46. What is the object of political society? Bodin begins by inquiring.

The greatest good, he answers, of every citizen, which is that of the

whole state. And this he places in the exercise of the virtues proper to

man, and in the knowledge of things natural, human, and divine. But as

all have not agreed as to the chief good of a single man, nor whether

the good of individuals be also that of the state, this has caused a

variety of laws and customs according to the humours and passions of

rulers. This first chapter is in a more metaphysical tone than we

usually find in Bodin. He proceeds in the next to the rights of families

(jus familiare), and to the distinction between a family and a

commonwealth. A family is the right government of many persons under one

head, as a commonwealth is that of many families.[1087] Patriarchal

authority he raises high, both marital and paternal, on each subject

pouring out a vast stream of knowledge: nothing that sacred and profane

history, the accounts of travellers, or the Roman lawyers could supply,

ever escapes the comprehensive researches of Bodin.[1088] He intimates

his opinion in favour of the right of repudiation, one of the many

proofs that he paid more regard to the Jewish than the Christian

law,[1089] and vindicates the full extent of the paternal power in the

Roman republic, deducing the decline of the empire from its relaxation.

[1087] Familia est plurium sub unius ac ejusdem patris familias

imperium subditorum, earumque rerum quæ ipsius propria sunt, recta

moderatio. He has an odd theory, that a family must consist of five

persons, in which he seems to have been influenced by some notions

of the jurists, that three families may constitute a republic, and

that fifteen persons are also the minimum of a community.

[1088] Cap. iii. 34. Bodin here protests against the stipulation

sometimes made before marriage, that the wife shall not be in the

power of the husband; “agreements so contrary to divine and human

laws, that they cannot be endured, nor are they to be observed even

when ratified by oath, since no oath in such circumstances can be

binding.”

[1089] It has always been surmised that Bodin, though not a Jew by

nativity, was such by conviction. This is strongly confirmed by his

Republic, wherein he quotes the Old Testament continually, and with

great deference, but seldom or never the New. Several passages

might be alleged in proof, but I have not noted them all down. In

one place, lib. i. c. 6, he says, Paulus, Christianorum sæculi sui

facile princeps, which is at least a singular mode of expression.

In another he mentions the test of true religion so as to exclude

all but the Mosaic. An unpublished work of Bodin, called the

Heptaplomeres, is said to exist in many manuscripts, both in France

and Germany; in which, after debating different religions in a

series of dialogues, he gives the advantage to Deism or Judaism,

for those who have seen it seem not to have determined which. No

one has thought it worth while to print this production. Jugler,

Hist. Literaria, p. 1740. Biogr. Univ. Niceron, xvii. 264.

|Domestic servitude.|

47. The patriarchal government includes the relation of master to

servant, and leads to the question whether slavery should be admitted

into a well-constituted commonwealth. Bodin, discussing this with many

arguments on both sides, seems to think that the Jewish law, with its

limitations as to time of servitude, ought to prevail, since the divine

rules were not laid down for the boundaries of Palestine, but being so

wise, so salutary, and of such authority, ought to be preferred above

the constitutions of men. Slavery, therefore, is not to be permanently

established; but where it already exists, it will be expedient that

emancipations should be gradual.[1090]

[1090] A posthumous work of Bodin, published in 1596, Universæ Naturæ

Theatrum, has been called by some a disguised Pantheism. This did

not appear, from what I have read of it, to be the case.

|Origin of commonwealths.|

48. These last are the rights of persons in a state of nature, to be

regulated, but not created by the law. “Before there was either city or

citizen, or any form of a commonwealth amongst men (I make use in this

place of Knolles’s very good translation), every master of a family was

master in his own house, having power of life and death over his wife

and children; but, after that force, violence, ambition, covetousness,

and desire of revenge had armed one against another, the issues of wars

and combats giving victory unto the one side, made the other to become

unto them slaves; and amongst them that overcame he that was chosen

chief and captain, under whose conduct and leading they had obtained the

victory, kept them also in his power and command as his faithful and

obedient servants, and the other as his slaves. Then that full and

entire liberty by nature, given to every man to live as himself best

pleased, was altogether taken from the vanquished, and in the

vanquishers themselves in some measure also diminished in regard of the

conqueror; for that now it concerned every man in private to yield his

obedience unto his chief sovereign; and he that would not abate anything

of his liberty, to live under the laws and commandments of another, lost

all. So the words of lord and servant, of prince and subject, before

unknown to the world, were first brought into use. Yea reason, and the

very light of nature leadeth us to believe very force and violence to

have given cause and beginning unto commonwealths.”[1091]

[1091] c. 6.

|Privileges of citizens.|

49. Thus, then, the patriarchal simplicity of government was overthrown

by conquest, of which Nimrod seems to have been the earliest instance;

and now fathers of families, once sovereign, are become citizens. A

citizen is a free man under the supreme government of another.[1092]

Those who enjoy more privileges than others are not citizens more than

they. “It is the acknowledgment of the sovereign by his free subject,

and the protection of the sovereign towards him that makes the citizen.”

This is one of the fundamental principles, it may be observed by us in

passing, which distinguish a monarchical from a republican spirit in

constitutional jurisprudence. Wherever mere subjection, or even mere

nativity, are held to give a claim to citizenship, there is an

abandonment of the republican principle. This, always reposing on a real

or imaginary contract, distinguishes the nation, the successors of the

first community, from alien settlers, and, above all, from those who are

evidently of a different race. Length of time must, of course, ingraft

many of foreign origin upon the native tree; but to throw open civil

privileges at random to new-comers is to convert a people into a casual

aggregation of men. In a monarchy the hereditary principle maintains an

unity of the commonwealth; which, though not entirely without danger,

may better permit an equality of privileges among all its subjects. Thus

under Caracalla, but in a period in which we should not look for good

precedents, the great name, as once it had been, of Roman citizen was

extended, east and west, to all the provinces of the empire.

[1092] Est civis nihil aliud quam liber homo, qui summa alterius

potestate obligatur.

|Nature of sovereign power.|

50. Bodin comes next to the relation between patron and client, and to

those alliances among states which bear an analogy to it. But he is

careful to distinguish patronage or protection from vassalage. Even in

unequal alliances, the inferior is still sovereign; and, if this be not

reserved, the alliance must become subjection.[1093] Sovereignty, of

which he treats in the following chapter, he defines a supreme and

perpetual power, absolute and subject to no law.[1094] A limited prince,

except so far as the limitation is confined to the laws of nature, is

not sovereign. A sovereign cannot bind his successor, nor can he be

bound by his own laws, unless confirmed by oath; for we must not

confound the laws and contracts of princes, the former depend upon his

will, but the latter oblige his conscience. It is convenient to call

parliaments or meetings of states-general for advice and consent, but

the king is not bound by them; the contrary notion has done much harm.

Even in England, where laws made in parliament cannot be repealed

without its consent, the king, as he conceives, does not hesitate to

dispose of them at his pleasure.[1095] And though no taxes are imposed

in England without consent of parliament, this is the case also in other

countries, if necessity does not prevent the meeting of the states. He

concludes, that the English parliament may have a certain authority, but

that the sovereignty and legislative power is solely in the king.

Whoever legislates is sovereign, for this power includes all other.

Whether a vassal or tributary prince is to be called sovereign, is a

question that leads Bodin into a great quantity of feudal law and

history; he determines it according to his own theory.[1096]

[1093] c. 7.

[1094] Majestas est summa in cives ac subditos legibusque soluta

postestas.

[1095] Hoc tamen singulare videri possit, quod, quæ leges populi

rogatione ac principis jussu feruntur, non aliter quam populi

comitiis abrogari possunt. Id enim Dellus Anglorum in Gallia

legatus mihi confirmavit; idem tamen confitetur legem probari aut

respui consuevisse contra populi voluntatem utcunque principi

placuerit. He is evidently perplexed by the case of England; and

having been in this country before the publication of his Latin

edition, he might have satisfied himself on the subject.

