Chapter XXI · (continued 2)

72. The political philosophy of Hobbes had much to fix the attention of the world and to create a sect of admiring partizans. The circumstances of the time, and the character of the passing generation, no doubt powerfully conspired with its intrinsic qualities; but a system so original, so intrepid, so disdainful of any appeal but to the common reason and common interests of mankind, so unaffectedly and perspicuously proposed, could at no time have failed of success. From the two rival theories; on the one hand, that of original compact between the prince and people, derived from antiquity, and sanctioned by the authority of fathers and schoolmen; on the other, that of an absolute patriarchal transmuted into an absolute regal power, which had become prevalent among part of the English clergy, Hobbes took as much as might conciliate a hearing from both, an original covenant of the multitude, and an unlimited authority of the sovereign. But he had a substantial advantage over both these parties, and especially the latter, in establishing the happiness of the community as the sole final cause of government, both in its institution and its continuance; the great fundamental theorem upon which all political science depends, but sometimes obscured or lost in the pedantry of theoretical writers.

73. In the positive system of Hobbes we find less cause for praise. We fall in at the very outset with a strange and indefensible paradox; the natural equality of human capacities, which he seems to have adopted rather in opposition to Aristotle’s notion of a natural right in some men to govern, founded on their superior qualities, than because it was at all requisite for his own theory. By extending this alledged equality, or slightness of difference, among men to physical strength, he has more evidently shown its incompatibility with experience. If superiority in mere strength has not often been the source of political power it is for two reasons: first, because, though there is a vast interval between the strongest man and the weakest, there is generally not much between the former and him who comes next in vigour; and secondly, because physical strength is multiplied by the aggregation of individuals, so that the stronger few may be overpowered by the weaker many; while in mental capacity, comprehending acquired skill and habit as well as natural genius and disposition, both the degrees of excellence are removed by a wider distance, and what is still more important, the aggregation of individual powers does not regularly and certainly augment the value of the whole. That the real or acknowledged superiority of one man to his fellows has been the ordinary source of power is sufficiently evident from what we daily see among children, and must, it should seem, be admitted by all who derive civil authority from choice or even from conquest, and therefore is to be inferred from the very system of Hobbes.

74. That a state of nature is a state of war, that men, or at least a very large proportion of men, employ force of every kind in seizing to themselves what is in the possession of others is a proposition for which Hobbes incurred as much obloquy as for anyone in his writings; yet it is one not easy to controvert. But soon after the publication of the Leviathan, a dislike of the Calvinistic scheme of universal depravity as well as of his own, led many considerable men into the opposite extreme of elevating too much the dignity of human nature, if by that term they meant, and in no other sense could it be applicable to this question, the real practical character of the majority of the species. Certainly, the sociableness of man is as much a part of his nature as his selfishness; but whether this propensity to society would necessarily or naturally have led to the institution of political communities, may not be very clear; while we have proof enough in historical traditions and in what we observe of savage nations, that mutual defence by mutual concession, the common agreement not to attack the possessions of each other, or to permit strangers to do so, has been the true basis, the final aim, of those institutions, be they more or less complex, to which we give the appellation of commonwealths.

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.

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.

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.

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]

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]

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), 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.

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]

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]

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]

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.

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]

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.

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.

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.

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.

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]

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]

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]

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]

Right of alienating subjects. 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. |Alienation by testament.| 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]

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]

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]

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]

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.

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.

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.

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]

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]

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]

Their interpretation. 112. Promises consist externally in words, really in the intention of the parties. But as the evidence of this intention must usually depend on words, we should adapt our general rules to their natural meaning. Common usage is to determine the interpretation of agreements, except where terms of a technical sense have been employed. But if the expressions will bear different senses, or if there is some apparent inconsistency in different clauses, it becomes necessary to collect the meaning conjecturally, from the nature of the subject, from the consequences of the proposed interpretation, and from its bearing on other parts of the agreement. This serves to exclude unreasonable and unfair constructions from the equivocal language of treaties, such as was usual in former times to a degree which the greater prudence of contracting parties, if not their better faith, has rendered impossible in modern Europe. Among other rules of interpretation, whether in private or public engagements, he lays down one, familiar to the jurists, but concerning the validity of which some have doubted, that things favourable, as they style them, or conferring a benefit, are to be construed largely; things odious, or onerous to one party, are not to be stretched beyond the letter. Our own law, as is well known, adopts this distinction between remedial and penal statutes; and it seems (wherever that which is favourable in one sense, is not odious in another) the most equitable principle in public conventions. The celebrated question, the cause, or, as Polybius more truly calls it, the pretext of the second Punic war, whether the terms of a treaty binding each party not to attack the allies of the other will comprehend those who had entered subsequently into alliance, seems, but rather on doubtful grounds, to be decided in the negative. Several other cases from history are agreeably introduced in this chapter.[394]

