Chapter XXI · (continued 3)

149. The passage in Grotius which has suggested this noble defence will be found above. It will be seen on reference to it, that he proposes to quote the poets and orators cautiously, and rather as ornamental than authoritative supports of his argument. In no one instance, I believe, will he be found to “enforce a moral duty,” as Paley imagines, by their sanction. It is, nevertheless, to be fairly acknowledged, that he has sometimes gone a good deal farther than the rules of a pure taste allow in accumulating quotations from the poets, and that, in an age so impatient of prolixity as the last, this has stood much in the way of the general reader.

Censures of Stewart. 150. But these criticisms of Paley contain very trifling censure in comparison with the unbounded scorn poured on Grotius by Dugald Stewart, in his first Dissertation on the Progress of Philosophy. I have never read these pages of an author whom I had unfortunately not the opportunity of personally knowing, but whose researches have contributed so much to the delight and advantage of mankind, without pain and surprise. It would be too much to say that, in several parts of this Dissertation, by no means in the first class of Stewart’s writings, other proofs of precipitate judgment do not occur; but that he should have spoken of a work so distinguished by fame, and so effective, as he himself admits, over the public mind of Europe, in terms of unmingled depreciation, without having done more than glanced at some of its pages, is an extraordinary symptom of that tendency towards prejudices, hasty but inveterate, of which this eminent man seems to have been not a little susceptible. The attack made by Stewart on those who have taken the law of nature and nations as their theme, and especially on Grotius who stands forward in that list, is protracted for several pages, and it would be tedious to examine every sentence in succession. Were I to do so, it is not, in my opinion, an exaggeration to say that almost every successive sentence would lie open to criticism. But let us take the chief heads of accusation.

Answer to them. 151. “Grotius,” we are told, under the title, De Jure Belli et Pacis, “has aimed at a complete system of natural law. Condillac says, that he chose the title in order to excite a more general curiosity.” The total erroneousness of this passage must appear to every one who has seen what Grotius declares to have been his primary object. He chose the title because it came nearest to express that object—the ascertainment of laws binding on independent communities in their mutual relations, whether of war or peace. But as it was not possible to lay down any solid principles of international right till the notions of right, of sovereignty, of dominion over things and persons, of war itself, were clearly established, it became indispensable to build upon a more extensive basis than later writers on the law of nations, who found the labour performed to their hands, have thought necessary. All ethical philosophy, even in those parts which bear a near relation to jurisprudence and to international law, was in the age of Grotius a chaos of incoherent and arbitrary notions, brought in from various sources, from the ancient schools, from the scriptures, the fathers, the canons, the casuistical theologians, the rabbins, the jurists, as well as from the practice and sentiments of every civilised nation, past and present, the Jews, the Greeks, and Romans, the trading republics, the chivalrous kingdoms of modern Europe. If Grotius has not wholly disentangled himself from this bewildering maze, through which he painfully traces his way by the lights of reason and revelation, he has at least cleared up much, and put others still oftener in the right path, where he has not been able to follow it. Condillac, as here quoted by Stewart, has anticipated Paley’s charge against Grotius, of labouring to support his conclusions by the authority of others, and of producing a long string of quotations to prove the most indubitable propositions. In what degree this very exaggerated remark is true we have already seen. But it should be kept in mind, that neither the disposition of the age in which Grotius lived, nor the real necessity of illustrating every part of his inquiries by the precedent usages of mankind, would permit him to treat of moral philosophy as of the abstract theorems of geometry. If his erudition has sometimes obstructed or misled him, which perhaps has not so frequently happened as these critics assume, it is still true that a contemptuous ignorance of what has been done or has been taught, such as belonged to the school of Condillac and to that of Paley, does not very well qualify the moral philosopher for inquiry into the principles which are to regulate human nature.

152. “Among the different ideas,” Stewart observes, “which have been formed of natural jurisprudence, one of the most common, especially in the earlier systems, supposes its object to be—to lay down those rules of justice which would be binding on men living in a social state without any positive institutions; or, as it is frequently called by writers on this subject, living together in a state of nature. This idea of the province of jurisprudence seems to have been uppermost in the mind of Grotius in various parts of his treatise.” After some conjectures on the motives which led the early writers to take this view of national law, and admitting that the rules of justice are in every case precise and indispensable, and that their authority is altogether independent of that of the civil magistrate, he deems it “obviously absurd to spend much time in speculating about the principles of this natural law, as applicable to men before the institution of governments.” It may possibly be as absurd as he thinks it. But where has Grotius shown that this condition of natural society was uppermost in his thoughts? Of the state of nature, as it existed among individuals before the foundation of civil institutions, he says no more than was requisite in order to exhibit the origin of those rights which spring from property and government. But that he has, in some part especially of his second book, dwelt upon the rules of justice binding on men subsequent to the institution of property, but independently of positive laws, is most certain; nor is it possible for any one to do otherwise, who does not follow Hobbes in confounding moral with legal obligation; a theory to which Mr. Stewart was of all men the most averse.

