Chapter XXI (3)

75. In developing, therefore, the origin of civil society, Hobbes, though not essentially differing from his predecessors, has placed the truth in a fuller light. It does not seem equally clear, that his own theory of a mutual covenant between the members of an unanimous multitude to become one people and to be represented, in all time to come, by such a sovereign government as the majority should determine, affords a satisfactory groundwork for the rights of political society. It is, in the first place, too hypothetical as a fact. That such an agreement may have been sometimes made by independent families, in the first coming together of communities, it would be presumptuous to deny--it carries upon the face of it no improbability except as to the design of binding posterity, which seems too refined for such a state of mankind as we must suppose; but it is surely possible to account for the general fact of civil government in a simpler way; and what is most simple, though not always true, is on the first appearance most probable. If we merely suppose an agreement, unanimous, of course, in those who concur in it, to be governed by one man, or by one council promising that they shall wield the force of the whole against anyone who shall contravene their commands issued for the public good, the foundation is as well laid, and the commonwealth as firmly established, as by the double process of a mutual covenant to constitute a people, and a popular determination to constitute a government. It is true that Hobbes distinguishes a commonwealth by institution, which he supposes to be founded on this unanimous consent, from one by acquisition, for which force alone is required. But as the force of one man goes but a little way towards compelling the obedience of others, so as to gain the name of sovereign power, unless it is aided by the force of many who voluntarily conspire to its ends, this sort of commonwealth by conquest will be found to involve the previous institution of the more peaceable kind.

76. This theory of a mutual covenant is defective also in a most essential point. It furnishes no adequate basis for any commonwealth beyond the lives of those who established it. The right indeed of men to bind their children and through them a late posterity is sometimes asserted by Hobbes, but in a very transient manner, and as if he was aware of the weakness of his ground. It might be inquired whether the force on which alone he rests the obligation of children to obey, can give any right beyond its own continuance; whether the absurdity he imputes to those who do not stand by their own engagements is imputable to such as disregard the covenants of their forefathers; whether, in short, any law of nature requires our obedience to a government we deem hurtful, because in a distant age, a multitude whom we cannot trace bestowed unlimited power on some unknown persons from whom that government pretends to derive its succession.

77. A better ground for the subsisting rights of his Leviathan, is sometimes suggested, though faintly, by Hobbes himself. “If one refuse to stand to what the major part shall ordain, or make protestation against any of their decrees, he does contrary to his covenant, and therefore unjustly: and whether he be of the congregation or not, whether his consent be asked or not, he must either submit to their decrees, or be left in the condition of war he was in before, wherein he might without injustice be destroyed by any man whatsoever.”[352] This renewal of the state of war which is the state of nature, this denial of the possibility of doing an injury to anyone who does not obey the laws of the commonwealth, is enough to silence the question why we are obliged still to obey. The established government and those who maintain it, being strong enough to wage war against gainsayers, give them the option of incurring the consequences of such warfare, or of complying with the laws. But it seems to be a corollary from this, that the stronger part of a commonwealth, which may not always be the majority, have not only a right to despise the wishes but the interests of dissentients. Thus, the more we scrutinize the theories of Hobbes, the more there appears a deficiency of that which only a higher tone of moral sentiment can give, a security against the appetites of others, and for them against our own. But it may be remarked that his supposition of a state of war, not as a permanent state of nature, but as just self-defence, is perhaps the best footing on which we can place the right to inflict severe, and especially capital, punishment upon offenders against the law.

[352] Lev., c. 18.

78. The positions so dogmatically laid down as to the impossibility of mixing different sorts of government were, even in the days of Hobbes, contradicted by experience. Several republics had lasted for ages under a mixed aristocracy and democracy; and there had surely been sufficient evidence that a limited monarchy might exist, though, in the revolution of ages, it might one way or other, pass into some new type of polity. And these prejudices in favour of absolute power are rendered more dangerous by paradoxes unusual from an Englishman, even in those days of high prerogative when Hobbes began to write, that the subject has no property relatively to the sovereign, and, what is the fundamental error of his whole system, that nothing done by the prince can be injurious to any one else. This is accompanied by the other portents of Hobbism, scattered through these treatises, especially the Leviathan, that the distinctions of right and wrong, moral good and evil, are made by the laws, that no man can do amiss who obeys the sovereign authority, that though private belief is of necessity beyond the prince’s control, it is according to his will, and in no other way, that we must worship God.

79. The political system of Hobbes, like his moral system, of which, in fact, it is only a portion, sears up the heart. It takes away the sense of wrong, that has consoled the wise and good in their dangers, the proud appeal of innocence under oppression, like that of Prometheus to the elements, uttered to the witnessing world, to coming ages, to the just ear of Heaven. It confounds the principles of moral approbation, the notions of good and ill desert, in a servile idolatry of the monstrous Leviathan it creates, and after sacrificing all right at the altar of power, denies to the Omnipotent the prerogative of dictating the laws of his own worship.

SECT. III.

