Two Introductory Lectures on the Science of International Law/Lecture I
LECTURES
ON
INTERNATIONAL LAW.
LECTURE I.
The Science of International Law, like the science of Political Economy, is a fabric of comparatively modern structure. Much, which bears upon the subject, is probably to be discovered in the writings of the scholastic jurists of the fourteenth and fifteenth centuries; but the true era from which we must date the foundation of the great science, which is conversant with questions of right that concern the fellowship of nations, is the latter portion of the fifteenth century, one of the most remarkable epochs in the annals of legal science. This period has been appropriately termed by the Jesuit Andrês “the Golden Age of Jurisprudence;” and it is distinguished not merely by the completion, under the masterly hand of Cujacius, of the important work, which Alciatus of Milan had commenced in the preceding generation, of emancipating the Roman law from the verbal subtleties of the scholastic philosophy and the conflicting glosses of the earlier commentators, but also by the first systematic enunciation of rules, to which the intercourse of independent nations should be amenable.
No writer had hitherto treated expressly of that branch of jurisprudence, which was formally expounded in the following century under the novel head of the Law of Nations and of Nature. For the Law of Nations, in the received sense of the term, was in a great measure unknown to antiquity, and is not to be confounded with the Jus Gentium of the Roman Law. The Jus Gentium of the Romans was not a body of rules regulating the mutual intercourse of nations, but was that portion of Natural Law to which all mankind does homage, the least as feeling its beneficence, the greatest as not exempt from its control, and which has accordingly been incorporated into the domestic code of every nation. The earliest formal definition of this branch of law is to be found in the Institutes of Gaius, which were restored to light by the researches of Niebuhr within the last half century from amidst the archives of the Chapter Library in Verona; and that definition seems to have been approved, as it was adopted, by the compilers of the Institutes of the Emperor Justinian.
“Quod naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, voeaturque Jus Gentium, quasi quo jure omnes gentes utuntur; et populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur.”—Inst. 1. I. tit. II. § 1.
This formal definition harmonises in substance with the view of Cicero, who contrasts the Jus Gentium, which is common to all mankind as rational beings, with the leges populorum, or those rules of municipal jurisprudence which are special to each state, and which correspond to the Jus Civile of the Institutes. “Neque vero hoc solum naturâ, i.e. jure gentium, sed etiam legibus populorum, quibus in singulis civitatibus respublicae continentur, eodem modo constitutum est, ut non liceat sui commodi causa nocere alicui,”—(Off. 1. III. c. 5.) We must not, however, suppose that the Romans had not at any time any definite notions of international law. The Collegium Fetialium was not a mere heralds’ college. It was the duty of that body to act as ambassadors as well as heralds, to advise the state in negotiations of peace or alliance, and to regulate the general intercourse of Rome with foreign nations. Niebuhr expressly styles them judges of international law; and there can be no doubt that they committed their decisions and forms of proceeding to writing, and thus constituted a written body of Fetial Law. We find Cicero accordingly justifying the formal surrender of Regulus, on the part of the Roman Senate, to the Carthaginians, on the ground that the war with the Carthaginians was a war with a rightful and lawful enemy, with regard to whom the whole Fetial Law was in force, and there were many duties and rights in common.
“Cum justo enim et legitimo hoste res gerebatur, adversus quem et totum jus fetiale, et multa sunt jura communia. Quod ni ita esset, nunquam claros viros senatus vinctos hostibus dedidisset.”—Off. 1. III. c. 29.
The institution, however, of the Fetiales naturally fell into decay with the rapid extension of the Roman dominion. Rules of international conduct based upon reciprocity, had been lost sight of by the Roman people long before the Republic had established its supremacy throughout the Italian peninsula, and the universal empire of the Caesars left no place, as it furnished no occasion, for the application of any such rules.