153. Natural jurisprudence is a term that is not always taken in the same sense. It seems to be of English origin; nor am I certain, though my memory may deceive me, that I have ever met with it in Latin or in French. Strictly speaking, as jurisprudence means the science of law, and is especially employed with respect to the Roman, natural jurisprudence must be the science of morals, or the law of nature. It is, therefore, in this sense, co-extensive with ethics, and comprehends the rules of temperance, liberality, and benevolence, as much as those of justice. Stewart, however, seems to consider this idea of jurisprudence as an arbitrary extension of the science derived from the technical phraseology of the Roman law. “Some vague notion of this kind,” he says, “has manifestly given birth to many of the digressions of Grotius.” It may have been seen by the analysis of the entire treatise of Grotius above given, that none of his digressions, if such they are to be called, have originated in any vague notion of an identity, or proper analogy, between the strict rules of justice and those of the other virtues. The Aristotelian division of justice into commutative and distributive, which Grotius has adopted, might seem in some respect to bear out this supposition; but it is evident, from the contents of Stewart’s observations, that he was referring only to the former species, or justice in its more usual sense, the observance of perfect rights, whose limits may be accurately determined, and whose violation may be redressed.

154. Natural jurisprudence has another sense imposed upon it by Adam Smith. According to this sense, its object, in the words of Stewart, is “to ascertain the general principles of justice which ought to be recognised in every municipal code, and to which it ought to be the aim of every legislator to accommodate his institutions.” Grotius, in Smith’s opinion, was “the first who attempted to give the world anything like a system of those principles which ought to run through, and to be the foundation of, the laws of all nations; and his treatise on the laws of peace and war, with all its imperfections, is perhaps at this day the most complete book that has yet been given on the subject.”

155. The first probably, in modern times, who conceived this idea of an universal jurisprudence was Lord Bacon. He places among the desiderata of political science, the province of universal justice, or the sources of law. Id nunc agatur, ut fontes justitiæ et utilitatis publicæ petantur, et in singulis juris partibus character quidam et idea justi exhibeatur, ad quem particularium regnorum et rerumpublicarum leges probare, atque inde emendationem moliri quisque, cui hæc cordi erit et curæ possit.[441] The maxims which follow are an admirable illustration of the principles which should regulate the enactment and expression of laws, as well as much that should guide, in a general manner, the decision of courts of justice. They touch very slightly, if at all, any subject which Grotius has handled; but certainly come far closer to natural jurisprudence, in the sense of Smith, inasmuch as they contain principles which have no limitation to the circumstances of particular societies. These maxims of Bacon, and all others that seem properly to come within the province of jurisprudence in this sense, which is now become not uncommon, the science of universal law, are resolvable partly into those of natural justice, partly into those of public expediency. Little, however, could be objected against the admission of universal jurisprudence, in this sense, among the sciences. But if it is meant that any systematic science, whether by the name of jurisprudence or legislation, can be laid down as to the principles which ought to determine the institutions of all nations, or that, in other words, the laws of each separate community ought to be regulated by any universal standard, in matters not depending upon eternal justice, we must demur to receiving so very disputable a proposition. It is probable that Adam Smith had no thoughts of asserting it; yet his language is not very clear, and he seems to have assigned some object to Grotius, distinct from the establishment of natural and international law. “Whether this was,” says Stewart, “or was not, the leading object of Grotius, it is not material to decide; but if this was his object, it will not be disputed that he has executed his design in a very desultory manner, and that he often seems to have lost sight of it altogether, in the midst of those miscellaneous speculations on political, ethical, and historical subjects, which form so large a portion of his treatise, and which so frequently succeed each other without any apparent connexion or common aim.”

156. The unfairness of this passage, it is now hardly incumbent upon me to point out. The reader has been enabled to answer that no political speculation will be found in the volume, De Jure Belli ac Pacis, unless the disquisition on the origin of human society is thus to be denominated; that the instances continually adduced from history are always in illustration of the main argument; and that what are here called ethical speculations are, in fact, the real subject of the book, since it avowedly treats of obligations on the conscience of mankind, and especially of their rulers. Whether the various topics in this treatise “succeed each other without apparent connection or common aim,” may best be seen by the titles of the chapters, or by the analysis of their contents. There are certainly a very few of these that have little in common, even by deduction or analogy, with international law, though scarce any, I think, which do not rise naturally out of the previous discussion. Exuberances of this kind are so common in writers of great reputation, that where they do not transgress more than Grotius has done, the censure of irrelevancy has been always reckoned hypercritical.