113. It is often, he observes, important to ascertain, whether a treaty be personal or real, that is, whether it affect only the contracting sovereign or the state. The treaties of republics are always real or permanent, even if the form of government should become monarchical; but the converse is not true as to those of kings, which are to be interpreted according to the probable meaning, where there are no words of restraint or extension. A treaty subsists with a king, though he may be expelled by his subjects; nor is it any breach of faith to take up arms against an usurper with the lawful sovereign’s consent. This is not a doctrine which would now be endured.[395]

114. Besides those rules of interpretation which depend on explaining the words of an engagement, there are others which must sometimes be employed to extend or limit the meaning beyond any natural construction. Thus, in the old law-case, a bequest, in the event of the testator’s posthumous son dying, was held valid, where none was born, and instances of this kind are continual in the books of jurisprudence. It is equally reasonable sometimes to restrain the terms of a promise, where they clearly appear to go beyond the design of the promiser, or where supervenient circumstances indicate an exception which he would infallibly have made. A few sections in this place seem, perhaps, more fit to have been inserted in the eleventh chapter.

Obligation to repair injury. 115. There is a natural obligation to make amends for injury to the natural rights of another, which is extended by means of the establishment of property and of civil society to all which the laws have accorded him.[396] Hence, a correlative right arises, but a right which is to be distinguished from fitness or merit. The jurists were accustomed to treat expletive justice, which consists in giving to every one what is strictly his own, separately from attributive justice, the equitable and right dispensation of all things according to desert. With the latter Grotius has nothing to do; nor is he to be charged with introducing the distinction of perfect and imperfect rights, if indeed those phrases are as objectionable as some have accounted them. In the far greater part of this chapter he considers the principles of this important province of natural law, the obligation to compensate damage, rather as it affects private persons than sovereign states. As, in most instances, this falls within the jurisdiction of civil tribunals, the rules laid down by Grotius may, to a hasty reader, seem rather intended as directory to the judge, than to the conscience of the offending party. This, however, is not by any means the case; he is here, as almost everywhere else, a master in morality and not in law. That he is not obsequiously following the Roman law will appear by his determining against the natural responsibility of the owner for injuries committed, without his fault, by a slave or a beast.[397] But sovereigns, he holds, are answerable for the piracies and robberies of their subjects when they are able to prevent them. This is the only case of national law which he discusses. But it is one of high importance, being, in fact, one of the ordinary causes of public hostility. This liability, however, does not exist where subjects, having obtained a lawful commission by letters of marque, become common pirates, and do not return home.

Rights by law of nations. 116. Thus far, the author begins in the eighteenth chapter, we have treated of rights founded on natural law, with some little mixture of the arbitrary law of nations. We come now to those which depend wholly on the latter. |Those of ambassadors.| Such are the rights of ambassadors. We have now, therefore, to have recourse more to the usage of civilized people, than to theoretical principles. The practice of mankind has, in fact, been so much more uniform as to the privileges of ambassadors than other matters of national intercourse, that they early acquired the authority and denomination of public law. The obligation to receive ambassadors from other sovereign states, the respect due to them, their impunity in offences committed by their principals or by themselves, are not indeed wholly founded on custom, to the exclusion of the reason of the case, nor have the customs of mankind, even here, been so unlike themselves as to furnish no contradictory precedents; but they afford, perhaps, the best instance of a tacit agreement, distinguishable both from moral right and from positive convention, which is specifically denominated the law of nations. It may be mentioned that Grotius determines in favour of the absolute impunity of ambassadors, that is, their irresponsibility to the tribunals of the country where they reside, in the case of personal crimes, and even of conspiracy against the government. This, however, he founds altogether upon what he conceives to have been the prevailing usage of civilized states.[398]