When the Roman laws, therefore, such as they subsisted at the dismemberment of the Western Empire in the fifth century, were received in the several kingdoms of the Gothic, Lombard, and Carlovingian dynasties, they did not supply them with any explicit rules for the adjudication of questions of right between independent states or nations. Theological casuistry, however, was from time to time applied to the duties of the sovereigns; analogies of positive law were frequently invoked; and the Civilians, as being conversant with the most widely diffused system, took into their hands the adjudication of questions of public law. The doctors, for instance, of the famous school of Bologna had been called upon, from a very early period, to furnish arbitrators in the ever recurring disputes of the Italian Republics, and to supply jurists to direct the diplomacy of the Lombard cities in their contests with the German emperors; and where the analogy of positive or local law failed to supply a rule, or the gravity of the question demanded a more authoritative sanction, religion, in the person of the spiritual chief of the Western Church, was appealed to as supreme umpire, and a General Council had not unfrequently played the part of an European congress, and, by the side of ecclesiastical matters, regulated the temporal affairs of princes.
The geographical discoveries, however, which had marked the close of the fifteenth century, were calculated to give rise to a number of novel questions, and to awaken a conflict of claims requiring more than ever some settled standard of public law, as a rule of reference, whilst the religious revolution, which followed closely in the track of those discoveries, shook the authority of the canon law, one of the main pillars of European jurisprudence, and at the same time indisposed an influential portion of the civilised world to acknowledge any longer the Holy See as the oracle of the unwritten law, which should govern their international relations.
The authority of the Roman Pontiff, as the supreme arbitrator in temporal questions between states and princes, may be said to have reached its culminating point, when the Spaniards and the Portuguese referred to his decision their dispute as to the monopoly of the discovery of the sea-passage to the Indies, and compromised their quarrel by a partition of the New World into East and West. Alexander VI., who at that time occupied the papal chair, did not hesitate to sanction by a formal Bull this monstrous settlement, under the pretext of sending the soldiers of the Cross into the lands of the heathen. An imaginary line drawn from pole to pole was henceforth to serve as a boundary between the territorial acquisitions of the two nations, who claimed to appropriate to themselves not merely the vast continents and numerous islands of the Indian seas, but even the extensive surface of ocean which divided them from the known parts of the world, and likewise the races of people who might be found to inhabit them.
The scandal given by this extreme stretch of authority on the part of the See of Rome, coupled with the cruel and rapacious abuse of the Papal Donation by the Spaniards, provoked a champion from amongst the ranks of theological casuists to step forth in behalf of the native inhabitants of the newly discovered countries. It is to the honour of the Dominican Order, that one of their members was the first to protest against the asserted right of the Pope to grant away the lands of heathen nations to Christian princes. Franciscus à Victoria, a Dominican monk, began to teach at Valladolid in 1525, and subsequently as professor in the university of Salamanca. His doctrine may be gathered from a series of thirteen dissertations, published for the first time at Lyons in 1557, and entitled Relectiones Theologicae, a book of remarkable scarcity, although it passed through four editions. The fifth of these dissertations entitled “De Indis,” treated of the title of the Spaniards to the possession of the new world; and the sixth “De Jure Belli” discussed exclusively the right of war. In the former dissertation, Victoria maintained the right of the Indians to the exclusive dominion over their own country, and confronted directly the doctrine of Bartolus and the Bolognese school of jurists, that the Pope had the power of conferring on the kings of Spain the dominion over countries inhabited by pagan barbarians. This would have been too bold a thesis in those days to maintain absolutely without suggesting an alternative. Accordingly he contended that the rights of the Spaniards were based on what he termed the right of natural society, which entitled them to seek to establish and carry on an innocent trade with the Indians, the rejection of which on their part would justify a declaration of war against them, and might lead to the conquest of their country. He did not, however, hesitate to pronounce it to be wrong to deprive the Indians of their independence, either on the ground that they were sinners, or on the ground that they were pagans. “Indis non debere auferri imperium, ideo quia sunt peccatores, vel ideo quia non sunt Christiani.” The sixth dissertation, on the right of war, treats most of the questions subsequently discussed by Albericus Gentilis and Grotius, and breathes an intrepid spirit of justice and humanity, the characteristic of the Spanish theologians, which was transmitted to Dominicus Soto, the pupil and successor of Victoria, and who deserves, equally with his master, to live in the recollection of posterity. Soto, who was also a member of the Dominican Order, was the confessor of the Emperor Charles V. and the oracle of the council of Trent, to whom that assembly was indebted for much of the precision and even elegance for which its doctrinal decrees are not unjustly commended. He was the authority consulted by Charles V. on occasion of the conference held before him at Valladolid in 1542 between Sepulveda, the advocate of the Spanish colonists, who maintained that the conquest of the Indies from the natives was lawful, and Bartholomew Las Casas, the bishop of Chiapa, who contended that such conquest was unlawful, tyrannical, and unjust. The opinion of Soto may be gathered from the excellent principle laid down in his treatise on justice and law, dedicated to Don Carlos, that there can be no difference between Christians and pagans, for the law of nations is equal to all nations. “Neque discrepantia (ut reor) est inter Christianos et Infideles, quoniam jus gentium cunctis gentibus sequale est.” To Soto belongs the signal honour of being the first who condemned the African slave trade. “It is affirmed,” says he, “that the unhappy Æthiopians are by fraud or by force carried away and sold as slaves. If this be true, neither those who have taken them, nor those who have purchased them, nor those who hold them in bondage can ever have a quiet conscience, until they have emancipated them, even if they should obtain no compensation.
