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.

[405] C. 22.

[406] C. 23.

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]

[407] C. 24.

[408] C. 25.

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]

[409] C. 25.

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]

[410] C. 26.

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]

[411] L. iii., c. 1.

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]

[412] L. iii., c. 1.

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]

[413] C. 2.

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]

[414] C. 3.

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]

[415] C. 4.

[416] C. 5.

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]

[417] C. 6.

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]

[418] C. 7.

[419] C. 8.

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]

[420] C. 9.

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]

[421] C. 10.

[422] C. 11.

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]

[423] C. 12.

[424] C. 13.

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]

[425] C. 14.

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]

[426] C. 15.

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]

[427] C. 16.

[428] C. 17.

[429] C. 19.

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]

[430] C. 19, § 11. There seems, as has been intimated above, to be some inconsistency in the doctrine of Grotius with respect to the general obligation of such promises, which he maintains in the second book; and now, as far as I collect his meaning, denies by implication.

[431] C. 19.

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]

[432] C. 20.

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]

[433] Id.

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]

[434] C. 20.

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]

[435] C. 21.

[436] C. 22.

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]

[437] C. 23.

[438] C. 24.

[439] C. 25.

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]

[440] Mackintosh, Discourse on the Study of the Law of Nature and Nations, p. 23 (edit. 1828).

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.

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.”

[441] De Augmentis, lib. vii.

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.

[442] Contrat Social.

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.

CHAPTER XXII.

Low estimation of the Seicentisti. 1. At the close of the sixteenth century, few remained in Italy to whom posterity has assigned a considerable reputation for their poetry. But the ensuing period has stood lower, for the most part, in the opinion of later ages than any other since the revival of letters. The seicentisti, the writers of the seventeenth century, were stigmatised in modern criticism, till the word has been associated with nothing but false taste and everything that should be shunned and despised. Those who had most influence in leading the literary judgment of Italy went back, some almost exclusively, to the admiration of Petrarch and his contemporaries, some to the various writers who cultivated their native poetry in the sixteenth century. Salvini is of the former class, Muratori of the latter.[443]

[443] Muratori, Della Perfetta Poesia, is one of the best books of criticism in the Italian language; in the second volume are contained some remarks by Salvini, a bigoted Florentine.

Not quite so great as formerly. 2. The last age, that is, the concluding twenty years of the eighteenth century, brought with it, in many respects, a change of public sentiment in Italy. A masculine turn of thought, an expanded grasp of philosophy, a thirst, ardent to excess, for great exploits and noble praise, has distinguished the Italian people of the last fifty years from their progenitors of several preceding generations. It is possible that the enhanced relative importance of the Lombards in their national literature, may have not been without its influence in rendering the public taste less fastidious as to purity of language, less fine in that part of æsthetic discernment which relates to the grace and felicity of expression, while it became also more apt to demand originality, nervousness, and the power of exciting emotion. The writers of the seventeenth century may, in some cases, have gained by this revolution; but those of the preceding ages, especially the Petrarchists whom Bembo had led, have certainly lost ground in national admiration.

Praise of them by Rubbi. 3. Rubbi, editor of the voluminous collection, called Parnaso Italiano, had the courage to extol the “seicentisti” for their genius and fancy, and even to place them, in all but style, above their predecessors. “Give them,” he says, “but grace and purity, take from them their capricious exaggerations, their perpetual and forced metaphors, you will think Marini the first poet of Italy, and his followers, with their fulness of imagery and personification, will make you forget their monotonous predecessors. I do not advise you to make a study of the seicentisti; it would spoil your style, perhaps your imagination; I only tell you that they were the true Italian poets; they wanted a good style, it is admitted, but they were so far from wanting genius and imagination, that these perhaps tended to impair their style.”[444]

[444] Parnaso Italiano, vol. xli. (Avvertimento). Rubbi, however, gives but two out of his long collection in fifty volumes, to the writers of the seventeenth century.

Also by Salfi. 4. It is probable that every native critic would think some parts of this panegyric, and especially the strongly hyperbolical praise of Marini, carried too far. But I am not sure that we should be wrong in agreeing with Rubbi, that there is as much Catholic poetry, by which I mean that which is good in all ages and countries, in some of the minor productions of the seventeenth as in those of the sixteenth age. The sonnets, especially, have more individuality and more meaning. In this, however, I should wish to include the latter portion of the seventeenth century. Salfi, a writer of more taste and judgment than Rubbi, has recently taken the same side, and remarked the superior originality, the more determined individuality, the greater variety of subjects, above all, what the Italians now most value, the more earnest patriotism of the later poets.[445] Those immediately before us, belonging to the first half of the century, are less numerous than in the former age; the sonnetteers, especially, have produced much less; and in the collections of poetry, even in that of Rubbi, notwithstanding his eulogy, they take up very little room. Some, however, have obtained a durable renown, and are better known in Europe than any, except the Tassos, that flourished in the last fifty years of the golden age.

[445] Salfi, Hist. Litt. de l’Italie (continuation de Ginguéné), vol. xii., p. 424.