[1096] c. 9 and 10.

|Forms of government.|

|Despotism and monarchy.|

51. The second book of the Republic treats of the different species of

civil government. These, according to Bodin, are but three, no mixed

form being possible, since sovereignty or the legislative power is

indivisible. A democracy he defines to be a government where the

majority of the citizens possess the sovereignty. Rome he holds to have

been a democratic republic, in which, however, he is not exactly right;

and he is certainly mistaken in his general theory, by arguing as if the

separate definition of each of the three forms must be applicable after

their combination.[1097] In this chapter on despotic monarchy, he again

denies that governments were founded on original contract. The power of

one man, in the origin of political society, was absolute; and Aristotle

was wrong in supposing a fabulous golden age, in which kings were chosen

by suffrage.[1098] Despotism is distinguished from monarchy by the

subjects being truly slaves, without a right over their properties; but

as the despot may use them well, even this is not necessarily a

tyranny.[1099] Monarchy, on the other hand, is the rule of one man

according to the law of nature, who maintains the liberties and

properties of others as much as his own.[1100] As this definition does

not imply any other restraint than the will of the prince imposes on

himself, Bodin labours under the same difficulty as Montesquieu. Every

English reader of the Esprit des Loix has been struck by the want of a

precise distinction between despotism and monarchy. Tyranny differs,

Bodin says, from despotism, merely by the personal character of the

prince; but severity towards a seditious populace is not tyranny; and

here he censures the lax government of Henry II. Tyrannicide he

justifies in respect of an usurper who has no title except force, but

not as to lawful princes, or such as have become so by prescription.[1101]

[1097] lib. ii. c. 1.

[1098] In the beginning of states, quo societas hominum coalescere

cœpit, ac reipublicæ forma quædam constitui, unius imperio ac

dominatu omnia tenebantur. Fallit enim Aristoteles, qui aureum

illud genus hominum fabulis poeticis quam reipsa illustrius, reges

heroas suffragio creasse prodidit; cum omnibus persuasum sit ac

perspicuum monarchiam omnium primam in Assyria fuisse constitutam

Nimrodo principe, &c.

[1099] c. 2.

[1100] c. 3.

[1101] c. 4.

|Aristocracy.|

52. An aristocracy he conceives always to exist where a smaller body of

the citizens governs the greater.[1102] This definition, which has been

adopted by some late writers, appears to lead to consequences hardly

compatible with the common use of language. The electors of the House of

Commons in England are not a majority of the people. Are they,

therefore, an aristocratical body? The same is still more strongly the

case in France, and in most representative governments of Europe. We

might better say, that the distinguishing characteristic of an

aristocracy is the enjoyment of privileges, which are not communicable

to other citizens simply by anything they can themselves do to obtain

them. Thus no government would be properly aristocratical where a

pecuniary qualification is alone sufficient to confer political power;

nor did the ancients ever use the word in such a sense. Yet the question

might be asked, under what category we would place the _timocracy_,

or government of the rich.

|Senates and councils of state.|

53. Sovereignty resides in the supreme legislative authority; but this

requires the aid of other inferior and delegated ministers, to the

consideration of which the third book of Bodin is directed. A senate he

defines, “a lawful assembly of counsellors of state, to give advice to

them who have the sovereignty in every commonwealth; we say, to give

advice, that we may not ascribe any power of command to such a senate.”

A council is necessary in a monarchy; for much knowledge is generally

mischievous in a king. It is rarely united with a good disposition, and

with a moral discipline of mind. None of the emperors were so illiterate

as Trajan, none more learned than Nero. The counsellors should not be

too numerous, and he advises that they should retain their offices for

life. It would be dangerous as well as ridiculous, to choose young men

for such a post, even if they could have wisdom and experience, since

neither older persons, nor those of their own age, would place

confidence in them. He then expatiates, in his usual manner, upon all

the councils that have existed in ancient or modern states.[1103]

[1102] Ego statum semper aristocraticum esse, judico, si minor pars

civium cæteris imperat. c. 1.

[1103] c. 1.

|Duties of magistrates.|

54. A magistrate is an officer of the sovereign, possessing public

authority.[1104] Bodin censures the usual definitions of magistracy,

distinguishing from magistrates both those officers who possess no right

of command, and such commissioners as have only a temporary delegation.

In treating of the duty of magistrates towards the sovereign, he praises

the rule of the law of France, that the judge is not to regard private

letters of the king against the justice of a civil suit.[1105] But after

stating the doubt, whether this applies to matters affecting the public,

he concludes that the judge must obey any direction he receives, unless

contrary to the law of nature, in which case he is bound not to forfeit

his integrity. It is however better, as far as we can, to obey all the

commands of the sovereign, than to set a bad example of resistance to

the people. This has probably a regard to the frequent opposition of the

Parliament of Paris, to what it deemed the unjust or illegal ordinances

of the court. Several questions, discussed in these chapters on

magistracy, are rather subtle and verbal; and, in general, the

argumentative part of Bodin is almost drowned in his erudition.

[1104] c. 3.

[1105] c. 4.

|Corporations.|

55. A state cannot subsist without colleges and corporations, for mutual

affection and friendship is the necessary bond of human life. It is true

that mischiefs have sprung from these institutions, and they are to be

regulated by good laws; but as a family is a community natural, so a

college is a community civil, and a commonwealth is but a community

governed by a sovereign power; and thus the word community is common

unto all three.[1106] In this chapter we have a full discussion of the

subject; and, adverting to the Spanish Cortes and English Commons as a

sort of colleges in the state, he praises them as useful institutions,

observing, with somewhat more boldness than is ordinary to him, that in

several provinces in France there had been assemblies of the states,

which had been abolished by those who feared to see their own crimes and

peculations brought to light.

[1106] c. 7.

|Slaves, part of the state.|

56. In the last chapter of the third book, on the degrees and orders of

citizens, Bodin seems to think that slaves, being subjects, ought to be

reckoned parts of the state.[1107] This is, as has been

intimated, in conformity with his monarchical notions. He then enters

upon the different modes of acquiring nobility, and inveighs against

making wealth a passport to it; discussing also the derogation to

nobility by plebeian occupation. The division into three orders is

useful in every form of government.

[1107] Si mihi tabellæ ac jura suffragiorum in hac disputatione

tribuantur, servos æque ac liberos homines civitate donari cupiam.

By this he may only mean that he would desire to emancipate them.

|Rise and fall of states.|

57. Perhaps the best chapter in the Republic of Bodin is the first in

the fourth book, on the rise, progress, stationary condition,

revolutions, decline, and fall of states. A commonwealth is said to be

changed when its form of polity is altered; for its identity is not to

be determined by the long standing of the city walls; but when popular

government becomes monarchy, or aristocracy is turned to democracy, the

commonwealth is at an end. He thus uses the word _respublica_ in

the sense of polity or constitution, which is not, I think, correct,

though sanctioned by some degree of usage, and leaves his proposition a

tautological truism. The extinction of states may be natural or violent,

but in one way or the other it must happen, since there is a determinate

period to all things, and a natural season in which it seems desirable

that they should come to an end. The best revolution is that which takes

place by a voluntary cession of power.

|Causes of revolutions.|

58. As the forms of government are three, it follows that the possible

revolutions from one to another are six. For anarchy is the extinction

of a government, not a revolution in it. He proceeds to develop the

causes of revolutions with great extent of historical learning and with

judgment, if not with so much acuteness or so much vigour of style as

Machiavel. Great misfortunes in war, he observes, have a tendency to

change popular rule to aristocracy, and success has an opposite effect;

the same seems applicable to all public adversity and prosperity.