It is difficult for us, in the present age, to measure the degree of courage and noble principle which impelled these excellent monks to vindicate the rights of the oppressed against the authority of the Church, the ambition of the Crown, the avarice and pride of their countrymen, and the prejudices of their own Order.
These were the early streaks of dawn, the earnest of the coming day. The maritime discoveries of the fifteenth and sixteenth centuries had given an extraordinary impulse to international intercourse; and the frequency of wars, though it did not create a common standard of jurisprudence by which military and maritime questions could be regulated, showed how much such a standard was required. War itself, it was perceived, even for the advantage of the belligerents, had its rules; an enemy had his rights; there were also distinct questions relating to alliance and neutrality; and a customary code had grown up by degrees to be administered with something like precision, in matters to which no state could apply its particular jurisprudence with any hope of reciprocity. It was to be expected, perhaps, that the systematic reduction of the practice of nations in the conduct of war to legitimate rules should emanate from the camp rather than from the cloister. Accordingly we find a treatise by Balthasar Ayala, the judge advocate of the Spanish army in the Netherlands, dedicated in 1581 to the Prince of Parma, under whom he served. To this work we may refer, as the opening of a great subject on a basis strictly within the province of international jurisprudence, and disconnected from theological casuistry.
Ayala lays down the general principles upon which the right of hostilities rests, without subtlety or chicanery. Victoria had maintained that necessity alone can justify a declaration of war, and that when war has been declared for a just cause, it should be carried on, not with a view to destroy the enemy, but in order to secure a durable peace. Ayala proceeds to show that a war is just which is undertaken for the defence of a state, its subjects, its property, or its allies, or for the recovery of what has been carried off by an enemy; and Mr. Hallam has observed, with good reason, that Grotius, who refers to Ayala with commendation, is mistaken in saying that Ayala has not touched the grounds of justice and injustice in war. “Causas, unde bellum justum aut injustum dicitur, Ayala non tetigit.” (Prolegomena, § 38.) Ayala, with Victoria, explicitly denied the right of levying war against infidels, even by the authority of the Pope, on the mere ground of religion, as their infidelity did not deprive them of the right of dominion, which they possess by the law of nations.
Allusion has been already made to the influence of the Reformation upon the system of European jurisprudence. It had been the habit of publicists, antecedently to that event, to invoke the authority of canonists equally as of the old Roman jurisconsults; and whilst the entire brotherhood of European princes acknowledged one and the same spiritual chief, his authority was binding upon their consciences, and his interference on critical occasions was as necesary as it was acceptable. The prerogative, however, of the Holy See in such matters had been strained too far. Catholic divines had impugned it in theory; Protestant princes were not likely to respect it in practice. Accordingly, we find that Queen Elizabeth of England, when Mendoza, the Spanish ambassador, remonstrated against the expedition of Francis Drake, replied that she did not understand why either her subjects, or those of any other European prince, should be debarred from traffic in the Indies; that as she did not acknowledge the Spaniards to have any title by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were in actual possession of.—(Camden’s Annals, anno 1580.)
