but in passing, and distinguishing it from the question of justice."

of natural

87. Grotius derives the origin of natural law from the sociable character of mankind. 66 Among things Foundation common to mankind is the desire of society, that law. 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 (diaveμNTIKй), 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." 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." x 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 any one 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.

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 holds 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 civilised nations.

imperfect

89. Perfect rights, after the manner of the jurists, he Perfect and distinguishes from imperfect. The former are rights. called sua, our own, properly speaking, the objects of what they styled commutative justice-the latter are denominated fitnesses (aptitudines), such as equity, gratitude, and 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 a state of nature, have recourse to arms in order to enforce them."

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 super

erogatory profusion." 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 the 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. 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.

C

by subjects

4

91. Grotius rejects the opinion of those who hold the people to be everywhere sovereign, so that they Resistance may restrain and punish kings for misgovern- unlawful. ment; 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, lest he should be entrapped into something contrary to his deliberate intention. Among other things in this chapter, he determines that neither an un

a C. 2.

b C. 3.

с

Summa potestas illa dicitur, cujus actus alterius juri non subjacet, ita ut

alterius voluntatis humanæ arbitrio irriti possint reddi. § 7.

d § 18.

equal alliance, that is, where one party retains great advantages, nor a feudal homage takes away the character of sovereignty from the inferior, so far at least as authority over his own subjects is concerned.

92. In the next chapter, Grotius dwells more at length on the alleged right of subjects to resist their governors, and altogether repels it, with the exception of strict selfdefence, 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. 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."

turally have

93. The right of war, which we must here understand All men na- in the largest sense, the employment of force to right of war. 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

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. § 20.

h

injuries of others were like bis own." 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.

94. We now arrive at the first and fundamental inquiry, what is the right of self-defence, including Right of selfthe defence of what is our own. There can, says defence. 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. 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.*

g Εν ή των αδικουμένων ουχ ήττον οἱ μη αδικουμενοι προβάλλονται και κολαζουσι τους αδικουντας. Ut cætera desint vincula, sufficit humanæ naturæ communio.

He lays this down expressly afterwards. L. ii. c. 20.

i Lib. ii. c. 1, § 8. Gronovius ob

serves pithily and truly on this: melius occidi quam occidere injuria; non melius occidi injuria quam occidere jure.

k Hodie omnes ferme tam jurisconsulti quam theologi doceant recte homines a nobis interfici rerum defendendarum causa. § 13.