Democracy, however, more commonly ends in monarchy, as monarchy does in

democracy, especially when it has become tyrannical; and such changes

are usually accompanied by civil war or tumult. Nor can aristocracy, he

thinks, be changed into democracy without violence, though the converse

revolution sometimes happens quietly, as when the labouring classes and

traders give up public affairs to look after their own; in this manner

Venice, Lucca, Ragusa, and other cities have become aristocracies. The

great danger for an aristocracy is, that some ambitious person, either

of their own body or of the people, may arm the latter against them: and

this is most likely to occur, when honours and magistracy are conferred

on unworthy men, which affords the best topic to demagogues, especially

where the plebeians are wholly excluded: which, though always grievous

to them, is yet tolerable so long as power is intrusted to deserving

persons; but when bad men are promoted, it becomes easy to excite the

minds of the people against the nobility, above all, if there are

already factions among the latter, a condition dangerous to all states,

but mostly to an aristocracy. Revolutions are more frequent in small

states, because a small number of citizens is easily split into parties;

hence we shall find in one age more revolutions among the cities of

Greece or Italy than have taken place during many in the kingdoms of

France or Spain. He thinks the ostracism of dangerous citizens itself

dangerous, and recommends rather to put them to death, or to render them

friends. Monarchy, he observes, has this peculiar to it, that if the

king be a prisoner, the constitution is not lost; whereas, if the seat

of government in a republic be taken, it is at an end, the subordinate

cities never making resistance. It is evident that this can only be

applicable to the case, hitherto the more common one, of a republic, in

which the capital city entirely predominates. “There is no kingdom which

shall not, in continuance of time, be changed, and at length also be

overthrown. But it is best for them who least feel their changes by

little and little made, whether from evil to good, or from good to

evil.”

|Astrological fancies of Bodin.|

59. If this is the best, the next is the worst chapter in Bodin. It

professes to inquire, whether the revolutions of states can be foreseen.

Here he considers, whether the stars have such an influence on human

affairs, that political changes can be foretold by their means, and

declares entirely against it, with such expressions as would seem to

indicate his disbelief in astrology. If it were true, he says, that the

conditions of commonwealths depended on the heavenly bodies, there could

be yet no certain prediction of them; since the astrologers lay down

their observations with such inconsistency, that one will place the same

star in direct course at the moment that another makes it retrograde. It

is obvious that any one who could employ this argument, must have

perceived that it destroys the whole science of astrology. But, after

giving instances of the blunders and contradictions of these pretended

philosophers, he so far gives way as to admit that, if all the events

from the beginning of the world could be duly compared with the

planetary motions, some inferences might be deduced from them; and thus

giving up his better reason to the prejudices of his age, he

acknowledges astrology as a theoretical truth. The hypothesis of

Copernicus he mentions as too absurd to deserve refutation; since, being

contrary to the tenets of all theologians and philosophers and to common

sense, it subverts the foundations of every science. We now plunge

deeper into nonsense; Bodin proceeding to a long arithmetical

disquisition, founded on a passage in Plato, ascribing the fall of

states to want of proportion.[1108]

[1108] c. 2.

|Danger of sudden changes.|

60. The next chapter, on the danger of sudden revolutions in the entire

government, asserts that even the most determined astrologers agree in

denying that a wise man is subjugated by the starry influences, though

they may govern those who are led by passion like wild beasts. Therefore

a wise ruler may foresee revolutions and provide remedies. It is

doubtful whether an established law ought to be changed, though not good

in itself, lest it should bring others into contempt, especially such as

affect the form of polity. These, if possible, should be held immutable;

yet it is to be remembered, that laws are only made for the sake of the

community, and public safety is the supreme law of laws. There is

therefore no law so sacred that it may not be changed through necessity.

But, as a general rule, whatever change is to be made should be effected

gradually.[1109]

[1109] c. 3.

|Judicial power of the sovereign.|

61. It is a disputed question whether magistrates should be temporary or

perpetual. Bodin thinks it essential that the council of state should be

permanent, but high civil commands ought to be temporary.[1110] It is in

general important that magistrates shall accord in their opinions; yet

there are circumstances in which their emulation or jealousy may be

beneficial to a state.[1111] Whether the sovereign ought to exercise

judicial functions may seem, he says, no difficult question to those who

are agreed that kings were established for the sake of doing justice.

This, however, is not his theory of the origin of government; and after

giving all the reasons that can be urged in favour of a monarch-judge,

including as usual all historical precedents, he decides that it is

inexpedient for the ruler to pronounce the law himself. His reasons are

sufficiently bold, and grounded on an intimate knowledge of the vices of

courts, which he does not hesitate to pour out.[1112]

[1110] c. 4.

[1111] c. 5.

[1112] c. 6.

|Toleration of religions.|

62. In treating of the part to be taken by the prince, or by a good

citizen, in civil factions, after a long detail from history of

conspiracies and seditions, he comes to disputes about religion, and

contends against the permission of reasonings on matters of faith. What

can be more impious, he says, than to suffer the eternal laws of God,

which ought to be implanted in men’s minds with the utmost certainty, to

be called in question by probable reasonings? For there is nothing so

demonstrable, which men will not undermine by argument. But the

principles of religion do not depend on demonstrations and arguments,

but on faith alone; and whoever attempts to prove them by a train of

reasoning, tends to subvert the foundations of the whole fabric. Bodin

in this sophistry was undoubtedly insincere. He goes on, however, having

purposely sacrificed this cock to Æsculapius, to contend that, if

several religions exist in a state, the prince should avoid violence and

persecution; the natural tendency of man being to give his assent

voluntarily, but never by force.[1113]

[1113] c. 7.

|Influence of climate on government.|

63. The first chapter of the fifth book, on the adaptation of government

to the varieties of race and climate, has excited more attention than

most others, from its being supposed to have given rise to a theory of

Montesquieu. In fact, however, the general principle is more ancient;

but no one had developed it so fully as Bodin. Of this he seems to be

aware. No one, he says, has hitherto treated on this important subject,

which should always be kept in mind, lest we establish institutions not

suitable to the people, forgetting that the laws of nature will not bend

to the fancy of man. He then investigates the peculiar characteristics

of the northern, middle, and southern nations, as to physical and moral

qualities. Some positions he has laid down erroneously; but, on the

whole, he shows a penetrating judgment and comprehensive generalisation

of views. He concludes that bodily strength prevails towards the poles,

mental power towards the tropics; and that the nations lying between

partake in a mixed ratio of both. This is not very just; but he argues

from the great armies that have come from the north, while arts and

sciences have been derived from the south. There is certainly a

considerable resemblance to Montesquieu in this chapter; and like him,

with better excuse, Bodin accumulates inaccurate stories. Force prevails

most with the northerns, reason with the inhabitants of a temperate or

middle climate, superstition with the southerns; thus astrology, magic,

and all mysterious sciences have come from the Chaldeans and Egyptians.

Mechanical arts and inventions, on the other hand, flourish best in

northern countries, and the southerns hardly know how to imitate them,

their genius being wholly speculative, nor have they so much industry,

quickness in perceiving what is to be done, or worldly prudence. The

stars appear to exert some influence over national peculiarities; but

even in the same latitudes great variety of character is found, which

arises from a mountainous or level soil, and from other physical

circumstances. We learn by experience, that the inhabitants of hilly

countries and the northern nations generally love freedom, but having

less intellect than strength, submit readily to the wisest among them.

Even winds are not without some effect on national character. But the

barrenness or fertility of the soil is more important; the latter

producing indolence and effeminacy, while one effect of a barren soil is

to drive the people into cities, and to the exercise of handicrafts for

the sake of commerce, as we see at Athens and Nuremburg, the former of

which may be contrasted with Bœotia.

64. Bodin concludes, after a profusion of evidence drawn from the whole

world, that it is necessary not only to consider the general character

of the climate as affecting an entire region, but even the peculiarities

of single districts, and to inquire what effects may be wrought on the

dispositions of the inhabitants by the air, the water, the mountains and

valleys, or prevalent winds, as well as those which depend on their

religion, their customs, their education, their form of government; for

whoever should conclude alike as to all who live in the same climate

would be frequently deceived; since, in the same parallel of latitude,

we may find remarkable differences even of countenance and complexion.