_Roman Jurisprudence--Grotius on the Laws of War and Peace--Analysis of this Work--Defence of it against some Strictures._

|Civil jurists of this period.|

80. In the Roman jurisprudence we do not find such a cluster of eminent men during this period as in the sixteenth century; and it would of course be out of our province to search for names little now remembered, perhaps, even in forensic practice. Many of the writings of Fabre of Savoy, who has been mentioned in the last volume, belong to the first years of this century. Farinacci, or Farinaceus, a lawyer of Rome, obtained a celebrity, which, after a long duration, has given way in the progress of legal studies, less directed than formerly towards a superfluous erudition.[353] But the work of Menochius de præsumptionibus, or, as we should say, on the rules of evidence, is said to have lost none of its usefulness, even since the decline of the civil law in France.[354] No book, perhaps, belonging to this period is so generally known as the commentaries of Vinnius on the Institutes, which, as far as I know, has not been superseded by any of later date. Conringius of Helmstadt may be reckoned in some measure among the writers on jurisprudence, though chiefly in the line of historical illustration. The Elementa Juris Civilis, by Zouch, is a mere epitome, but neatly executed, of the principal heads of the Roman law, and nearly in its own words. Arthur Duck, another Englishman, has been praised even by foreigners, for a succinct and learned, though elementary and popular, treatise on the use and authority of the civil law in different countries of Europe. This little book is not disagreeably written; but it is not of course, from England that much could be contributed towards Roman jurisprudence.

[353] Biogr. Univ.

[354] Id.

|Suarez on laws.|

81. The larger principles of jurisprudence, which link that science with general morals, and especially such as relate to the intercourse of nations, were not left untouched in the great work of Suarez on laws. I have not, however, made myself particularly acquainted with this portion of his large volume. Spain appears to have been the country in which these questions were originally discussed upon principles broader than precedent, as well as upon precedents themselves; and Suarez, from the general comprehensiveness of his views in legislation and ethics, is likely to have said well whatever he may have said on the subject of international law. It does not appear however that he is much quoted by later writers.

|Grotius De Jure Belli et Pacis.|

82. The name of Suarez is obscure in comparison of one who soon came forward in the great field of natural jurisprudence. This was Hugo Grotius, whose famous work, De Jure Belli et Pacis, was published at Paris in 1625. It may be reckoned a proof of the extraordinary diligence as well as quickness of parts which distinguished this writer, that it had occupied a very short part of his life. He first mentions, in a letter to the younger Thuanus, in August, 1623, that he was employed in examining the principal questions which belong to the law of nations.[355] In the same year he recommends the study of that law to another of his correspondents in such terms as bespeak his own attention to it.[356] According to one of his letters to Gassendi, quoted by Stewart, the scheme was suggested to him by Peiresc.

[355] Versor in examinandis controversiis præcipuis quæ ad jus
gentium pertinent. Epist. 75. This is not from the folio
collection of his epistles, so often quoted in the second chapter
of this volume, but from one antecedently published in 1648, and
entitled Grotii Epistolæ ad Gallos.

[356] Hoc spatio exacto, nihil restat quod tibi æque commendem
atque studium juris, non illius privati, ex quo leguleii et
rabulæ victitant, sed gentium ac publici; quam præstabilem
scientiam Cicero vocans consistere ait in fœderibus, pactionibus
conditionibus populorum, regum, nationum, in omni denique jure
belli et pacis. Hujus juris principia quomodo ex morali
philosophia petenda sunt, monstrare poterunt Platonis ac
Ciceronis de legibus liber. Sed Platonis summas aliquas legisse
suffecerit. Neque pœniteat ex scholasticis Thomam Aquinatem, si
non perlegere, saltem inspicere secunda parte secundæ partis
libri, quem Summam Theologiæ inscripsit; præsertim ubi de
justitia agit ac de legibus. Usum propius monstrabunt Pandectæ,
libro primo atque ultimo; et codex Justinianeus, libro primo et
tribus postremis. Nostri temporis juris consulti pauci juris
gentium ac publici controversias attigere, eoque magis eminent,
qui id fecere, Vasquius, Hottomannus, Gentilis. Epist. xvi. This
passage is useful in showing the views Grotius himself
entertained as to the subject and groundwork of his treatise.

|Success of this work.|

83. It is acknowledged by every one that the publication of this treatise made an epoch in the philosophical and almost we might say in the political history of Europe. Those who sought a guide to their own conscience or that of others, those who dispensed justice, those who appealed to the public sense of right in the intercourse of nations, had recourse to its copious pages for what might direct or justify their actions. Within thirty or forty years from its publication, we find the work of Grotius generally received as authority by professors of the continental universities, and deemed necessary for the student of civil law, at least in the protestant countries of Europe. In England, from the difference of laws and from some other causes which might be assigned, the influence of Grotius was far slower, and even ultimately much less general. He was, however, treated with great respect as the founder of the modern law of nations, which is distinguished from what formerly bore that name by its more continual reference to that of nature. But when a book is little read it is easily misrepresented; and as a new school of philosophers rose up, averse to much of the principles of their predecessors, but, above all things, to their tediousness, it became the fashion not so much to dispute the tenets of Grotius, as to set aside his whole work, among the barbarous and obsolete schemes of ignorant ages. For this purpose various charges have been alledged against it by men of deserved eminence, not, in my opinion, very candidly, or with much real knowledge of its contents. They have had, however, the natural effect of creating a prejudice, which, from the sort of oblivion fallen upon the book, is not likely to die away. I shall, therefore, not think myself performing an useless task in giving an analysis of the treatise De Jure Belli et Pacis; so that the reader, having seen for himself what it is, may not stand in need of any arguments or testimony to refute those who have represented it as it is not.