The chain which links together the casuistic theology of the Schoolmen with the particular jurisprudence that relates to the intercourse of nations, would not have been complete without the work of Suarez of Granada, one of the greatest men in the department of ethical science, whom the Society of Loyola has produced. Having discussed the principles of natural law and of positive jurisprudence in a very systematic manner, and with an acuteness which led Grotius to pronounce him to be so subtle a philosopher and theologian as almost to be without an equal, “tantae subtilitatis philosophum et theologum, ut vix quemquam habeat parem,” Suarez proceeds to discuss those larger principles of jurisprudence which connect that science with general morals, and especially such as relate to the intercourse of nations. He was the first to point out that the intercourse of independent states was regulated not merely by principles of natural law, but by usages long observed and uniformly acted upon. “Nunquam enim civitates sunt sibi tam sufficientes, quin indigeant mutuo juvamine et societate, interdum ad majorem utilitatem, interdum ob necessitatem moralem. Hac igitur ratione indigent aliquo jure quo dirigantur et recte ordinentur in hoc genere societatis. Et quamvis magna ex parte hoc fiat per rationem naturalem, non tamen sufficienter et immediate quoad omnia, ideoque specialia jura poterant usu earundem gentium introduci,” (Suarez, de Legibus, c. II. 1. II. § 9. et seq.) This is the first recognition of an usage or consuetudo amongst nations, which was binding as a rule of intercourse amongst them; and upon this subject the views of Suarez were more definite and more clear than those of his contemporary, Albericus Gentilis, the last of the pioneers of juridical science, whose works it will be necessary to notice on the present occasion, and whose labours contributed to clear the way for Grotius.
Whilst Mr. Hallam is disposed to consider the treatise of Ayala as the first book that systematically reduced the practice of nations in the conduct of war to legitimate rules, Lampredi, a very competent judge, claims for his fellow-countryman Albericus Gentilis the honour of being entitled the father of the modern science of Public Law. Gentilis was a native of Ancona. His father, having adopted the Reformed Faith, found himself obliged to leave his native country and to remove with his family into Germany. He thereupon sent his son Alberic into England, where, through the favour of the Earl of Leicester, he was promoted to the chair of Civil Law in the university of Oxford. His writings on Roman jurisprudence are numerous; and his treatise on the law of embassy was dedicated to Sir Philip Sidney. His attention, however, was more especially directed to questions of international law, by the circumstance of his being the advocate of the Spanish embassy before the Prize Court in London; and his treatise entitled “Advocationes Hispanicae” may be regarded as the earliest collection of judicial decisions on the maritime Law of Nations. His most remarkable work was a Treatise on the Right of War, published in 1589, and dedicated to Lord Essex, and to which work Grotius was indebted in a greater degree than to that of Ayala. Grotius himself acknowledges his obligation, both directly in the Prolegomena to his great work, and indirectly by adopting almost precisely the same order and division of subjects in his first and third books, as Gentilis had sketched out. Gentilis, it must be admitted, had ranged over the whole field of public faith, and discussed the rights both of war and victory; but he had only set up the framework, whilst Grotius constructed a complete edifice; and where the heading of many chapters in both writers is the same, it will be found that Grotius enters more deeply into the subject, and reasons much more from principles, whilst he relies less on the authority of mere precedent or of legal opinions, not a few of which, he observes, are adopted to suit the interest of those who consult the framers of them; in a word, to use Mr. Hallam’s vigorous language, Grotius in almost every chapter is a philosopher, where Gentilis is a compiler.
It is not proposed on the present occasion to institute any examination of the various collections of rules, by which questions of maritime law had come to be regulated between individual members of different political communities, such as the Consolato del Mare, which was a manual of maritime law for traders in the ports of Spain and Italy, the Roles or Jugemens d’Oleron, which form the substance of the Black Book of the British Admiralty, the Laws Maritime of Wisby, which prevailed in many ports of the Baltic, and the Code of the Hanse League; I merely allude to them thus briefly, lest I should be supposed to have overlooked their existence in connection with a department of the law of nations. They were certainly most important contributions to the maritime branch of that law; and whilst the intercourse of nations was confined to maritime commerce they supplied rules, founded upon usage, to meet the necessities of the questions which had hitherto arisen, or were thought likely to arise. Their great value was, that they cast into a permanent type and placed on record the usage of nations in certain matters, and brought mankind to respect that general usage as constituting a rule to which individuals, without respect to nationalities, were required to conform. They practically prepared the way for the admission of the legal doctrine which Hooker had foreshadowed in the first book of his Ecclesiastical Polity. “The Law of Nations,” he writes is a [“]third kind of law, which toucheth all such several bodies political, so far forth as one of them hath public commerce with another. The strength and virtue of that law is such that no particular nation can prejudice the same by any their several laws and ordinances, more than a man by his private resolutions the laws of the whole commonwealth or state in which he liveth. For as civil law, being the act of the whole body politic, doth overrule each several part of the same body, so there is no reason that any one commonwealth of itself should, to the prejudice of another, annihilate that whereupon the whole world has agreed.”