Right of Sepulture. 117. The next chapter, on the right of sepulture, appears more excursive than any other in the whole treatise. The right of sepulture can hardly become a public question, except in time of war, and as such it might have been shortly noticed in the third book. It supplies Grotius, however, with a brilliant prodigality of classical learning.[399] But the next is far more important. |Punishments.| It is entitled On Punishments. The injuries done to us by others give rise to our right of compensation and to our right of punishment. We have to examine the latter with the more care, that many have fallen into mistakes from not duly apprehending the foundation and nature of punishment. Punishment is, as Grotius rather quaintly defines it. Malum passionis, quod infligitur ob malum actionis, evil inflicted on another for the evil which he has committed. It is not a part of attributive, and hardly of expletive justice, nor is it, in its primary design, proportioned to the guilt of the criminal, but to the magnitude of the crime. All men have naturally a right to punish crimes, except those who are themselves equally guilty; but though the criminal would have no ground to complain, the mere pleasure of revenge is not a sufficient motive to warrant us; there must be an useful end to render punishment legitimate. This end may be the advantage of the criminal himself, or of the injured party, or of mankind in general. The interest of the injured party here considered is not that of reparation, which, though it may be provided for in punishment, is no proper part of it, but security against similar offences of the guilty party or of others. All men may naturally seek this security by punishing the offender, and though it is expedient in civil society that this right should be transferred to the judge, it is not taken away, where recourse cannot be had to the law. Every man may even, by the law of nature, punish crimes by which he has sustained no injury; the public good of society requiring security against offenders, and rendering them common enemies.[400]

118. Grotius next proceeds to consider whether these rights of punishment are restrained by revelation, and concludes that a private Christian is not at liberty to punish any criminal, especially with death, for his own security or that of the public, but that the magistrate is expressly empowered by Scripture to employ the sword against malefactors. It is rather an excess of scrupulousness, that he holds it unbecoming to seek offices which give a jurisdiction in capital cases.[401]

119. Many things essentially evil are not properly punishable by human laws. Such are thoughts and intentions, errors of frailty, or actions from which, though morally wrong, human society suffers no mischief; or the absence of such voluntary virtues as compassion and gratitude. Nor is it always necessary to inflict lawful punishment, many circumstances warranting its remission. The ground of punishment is the guilt of the offender, its motive is the advantage expected from it. No punishment should exceed what is deserved, but it may be diminished according to the prospect of utility, or according to palliating circumstances. But though punishments should bear proportion to offences, it does not follow that the criminal should suffer no more evil than he has occasioned, which would give him too easy a measure of retribution. The general tendency of all that Grotius has said in this chapter is remarkably indulgent and humane, beyond the practice or even the philosophy of his age.[402]

120. War is commonly grounded upon the right of punishing injuries, so that the general principles upon which this right depends upon mankind, ought well to be understood before we can judge of so great a matter of national law. States, Grotius thinks, have a right, analogous to that of individuals out of society, to punish heinous offences against the law of nature or of nations, though not affecting themselves, or even any other independent community. But this is to be done very cautiously, and does not extend to violations of the positive divine law, or to any merely barbarous and irrational customs. Wars undertaken only on this score are commonly suspicious. But he goes on to determine that war may be justly waged against those who deny the being and providence of God, though not against idolaters, much less for the sake of compelling any nation to embrace Christianity, unless they persecute its professors, in which case they are justly liable to punishment. He pronounces strongly in this place against the persecution of heretics.[403]

121. This is the longest chapter in the work of Grotius. Several of his positions, as the reader may probably have observed, would not bear a close scrutiny; the rights of individuals in a state of nature, of magistrates in civil society, and of independent communities, are not kept sufficiently distinct; the equivocal meaning of right, as it exists correlatively between two parties, and as it comprehends the general obligations of moral law, is not always guarded against. It is, notwithstanding these defects, a valuable commentary, regard being had to the time when it appeared, on the principles both of penal jurisprudence, and of the rights of war.

Their responsibility. 122. It has been a great problem, whether the liability to punishment can be transmitted from one person to another. This may be asked as to those who have been concerned in the crime, and those who have not. In the first case, they are liable as for their own offence, in having commanded, connived at, permitted, assisted, the actors in the crime before or after its perpetration. States are answerable for the delinquencies of their subjects when unpunished. They are also bound either to punish, or to deliver up, those who take refuge within their dominions from the justice of their own country. He seems, however, to admit afterwards, that they need only command such persons to quit the country. But they have a right to inquire into and inform themselves of the guilt alledged, the ancient privileges of suppliants being established for the sake of those who have been unjustly persecuted at home. The practice of modern Europe, he owns, has limited this right of demanding the delivery or punishment of refugees within narrow bounds. As to the punishment of those who have been wholly innocent of the offence, Grotius holds it universally unjust, but distinguishes it from indirect evil, which may often fall on the innocent. Thus, when the estate of a father is confiscated, his children suffer, but are not punished; since their succession was only a right contingent on his possession at his death.[404] It is a consequence from this principle, that a people, so far subject to its sovereign as to have had no control upon his actions, cannot justly incur punishment on account of them.