|Its originality.|

84. The book may be considered as nearly original, in its general platform, as any work of man in an advanced stage of civilization and learning can be. It is more so, perhaps, than those of Montesquieu and Smith. No one had before gone to the foundations of international law so as to raise a complete and consistent superstructure; few had handled even separate parts, or laid down any satisfactory rules concerning it. Grotius enumerates a few preceding writers, especially Ayala and Albericus Gentilis, but does not mention Soto in this place. Gentilis, he says, is wont in determining controverted questions to follow either a few precedents not always of the best description, or even the authority of modern lawyers in their answers to cases, many of which are written with more regard to what the consulting parties desire, than to what real justice and equity demand.

|Its motive and object.|

85. The motive assigned for this undertaking is the noblest. “I saw,” he says, “in the whole Christian world a licence of fighting, at which even barbarians might blush, wars begun on trifling pretexts or none at all, and carried on without reverence for any divine or human law, as if that one declaration of war let loose every crime.” The sight of such a monstrous state of things had induced some, like Erasmus, to deny the lawfulness of any war to a christian. But this extreme, as he justly observes, is rather pernicious than otherwise; for when a tenet so paradoxical and impracticable is maintained, it begets a prejudice against the more temperate course which he prepares to indicate. “Let, therefore,” he says afterwards, “the laws be silent in the midst of arms; but those laws only which belong to peace, the laws of civil life and public tribunals, not such as are eternal, and fitted for all seasons, unwritten laws of nature, which subsist in what the ancient form of the Romans denominated ‘a pure and holy war.’”[357]

[357] Eas res puro pioque duello repetundas censeo. It was a case
prodigiously frequent in the opinion of the Romans.

|His authorities.|

86. “I have employed in confirmation of this natural and national law the testimonies of philosophers, of historians, of poets, lastly even of orators; not that we should indiscriminately rely upon them; for they are apt to say what may serve their party, their subject, or their cause; but because when many at different times and places affirm the same thing for certain, we may refer this unanimity to some general cause, which in such questions as these can be no other than either a right deduction from some natural principle or some common agreement. The former of these denotes the law of nature, the latter that of nations; the difference whereof must be understood, not by the language of these testimonies, for writers are very prone to confound the two words, but from the nature of the subject. For whatever cannot be clearly deduced from true premises, and yet appears to have been generally admitted, must have had its origin in free consent.... The sentences of poets and orators have less weight than those of history; and we often make use of them not so much to corroborate what we say, as to throw a kind of ornament over it.” “I have abstained,” he adds afterwards, “from all that belongs to a different subject, as what is expedient to be done; since this has its own science, that of politics, which Aristotle has rightly treated by not intermingling anything extraneous to it, while Bodin has confounded that science with this which we are about to treat. If we sometimes allude to utility, it is but in passing, and distinguishing it from the question of justice.”[358]

[358] Prolegomena in librum de Jure Belli.

|Foundation of natural law.|

87. Grotius derives the origin of natural law from the sociable character of mankind. “Among things common to mankind is the desire of society, that is, not of every kind of society, but of one that is peaceable and ordered according to the capacities of his nature with others of his species. Even in children before all instruction a propensity to do good to others displays itself, just as pity in that age is a spontaneous affection.” We perceive by this remark that Grotius looked beyond the merely rational basis of natural law to the moral constitution of human nature. The conservation of such a sociable life is the source of that law which is strictly called natural, which comprehends, in the first place, the abstaining from all that belongs to others, and the restitution of it if by any means in our possession, the fulfilment of promises, the reparation of injury, and the right of human punishment. In a secondary sense, natural law extends to prudence, temperance and fortitude, as being suitable to man’s nature. And in a similar lax sense we have that kind of justice itself called distributive (διανεμητικη [dianemêtikê]), which prefers a better man to a worse, a relation to a stranger, a poorer man to a richer, according to the circumstances of the party and the case.[359] And this natural law is properly defined, “the dictate of right reason, pointing out a moral guilt or rectitude to be inherent in any action, on account of its agreement or disagreement with our rational and social nature; and consequently that such an action is either forbidden or enjoined by God the author of nature.”[360] It is so immutable, that God himself cannot alter it; a position which he afterwards limits by a restriction we have seen in Suarez; that if God command anyone to be killed, or his goods to be taken, this would not render murder or theft lawful, but being commanded by the lord of life and all things, it would cease to be murder or theft. This seems little better than a sophism unworthy of Grotius; but he meant to distinguish between an abrogation of the law of nature, and a dispensation with it in a particular instance. The original position, in fact, is not stated with sufficient precision or on a right principle.

[359] Id. § 6-10.