Adone of Marini. 5. It must be confessed that the praise of a masculine genius, either in thought or language, cannot be bestowed on the poet of the seventeenth century whom his contemporaries most admired, Giovanni Battista Marini. He is, on the contrary, more deficient than all the rest in such qualities, and is indebted to the very opposite characteristics for the sinister influence he exerted on the public taste. He was a Neapolitan by birth, and gave to the world his famous Adone, in 1623. As he was then fifty-four years old, it may be presumed, from the character of the poem, that it was in great part written long before; and he had already acquired a considerable reputation by his other works. The Adone was received with an unbounded and ill-judging approbation; ill-judging in a critical sense, because the faults of this poem are incapable of defence, but not unnatural, as many parallel instances of the world’s enthusiasm have shown. No one had before carried the corruption of taste so far; extravagant metaphors, false thoughts and conceits on equivocal words are very frequent in the Adone; and its author stands accountable in some measure for his imitators, who during more than half a century looked up to Marini with emulous folly, and frequently succeeded in greater deviations from pure taste, without his imagination and elegance.

Its character. 6. The Adone is one of the longest poems in the world, containing more than 45,000 lines. He has shown some ingenuity in filling up the canvas of so slight a story by additional incidents from his own invention, and by long episodes allusive to the times in which he lived. But the subject, expanded so interminably, is essentially destitute of any superior interest, and fit only for an enervated people, barren of high thoughts and high actions, the Italy, notwithstanding some bright exceptions, of the seventeenth century. If we could overcome this essential source of weariness, the Adone has much to delight our fancy and our ear. Marini is, more than any other poet, the counterpart of Ovid; his fertility of imagination, his ready accumulation of circumstances and expressions, his easy flow of language, his harmonious versification, are in no degree inferior; his faults are also the same; for in Ovid we have all the overstrained figures and the false conceits of Marini. But the Italian poet was incapable of imitating the truth to nature and depth of feeling which appear in many parts of his ancient prototype, nor has he as vigorous an expression. Never does Marini rise to any high pitch; few stanzas, perhaps, are remembered by natives for their beauty, but many are graceful and pleasing, all are easy and musical.[446] “Perhaps,” says Salfi, “with the exception of Ariosto, no one has been more a poet by nature than he;”[447] a praise, however, which may justly seem hyperbolical to those who recall their attention to the highest attributes of poetry.

[446] Five stanzas of the seventh canto, being a choral song of satyrs and bacchanti, are thrown into versi sdruccioli, and have been accounted by the Italians an extraordinary effort of skill, from the difficulty of sustaining a metre which is not strong in rhymes with so much spirit and ease. Each verse also is divided into three parts, themselves separately sdruccioli, though not rhyming. One stanza will make this clear:—

Hor d’ellera s’adornino, e di pampino
I giovani, e le vergini più tenere,
E gemina nell’anima si stampino
L’imagine di Libero, e di Venere.
Tutti ardano, s’accendano, ed avampino,
Qual Semele, ch’al folgore fù cenere;
E cantino a Cupidine, ed a Bromio,
Con numeri poetici un’encomio.
Cant. vii., st. 118.

Though this metrical skill may not be of the highest merit in poetry, it is no more to be slighted than facility of touch in a painter.

[447] Vol. xiv., p. 147. The character of Marini’s poetry, which this critic has given, is in general very just, and in good taste. Corniani (vii., 123) has also done justice, and no more than justice, to Marini. Tiraboschi has hardly said enough in his favour; and as to Muratori, it was his business to restore and maintain a purity of taste, which rendered him severe towards the excesses of such poets as Marini.

And popularity. 7. Marini belongs to that very numerous body of poets who, delighted with the spontaneity of their ideas, never reject any that arise; their parental love forbids all preference, and an impartial law of gavelkind shares their page among all the offspring of their brain. Such were Ovid and Lucan, and such have been some of our own poets of great genius and equal fame. Their fertility astonishes the reader, and he enjoys for a time the abundant banquet; but satiety is too sure a consequence, and he returns with less pleasure to a second perusal. The censure of criticism falls invariably, and sometimes too harshly, on this sort of poetry; it is one of those cases where the critic and the world are most at variance; but the world is apt, in this instance, to reverse its own judgment, and yield to the tribunal it had rejected. “To Marini,” says an eminent Italian writer, “we owe the lawlessness of composition: the ebullition of his genius, incapable of restraint, burst through every bulwark, enduring no rule but that of his own humour, which was all for sonorous verse, bold and ingenious thoughts, fantastical subjects, a phraseology rather Latin than Italian, and in short aimed at pleasing by a false appearance of beauty. It would almost pass belief how much this style was admired, were it not so near our own time that we hear as it were the echo of its praise; nor did Dante, or Petrarch, or Tasso, or perhaps any of the ancient poets, obtain in their lives so much applause.”[448] But Marini, who died in 1625, had not time to enjoy much of this glory. The length of this poem, and the diffuseness which produces its length, render it nearly impossible to read through the Adone; and it wants that inequality which might secure preference to detached portions. The story of Psyche in the fourth canto may perhaps be as fair a specimen of Marini as could be taken: it is not easy to destroy the beauty of that fable, nor was he unfitted to relate it with grace and interest; but he has displayed all the blemishes of his own style.[449]

[448] Crescimbeni, ii. 470.

[449] The Adone has been frequently charged with want of decency. It was put to the ban of the Roman Inquisition, and grave writers have deemed it necessary to protest against its licentiousness. Andrès even goes so far as to declare, that no one can read the Adone whose heart as well as taste is not corrupt; and that both for the sake of good morals and good poetry, it should be taken out of every one’s hands. After such invectives, it may seem extraordinary that, though the poem of Marini must by its nature be rather voluptuous, it is by far less open to such an objection than the Orlando Furioso, nor more, I believe, than the Faëry Queen. No charge is apt to be made so capriciously as this.