Insufficient causes of war. 123. After distinguishing the causes of war into pretexts and motives, and setting aside wars without any assignable justification as mere robberies, he mentions several pretexts which he deems insufficient, such as the aggrandisement of a neighbour; his construction of fortresses; the right of discovery, where there is already a possessor, however barbarous; the necessity of occupying more land. And here he denies, both to single men and to a people, the right of taking up arms in order to recover their liberty. He laughs at the pretended right of the emperor or of the pope to govern the world; and concludes with a singular warning against wars undertaken upon any pretended explanation of scriptural prophecies.[405] |Duty of avoiding it.| It will be anticipated from the scrupulousness of Grotius in all his casuistry, that he enjoins sovereigns to abstain from war in a doubtful cause, and to use all convenient methods of avoiding it by conference, arbitration, or even by lot. Single combat itself, as a mode of lot, he does not wholly reject. In answer to a question often put, Whether a war can be just on both sides? he replies that, in relation to the cause or subject, it cannot be so, since there cannot be two opposite rights; but since men may easily be deceived as to the real right, a war may be just on both sides with respect to the agents.[406] In another part of his work, he observes that resistance, even where the cause is not originally just, may become such by the excess of the other party.

And expediency. 124. The duty of avoiding war, even in a just cause, as long as possible, is rather part of moral virtue in a large sense, than of mere justice. But, besides the obligations imposed on us by humanity and by Christian love, it is often expedient for our own interests to avoid war. Of this, however, he says little, it being plainly a matter of civil prudence with which he has no concern.[407] Dismissing, therefore, the subject of this chapter, he comes to the justice of wars undertaken for the sake of others. |War for the sake of other subjects.| Sovereigns, he conceives, are not bound to take up arms in defence of any one of their subjects, who may be unjustly treated. Hence, a state may abandon those whom it cannot protect without great loss to the rest; but whether an innocent subject may be delivered up to an enemy is a more debated question. Soto and Vasquez, casuists of great name, had denied this; Grotius however determines it affirmatively. This seems a remarkable exception from the general inflexibility of his adherence to the rule of right. For on what principle of strict justice can a people, any more than private persons, sacrifice, or put in jeopardy, the life of an innocent man? Grotius is influenced by the supposition that the subject ought voluntarily to surrender himself into the hands of the enemy for the public good: but no man forfeits his natural rights by refusing to perform an action not of strict social obligation.[408]

Allies. 125. Next to subjects are allies, whom the state has bound itself to succour; and friendly powers, though without alliance, may also be protected from unjust attack. This extends even to all mankind; though war in behalf of strangers is not obligatory. |Strangers.| It is also lawful to deliver the subjects of others from extreme manifest oppression of their rulers; and though this has often been a mere pretext, we are not on that account to deny the justice of an honest interference. He even thinks the right of foreign powers, in such a case, more unequivocal than that of the oppressed people themselves. At the close of this chapter he protests strongly against those who serve in any cause for the mere sake of pay, and holds them worse than the common executioner, who puts none but criminals to death.[409]

None to serve in an unjust war. 126. In the twenty-sixth and concluding chapter of this second book, Grotius investigates the lawfulness of bearing arms at the command of superiors and determines that subjects are indispensably bound not to serve in a war which they conceive to be clearly unjust. He even inclines, though admitting the prevailing opinion to be otherwise, to think, that in a doubtful cause, they should adhere to the general moral rule in case of doubt, and refuse their personal service. This would evidently be impracticable and ultimately subversive of political society. It, however, denotes the extreme scrupulosity of his mind. One might smile at another proof of this, where he determines that the hangman, before the performance of his duly, should satisfy himself as to the justice of the sentence.[410]

Rights in war. 127. The rights of war, that is, of commencing hostility, have thus far been investigated with a comprehensiveness that has sometimes almost hidden the subject. We come now, in the third book, to rights in war. Whatever may be done in war, is permitted either by the law of nature or that of nations. Grotius begins with the first. The means morally, though not physically, necessary to attain a lawful end are themselves lawful; a proposition which he seems to understand relatively to the rights of others, not to the absolute moral quality of actions; distinctions which are apt to embarrass him. We have therefore a right to employ force against an enemy, though it may be the cause of suffering to innocent persons. The principles of natural law authorize us to prevent neutrals from furnishing an enemy with the supplies of war, or with anything else essential for his resistance to our just demands of redress, such as provisions in a state of siege. And it is remarkable that he refers this latter question to natural law, because he had not found any clear decision of it by the positive law of nations.[411]