It is acknowledged by every one, in the language of Mr. Hallam, one of the latest and ablest of the numerous writers who have discussed the merits of the treatise of Grotius on the Right of War and Peace, that the publication of this work marked an epoch in the philosophical, and it may be said, in the political history of Europe. According to one of the letters of Grotius to Gassendi, quoted by Stewart, and alluded to by Barbeyrac, the scheme was suggested to him by Peirescius. Sir James Mackintosh couples with Peirescius the name of our great countryman Lord Bacon, as having by his advice contributed to the undertaking of so arduous a task. “It may be reckoned,” writes Mr. Hallam, “as a proof of the extraordinary diligence as well as quickness of parts which distinguished this writer, that it occupied a very short part of his life. He first mentions it in a letter to the younger Thuanus in August 1623, that he was employed in examining the principal questions which belong to the Law of Nations. In the same year he recommends the study of that law to another of his correspondents in terms which denote his own attention to it.” The work itself was published in Paris two years later, in 1625. It had been composed by its illustrious author in the house of the President de Mesmes near Senlis in France, whither he had retired on his escape from the fortress of Louvestein. The story of his wife’s devotion and successful exertions in procuring his escape is well known. He had been distinguished in his own country as a statesman and a philosophical lawyer; he was almost equally celebrated as an historian and a divine. Having entered warmly into the controversy between the Arminians and the Gomarists, he was involved in the misfortunes of the pensionary Barnevelt, and of the Arminian party; and the philosopher of Delft, after the execution of his political chief, was in 1619 condemned to perpetual imprisonment.
The horrors of the civil war which had desolated his country, brought home to his attention the cruelty and injustice of which, to use his own words, even barbarians might be ashamed. War was declared upon the slightest pretext, or without any pretext at all; and when arms were once taken up, all reverence for laws human or divine was laid aside, as if an edict had been published for the commission of every act of crime. Videbam per Christianum orbem vel barbaris gentibus pudendam bellandi licentiam, levibus aut nullis de causis ad arma procurri, quibus semel sumtis nullam juris divini, nullam humani juris reverentiam, plane quasi uno edicto ad omnia scelera emisso furore. (Prolegomena, § 28.)
Grotius had entered his prison with the prospect of perpetual seclusion from the active duties of a citizen, and in this respect his exile in a foreign land made no change in his condition; so that the political repose which was forced upon him by his exile, gave him an opportunity to mature his views and cultivate, in the interest of his fellow-men at large, the noblest part of jurisprudence, that which is conversant with questions touching the universal fellowship of the human race. “Having practised jurisprudence in public in my own country, with all possible integrity” (such are his own modest words), “I would now, in what remains to me, undeservedly banished from that country, graced by so many of my labours, promote the same subject, jurisprudence, by my private studies.”
The public reputation of the author was thus of itself not unlikely to attract attention to any work which came from his pen. Another circumstance should not be overlooked,—that a school of divines, amongst whom Erasmus was conspicuous, had declared all war to be unlawful, with a similar object, perhaps, to that with which, when a rod has been twisted in one direction, men bend it forcibly in another, under the hope of making it become straight. A writer, therefore, who undertook to moderate, not to interdict, the use of arms, and who sought to mitigate the practice of warfare, whilst he admitted the necessity of war itself, and its lawfulness when it was necessary, would be readily welcomed by statesmen, who were anxious to provide a remedy for the licence which permitted everything in war.
I have observed that the writings of Grotius form an epoch in the political history of Europe. The extraordinary influence which they exercised may be doubted by those who are unacquainted with the disputes of the seventeenth century. His treatise, De Jure Pacis et Belli, was published at Paris in 1625. It was dedicated to Louis XIII. of France. Its appearance worked a positive revolution in the political conduct of princes and statesmen. Mr. Hallam observes that “it may be considered as nearly original in its general platform as any work of man in an advanced state of civilisation and learning. It is more so, perhaps, than those of Montesquieu and Smith.” I should myself be disposed to place it above the writings of Montesquieu, but should be content to see it take rank with the great work of Adam Smith, “On the Wealth of Nations.”
