Prince of Parma, to whom it is dedicated. The dedication bears date 1581, and the first edition is said to have appeared the next year. I have only seen that of 1597, and I apprehend every edition to be very scarce. For this reason, and because it is the opening of a great subject, I shall give the titles of his chapters in a note.[1137] It will appear, that the second book of Ayala relates more to politics and to strategy than to international jurisprudence; and that in the third he treats entirely of what we call martial law. But in the first he aspires to lay down great principles of public ethics; and Grotius, who refers to Ayala with commendation, is surely mistaken in saying that he has not touched the grounds of justice and injustice in war.[1138] His second chapter is on this subject, in thirty-four pages; and though he neither sifts the matter so exactly, nor limits the right of hostility so much as Grotius, he deserves the praise of laying down the general principle without subtlety or chicanery. Ayala positively denies, with Victoria, the right of levying war against infidels, even by authority of the pope, on the mere ground of their religion; for their infidelity does not deprive them of right of dominion; nor was that sovereignty over the earth given originally to the faithful alone, but to every reasonable creature. And this, he says, has been shown by Covarruvias to be the sentiment of the majority of doctors.[1139] Ayala deals abundantly in examples from ancient history, and in authorities from the jurists.

[1137] Balth. Ayalæ, J. C. et exercitus regii apud Belgas supremi
juridici, de jure et officiis bellicis et disciplina militari,
libri tres. Antw. 1597. 12mo. pp. 405.

Lib. i.
c. 1. De Ratione Belli Indicendi, Aliisque Cæremoniis Bellicis.
2. De Bello Justo.
3. De Duello, sive Singulari Certamine.
4. De Pignerationibus, quas vulgo Represalias vocant.
5. De Bello Captis et Jure Postliminii.
6. De Fide Hosti Servanda.
7. De Fœderibus et Induciis.
8. De Insidiis et Fraude Hostili.
9. De Jure Legatorum.

Lib. ii.
c. 1. De Officiis Bellicis.
2. De Imperatore vel Duce Exercitus.
3. Unum non Plures Exercitui Præfici debere.
4. Utrum Lenitate et Benevolentia, an Severitate et Sævitia plus
proficiet Imperator.
5. Temporum Rationem præcipue in Bello Habendam.
6. Contentiosas et Lentas de Rebus Bellicis Deliberationes
admodum Noxias esse.
7. Dum Res sunt Integræ ne minimum quidem Regi vel Reipublicæ
de Majestate sua Concedendum esse; et errare eos qui
Arrogantiam Hostium Modestia et Patientia vinci posse
existimant.
8. An præstet Bellum Domi excipere, an vero in Hostilem Agrum
inferre.
9. An præstet Initio Prœlii Magno Clamore et Concitato Cursu in
Hostes pergere, an vero Loco manere.
10. Non esse Consilii invicem Infensos Civilibus Dissensionibus
Hostes Sola Discordia Fretum invadere.
11. Necessitatem Pugnandi Magno Studio Imponendam esse Militibus
et Hostibus Remittendam.
12. In Victoria potissimum de Pace Cogitandum.
13. Devictis Hostibus qua potissimum Ratione Perpetua Pace Quieti
obtineri possint [sic].

Lib. iii.
c. 1. De Disciplina Militari.
2. De Officio Legati et Aliorum qui Militibus præsunt.
3. De Metatoribus sive Mensoribus.
4. De Militibus, et qui Militare possunt.
5. De Sacramento Militari.
6. De Missione.
7. De Privilegiis Militum.
8. De Judiciis Militaribus.
9. De Pœnis Militum.
10. De Contumacibus et Ducum Dicto non Parentibus.
11. De Emansoribus.
12. De Desertoribus.
13. De Transfugis et Proditoribus.
14. De Seditiosis.
15. De Iis qui in Acie Loco cedunt aut Victi Se dedunt.
16. De Iis qui Arma alienant vel amittunt.
17. De Iis qui Excubias deserunt vel minus recte agunt.
18. De Eo qui Arcem vel Oppidum cujus Præsidio impositus est,
amittit vel Hostibus dedit.
19. De Furtis et Aliis Delictis Militaribus.
20. De Præmiis Militum.

[1138] Causas unde bellum justum aut injustum dicitur Ayala non
tetigit. De Jure B. and P. Prolegom. § 38.

[1139] Bellum adversus infideles ex eo solum quod infideles sunt, ne
quidem auctoritate imperatoris vel summi pontificis indici potest;
infidelitas enim non privat infideles dominio quod habent jure
gentium; nam non fidelibus tantum rerum dominia, sed omni
rationabili creaturæ data sunt.... Et hæc sententia plerisque
probatur, ut ostendit Covarruvias.