[360] Jus naturale est dictatum rectæ rationis, indicans actui
alicui, ex ejus convenientia aut disconvenientia cum ipsa natura
rationali ac sociali, inesse moralem turpitudinem aut
necessitatem moralem, ac consequenter ab auctore naturæ Deo talem
actum aut vetari aut præcipi. L. i., c. 1., § 10.

|Positive law.|

88. Voluntary, or positive law is either human or revealed. The former is either that of civil communities, which are assemblages of freemen, living in society for the sake of laws and common utility, or that of nations, which derives its obligation from the consent of all or many nations; a law which is to be proved, like all unwritten law, by continual usage and the testimony of the learned. The revealed law he divides in the usual manner, but holding that no part of the Mosaic, so far as it is strictly a law, is at present binding upon us. But much of it is confirmed by the Christian Scriptures, and much is also obligatory by the law of nature. This last law is to be applied, _à priori_, by the conformity of the act in question to the natural and social nature of man; _à posteriori_, by the consent of mankind; the latter argument, however, not being conclusive, but highly probable, when the agreement is found in all, or in all the more civilized nations.[361]

[361] Lib. i., c. 1.

|Perfect and imperfect rights.|

89. Perfect rights, after the manner of the jurists, he distinguishes from imperfect. The former are called sua, our own, properly speaking, the objects of what they styled commutative justice; the latter are denominated fitnesses, (aptitudines) such as equity, gratitude, or domestic affection prescribe, but which are only the objects of distributive or equitable justice. This distinction is of the highest importance in the immediate subject of the work of Grotius; since it is agreed on all hands, that no law gives a remedy for the denial of these, nor can we justly, in the state of nature, have recourse to arms in order to enforce them.[362]

[362] Id. ibid.

|Lawful cases of war.|

90. War, however, as he now proceeds to show, is not absolutely unlawful either by the law of nature or that of nations, or of revelation. The proof is, as usual with Grotius, very diffuse; his work being in fact a magazine of arguments and examples with rather a supererogatory profusion.[363] But the Anabaptist and Quaker superstition has prevailed enough to render some of his refutation not unnecessary. After dividing war into public and private, and showing that the establishment of civil justice does not universally put an end to the right of private war, since cases may arise, when the magistrate cannot be waited for, and others, where his interference cannot be obtained, he shows that public war may be either solemn and regular according to the law of nations, or less regular on a sudden emergency of self-defence; classing also under the latter any war, which magistrates not sovereign may in peculiar circumstances levy.[364] And this leads him to inquire what constitutes sovereignty; defining, after setting aside other descriptions, that power to be sovereign, whose acts cannot be invalidated at the pleasure of any other human authority, except one, which, as in the case of a successor, has exactly the same sovereignty as itself.[365]

[363] C. 2.

[364] C. 3.

[365] Summa potestas illa dicitur, cujus actus alterius juri non
subjacet, ita ut alterius voluntatis humanæ arbitrio irriti
possint reddi. § 7.

|Resistance by subjects unlawful.|

91. Grotius rejects the opinion of those who hold the people to be everywhere sovereign, so that they may restrain and punish kings for misgovernment; quoting many authorities for the irresponsibility of kings. Here he lays down the principles of non-resistance, which he more fully inculcates in the next chapter. But this is done with many distinctions as to the nature of the principality, which may be held by very different conditions. He speaks of patrimonial kingdoms, which, as he supposes, may be alienated like an inheritance. But where the government can be traced to popular consent, he owns that this power of alienation should not be presumed to be comprised in the grant. Those, he says, are much deceived who think that in kingdoms where the consent of a senate or other body is required for new laws, the sovereignty itself is divided; for these restrictions must be understood to have been imposed by the prince on his own will, least he should be entrapped into something contrary to his deliberate intention.[366] Among other things in this chapter, he determines that neither an unequal alliance, that is, where one party retains great advantages, nor a feudal homage take away the character of sovereignty, so far at least as authority over subjects is concerned.

[366] § 18.

92. In the next chapter, Grotius dwells more at length on the alledged right of subjects to resist their governors, and altogether repels it, with the exception of strict self-defence, or the improbable case of a hostile spirit, on the prince’s part, extending to the destruction of his people. Barclay, the opponent of Buchanan and the Jesuits, had admitted the right of resistance against enormous cruelty. If the king has abdicated the government, or manifestly relinquished it, he may, after a time, be considered merely a private person. But mere negligence in government is by no means to be reckoned a relinquishment.[367] And he also observes, that if the sovereignty be divided between a king and part of his subjects or the whole, he may be resisted by force in usurping their share, because he is no longer sovereign as to that; which he holds to be the case, even if the right of war be in him, since that must be understood of a foreign war, and it could not be maintained that those who partake the sovereignty have not the right to defend it; in which predicament a king may lose even his own share by the right of war. He proceeds to the case of usurpation; not such as is warranted by long prescription, but while the circumstances that led to the unjust possession subsist. Against such an usurper he thinks it lawful to rebel, so long as there is no treaty or voluntary act of allegiance, at least if the government de jure sanctions the insurrection. But where there may be a doubt whether the lawful ruler has not acquiesced in the usurpation, a private person ought rather to stand by possession, than to take the decision upon himself.[368]

[367] Si rex aut alius quis imperium abdicavit, aut manifeste
habet pro derelicto, in eum post id tempus omnia licent, quæ in
privatum. Sed minimè pro derelicto habere rem censendus est, qui
eam tractat negligentius. C. 4, § 9.