“Those who sought a guide to their own consciences, or to 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 guide or justify their conduct.” Numerous editions of the work circulated rapidly throughout Europe. Written originally in Latin, it was speedily translated into various languages. Jurists of note did not hesitate to publish annotations and commentaries upon it; and so numerous were the former, that the work itself during the author’s life was edited cum notis variorum, a distinction hitherto confined to the ancient classics.
King Gustavus Adolphus of Sweden is said to have found so much satisfaction in the perusal of the treatise of Grotius, that he slept with it under the pillow of his camp-bed during the Thirty Years War; and his admiration for its author determined him to retain him in his service. The Chancellor Oxenstiern carried out the wishes of that monarch, after his untimely death at Lützen, by sending Grotius, as the ambassador of Sweden, to the court of Louis XIII.
Such success, however, could not be achieved without great opposition; and parties were everywhere arrayed against the doctrines of the new school. To such a height did prejudice and established habit carry learned men, that, as Barbeyrac informs us, it was seriously contended by the opponents of the Grotians,—for his supporters were so stigmatised,—that its maxims went to destroy the three cardinal principles of the Civil Law, to wit, “Honeste vivere, neminem laedere, suum cuique tribuere.”
Within thirty or forty years, however, the work of Grotius was generally received as authority in the Continental universities, and deemed to be a requisite preparation for the student of civil law, at least in the Protestant countries of Europe, for it should be mentioned that it was soon placed by the Roman censors in the Index. In 1656, it was taught in the university of Wurtemburg as public law; and in 1661, the Elector Palatine set the example of founding a chair of the Law of Nature and Nations in the university of Heidelberg, the occupant of which was expressly directed to expound the writings of Grotius,—much in the same manner as the chair of Political Economy in the university of Cambridge, has been founded within recent memory expressly for the discussion of the doctrines of Adam Smith.
The subject of the work of Grotius was, as may readily be supposed, far more extensive than the title. Under the modest pretext of discussing the rights of war and peace, he ventured to lead his readers out of the beaten path, and to teach them that there was a law distinct from the Law of Nature, or the Jus Gentium of the Roman system, which was common to all or most nations, which had been tacitly acted upon and generally received by common consent, and which was for the advantage not of one body in particular, but of all in general. To this law Grotius gave, for the first time, the name of “the Law of Nations” by way of distinction from “the Law of Nature;” not that Grotius thereby intended to deny the application of the great principles of natural law to the relations between commonwealths; on the contrary, he expressly declared it to be for the interest of mankind that the law which is common to many nations, whether derived from nature, or instituted by divine command, or introduced by tacit consent and established by custom, should be treated of universally and methodically; but he wished more especially to reduce into a system the rules of intercourse which were practised between nations, instead of leaving the whole fabric to rest on general principles, the application of which might be maintained or denied by each nation in its transactions with its neighbours, according as it suited its convenience, or as the occasion might seem to warrant.
“I have employed,” he says, “by way of evidence of the existence of this law, the testimonies of philosophers, historians, poets, and in the last place, orators, not that implicit credit is to be given to them, for it is usual for them to serve their party, or their subject, or their cause, but because when many persons at different times and in different places affirm the same thing for certain, that circumstance ought to be ascribed to some general cause, which in the questions treated by us cannot be any other than a correct inference from some natural principles, or an universal consent. The former of these indicates the Law of Nature, the latter the Law of Nations, the difference between which must not be judged of from the language of their testimonies, for writers everywhere confound the terms ‘law of nature’ and ‘law of nations,’ but from the quality of the subject matter. For whatever cannot be deduced by clear reasoning from certain principles, and yet appears to be everywhere observed, must have had its origin in the free consent of all.” (Prolegomena, § 41.) I do not profess, upon the present occasion, to enter into any minute examination of the mode in which Grotius executed his task. The work consists of three books. To use his own language, in the first book he has examined the general question whether any war is just; next, in order to distinguish between public and private war, he has explained the nature of sovereignty, what peoples, what kings, have it in full, what in part, what with a right of alienation, what otherwise; and afterwards he has spoken of the duty of subjects to their sovereigns.