This chapter abounds with proofs of the comprehension as well as patient

research which distinguishes Bodin from every political writer who had

preceded him.

|Means of obviating inequality.|

65. In the second chapter, which inquires how we may avoid the

revolutions which an excessive inequality of possessions tends to

produce, he inveighs against a partition of property, as inconsistent

with civil society, and against an abolition of debts, because there can

be no justice where contracts are not held inviolable; and observes,

that it is absurd to expect a division of all possessions to bring about

tranquillity. He objects also to any endeavour to limit the number of

the citizens, except by colonisation. In deference to the authority of

the Mosaic law, he is friendly to a limited right of primogeniture, but

disapproves the power of testamentary dispositions, as tending to

inequality, and the admission of women to equal shares in the

inheritance, lest the same consequence should come through marriage.

Usury he would absolutely abolish, to save the poorer classes from ruin.

|Confiscations--rewards.|

66. Whether the property of condemned persons shall be confiscated is a

problem, as to which, having given the arguments on both sides, he

inclines to a middle course, that the criminal’s own acquisitions should

be forfeited, but what has descended from his ancestors should pass to

his posterity. He speaks with great freedom against unjust prosecutions,

and points out the dangers of the law of forfeiture.[1114] In the next,

being the fourth chapter of this book, he treats of rewards and

punishments. All states depend on the due distribution of these; but,

while many books are full of the latter, few have discussed the former,

to which he here confines himself. Triumphs, statues, public thanks,

offices of trust and command, are the most honourable; exemptions from

service or tribute, privileges, and the like, the most beneficial. In a

popular government, the former are more readily conceded than the

latter; in a monarchy, the reverse. The Roman triumph gave a splendour

to the republic itself. In modern times the sale of nobility, and of

public offices, renders them no longer so honourable as they should be.

He is here again very free-spoken as to the conduct of the French, and

of other governments.[1115]

[1114] c. 3.

[1115] c. 4.

|Fortresses.|

67. The advantage of warlike habits to a nation, and the utility of

fortresses, are then investigated. Some have objected to the latter, as

injurious to the courage of the people, and of little service against an

invader; and also, as furnishing opportunities to tyrants and usurpers,

or occasionally to rebels. Bodin, however, inclines in their favour,

especially as to those on the frontier, which may be granted as feudal

benefices, but not in inheritance. The question of cultivating a

military spirit in the people depends on the form of polity: in popular

states it is necessary; in an aristocracy, unsafe. In monarchies, the

position of the state with respect to its neighbours is to be

considered. The capital city ought to be strong in a republic, because

its occupation is apt to carry with it an entire change in the

commonwealth. But a citadel is dangerous in such a state. It is better

not to suffer castles, or strongholds of private men, as is the policy

of England; unless when the custom is so established, that they cannot

be dismantled without danger to the state.[1116]

[1116] c. 5.

|Necessity of good faith.|

68. Treaties of peace and alliance come next under review. He points out

with his usual prolixity the difference between equal and unequal

compacts of this kind. Bodin contends strongly for the rigorous

maintenance of good faith, and reprobates the civilians and canonists

who induced the council of Constance to break their promise towards John

Huss. No one yet, he exclaims, has been so consummately impudent, as to

assert the right of violating a fair promise; but one alleges the deceit

of the enemy; another, his own mistake; a third, the change of

circumstances, which has rendered it impossible to keep his word; a

fourth, the ruin of the state which it would entail. But no excuse,

according to Bodin, can be sufficient, save the unlawfulness of the

promise, or the impossibility of fulfilling it. The most difficult terms

to keep are between princes and their subjects, which generally require

the guarantee of other states. Faith, however, ought to be kept in such

cases; and he censures, though under an erroneous impression of the

fact, as a breach of engagement, the execution of the Duke of York in

the reign of Henry VI.; adding, that he prefers to select foreign

instances, rather than those at home, which he would wish to be buried

in everlasting oblivion. In this he probably alludes to the day of St.

Bartholomew.[1117]

[117] c. 6. Externa libentius quam domestica recordor, quæ utinam

sempiterna oblivione sepulta jacerent.

|Census of property.|

|Public revenues.|

69. The first chapter of the sixth book relates to a periodical census

of property, which he recommends as too much neglected. The Roman

censorship of manners he extols, and thinks it peculiarly required, when

all domestic coercion is come to an end. But he would give no coercive

jurisdiction to his censors, and plainly intimates his dislike to a

similar authority in the church.[1118] A more important disquisition

follows on public revenues. These may be derived from seven sources:

namely, national domains; confiscation of enemies’ property; gifts of

friendly powers; tributes from dependent allies; foreign trade carried

on by the state; tolls and customs on exports and imports; or, lastly,

taxes directly levied on the people. The first of these is the most

secure and honourable; and here we have abundance of ancient and modern

learning, while of course the French principle of inalienability is

brought forward. The second source of revenue is justified by the rights

of war and practice of nations; the third has sometimes occurred; and

the fourth is very frequent. It is dishonourable for a prince to be a

merchant, and thus gain a revenue in the fifth mode, yet the kings of

Portugal do not disdain this; and the mischievous usage of selling

offices in some other countries seems to fall under this head. The

different taxes on merchandise, or, in our language, of customs and

excise, come in the sixth place. Here Bodin advises to lower the import

duties on articles with which the people cannot well dispense, but to

lay them heavily on manufactured goods, that they may learn to practise

these arts themselves.

[1118] lib. vi. c. 1.

|Taxation.|

70. The last species of revenue, obtained from direct taxation, is never

to be chosen but from necessity; and as taxes are apt to be kept up when

the necessity is passed, it is better that the king should borrow money

of subjects than impose taxes upon them. He then enters on the history

of taxation in different countries, remarking it as peculiar to France,

that the burthen is thrown on the people to the ease of the nobles and

clergy, which is the case nowhere except with the French, among whom, as

Cæsar truly wrote, nothing is more despised than the common people.

Taxes on luxuries, which serve only to corrupt men, are the best of all;

those also are good which are imposed on proceedings at law, so as to

restrain unnecessary litigation. Borrowing at interest, or by way of

annuity, as they do at Venice, is ruinous. It seems, therefore, that

Bodin recommends loans without interest, which must be compulsory. In

the remainder of this chapter he treats of the best mode of expending

the public revenue, and advises that royal grants should be closely

examined, and, if excessive, be rescinded, at least after the death of

the reigning king.[1119]

[1119] c. 2.

|Adulteration of coin.|

71. Every adulteration of coin, to which Bodin proceeds, and every

change in its value is dangerous, as it affects the certainty of

contracts, and renders every man’s property insecure. The different

modes of alloying coin are then explained according to practical

metallurgy, and, assuming the constant ratio of gold to silver as twelve

to one, he advises that coins of both metals should be of the same

weight. The alloy should not be above one in twenty-four; and the same

standard should be used for plate. Many curious facts in monetary

history will be found collected in this chapter.[1120]

[1120] c. 3.

|Superiority of monarchy.|

72. Bodin next states fully and with apparent fairness, the advantages

and disadvantages both of democracy and aristocracy, and, admitting that

some evils belong to monarchy, contends that they are all much less than

in the two other forms. It must be remembered, that he does not

acknowledge the possibility of a mixed government; a singular error,

which, of course, vitiates his reasonings in this chapter. But it

contains many excellent observations on democratical violence and

ignorance, which history had led him duly to appreciate.[1121] The best

form of polity, he holds to be a monarchy by agnatic succession, such

as, in contradiction to Hottoman, he maintained to have been always

established in France, pointing out also the mischiefs that have ensued

in other countries for want of a Salic law.[1122]

[1121] c. 4.

[1122] c. 5.

|Conclusion of the work.|

73. In the concluding chapter of the work, Bodin, with too much parade

of mathematical language, descants on what he calls arithmetical,

geometrical, and harmonic proportions, as applied to political regimen.