[368] § 20.

|All men naturally have right of war.|

93. The right of war, which we must here understand in the largest sense, the employment of force to resist force, though by private men, resides in all mankind. Solon, he says, taught us that those commonwealths would be happy, wherein each man thought the injuries of others were like his own.[369] The mere sociability of human nature ought to suggest this to us. And, though Grotius does not proceed with this subject, he would not have doubted that we are even bound by the law of nature, not merely that we have a right, to protect the lives and goods of others against lawless violence, without the least reference to positive law or the command of a magistrate. If this has been preposterously doubted, or affected to be doubted, in England of late years, it has been less owing to the pedantry which demands an express written law upon the most pressing emergency, than to lukewarmness, at the best, in the public cause of order and justice. The expediency of vindicating these by the slaughter of the aggressors must depend on the peculiar circumstances; but the right is paramount to any positive laws, even if, which with us is not the case, it were difficult to be proved from them.

[369] Εν ᾑ των αδικουμενων ουχ ἡττον οἱ μη αδικουμενοι
προβαλλονται και κολαζουσι τους αδικουντας. [En hê tôn
adikoumenôn ouch hêtton hoi mê adikoumenoi proballontai kai
kolazousi tous adikountas.] Ut cætera desint vincula, sufficit
humanæ naturæ communio.

|Right of self-defence.|

94. We now arrive at the first and fundamental inquiry, what is the right of self-defence, including the defence of what is our own. There can, says Grotius, be no just cause of war (that is, of using force, for he is now on the most general ground) but injury. For this reason he will not admit of wars to preserve the balance of power. An imminent injury to ourselves or our property renders repulsion of the aggressor by force legitimate. But here he argues rather weakly and inconsistently through excess of charity, and acknowledging the strict right of killing one who would otherwise kill us, thinks it more praiseworthy to accept the alternative.[370] The right of killing one who inflicts a smaller personal injury he wholly denies; and with respect to a robber, while he admits he may be slain by natural law, is of opinion that the Gospel has greatly limited the privilege of defending our property by such means. Almost all jurists and theologians of his day, he says, carry it farther than he does.[371] To public warfare he gives a greater latitude than to private self-defence, but without assigning any satisfactory reason; the true reason being that so rigid a scheme of ethics would have rendered his book an Utopian theory, instead of a practicable code of law.

[370] Lib. ii., c. 1., § 8. Gronovius observes pithily and truly
on this: melius occidi quam occidere injuria; non melius occidi
injuria quam occidere jure.

[371] Hodie omnes ferme tam jurisconsulti quam theologi doceant
recte homines a nobis interfici rerum defendendarum causa, § 13.

95. Injury to our rights, therefore, is a just cause of war. But what are our rights? What is property? whence does it come? what may be its subjects? in whom does it reside? Till these questions are determined, we can have but crude and indefinite notions of injury, and consequently of the rights we have to redress it. The disquisition is necessary, but it must be long; unless indeed we acquiesce in what we find already written, and seek for no stable principles upon which this grand and primary question in civil society, the rights of property and dominion, may rest. Here then begins what has seemed to many the abandonment by Grotius of his general subject, and what certainly suspends for a considerable time the inquiry into international law, but still not, as it seems to me, an episodical digression, at least for the greater part, but a natural and legitimate investigation, springing immediately from the principal theme of the work, connected with it more closely at several intervals, and ultimately reverting into it. But of this the reader will judge as we proceed with the analysis.

|Its origin and limitations.|

96. Grotius begins with rather too romantic a picture of the early state of the world, when men lived on the spontaneous fruits of the earth, with no property except in what each had taken from the common mother’s lap. But this happy condition did not, of course, last very long, and mankind came to separate and exclusive possession, each man for himself and against the world. Original occupancy by persons, and division of lands by the community, he rightly holds to be the two sources of territorial propriety. Occupation is of two sorts, one by the community (per universitatem), the other (per fundos) by several possession. What is not thus occupied is still the domain of the state. Grotius conceives that mankind have reserved a right of taking what belongs to others in extreme necessity. It is a still more remarkable limitation of the right of property, that he carries very far his notions of that of transit, maintaining that not only rivers, but the territory itself of a state may be peaceably entered, and that permission cannot be refused, consistently with natural law, even in the case of armies; nor is the apprehension of incurring the hostility of the power who is thus attacked by the army passing through our territory a sufficient excuse.[372] This of course must now be exploded. Nor can, he thinks, the transit of merchandise be forbidden or impeded by levying any farther tolls than are required for the incident expenses. Strangers ought to be allowed to settle, on condition of obeying the laws, and even to occupy any waste tracts in the territory;[373] a position equally untenable. It is less unreasonably that he maintains the general right of mankind to buy what they want, if the other party can spare it; but he extends too far his principle, that no nation can be excluded by another from privileges which it concedes to the rest of the world. In all these positions, however, we perceive the enlarged and philanthropic spirit of the system of Grotius, and his disregard of the usages of mankind, when they clashed with his Christian principles of justice. But as the very contrary supposition has been established in the belief of the present generation, it may be doubtful whether his own testimony will be thought sufficient.

[372] Sic etiam metus ab eo in quem bellum justum movet is qui
transit, ad negandum transitum non valet. Lib. ii., c. 2, § 13.