|Albericus Gentilis, on Embassies.|

90. We find next in order of chronology a treatise by Albericus Gentilis De Legationibus, published in 1583. Gentilis was an Italian Protestant who, through the Earl of Leicester, obtained the chair of civil law at Oxford in 1582. His writings on Roman jurisprudence are numerous, but not very highly esteemed. This work, on the law of Embassy, is dedicated to Sir Philip Sydney, the patron of so many distinguished strangers. The first book contains an explanation of the different kinds of embassies, and of the ceremonies anciently connected with them. His aim, as he professes, is to elevate the importance and sanctity of ambassadors, by showing the practice of former times. In the second book he enters more on their peculiar rights. The envoys of rebels and pirates are not protected. But difference of religion does not take away the right of sending ambassadors. He thinks that civil suits against public ministers may be brought before the ordinary tribunals. On the delicate problem as to the criminal jurisdiction of these tribunals over ambassadors conspiring against the life of the sovereign, Gentilis holds, that they can only be sent out of the country, as the Spanish ambassador was by Elizabeth. The civil law, he maintains, is no conclusive authority in the case of ambassadors, who depend on that of nations, which in many respects is different from the other. This second book is the most interesting, for the third chiefly relates to the qualifications required in a good ambassador. His instances are more frequently taken from ancient than modern history.

|His treatise on the Rights of War.|

91. A more remarkable work by Albericus Gentilis is his treatise, De Jure Belli, first published at Lyons, 1589. Grotius acknowledges his obligations to Gentilis, as well as to Ayala, but in a greater degree to the former. And that this comparatively obscure writer was of some use to the eminent founder, as he has been deemed, of international jurisprudence, were it only for mapping his subject, will be evident from the titles of his chapters, which run almost parallel to those of the first and third books of Grotius.[1140] They embrace, as the reader will perceive, the whole field of public faith, and of the rights both of war and victory. But I doubt whether the obligation has been so extensive as has sometimes been insinuated. Grotius does not, as far as I have compared them, borrow many quotations from Gentilis, though he cannot but sometimes allege the same historical examples. It will also be found in almost every chapter, that he goes deeper into the subject, reasons much more from ethical principles, relies less on the authority of precedent, and is in fact a philosopher where the other is a compiler.

[1140]
Lib. i.
c. 1. De Jure Gentium Bellico.
2. Belli Definitio.
3. Principes Bellum gerunt.
4. Latrones Bellum non gerunt.
5. Bella juste geruntur.
6. Bellum juste geri utrinque.
7. De Caussis Bellorum.
8. De Caussis Divinis Belli Faciendi.
9. An Bellum Justum sit pro Religione.
10. Si Princeps Religionem Bello apud suos juste tuetur.
11. An Subditi bellent contra Principem ex Caussa Religionis.
12. Utrum sint Caussæ Naturales Belli Faciendi.
13. De Necessaria Defensione.
14. De Utili Defensione.
15. De Honesta Defensione.
16. De Subditis Alienis contra Dominum Defendendis.
17. Qui Bellum necessarie inferunt.
18. Qui utiliter Bellum inferunt.
19. De Naturalibus Caussis Belli inferendi.
20. De Humanis Caussis Belli inferendi.
21. De Malefactis Privatorum.
22. De Vetustis Caussis non Excitandis.
23. De Regnorum Eversionibus.
24. Si in Posteros movetur Bellum.
25. De Honesta Caussa Belli inferendi.

Lib. ii.
c. 1. De Bello Indicendo.
2. Si quando Bellum non indicitur.
3. De Dolo et Stratagematis.
4. De Dolo Verborum.
5. De Mendaciis.
6. De Veneficiis.
7. De Armis et Mentitis Armis.
8. De Scævola, Juditha, et Similibus.
9. De Zopiro et Aliis Transfugis.
10. De Pactis Ducum.
11. De Pactis Militum.
12. De Induciis.
13. Quando contra Inducias fiat.
14. De Salvo Conductu.
15. De Permutationibus et Liberationibus.
16. De Captivis, et non necandis.
17. De His qui se Hosti tradunt.
18. In Deditos, et Captos sæviri.
19. De Obsidibus.
20. De Supplicibus.
21. De Pueris et Fœminis.
22. De Agricolis, Mercatoribus, Peregrinis, Aliis Similibus.
23. De Vastitate et Incendiis.
24. De Cæsis sepeliendis.

Lib. iii.
c. 1. De Belli Fine et Pace.
2. De Ultione Victoris.
3. De Sumptibus et Damnis Belli.
4. Tributis et Agris multari Victos.
5. Victoris Acquisitio Universalis.
6. Victos Ornamentis Spoliari.
7. Urbes diripi, dirui.
8. De Ducibus Hostium Captis.
9. De Servis.
10. De Statu Mutando.
11. De Religionis Aliarumque Rerum Mutatione.
12. Si Utile cum Honesto Pugnet.
13. De Pace Futura Constituenda.
14. De Jure Conveniendi.
15. De Quibus cavetur in Fœderibus et in Duello.
16. De Legibus et Libertate.
17. De Agris et Postliminio.
18. De Amicitia et Societate.
19. Si Fœdus recte contrahitur cum Diversæ Religionis Hominibus.
20. De Armis et Classibus.
21. De Arcibus et Præsidiis.
22. Si Successores Fœderatorum tenentur.
23. De Ratihabitione, Privatis, Piratis, Exulibus, Adhærentibus.
24. Quando Fœdus violatur.

92. Much that bears on the subject of international law may probably be latent in the writings of the jurists, Baldus, Covarruvias, Vasquez, especially the two latter, who seem to have combined the science of casuistry with that of the civil law. Gentilis, and even Grotius, refer much to them; and the former, who is no great philosopher, appears to have borrowed from that source some of his general principles. It is honourable to these men, as we have already seen in Soto, Victoria, and Ayala, that they strenuously defended the maxims of political justice.