As the substance of all this appears only to be, that laws ought

sometimes to be made according to the circumstances and conditions of

different ranks in society, sometimes to be absolutely equal, it will

probably be thought by most rather incumbered by this philosophy, which,

however, he borrowed from the ancients, and found conformable to the

spirit of learned men in his own time. Several interesting questions in

the theory of jurisprudence are incidentally discussed in this chapter,

such as that of the due limits of judicial discretion.

|Bodin compared with Aristotle and Machiavel.|

74. It must appear, even from this imperfect analysis, in which much has

been curtailed of its fair proportion, and many both curious and

judicious observations omitted, that Bodin possessed a highly

philosophical mind, united with the most ample stores of history and

jurisprudence. No former writer on political philosophy had been either

so comprehensive in his scheme, or so copious in his knowledge; none,

perhaps, more original, more independent and fearless in his inquiries.

Two names alone, indeed, could be compared with his: Aristotle and

Machiavel. Without, however, pretending that Bodin was equal to the

former in acuteness and sagacity, we may say that the experience of two

thousand years, and the maxims of reason and justice, suggested or

corrected by the gospel and its ministers, by the philosophers of Greece

and Rome, and by the civil law, gave him advantages, of which his

judgment and industry fully enabled him to avail himself. Machiavel,

again, has discussed so few, comparatively, of the important questions

in political theory, and has seen many things so partially, according to

the narrow experience of Italian republics, that, with all his

superiority in genius, and still more in effective eloquence, we can

hardly say that his Discourses on Livy are a more useful study than the

Republic of Bodin.

|And with Montesquieu.|

75. It has been often alleged, as we have mentioned above, that

Montesquieu owed something, and especially his theory of the influence

of climate, to Bodin. But, though he had unquestionably read the

Republic with that advantage which the most fertile minds derive from

others, this ought not to detract in our eyes from his real originality.

The Republic, and the Spirit of Laws bear, however, a more close

comparison than any other political systems of celebrity. Bodin and

Montesquieu are, in this province of political theory, the most

philosophical of those who have read so deeply, the most learned of

those who have thought so much. Both acute, ingenious, little respecting

authority in matters of opinion, but deferring to it in established

power, and hence apt to praise the fountain of waters whose bitterness

they exposed; both in advance of their age, but one so much that

his genius neither kindled a fire in the public mind, nor gained its own

due praise, the other more fortunate in being the immediate herald of a

generation which he stimulated, and which repaid him by its admiration;

both conversant with ancient and mediæval history, and with the Roman as

well as national law; both just, benevolent, and sensible of the great

object of civil society, but displaying this with some variation

according to their times; both sometimes seduced by false analogies, but

the one rather through respect to an erroneous philosophy, the other

through personal thirst of praise and affectation of originality; both

aware that the basis of the philosophy of man is to be laid in the

records of his past existence; but the one prone to accumulate

historical examples without sufficient discrimination, and to overwhelm,

instead of convincing the reader by their redundancy, the other aiming

at an induction from select experience, but hence appearing sometimes to

reason generally from particular premises, or dazzling the student by a

proof that does not satisfy his reason.[1123]

[1123] This account of Bodin’s Republic will be found too long by many

readers; and I ought, perhaps, to apologise for it on the score

that M. Lerminier, in his brilliant and agreeable Introduction à

l’Histoire Generale du Droit (Paris, 1829), has pre-occupied the

same ground. This, however, had escaped my recollection (though I

was acquainted with the work of M. L.) when I made my own analysis,

which has not been borrowed in a single line from his. The labours

of M. Lerminier are not so commonly known in England as to render

it unnecessary to do justice to a great French writer of the

sixteenth century.

As I have mentioned M. Lerminier, I would ask whether the following

is a fair translation of the Latin of Bodin:--Eo nos ipsa ratio

deducit, imperia scilicet ac respublicas vi primum coaluisse,

_etiam si ab historia deseramur_; quamquam pleni sunt libri,

plenæ leges, plena antiquitas. En établissant la théorie de

l’origine des sociétés, il declare qu’il y persiste, _quand même

les faits iraient à l’encontre_. Hist. du Droit. p. 62 and 67.

SECT. III.--ON JURISPRUDENCE.

_Golden Age of Jurisprudence--Cujacius--Other Civilians--Anti-Tribonianus

of Hottoman--Law of Nations--Franciscus a Victoria--Balthazar

Ayala--Albericus Gentilis._

|Golden age of jurisprudence.|

|Cujacius.|

76. The latter part of the sixteenth century, denominated by Andrès the

golden age of jurisprudence, produced the men who completed what Alciat

and Augustinus had begun in the preceding generation, by elucidating and

reducing to order the dark chaos which the Roman law, enveloped in its

own obscurities and those of its earlier commentators, had presented to

the student. The most distinguished of these, Cujacius, became professor

at Bourges, the chief scene of his renown, and the principal seminary of

the Roman law in France, about the year 1555. His works, of which many

had been separately published, were collected in 1577, and they make an

epoch in the annals of jurisprudence. This greatest of all civil lawyers

pursued the track that Alciat had so successfully opened, avoiding all

scholastic subtleties of interpretation, for which he substituted a

general erudition that rendered the science at once more intelligible

and more attractive. Though his works are voluminous, Cujacius has not

the reputation of diffuseness; on the contrary, the art of lucid

explanation with brevity is said to have been one of his great

characteristics. Thus, in the Paratitla on the Digest, a little book

which Hottoman, his rival and enemy, advised his own son to carry

constantly about with him, we find a brief exposition, in very good

Latin, of every title in order, but with little additional matter. And

it is said that he thought nothing requisite for the Institutes but

short clear notes, which his thorough admirers afterwards contrasted

with the celebrated but rather verbose commentaries of Vinnius.

|Eulogies bestowed upon him.|

77. Notwithstanding this conciseness, his works extend to a formidable

length. For the civil law itself is, for the most part, very concisely

written, and stretches to such an extent, that his indefatigable

diligence in illustrating every portion of it could not be satisfied

within narrow bounds. “Had Cujacius been born sooner,” in the words of

the most elegant of his successors, “he would have sufficed instead of

every other interpreter. For neither does he permit us to remain

ignorant of anything, nor to know anything which he has not taught. He

alone instructs us on every subject, and what he teaches is always his

own. Hence, though the learned style of jurisprudence began with Alciat,

we shall call it Cujacian.”[1124] “Though the writings of Cujacius are

so voluminous,” says Heineccius, “that scarce any one seems likely to

read them all, it is almost peculiar to him, that the longer any of his

books is, the more it is esteemed. Nothing in them is trivial, nothing

such as might be found in any other; everything so well chosen that the

reader can feel no satiety; and the truth is seen of what he answered to

his disciples, when they asked for more diffuse commentaries, that his

lectures were for the ignorant, his writings for the learned.”[1125] A

later writer, Gennari, has given a more fully elaborate character of

this illustrious lawyer, who might seem to have united every excellence

without a failing.[1126] But without listening to the enemies whom his

own eminence, or the polemical fierceness of some disputes in which he

was engaged, created among the jurists of that age, it has since been

observed, that in his writings may be detected some inconsistencies, of

which whole books have been invidiously compiled, and that he was too

prone to abuse his acuteness by conjectural emendations of the text; a

dangerous practice, as Bynkershoek truly remarks, when it may depend

upon a single particle whether the claim of Titius or of Marius shall

prevail.[1127]

[1124] Gravina, Origines, Juris Civilis, p. 219.

[1125] Heineccii Opera xiv. 203. He prefers the Observationes atque

Emendationes of Cujacius to all his other works. These contain

twenty-eight books, published, at intervals, from the year 1556.

They were designed to extend to forty books.