In the second book, he undertakes to explain all the causes from which war may arise, and he examines what things are in common, what are property, what are the rights of persons over persons, what obligation arises from dominion, what is the rule of royal succession, what rights are obtained by covenant or contract, what is the force and interpretation of treaties and alliances, what of oaths public and private, what compensation is due for damage done, what is the sacred character of ambassadors, what the right of burying the dead, what the nature of punishments.
In the third book, he discusses in the first place what is lawful in war, and, after making a distinction between those acts which may be done with impunity, or may even, in dealing with foreigners, be defended as consistent with right, and those acts which are really free from fault, he descends to the different kinds of peace, and to the variety of conventions in war. (Prolegomena, §§ 34, 35, 36.)
Such is the account of his work, which Grotius gives in the Prolegomena. To those who wish to become more intimately acquainted with the details of his system, I would suggest the perusal of the very full and able analysis which is to be found in the third volume of Mr. Hallam’s “History of the Literature of Europe.”
I have already alluded to the opposition which the treatise de Jure Belli et Pacis experienced during the lifetime of its author. Such a result was, perhaps, to be expected; error does not readily give way to truth. In England, indeed, the influence of Grotius was more slowly extended, and was ultimately much less general than on the continent of Europe. The peculiarity of our laws and some other reasons readily suggest themselves in explanation of this fact. Amongst other causes, some weight may be given to the controversy which Selden maintained in his Mare Clausum, composed as an answer to the treatise of Grotius de Mari Libero, which latter work was calculated to awaken a prejudice amongst Englishmen against anything else which came from the pen of its author. But it was hardly to be expected, that the new school of philosophy which sprang up in France in the eighteenth century, should have ventured to treat the work with contempt, and its author with contumely. When a book is little read it is easily misrepresented; and Rousseau, in his Contrât Social, has not hesitated to insinuate that Grotius confounds the fact with the right, and the duties of nations with their practice.
In our own country there have not been wanting writers who have assailed his style, or objected to his method. Paley, in his Moral Philosophy, finds fault with Grotius for quoting the opinions of poets and orators, of historians and philosophers, as authorities from whom there is no appeal. From this charge Sir James Mackintosh has amply vindicated the philosopher of Delft, and pointed out that he professedly invokes the writers of by-gone days, not as judges who have decided, but as witnesses who may assist the judgment of the reader.
“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, and they are neither warped by system, nor perverted by sophistry. They can attain none of their objects,—they can neither please nor pursuade,—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.”
The passage in Grotius, which has suggested this defence, is found in the Prolegomena, where Grotius says:—
“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.”
Mr. Hallam concurs with Sir James Mackintosh, when he says that it will be seen, on reference to this passage, that Grotius proposes to quote poets and orators cautiously, and rather as ornamental than authoritative supports of his argument. “In no one instance,” writes Mr. Hallam, 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 further than the rules of a pure taste allow, in accumulating quotations from poets, and that, in an age so impatient of prolixity as the last, this has stood much in the way of the general reader.”
I shall touch very briefly on the criticism of Jeremy Bentham, who condemns the work as having no definite stamp or character, but being sometimes political or ethical, sometimes historical or juridical, sometimes expository or censorial. From such charges it is not possible, perhaps it is not desirable, to vindicate Grotius altogether. There is no doubt a profusion of learning in his work, which sometimes rather encumbers than adorns it. The method is also somewhat disorderly; and too many scattered digressions occur. But the same objections may be taken to Adam Smith’s great work on the Wealth of Nations. The nature, however, of the subject, substantially demanded at the hands of the great master, that he should cite examples from the history of mankind to illustrate and support the application of the general principles of law and politics; on the other hand the principles of natural law are so interwoven with those of ethical science, that an entire separation of them was not very feasible, perhaps not altogether desirable.