157. “The Roman system of jurisprudence,” Mr. Stewart proceeds, “seems to have warped in no inconsiderable degree the notions of Grotius on all questions connected with the theory of legislation, and to have diverted his attention from that philosophical idea of law so well expressed by Cicero, Non a prætoris edicto, neque a duodecim tabulis, sed penitus ex intima philosophia hauriendam juris disciplinam. In this idolatry, indeed, of the Roman law, he has not gone so far as some of his commentators, who have affirmed that it is only a different name for the law of nature: but that his partiality for his professional pursuits has often led him to overlook the immense difference between the state of society in ancient and modern Europe, will not, I believe, now be disputed.” It is probable that it will be disputed by all who are acquainted with Grotius. The questions connected with the theory of legislation which he has discussed, are chiefly those relating to the acquisition and alienation of property in some of the earlier chapters of the second book. That he has not, in these disquisitions, adopted all the determinations of the Roman jurists is certain; whether he may in any particular instance have adhered to them more than the best theory of legislation would admit, is a matter of variable opinion. But Stewart, wholly unacquainted with the civil laws, appears to have much underrated their value. In all questions of private right, they form the great basis of every legislation; and, as all civilised nations, including our own, have derived a large portion of their jurisprudence from this source, so even the modern theorists, who would disdain to be ranked as disciples of Paullus and Papinian, are not ashamed to be their plagiaries.

Grotius vindicated against Rousseau. 158. It has been thrown out against Grotius by Rousseau,[442] and the same insinuation may be found in other writers, that he confounds the fact with the right, and the duties of nations with their practice. How little foundation there is for this calumny is sufficiently apparent to our readers. Scrupulous, as a casuist, to an excess hardly reconcilable with the security and welfare of good men, he was the first, beyond the precincts of the confessional or the church, to pour the dictates of a saint-like innocence into the ears of princes. It is true, that, in recognising the legitimacy of slavery, and in carrying too far the principles of obedience to government, he may be thought to have deprived mankind of some of their security against injustice, but this is exceedingly different from a sanction to it. An implicit deference to what he took for divine truth was the first axiom in the philosophy of Grotius; if he was occasionally deceived in his application of this principle, it was but according to the notions of his age; but those who wholly reject the authority must of course want a common standard by which his speculations in moral philosophy can be reconciled with their own.

159. I must now quit a subject upon which, perhaps, I have dwelt too long. The high fame of Dugald Stewart has rendered it a sort of duty to vindicate from his hasty censures the memory of one still more illustrious in reputation, till the lapse of time, and the fickleness of literary fashion, conspired with the popularity of his assailants to magnify his defects, and meet the very name of his famous treatise with a kind of scornful ridicule. That Stewart had never read much of Grotius, or even gone over the titles of his chapters, is very manifest; and he displays a similar ignorance as to the other writers on natural law, who, for more than a century afterwards, as he admits himself, exercised a great influence over the studies of Europe. I have commented upon very few, comparatively, of the slips which occur in his pages on this subject.

His arrangement. 160. The arrangement of Grotius has been blamed as unscientific by a more friendly judge, Sir James Mackintosh. Though I do not feel very strongly the force of his objections, it is evident that the law of nature might have been established on its basis, before the author passed forward to any disquisition upon its reference to independent communities. This would have changed a good deal the principal object that Grotius had in view, and brought his treatise, in point of method, very near to that of Puffendorf. But assuming, as he did, the authority recognised by those for whom he wrote, that of the Scriptures, he was less inclined to dwell on the proof which reason affords for a natural law, though fully satisfied of its validity, even without reference to the Supreme Being.

His defects. 161. The real faults of Grotius, leading to erroneous determinations, seem to be rather an unnecessary scrupulousness, and somewhat of old theological prejudice, from which scarce any man in his age, who was not wholly indifferent to religion, had liberated himself. The notes of Barbeyrac seldom fail to correct this leaning. Several later writers on international law have treated his doctrine of an universal law of nations founded on the agreement of mankind, as an empty chimera of his invention. But if he only meant by this the tacit consent, or, in other words, the general custom of civilized nations, it does not appear that there is much difference between his theory and that of Wolf or Vattel.