Use of deceit. 128. In acting against an enemy force is the nature of war. But it may be inquired, whether deceit is not also a lawful means of success? The practice of nations and the authority of most writers seem to warrant it. Grotius dilates on different sorts of artifice, and after admitting the lawfulness of such as deceive by indications, comes to the questions of words equivocal or wholly false. This he first discusses on the general moral principle of veracity, more prolixly, and with more deference to authority, than would suit a modern reader; yet this basis is surely indispensable for the support of any decision in public casuistry. The right, however, of employing falsehood towards an enemy, which he generally admits, does not extend to promises, which are always to be kept, whether express or implied, especially when confirmed by oath. And more greatness of mind, as well as more Christian simplicity would be shown by abstaining wholly from falsehood in war. The law of nature does not permit us to tempt any one to do that which in him would be criminal, as to assassinate his sovereign, or to betray his trust. But we have a right to make use of his voluntary offers.[412]

Rules and Customs of nations. 129. Grotius now proceeds from the consideration of natural law or justice to that of the general customs of mankind, in which, according, to him, the arbitrary law of nations consists. |Reprisals.| By this, in the first place, though naturally no one is answerable for another, it has been established that the property of every citizen is as it were mortgaged for the liabilities of the state to which he belongs. Hence, if justice is refused to us by the sovereign, we have a right to indemnification out of the property of his subjects. This is commonly called reprisals; and it is a right which every private person would enjoy, were it not for the civil laws of most countries, which compel him to obtain the authorisation of his own sovereign, or of some tribunal. By an analogous right the subjects of a foreign state have sometimes been seized in return for one of our own subjects unjustly detained by their government.[413]

Declarations of war. 130. A regular war, by the law of nations, can only be waged between political communities. Wherever there is a semblance of civil justice and fixed law, such a community exists however violent may be its actions. But a body of pirates or robbers are not one. Absolute independence, however, is not required for the right of war. A formal declaration of war, though not necessary by the law of nature, has been rendered such by the usage of civilized nations. But it is required, even by the former, that we should demand reparation for an injury, before we seek redress by force. A declaration of war may be conditional or absolute; and it has been established as a ratification of regular hostilities, that they may not be confounded with the unwarranted acts of private men. No interval of time is required for their commencement after declaration.[414]

Rights by law of nations over enemies. 131. All is lawful during war, in one sense of the word, which by the law and usage of nations is dispunishable. And this, in formal hostilities, is as much the right of one side as of the other. The subjects of our enemy, whether active on his side or not, become liable to these extreme rights of slaughter and pillage; but it seems that, according to the law of nations, strangers should be exempted from them, unless by remaining in the country they serve his cause. Women, children, and prisoners may be put to death; quarter or capitulation for life refused. On the other hand, if the law of nations is less strict in this respect than that of nature, it forbids some things which naturally might be allowable means of defence, as the poisoning an enemy, or the wells from which he is to drink. But the assassination of an enemy is not contrary to the law of nations, unless by means of traitors, and even this is held allowable against a rebel or robber, who are not protected by the rules of formal war. But the violation of women is contrary to the law of nations.[415] The rights of war with respect to enemies’ property are unlimited, without exception even of churches or sepulchral monuments, sparing always the bodies of the dead.[416]

132. By the law of nature, Grotius thinks that we acquire a property in as much of the spoil as is sufficient to indemnify us, and to punish the aggressor. But the law of nations carries this much farther, and gives an unlimited property in all that has been acquired by conquest, which mankind are bound to respect. This right commences as soon as the enemy has lost all chance of recovering his losses; which is in moveables, as soon as they are in a place within our sole power. The transfer of property in territories is not so speedy. The goods of neutrals are not thus transferred, when found in the cities or on board the vessels of an enemy. Whether the spoil belongs to the captors, or to their sovereign, is so disputed a question, that it can hardly be reckoned a part of that law of nations, or universal usage, with which Grotius is here concerned. He thinks, however, that what is taken in public enterprises appertains to the state; and that this has been the general practice of mankind. The civil laws of each people may modify this, and have frequently done so.[417]