[1126] Respublica Jurisconsultorum, p. 237. Intactum in jurisprudentia

reliquit nihil, et quæ scribit, non tam ex aliis excerpta, quam a

se inventa, sane fatentur omnes; ita omnia suo loco posita, non

nimis protracta, quæ nauseam creant, non arcte ac jejune tractata,

quæ explicationis paullo diffusioris pariunt desiderium. Candida

perspicuitate brevis, elegans sub amabili simplicitate, caute

eruditus, quantum patitur occasio, ubique docens, ne aliqua parte

arguatur otiosus, tam nihil habet inane, nihil inconditum,

nihil curtum, nihil claudicans, nihil redundans, amœnus in

Observationibus, subtilis in Tractatibus, uber ac planus in

Commentariis, generosus in refellendis objectis, accuratus in

confingendis notis, in Paratitlis brevis ac succi plenus, rectus

prudensque in Consultationibus.

[1127] Heinecc. xiv. 209. Gennari, p. 199.

|Cujacius, an interpreter of law rather than a lawyer.|

78. Such was the renown of Cujacius that, in the public schools of

Germany, when his name was mentioned, every one took off his hat.[1128]

The continual bickerings of his contemporaries, not only of the old

Accursian school, among whom Albericus Gentilis was prominent in

disparaging him, but of those who had been trained in the steps of

Alciat like himself, did not affect this honest admiration of the

general student.[1129] But we must not consider Cujacius exactly in the

light of what we now call a great lawyer. He rejected all modern

forensic experience with scorn, declaring that he had misspent his youth

in such studies. We have, indeed, fifty of his consultations which

appear to be actual cases. But, in general, it is observed by Gravina

that both he and the greatest of his disciples “are but ministers of

ancient jurisprudence, hardly deigning to notice the emergent questions

of modern practice. Hence, while the elder jurists of the school of

Bartolus, deficient as they are in expounding the Roman laws, yet apply

them judiciously to new cases, these excellent interpreters hardly

regard anything modern, and leave to the others the whole honour of

advising and deciding rightly.” Therefore he recommends that the student

who has imbibed the elements of Roman jurisprudence in all their purity

from the school of Cujacius, should not neglect the interpretations of

Accursius in obscure passages; and, above all, should have recourse to

Bartolus and his disciples for the arguments, authorities, and

illustrations which ordinary forensic questions will require.[1130]

[1128] Gennari, p. 246. Biogr. Univ.

[1129] Heineccius, ibid. Gennari, p. 242.

[1130] Gravina, p. 222, 230.

|French lawyers below Cujacius; Govea and others.|

79. At some distance below Cujacius, but in places of honour, we find

among the great French interpreters of the civil law in this age,

Duaren, as devoted to ancient learning as Cujacius, but differing from

him by inculcating the necessity of forensic practice to form a perfect

lawyer;[1131] Govea, who, though a Portuguese, was always resident in

France, whom some have set even above Cujacius for ability, and of whom

it has been said that he is the only jurist who ought to have written

more;[1132] Brisson, a man of various learning, who became in the

seditions of Paris an unfortunate victim of his own weak ambition;

Balduin, a strenuous advocate for uniting the study of ancient history

with that of law; Godefroi, whose Corpus Juris Civilis makes an

epoch in jurisprudence, being the text-book universally received; and

Connan, who is at least much quoted by the principal writers on the law

of nature and nations. The boast of Germany was Gifanius.

[1131] Duarenus ... sine forensis exercitationis præsidio nec satis

percipi, nec recte commodeque doceri jus civile existimate.

Gennari, p. 179.

[1132] Goveanus ... vir, de quo uno desideretur, plura scripsisse, de

cæteris vero, pauciora.... quia felix ingenio, naturæ viribus

tantum confideret, ut diligentiæ laudem sibi non necessariam, minus

etiam honorificam putare videatur. Gennari, p. 281.

|Opponents of the Roman law.|

80. These “ministers of ancient jurisprudence” seemed to have no other

office than to display the excellences of the old masters in their

original purity. Ulpian and Papinian were to them what Aristotle and

Aquinas were to another class of worshippers. But the jurists of the age

of Severus have come down to us through a compilation in that of

Justinian; and Alciat himself had begun to discover the interpolations

of Tribonian, and the corruption which, through ignorance or design, had

penetrated the vast reservoir of the Pandects. Augustinus, Cujacius, and

other French lawyers of the school of Bourges followed in this track,

and endeavoured not only to restore the text from errors introduced by

the carelessness of transcribers, a necessary and arduous labour, but

from those springing out of the presumptuousness of the lawgiver

himself, or of those whom he had employed. This excited a vehement

opposition, led by some of the chief lawyers of France, jealous of the

fame of Cujacius. But while they pretended to rescue the orthodox

vulgate from the innovations of its great interpreter, another sect rose

up, far bolder than either, which assailed the law itself. Of these the

most determined were Faber and Hottoman.

|Faber of Savoy.|

81. Antony Faber, or Fabre, a lawyer of Savoy, who became president of

the court of Chamberi in 1610, acquired his reputation in the sixteenth

century. He waged war against the whole body of commentators, and even

treated the civil law itself as so mutilated and corrupt, so

inapplicable to modern times, that it would be better to lay it

altogether aside. Gennari says, that he would have been the greatest of

lawyers, if he had not been too desirous to appear such;[1133] his

temerity and self-confidence diminished the effect of his ability. His

mind was ardent and unappalled by difficulties; no one had more enlarged

views of jurisprudence, but in his interpretations he was prone to make

the laws rather what they ought to have been than what they were. His

love of paradox is hardly a greater fault than the perpetual carping at

his own master Cujacius, as if he thought the reform of jurisprudence

should have been reserved for himself.[1134]

[1133] P. 97.

[1134] Heineccius, p. 236. Fabre, says Ferriere, as quoted by

Terrasson, Hist. de la Jurisprudence, est celui des jurisconsultes

modernes qui a porté le plus loin les idées sur le droit. C’etoit

un esprit vaste que ne se rebutoit par de plus grandes difficultés.

Mais on l’accuse avec raison d’Avoir decidé un peu trop hardiment

contre les opinions communes, et de s’être donné souvent trop de

liberté de retrancher ou d’Ajouter dans les loix. See too the

article Favre, in Biographie Universelle.

|Anti-Tribonianus of Hottoman.|

82. But the most celebrated production of this party is the

Anti-Tribonianus of Hottoman. This was written in 1567, and though not

published in French till 1609, nor in the original till 1647, seems

properly to belong to the sixteenth century. He begins by acknowledging

the merit of the Romans in jurisprudence, but denies that the

compilation of Justinian is to be confounded with the Roman law. He

divides his inquiry into two questions: first, whether the study of

these laws is useful in France; and secondly, what are their

deficiencies. These laws, he observes by the way, contain very little

instruction about Roman history or antiquities, so that in books on

those subjects we rarely find them cited. He then adverts to particular

branches of the civil law, and shows that numberless doctrines are now

obsolete, such as the state of servitude, the right of arrogation, the

ceremonies of marriage, the peculiar law of guardianship, while for

matters of daily occurrence they give us no assistance. He points out

the useless distinctions between things _mancipi_ and _non

mancipi_, between the _dominium quiritarium_ and _bonitarium_; the modes

of acquiring property by mancipation, _cessio in jure_, _usucapio_, and

the like, the unprofitable doctrines about _fidei commissa_ and the _jus

accrescendi_. He dwells on the folly of keeping up the old forms of

stipulation in contracts, and those of legal process, from which no one

can depart a syllable without losing his suit. And on the whole he

concludes, that not a twentieth part of the Roman law survives, and of

that not one tenth can be of any utility. In the second part, Hottoman

attacks Tribonian himself, for suppressing the genuine works of great

lawyers, for barbarous language, for perpetually mutilating, transposing

and interpolating the passages which he inserts, so that no cohesion or

consistency is to be found in these fragments of materials, nor is it

possible to restore them. The evil has been increased by the herd of

commentators and interpreters since the twelfth century; those who have

lately appeared and applied more erudition rarely agreeing in their

conjectural emendations of the text, which yet frequently varies in

different manuscripts, so as to give rise to endless disputes. He ends

by recommending that some jurisconsults and advocates should be called

together, in order to compile a good code of laws; taking whatever is

valuable in the Roman system, and adding whatever from other sources may

seem worthy of reception, drawing them up in plain language, without too

much subtlety, and attending chiefly to the principles of equity. He

thinks that a year or two would suffice for the instruction of students

in such a code of laws, which would be completed afterwards, as was the

case at Rome, by forensic practice.

|Civil law not countenanced in France.|

83. These opinions of Hottoman, so reasonable in themselves, as to the

inapplicability of much of the Roman law to the actual state of society,

were congenial to the prejudices of many lawyers in France. That law had

in fact to struggle against a system already received, the feudal

customs which had governed the greater part of the kingdom. And this

party so much prevailed, that by the ordinance of Blois, in 1579, the

university of Paris was forbidden to give lectures or degrees in civil

law. This was not wholly regarded; but it was not till a century

afterwards, that public lectures in that science were re-established in

the university, on account of the uncertainty, which the neglect of the

civil law was alleged to have produced.

|Turamini.|

84. France now stood far pre-eminent in her lawyers. But Italy was not

wanting in men once conspicuous, whom we cannot afford time to mention.