[373] 16, 17.

|Right of occupancy.|

97. The original acquisition of property was in the infancy of human societies, by division or by occupancy; it is now by occupancy alone. Paullus has reckoned as a mode of original acquisition, if we have caused anything to exist, si quid ipsi, ut in rerum natura esset, fecimus. This, though not well expressed, must mean the produce of labour. Grotius observes, that this resolves itself into a continuance of a prior right, or a new one by occupancy, and therefore no peculiar mode of acquisition. In those things which naturally belong to no one, there may be two sorts of occupation, dominion or sovereignty, and property. And, in the former sense at least, rivers and bays of the sea are capable of occupation. In what manner this may be done he explains at length.[374] But those who occupy a portion of the sea have no right to obstruct others in fishing. This had been the subject of a controversy with Selden; the one in his Mare Liberum denying, the other in his Mare Clausum sustaining, the right of England to exclude the fishermen of Holland from the seas which she asserted to be her own.

[374] C. 3.

|Relinquishment of it.|

98. The right of occupancy exists as to things derelict or abandoned by their owners. But it is of more importance to consider the presumptions of such relinquishment by sovereign states, as distinguished from mere prescription. The non-claim of the owner during a long period seems the only means of giving a right where none originally existed. It must be the silent acquiescence of one who knows his rights and has his free will. But when this abandonment has once taken place, it bars unborn claimants; for he who is not born, Grotius says, has no rights; ejus qui nondum est natus nullum est jus.[375]

[375] C. 4.

|Right over persons. By generation.|

99. A right over persons may be acquired in three ways, by generation, by their consent, by their crime. In children we are to consider three periods: that of imperfect judgment, or infancy; that of adult age in the father’s family; and that of emancipation or foris-familiation, when they have ceased to form a part of it. In the first of these, a child is capable of property in possession but not in enjoyment. In the second, he is subject to the parent only in actions which affect the family. In the third, he is wholly his own master. All beyond this is positive law. The paternal power was almost peculiar to the Romans, though the Persians are said to have had something of the same. Grotius, we perceive, was no ally of those who elevated the patriarchal power in order to found upon it a despotic polity; nor does he raise it by any means so high as Bodin. The customs of Eastern nations would, perhaps, have warranted somewhat more than he concedes.[376]

[376] C. 5.

|By consent. In marriage.|

100. Consent is the second mode of acquiring dominion. The consociation of male and female is the first species of it, which is principally in marriage, for which the promise of the woman to be faithful is required. But he thinks that there is no mutual obligation by the law of nature; which seems designed to save the polygamy of the patriarchs. He then discusses the chief questions as to divorce, polygamy, clandestine marriages, and incest; holding that no unions are forbidden by natural law except in the direct line. Concubines, in the sense of the Roman jurisprudence, are true Christian wives.[377]

[377] Id.

|In commonwealths.|

101. In all other consociations except marriage, it is a rule that the majority can bind the minority. Of these the principal is a commonwealth. And here he maintains the right of every citizen to leave his country, and that the state retains no right over those it has banished. Subjection, which may arise from one kind of consent, is either private or public; the former is of several species, among which adoption, in the Roman sense, is the noblest, and servitude the meanest. In the latter case, the master has not the right of life and death over his servants, though some laws give him impunity. He is perplexed about the right over persons born in slavery, since his theory of its origin will not support it. But, in the case of public subjection, where one state becomes voluntarily subject to another, he finds no difficulty about the unborn, because the people is the same, notwithstanding the succession of individuals; which seems paying too much deference to a legal fiction.[378]

[378] C. 5.

|Right of alienating subjects.|

|Alienation by testament.|

102. The right of alienating altogether the territory he grants to patrimonial sovereigns. But he denies that a part can be separated from the rest without its consent, either by the community or by the sovereign, however large his authority may be. This he extends to subjection of the kingdom to vassalage. The right of alienating private property by testament is founded, he thinks in natural law;[379] a position wherein I can by no means concur. In conformity with this, he derives the right of succession by intestacy from the presumed intention of the deceased, and proceeds to dilate on the different rules of succession established by civil laws. Yet the rule that paternal and maternal heirs shall take respectively what descended from the ancestors on each side, he conceives to be founded in the law of nature, though subject to the right of bequest.[380]

[379] C. 6, § 14.

[380] C. 7. In this chapter Grotius decides that parents are not
bound by strict justice to maintain their children. The case is
stronger the other way, in return for early protection. Barbeyrac
thinks that aliment is due to children by strict right during
infancy.

|Rights of property by positive law.|

103. In treating of the acquisition of property by the law of nations, he means only the arbitrary constitutions of the Roman and other codes. Some of these he deems founded in no solid reason, though the lawgivers of every country have a right to determine such matters as they think fit. Thus, the Roman law recognises no property in animals _feræ naturæ_, which that of modern nations gives, he says, to the owner of the soil where they are found, not unreasonably any more than the opposite maxim is unreasonable. So of a treasure found in the earth, and many other cases, wherein it is hard to say that the law of nature and reason prescribes one rule more than another.[381]

[381] § 8.

|Extinction of rights.|

104. The rights of sovereignty and property may terminate by extinction of the ruling or possessing family without provision of successors. Slaves then become free, and subjects their own masters. For there can be no new right by occupancy in such. Even a people or community may cease to exist, though the identity of persons or even of race is not necessary for its continuance. It may expire by voluntary dispersion, or by subjugation to another state. But mere change of place by simultaneous emigration will not destroy a political society, much less a change of internal government. Hence, a republic becoming a monarchy, it stands in the same relation to other communities as before, and in particular, is subject to all its former debts.[382]