Prisoners become slaves. 133. Prisoners, by the law of nations, become slaves of the captor, and their posterity also. He may treat them as he pleases with impunity. This has been established by the custom of mankind, in order that the conqueror might be induced to spare the lives of the vanquished. Some theologians deny the slave, even when taken in an unjust war, the right of making his escape, from whom Grotius dissents. But he has not a right, in conscience, to resist the exercise of his master’s authority. This law of nations, as to the slavery of prisoners, as he admits, has not been universally received, and is now abolished in christian countries out of respect to religion.[418] But, strictly, as an individual may be reduced into slavery, so may a whole conquered people. It is of course at the discretion of the conqueror to remit a portion of his right, and to leave as much of their liberties and possessions untouched as he pleases.[419]

Right of postliminium. 134. The next chapter relates to the right of postliminium, one depending so much on the peculiar fictions of the Roman jurists, that it seems strange to discuss it as part of an universal law of nations at all. Nor does it properly belong to the rights of war, which are between belligerent parties. It is certainly consonant to natural justice, that a citizen returning from captivity should be fully restored to every privilege and all property that he had enjoyed at home. In modern Europe there is little to which the jus postliminii can even by analogy be applied. It has been determined, in courts of admiralty, that vessels recaptured after a short time do not revert to their owner. This chapter must be reckoned rather episodical.[420]

Moral limitation of rights in war. 135. We have thus far looked only at the exterior right, accorded by the law of nations to all who wage regular hostilities in a just or unjust quarrel. This right is one of impunity alone, but before our own conscience, or the tribunal of moral approbation in mankind, many things hitherto spoken of as lawful must be condemned. In the first place, an unjust war renders all acts of force committed in its prosecution unjust, and binds the aggressor before God to reparation. Every one, general or soldier, is responsible in such cases for the wrong he has commanded or perpetrated. Nor can any one knowingly retain the property of another obtained by such a war, though he should come to the possession of it with good faith.[421] And as nothing can be done, consistently with moral justice in an unjust war, so, however legitimate our ground for hostilities may be, we are not at liberty to transgress the boundaries of equity and humanity. In this chapter, Grotius, after dilating with a charitable abundance of examples and authorities in favour of clemency in war, even towards those who have been most guilty in provoking it specially indicates women, old men, and children, as always to be spared, extending this also to all whose occupations are not military. Prisoners are not to be put to death, nor are towns to be refused terms of capitulation. He denies that the law of retaliation, or the necessity of striking terror, or the obstinate resistance of an enemy, dispense with the obligation of saving his life. Nothing but some personal crime can warrant the refusal of quarter or the death of a prisoner. Nor is it allowable to put hostages to death.[422]

Moderation required as to spoil. 136. All unnecessary devastation ought to be avoided, such as the destruction of trees, of houses, especially ornamental and public buildings, and of everything not serviceable in war, nor tending to prolong it, as pictures and statues. Temples and sepulchres are to be spared for the same or even stronger reasons. Though it is not the object of Grotius to lay down any political maxims, he cannot refrain in this place from pointing out several considerations of expediency, which should induce us to restrain the licence of arms within the limits of natural law.[423] There is no right by nature to more booty, strictly speaking, than is sufficient for our indemnity, wherein are included the expenses of the war. And the property of innocent persons, being subjects of our enemies, is only liable in failure of those who are primarily aggressors.[424]

And as to prisoners. 137. The persons of prisoners are only liable, in strict moral justice, so far as is required for satisfaction of our injury. The slavery into which they may be reduced ought not to extend farther than an obligation of perpetual servitude in return for maintenance. The power over slaves by the law of nature is far short of what the arbitrary law of nations permits, and does not give a right of exacting too severe labour, or of inflicting punishment beyond desert. The peculium, or private acquisitions of a slave by economy or donation, ought to be reckoned his property. Slaves, however, captured in a just war, though one in which they have had no concern, are not warranted in conscience to escape and recover their liberty. But the children of such slaves are not in servitude by the law of nature, except so far as they have been obliged to their master for subsistence in infancy. With respect to prisoners, the better course is to let them redeem themselves by a ransom, which ought to be moderate.[425]

Also in conquest. 138. The acquisition of that sovereignty which was enjoyed by a conquered people, or by their rulers, is not only legitimate, so far as is warranted by the punishment they have deserved, or by the value of our own loss, but also so far as the necessity of securing ourselves extends. This last is what it is often unsafe to remit out of clemency. It is a part of moderation in victory to incorporate the conquered with our own citizens on equal terms, or to leave their independence on reasonable precautions for our own security. If this cannot be wholly conceded, their civil laws and municipal magistracies may be preserved, and, above all, the free exercise of their religion. The interests of conquerors are as much consulted, generally, as their reputation, by such lenient use of their advantages.[426]

