tocracy 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 for 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 of this Work-Defence of it against some Strictures. Analysis 80. IN the Roman jurisprudence we do not find such a Civil jurists 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 of this pe riod. remembered, perhaps, even in forensic practice. Many of the writings of Fabre of Savoy, who has been mentioned in the present 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." But the work of Menochius de præsumptionibus, or, as we should express it, on the rules of evidence, is said to have lost none of its usefulness, even since the decline of the civil law in France.P 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. Suarez on 81. The larger principles of jurisprudence, which link that science with general morals, and especially such as relate to the intercourse of nations, were laws. 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. But it does not appear that he is much quoted by later writers. 82. The name of Suarez is obscure in comparison of one who soon came forward in the great field of Grotius De natural jurisprudence. This was Hugo Grotius, Pacis. Jure Belli et 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. 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. According to one of his letters to Gassendi, quoted by Stewart, the scheme was suggested to him by Peiresc. Success of 83. It is acknowledged by every one that the publication of this treatise made an epoch in the philosothis work. phical, 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 dis legibus liber. tinguished 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 alleged 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. 84. The book may be considered as nearly original, in its general platform, as any work of man in an ad- Its origivanced stage of civilization and learning can be. nality. 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. 85. The motive assigned for this undertaking is the noblest. "I saw," he says, "in the whole Christian Its motive world a licence of fighting, at which even bar- and object, barians 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 VOL. II. 2 N 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.' 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. His authorities. 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 any thing 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 Eas res puro pioque duello repe- giously frequent in the opinion of the tundas censeo. It was a case prodi- Romans. |