One of them, Turamini, professor at Ferrara, though his name is not

found in Tiraboschi, or even in Gravina, seems to have had a more

luminous conception of the relation which should subsist between

positive laws and those of nature, as well as of their distinctive

provinces, than was common in the great jurists of that generation. His

commentary on the title De Legibus, in the first book of the Pandects,

gave him an opportunity for philosophical illustration. An account of

his writings will be found in Corniani.[1135]

[1135] Vol. vi. p. 197.

|Canon law.|

85. The canon law, though by no means a province sterile in the quantity

of its produce, has not deserved to arrest our attention. It was studied

conjointly with that of Rome, from which it borrows many of its

principles and rules of proceeding, though not servilely, nor without

such variations as the independence of its tribunals and the different

nature of its authorities might be expected to produce. Covarruvias and

other Spaniards were the most eminent canonists; Spain was distinguished

in this line of jurisprudence.

|Law of nations. Its early state.|

86. But it is of more importance to observe, that in this period we find

a foundation laid for the great science of international law, the

determining authority in questions of right between independent states.

Whatever had been delivered in books on this subject, had rested too

much on theological casuistry, or on the analogies of positive and local

law, or on the loose practice of nations, and precedents rather of arms

than of reason. The fecial law, or rights of ambassadors, was that which

had been most respected. The customary code of Europe, in military and

maritime questions, as well as in some others, to which no state could

apply its particular jurisprudence with any hope of reciprocity, grew up

by degrees to be administered, if not upon solid principles, yet with

some uniformity. The civil jurists, as being conversant with a system

more widely diffused, and of which the equity was more generally

recognised than any other, took into their hands the adjudication of all

these cases. In the fifteenth and sixteenth centuries, the progress of

international relations, and, we may add, the frequency of wars, though

it did not at once create a common standard, showed how much it was

required. War itself, it was perceived, even for the advantage of the

belligerents, had its rules; an enemy had his rights; the study of

ancient history furnished precedents of magnanimity and justice, which

put the more recent examples of Christendom to shame; the spirit of the

gospel could not be wholly suppressed, at least in theory; the

strictness of casuistry was applied to the duties of sovereigns; and

perhaps the scandal given by the writings of Machiavel was not without

its influence in dictating a nobler tone to the morality of

international law.

|Francis a Victoria.|

87. Before we come to works strictly belonging to this land of

jurisprudence, one may be mentioned which connects it with theological

casuistry. The Relectiones Theologicæ of Francis a Victoria, a

professor in Salamanca, and one on whom Nicolas Antonio and many other

Spanish writers bestow the highest eulogy, as the restorer of

theological studies in their country, is a book of remarkable scarcity,

though it has been published at least in four editions. Grotius has been

supposed to have made use of it in his own great work; but some of those

who since his time have mentioned Victoria’s writings on this subject,

lament that they are not to be met with. Dupin, however, has given a

short account of the Relectiones; and there are at least two copies in

England--one in the Bodleian Library, and another in that of Dr.

Williams in Redcross Street. The edition I have used is of Venice, 1626,

being probably the latest; it was published first at Lyons in 1557, at

Salamanca in 1565, and again at Lyons in 1587; but had become scarce

before its republication at Venice.[1136] It consists of thirteen

relections, as Victoria calls them, or dissertations on different

subjects, related in some measure to theology, at least by the mode in

which he treats them. The fifth, entitled De Indis, and the sixth, De

Jure Belli, are the most important.

[1136] This is said on the authority of the Venetian edition. But

Nicolas Antonio mentions an edition at Ingoldstadt in 1580, and

another at Antwerp in 1604. He is silent about those of 1587 and

1626. He also says that the Relectiones are twelve in number.

Perhaps he had never seen the book, but he does not advert to its

scarcity. Morhof, who calls it _Prælectiones_ names the two

editions of Lyons, and those of Ingoldstadt and Antwerp. Brunet,

Watts, and the Biographie Universelle do not mention Victoria at

all.

|His opinions on public law.|

88. The third is entitled, De Potestate Civili. In this he derives

government and monarchy from divine institution, and holds that, as the

majority of a state may choose a king whom the minority are bound to

obey, so the majority of Christians may bind the minority by the choice

of an universal monarch. In the chapter concerning the Indians, he

strongly asserts the natural right of those nations to dominion over

their own property and to sovereignty, denying the allegations founded

on their infidelity or vices. He treats this question methodically, in a

scholastic manner, giving the arguments on both sides. He denies that

the emperor, or the pope, is lord of the whole world, or that the pope

has any power over the barbarian Indians or other infidels. The right of

sovereignty in the king of Spain over these people he rests on such

grounds as he can find; namely, the refusal of permission to trade,

which he holds to be a just cause of war, and the cessions made to him

by allies among the native powers. In the sixth relection, on the right

of war, he goes over most of the leading questions, discussed afterwards

by Albericus Gentilis and Grotius. His dissertation is exceedingly

condensed, comprising sixty sections in twenty-eight pages; wherein he

treats of the general right of war, the difference between public war

and reprisal, the just and unjust causes of war, its proper ends, the

right of subjects to examine its grounds, and many more of a similar

kind. He determines that a war cannot be just on both sides, except

through ignorance; and also that subjects ought not to serve their

prince in a war which they reckon unjust. Grotius has adopted both these

tenets. The whole relection, as well as that on the Indians, displays an

intrepid spirit of justice and humanity, which seems to have been rather

a general characteristic of the Spanish theologians. Dominic Soto,

always inflexibly on the side of right, had already sustained by his

authority the noble enthusiasm of Las Casas.

|Ayala, on the rights of war.|

89. But the first book, so far as I am aware, that systematically

reduced the practice of nations in the conduct of war to legitimate

rules, is a treatise by Balthazar Ayala, judge-advocate (as we use the

word), to the Spanish army in the Netherlands, under the Prince of

Parma, to whom it is dedicated. The dedication bears date 1581, and the

first edition is said to have appeared the next year. I have only seen

that of 1597, and I apprehend every edition to be very scarce. For this

reason, and because it is the opening of a great subject, I shall give

the titles of his chapters in a note.[1137] It will appear, that

the second book of Ayala relates more to politics and to strategy than

to international jurisprudence; and that in the third he treats entirely

of what we call martial law. But in the first he aspires to lay down

great principles of public ethics; and Grotius, who refers to Ayala with

commendation, is surely mistaken in saying that he has not touched the

grounds of justice and injustice in war.[1138] His second chapter is on

this subject, in thirty-four pages; and though he neither sifts the

matter so exactly, nor limits the right of hostility so much as Grotius,

he deserves the praise of laying down the general principle without

subtlety or chicanery. Ayala positively denies, with Victoria, the right

of levying war against infidels, even by authority of the pope, on the

mere ground of their religion; for their infidelity does not deprive

them of right of dominion; nor was that sovereignty over the earth given

originally to the faithful alone, but to every reasonable creature. And

this, he says, has been shown by Covarruvias to be the sentiment of the

majority of doctors.[1139] Ayala deals abundantly in examples from

ancient history, and in authorities from the jurists.