And in restitution to right owners. 139. It is consonant to natural justice that we should restore to the original owners all of which they have been despoiled in an unjust war, when it falls into our hands by a lawful conquest, without regard to the usual limits of postliminium. Thus, if an ambitious state comes to be stripped of its usurpations, this should be not for the benefit of the conqueror but of the ancient possessors. Length of time, however, will raise the presumption of abandonment.[427] Nothing should be taken in war from neutral states, except through necessity and with compensation. The most ordinary case is that of the passage of troops. The neutral is bound to strict impartiality in a war of doubtful justice.[428] But it seems to be the opinion of Grotius, that by the law of nature, every one, even a private man, may act in favour of the innocent party as far as the rights of war extend, except that he cannot appropriate to himself the possessions of the enemy; that right being one founded on indemnification. But civil and military laws have generally restrained this to such as obey the express order of their government.[429]

Promises to enemies and pirates. 140. The licence of war is restrained either by the laws of nature and nations, which have been already discussed, or by particular engagement. The obligation of promises extends to enemies, who are still parts of the great society of mankind. Faith is to be kept even with tyrants, robbers, and pirates. He here again adverts to the case of a promise made under an unjust compulsion; and possibly his reasoning on the general principle is not quite put in the most satisfactory manner. It would now be argued that the violation of engagements towards the worst of mankind, who must be supposed to have some means of self-defence, on account of which we propose to treat with them, would produce a desperation among men in similar circumstances injurious to society. Or it might be urged, that men do not lose by their crimes a right to the performance of all engagements, especially when they have fulfilled their own share in them, but only of such as involve a positive injustice towards the other party. In this place he repeats his former doctrine, that the most invalid promise may be rendered binding by the addition of an oath. It follows from the general rule, that a prince is bound by his engagements to rebel subjects; above all, if they have had the precaution to exact his oath. And thus a change in the constitution of a monarchy may legitimately take place, and it may become mixed instead of absolute by the irrevocable concession of the sovereign. The rule, that promises made under an unjust compulsion are not obligatory, has no application in a public and regular war.[430] Barbeyrac remarks on this, that if a conqueror, like Alexander, subdues an unoffending people with no specious pretext at all, he does not perceive why they should be more bound in conscience to keep the promises of obedience they may have been compelled to enter into, than if he had been an ordinary bandit. And this remark shows us, that the celebrated problem in casuistry, as to the obligation of compulsory promises, has far more important consequences than the payment of a petty sum to a robber. In two cases, however, Grotius holds that we are dispensed from keeping an engagement towards an enemy. One of these is, when it has been conditional, and the other party has not fulfilled his part of the convention. This is of course obvious, and can only be open to questions as to the precedence of the condition. The other case is where we retain what is due to us by way of compensation, notwithstanding our promise. This is permissible in certain instances.[431]

Treaties concluded by competent authority. 141. The obligation of treaties of peace depends on their being concluded by the authority which, according to the constitution of the state, is sovereign for this purpose. Kings who do not possess a patrimonial sovereignty cannot alienate any part of their dominions without the consent of the nation or its representatives; they must even have the consent of the city or province which is thus to be transferred. In patrimonial kingdoms, the sovereign may alienate the whole, but not always a part, at pleasure. He seems however to admit an ultimate right of sovereignty, or dominium eminens, by which all states may dispose of the property of their subjects, and consequently alienate it for the sake of a great advantage, but subject to the obligation of granting them an indemnity. He even holds that the community is naturally bound to indemnify private subjects for the losses they sustain in war, though this right or reparation may be taken away by civil laws. The right of alienation by a treaty of peace is only questionable between the sovereign and his subjects; foreign states may presume its validity in their own favour.[432]

Matters relating to them. 142. Treaties of peace are generally founded on one of two principles: that the parties shall return to the condition wherein they were before the commencement of hostilities, or that they shall retain what they possess at their conclusion. The last is to be presumed in a case of doubtful interpretation. A treaty of peace extinguishes all public grounds of quarrel, whether known to exist or not, but does not put an end to the claims of private men subsisting before the war, the extinguishment of which is never to be presumed. The other rules of interpretation which he lays down are, as usual with him, derived rather from natural equity than the practice of mankind, though with no neglect or scorn of the latter. He maintains the right of giving an asylum to the banished, but not of receiving large bodies of men who abandon their country.[433]