[382] § 2. At the end of this chapter, Grotius unfortunately
raises a question, his solution of which laid him open to
censure. He inquires to whom the countries formerly subject to
the Roman empire belong? And here he comes to the inconceivable
paradox that that empire and the rights of the citizens of Rome
still subsist. Gronovius bitterly remarks, in a note on this
passage: Mirum est hoc loco summum virum, cum in præcipua
questione non male sentiret, in tot salebras se conjecisse,
totque monstra et chimæras confinxisse, ut aliquid novum diceret,
et Germanis potius ludibrium deberet, quam Gallis et Papæ parum
placeret. This, however, is very uncandid, as Barbeyrac truly
points out; since neither of these could take much interest in a
theory which reserved a supremacy over the world to the Roman
people. It is probably the weakest passage in all the writings of
Grotius, though there are too many which do not enhance his fame.

|Some casuistical questions.|

105. In a chapter on the obligations which the right of property imposes on others than the proprietor, we find some of the more delicate questions in the casuistry of natural law, such as relate to the bonâ fide possessor of another’s property. Grotius, always siding with the stricter moralists, asserts that he is bound not only to restore the substance but the intermediate profits, without any claim for the valuable consideration which he may have paid. His commentator Barbeyrac, of a later and laxer school of casuistry, denies much of this doctrine.[383]

[383] C. 10. Our own jurisprudence goes upon the principles of
Grotius, and even denies the possessor by a bad title, though
bonâ fide, any indemnification for what he may have laid out to
the benefit of the property, which seems hardly consonant to the
strictest rules of natural law.

|Promises.|

106. That great branch of ethics which relates to the obligation of promises has been so diffusely handled by the casuists, as well as philosophers, that Grotius deserves much credit for the brevity with which he has laid down the simple principles, and discussed some of the more difficult problems. That mere promises, or nuda pacta, where there is neither mutual benefit, nor what the jurists call synallagmatic contract, are binding on the conscience, whatever they may be, or ought to be, in law, is maintained against a distinguished civilian, Francis Connan; nor does Barbeyrac seem to dispute this general tenet of moral philosophers. Puffendorf, however, says, that there is a tacit condition in promises of this kind, that they can be performed without great loss to the promiser, and Cicero holds them to be released, if their performance would be more detrimental to one party, than serviceable to the other. This gives a good deal of latitude; but, perhaps, they are in such cases open to compensation without actual fulfilment. A promise given without deliberation, according to Grotius himself, is not binding. Those founded on deceit or error admit of many distinctions; but he determines, in the celebrated question of extorted promises, that they are valid by the natural, though their obligation may be annulled by the civil law. But the promisee is bound to release a promise thus unduly obtained.[384] Thus also the civil law may annul other promises, which would naturally be binding, as one of prospective marriage between persons already under that engagement towards another. These instances are sufficient to show the spirit in which Grotius always approaches the decision of moral questions; serious and learned, rather than profound, in seeking a principle, or acute in establishing a distinction. In the latter quality he falls much below his annotator Barbeyrac, who had indeed the advantage of coming nearly a century after him.

[384] C. 11, § 7. It is not very probable that the promisee will
fulfil this obligation in such a case; and the decision of
Grotius, though conformable to that of the theological casuists
in general, is justly rejected by Puffendorf and Barbeyrac, as
well as by many writers of the last century. The principle seems
to be, that right and obligation in matters of agreement are
correlative, and where the first does not arise, the second
cannot exist. Adam Smith and Paley incline to think the promise
ought, under certain circumstances, to be kept; but the reasons
they give are not founded on the _justitia expletrix_, which the
proper obligation of promises, as such, requires. It is also a
proof how little the moral sense of mankind goes along with the
rigid casuists in this respect, that no one is blamed for
defending himself against a bond given through duress or illegal
violence, if the plea be a true one.

In a subsequent passage, 1. iii., c. 19, § 4, Grotius seems to
carry this theory of the duty of releasing an unjust promise so
far, as to deny its obligation, and thus circuitously to agree
with the opposite class of casuists.

|Contracts.|

107. In no part of his work has Grotius dwelt so much on the rules and distinctions of the Roman law, as in his chapter on contracts, nor was it very easy or desirable to avoid it.[385] The wisdom of those great men, from the fragments of whose determinations the existing jurisprudence of Europe, in subjects of this kind, has been chiefly derived, could not be set aside without presumption, nor appropriated without ingratitude. Less fettered, at least in the best age of Roman jurisprudence, by legislative interference than our modern lawyers have commonly been, they resorted to no other principles than those of natural justice. That the Roman law, in all its parts, coincides with the best possible platform of natural jurisprudence it would be foolish to assert; but that in this great province, or rather demesne land, of justice, the regulation of contracts between man and man, it does not considerably deviate from the right line of reason, has never been disputed by anyone in the least conversant with the Pandects.