The criticisms of Paley and Bentham, however, contain very mild censure in comparison with the scornful attack upon Grotius which is to be found in the first dissertation on the Progress of Philosophy by Dugald Stewart. The fame of this writer renders it necessary to vindicate the memory of one still more illustrious in reputation, from the hasty animadversion which he has passed upon him, in ignorance of the contents of his great work. Mr. Hallam, on a careful examination of Stewart’s criticisms, does not hesitate to say, that it is very manifest that Stewart had never read much of his work, or even gone over the titles of his chapters; 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 never read those pages of an author,” writes Mr. Hallam, “whom I had unfortunately not the opportunity of knowing personally, but whose researches have contributed so much to the delight and advantage of mankind, without pain or surprise. It would be too much to say that in several parts of the first dissertation, by no means in the first days 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 prejudice, hasty but inveterate, of which this eminent man seems to have been not a little susceptible.”
Dugald Stewart had read little of Grotius; and what little he had read, truth compels me to say that he did not care to understand, for I should be unwilling to suppose that he would have designedly distorted or misrepresented his doctrines. Far different were the views of Adam Smith, who speaks of Grotius, as of one who was the first “to attempt to give to the world anything like a system of those principles which ought to run through and 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.”
It is a satisfaction to be able to quote the deliberate judgment of so learned and so temperate a writer as Mr. Hallam in defence of a work, the defects of which have been magnified by writers too careless to make themselves acquainted with its merits, or strongly prejudiced, like Rousseau and other French writers, against the method of reasoning. The author, however, of the History of the Inductive Sciences, than whom perhaps no one is better versed in the Baconian method, has felt called upon not merely to defend Grotius, but to undertake an edition of his great work, which has lately appeared under the auspices of the syndics of the press of the university of Cambridge. “The work itself,” Dr. Whewell considers “to be characterised by solid philosophical principles consistently applied, by clear and orderly distinction of parts, by definite and exact notions, improved by the intellectual discipline of legal studies, by a pure and humane morality, always inclining to the higher side in disputed questions, and by a pervading though temperate spirit of religion.” These are no ordinary encomia, nor do they come from the pen of an ordinary critic.
With regard to the method of Grotius, it is essentially inductive. The proof of many of his positions was to be found in the custom of mankind; and that custom was to be established by a large induction. “Truth,” in his opinion, to apply to our subject the striking language of Milton, in his Discourse on unlicensed Printing “came once into the world with her divine Master, and was a perfect shape, most glorious to look upon; but when he ascended, and his apostles after him were laid asleep, then straight arose a wicked race of deceivers, who, as that story goes of the Egyptain Typhon, with his conspirators, how they dealt with the good Osiris, took the virgin Truth, hewed her lovely form into a thousand pieces, and scattered them to the four winds. From that time, ever since, the sad friends of truth, such as durst appear, imitating the careful search that was made for the mangled body of Osiris, went up and down gathering up limb by limb, still as they could find them.”
The above passage, which embodies the wild and vigorous imagery of the Commonwealth, was applied by Milton to illustrate the labours of the disciples of Faust and Gutenberg; but it is likewise most appropriate to the labourers in the general field of inductive science. Those who gaze on the perfect form in which their work results, know little of the painful stages which have been undergone in fitting together the disjected limbs of truth, just as mariners, who guide their vessels through dangerous shoals by well-known beacons, think little of the labours of those who have first explored and buoyed the channel, and who have set up the landmarks. Some of the later writers on international law have treated the doctrine of an universal law of nations, founded on the common agreement of mankind, as an empty fiction, to which nothing in fact really corresponds. But it never was intended by Grotius, to set up a rule like that which theologians have termed the golden rule of Vincentius Lirinensis, “Quod semper, et ubique, et ab omnibus.” The words of Grotius are, “there are two ways of investigating the Law of Nations. We ascertain this law either by arguing from the nature and circumstances of mankind, or by observing what is generally approved by all nations, at least by all civilised nations. The former is the more certain of the two; but the latter will lead us, if not with the same certainty, yet with a high degree of probability to the knowledge of this law. For such an universal approbation must arise from some universal principle; and this principle can be nothing else than the common sense or reason of mankind. (L. 1. c. 1. § 3.)
Grotius might have gone a step further, and might have said that this common consent of mankind was the voice of God declaring his will through the common conscience of the human race. It is thus indeed that many things which upon a priori reasoning might be justified by the Law of Nature as strictly deducible from admitted first principles, are condemned before the tribunal of the human conscience; and when the agreement of all the more civilised nations in such matters is ascertained, we are not at liberty to disregard it consistently with moral duty, nor may we safely fall back within the domain of abstract principle.