143. The decision of lot may be adopted in some cases, in order to avoid a war, wherein we have little chance of resisting an enemy. But that of single combat, according to Grotius’s opinion, though not repugnant to the law of nature, is incompatible with Christianity; unless in the case where a party, unjustly assailed, has no other means of defence. Arbitration by a neutral power is another method of settling differences, and in this we are bound to acquiesce. Wars may also be terminated by implicit submission or by capitulation. The rights this gives him have been already discussed. He concludes this chapter with a few observations upon hostages and pledges. With respect to the latter he holds that they may be reclaimed after any lapse of time, unless there is a presumption of tacit abandonment.[434]

Truces and conventions. 144. A truce is an interval of war, and does not require a fresh declaration at its close. No act of hostility is lawful during its continuance; the infringement of this rule by either party gives the other a right to take up arms without delay. Safe conducts are to be construed liberally, rejecting every meaning of the words which does not reach their spirit. Thus a safe conduct to go to a place implies the right of returning unmolested. The ransom of prisoners ought to be favoured.[435] A state is bound by the conventions in war made by its officers, provided they are such as may reasonably be presumed to lie within their delegated authority, or such as they have a special commission to warrant, known to the other contracting party. A state is also bound by its tacit ratification in permitting the execution of any part of such a treaty, though in itself not obligatory, and also by availing itself of any advantage thereby. Grotius dwells afterwards on many distinctions relating to this subject, which, however, as far as they do not resolve themselves into the general principle, are to be considered on the ground of positive regulation.[436]

Those of private persons. 145. Private persons, whether bearing arms or not, are as much bound as their superiors by the engagements they contract with an enemy. This applies particularly to the parole of a prisoner. The engagement not to serve again, though it has been held null by some jurists, as contrary to our obligation towards our country, is valid. It has been a question, whether the state ought to compel its citizens to keep their word towards the enemy? The better opinion is that it should do so; and this has been the practice of the most civilized nations.[437] Those who put themselves under the protection of a state engage to do nothing hostile towards it. Hence, such actions as that of Zopyrus, who betrayed Babylon under the guise of a refugee, are not excusable. Several sorts of tacit engagements are established by the usage of nations, as that of raising a white flag in token of a desire to suspend arms. These are exceptions from the general rule which authorises deceit in war.[438] In the concluding chapter of the whole treatise Grotius briefly exhorts all states to preserve good faith and to seek peace at all times, upon the mild principles of Christianity.[439]

Objections to Grotius made by Paley unreasonable. 146. If the reader has had the patience to make his way through the abstract of Grotius, De Jure Belli, that we have placed before him, he will be fully prepared to judge of the criticisms made upon this treatise by Paley and Dugald Stewart. “The writings of Grotius and Puffendorf,” says the former, “are of too forensic a cast, too much mixed up with civil law and with the jurisprudence of Germany, to answer precisely the design of a system of ethics, the direction of private consciences in the general conduct of human life.” But it was not the intention of Grotius (we are not at present concerned with Puffendorf) to furnish a system of ethics; nor did anyone ever hold forth his treatise in this light. Upon some most important branches of morality he has certainly dwelt so fully as to answer the purpose of “directing the private conscience in the conduct of life.” The great aim, however, of his inquiries was to ascertain the principles of natural right applicable to independent communities.

147. Paley, it must be owned, has a more specious ground of accusation in his next charge against Grotius for the profusion of classical quotations. “To anything more than ornament they can make no claim. To propose them as serious arguments, gravely to attempt to establish or fortify a moral duty by the testimony of a Greek or Roman poet, is to trifle with the reader, or rather take off his attention from all just principles in morals.”

Reply of Mackintosh. 148. A late eminent writer has answered this from the text of Grotius, but in more eloquent language than Grotius could have employed. “Another answer,” says Mackintosh, “is due to some of those who have criticised Grotius, and that answer might be given in the words of Grotius himself. He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philosophers, as those of judges from whose decision there was no appeal. He quotes them, as he tells us himself, as witnesses, whose conspiring testimony, mightily strengthened and confirmed by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses; for they address themselves to the general feelings and sympathies of mankind; they are neither warped by system, nor prevented by sophistry; they can attain none of their objects, they can neither please nor persuade, if they dwell on moral sentiments not in unison with those of their readers. No system of moral philosophy can surely disregard the general feelings of human nature, and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life are, in truth, the materials out of which the science of morality is formed; and those who neglect them are justly chargeable with a vain attempt to philosophise without regard to fact and experience, the sole foundation of all true philosophy.”[440]