[385] C. 12.

|Considered ethically.|

108. It will be manifest, however, to the attentive reader of Grotius in this chapter that he treats the subject of contract as a part of ethics rather than of jurisprudence; and it is only by the frequent parallelism of the two sciences that the contrary could be suspected. Thus, he maintains that, equality being the principle of the contract by sale, either party is forced to restore the difference arising from a misapprehension of the other, even without his own fault, and this whatever may be the amount, though the civil law gives a remedy only where the difference exceeds one half of the price.[386] And in several other places he diverges equally from that law. Not that he ever contemplated what Smith seems to have meant by “natural jurisprudence,” a theory of the principles which ought to run through and to be the foundation of the laws of all nations. But he knew that the judge in the tribunal, and the inward judge in the breast, even where their subjects of determination appear essentially the same, must have different boundaries to their jurisdiction; and that, as the general maxims and inflexible forms of external law, in attempts to accommodate themselves to the subtleties of casuistry, would become uncertain and arbitrary, so the finer emotions of the conscience would lose all their moral efficacy, by restraining the duties of justice to that which can be enforced by the law. In the course of this twelfth chapter we come to a question much debated in the time of Grotius, the lawfulness of usury. After admitting, against the common opinion, that it is not repugnant to the law of nature, he yet maintains the prohibition in the Mosaic code to be binding on all mankind.[387] An extraordinary position, it would seem, in one who had denied any part of that system to be truly an universal law. This was, however, the usual determination of casuists; but he follows it up, as was also usual, with so many exceptions as materially relax and invalidate the application of his rule.

[386] C. 12, § 12.

[387] § 20.

|Promissory oaths.|

109. The next chapter, on promissory oaths, is a corollary to the last two. It was the opinion of Grotius, as it had been of all theologians, and, in truth, of all mankind, that a promise or contract not only becomes more solemn, and entails on its breach a severer penalty, by means of this adjuration of the Supreme Being, but may even acquire a substantial validity by it in cases where no prior obligation would subsist.[388] This chapter is distinguished by a more than usually profuse erudition. But notwithstanding the rigid observance of oaths which he deems incumbent by natural and revealed law, he admits of a considerable authority in the civil magistrate, or other superior, as a husband or father, to annul the oaths of inferiors beforehand, or to dispense with them afterwards; not that they can release a moral obligation, but that the obligation itself is incurred under a tacit condition of their consent. And he seems, in rather a singular manner, to hint a kind of approval of such dispensations by the church.[389]

[388] C. 13.

[389] § 20. Ex hoc fundamento defendi possunt absolutiones
juramentorum, quæ olim a principibus, nunc ipsorum principum
voluntate, quo magis cautum sit pietati, ab ecclesiæ præsidibus
exercentur.

|Engagements of kings towards subjects.|

110. Whatever has been laid down by Grotius in the last three chapters as to the natural obligations of mankind, has an especial reference to the main purport of this great work, the duties of the supreme power. But the engagements of sovereigns give rise to many questions which cannot occur in those of private men. In the chapter which ensues, on the promises, oaths, and contracts of sovereigns, he confines himself to those engagements which immediately affect their subjects. These it is of great importance, in the author’s assumed province of the general confessor or casuist of kings, to place on a right footing; because they have never wanted subservient counsellors, who would wrest the law of conscience, as well as that of the land, to the interests of power. Grotius, in denying that the sovereign may revoke his own contracts, extends this case to those made by him during his minority, without limitation to such as have been authorised by his guardians.[390] His contracts with his subjects create a true obligation, of which they may claim, though not enforce, the performance. He hesitates whether to call this obligation a civil, or only a natural one; and, in fact, it can only be determined by positive law.[391] Whether the successors of a sovereign are bound by his engagements, must depend on the political constitution, and on the nature of the engagement. Those of an usurper he determines not to be binding, which should probably be limited to domestic contracts, though his language seems large enough to comprise engagements towards foreign states.[392]

[390] C. 14, § 1.

[391] § 6.

[392] Contractibus vero eorum qui sine jure imperium invaserunt,
non tenebuntur populi aut veri reges, nam hi jus obligandi
populum non habuerunt. § 14.

|Public treaties.|

111. We now return from what, in strict language, may pass for a long digression, though not a needless one, to the main stream of international law. The title of the fifteenth chapter is on Public Treaties. After several divisions, which it would at present be thought unnecessary to specify so much at length, Grotius enters on a question not then settled by theologians, whether alliances with infidel powers were in any circumstances lawful. Francis I. had given great scandal in Europe by his league with the Turk. And though Grotius admits the general lawfulness of such alliances, it is under limitations which would hardly have borne out the court of France in promoting the aggrandizement of the common enemy of Christendom. Another and more extensive head in the casuistry of nations relates to treaties that have been concluded without the authority of the sovereign. That he is not bound by these engagements is evident as a leading rule; but the course which, according to natural law, ought to be taken in such circumstances is often doubtful. The famous capitulation of the Roman army at the Caudine Forks is in point. Grotius, a rigid casuist, determines that the senate were not bound to replace their army in the condition from which the treaty had delivered them. And this seems to be a rational decision, though the Romans have sometimes incurred the censure of ill faith for their conduct. But if the sovereign has not only by silence acquiesced in the engagement of his ambassador or general, which of itself, according to Grotius, will not amount to an implied ratification, but recognised it by some overt act of his own, he cannot afterwards plead the defect of sanction.[393]

[393] C. 15.

|Their interpretation.|