[1137] Balth. Ayalæ, J. C. et exercitus regii apud Belgas supremi

juridici, de jure et officiis bellicis et disciplina militari,

libri tres. Antw. 1597. 12mo. pp. 405.

Lib. i.

c. 1. De Ratione Belli Indicendi, Aliisque Cæremoniis Bellicis.

2. De Bello Justo.

3. De Duello, sive Singulari Certamine.

4. De Pignerationibus, quas vulgo Represalias vocant.

5. De Bello Captis et Jure Postliminii.

6. De Fide Hosti Servanda.

7. De Fœderibus et Induciis.

8. De Insidiis et Fraude Hostili.

9. De Jure Legatorum.

Lib. ii.

c. 1. De Officiis Bellicis.

2. De Imperatore vel Duce Exercitus.

3. Unum non Plures Exercitui Præfici debere.

4. Utrum Lenitate et Benevolentia, an Severitate et Sævitia plus

proficiet Imperator.

5. Temporum Rationem præcipue in Bello Habendam.

6. Contentiosas et Lentas de Rebus Bellicis Deliberationes

admodum Noxias esse.

7. Dum Res sunt Integræ ne minimum quidem Regi vel Reipublicæ

de Majestate sua Concedendum esse; et errare eos qui

Arrogantiam Hostium Modestia et Patientia vinci posse

existimant.

8. An præstet Bellum Domi excipere, an vero in Hostilem Agrum

inferre.

9. An præstet Initio Prœlii Magno Clamore et Concitato Cursu in

Hostes pergere, an vero Loco manere.

10. Non esse Consilii invicem Infensos Civilibus Dissensionibus

Hostes Sola Discordia Fretum invadere.

11. Necessitatem Pugnandi Magno Studio Imponendam esse Militibus

et Hostibus Remittendam.

12. In Victoria potissimum de Pace Cogitandum.

13. Devictis Hostibus qua potissimum Ratione Perpetua Pace Quieti

obtineri possint [sic].

Lib. iii.

c. 1. De Disciplina Militari.

2. De Officio Legati et Aliorum qui Militibus præsunt.

3. De Metatoribus sive Mensoribus.

4. De Militibus, et qui Militare possunt.

5. De Sacramento Militari.

6. De Missione.

7. De Privilegiis Militum.

8. De Judiciis Militaribus.

9. De Pœnis Militum.

10. De Contumacibus et Ducum Dicto non Parentibus.

11. De Emansoribus.

12. De Desertoribus.

13. De Transfugis et Proditoribus.

14. De Seditiosis.

15. De Iis qui in Acie Loco cedunt aut Victi Se dedunt.

16. De Iis qui Arma alienant vel amittunt.

17. De Iis qui Excubias deserunt vel minus recte agunt.

18. De Eo qui Arcem vel Oppidum cujus Præsidio impositus est,

amittit vel Hostibus dedit.

19. De Furtis et Aliis Delictis Militaribus.

20. De Præmiis Militum.

[1138] Causas unde bellum justum aut injustum dicitur Ayala non

tetigit. De Jure B. and P. Prolegom. § 38.

[1139] Bellum adversus infideles ex eo solum quod infideles sunt, ne

quidem auctoritate imperatoris vel summi pontificis indici potest;

infidelitas enim non privat infideles dominio quod habent jure

gentium; nam non fidelibus tantum rerum dominia, sed omni

rationabili creaturæ data sunt.... Et hæc sententia plerisque

probatur, ut ostendit Covarruvias.

|Albericus Gentilis, on Embassies.|

90. We find next in order of chronology a treatise by Albericus Gentilis

De Legationibus, published in 1583. Gentilis was an Italian Protestant

who, through the Earl of Leicester, obtained the chair of civil law at

Oxford in 1582. His writings on Roman jurisprudence are numerous, but

not very highly esteemed. This work, on the law of Embassy, is dedicated

to Sir Philip Sydney, the patron of so many distinguished strangers. The

first book contains an explanation of the different kinds of embassies,

and of the ceremonies anciently connected with them. His aim, as he

professes, is to elevate the importance and sanctity of ambassadors, by

showing the practice of former times. In the second book he enters more

on their peculiar rights. The envoys of rebels and pirates are not

protected. But difference of religion does not take away the right of

sending ambassadors. He thinks that civil suits against public ministers

may be brought before the ordinary tribunals. On the delicate problem as

to the criminal jurisdiction of these tribunals over ambassadors

conspiring against the life of the sovereign, Gentilis holds, that they

can only be sent out of the country, as the Spanish ambassador was by

Elizabeth. The civil law, he maintains, is no conclusive authority in

the case of ambassadors, who depend on that of nations, which in many

respects is different from the other. This second book is the most

interesting, for the third chiefly relates to the qualifications

required in a good ambassador. His instances are more frequently taken

from ancient than modern history.

|His treatise on the Rights of War.|

91. A more remarkable work by Albericus Gentilis is his treatise, De

Jure Belli, first published at Lyons, 1589. Grotius acknowledges his

obligations to Gentilis, as well as to Ayala, but in a greater degree to

the former. And that this comparatively obscure writer was of some use

to the eminent founder, as he has been deemed, of international

jurisprudence, were it only for mapping his subject, will be evident

from the titles of his chapters, which run almost parallel to those of

the first and third books of Grotius.[1140] They embrace, as the reader

will perceive, the whole field of public faith, and of the rights both

of war and victory. But I doubt whether the obligation has been so

extensive as has sometimes been insinuated. Grotius does not, as far as

I have compared them, borrow many quotations from Gentilis, though he

cannot but sometimes allege the same historical examples. It will also

be found in almost every chapter, that he goes deeper into the subject,

reasons much more from ethical principles, relies less on the authority

of precedent, and is in fact a philosopher where the other is a compiler.

[1140]

Lib. i.

c. 1. De Jure Gentium Bellico.

2. Belli Definitio.

3. Principes Bellum gerunt.

4. Latrones Bellum non gerunt.

5. Bella juste geruntur.

6. Bellum juste geri utrinque.

7. De Caussis Bellorum.

8. De Caussis Divinis Belli Faciendi.

9. An Bellum Justum sit pro Religione.

10. Si Princeps Religionem Bello apud suos juste tuetur.

11. An Subditi bellent contra Principem ex Caussa Religionis.

12. Utrum sint Caussæ Naturales Belli Faciendi.

13. De Necessaria Defensione.

14. De Utili Defensione.

15. De Honesta Defensione.

16. De Subditis Alienis contra Dominum Defendendis.

17. Qui Bellum necessarie inferunt.

18. Qui utiliter Bellum inferunt.

19. De Naturalibus Caussis Belli inferendi.

20. De Humanis Caussis Belli inferendi.

21. De Malefactis Privatorum.

22. De Vetustis Caussis non Excitandis.

23. De Regnorum Eversionibus.

24. Si in Posteros movetur Bellum.

25. De Honesta Caussa Belli inferendi.

Lib. ii.

c. 1. De Bello Indicendo.

2. Si quando Bellum non indicitur.

3. De Dolo et Stratagematis.

4. De Dolo Verborum.

5. De Mendaciis.

6. De Veneficiis.

7. De Armis et Mentitis Armis.

8. De Scævola, Juditha, et Similibus.

9. De Zopiro et Aliis Transfugis.

10. De Pactis Ducum.

11. De Pactis Militum.

12. De Induciis.

13. Quando contra Inducias fiat.

14. De Salvo Conductu.

15. De Permutationibus et Liberationibus.

16. De Captivis, et non necandis.

17. De His qui se Hosti tradunt.

18. In Deditos, et Captos sæviri.

19. De Obsidibus.

20. De Supplicibus.

21. De Pueris et Fœminis.

22. De Agricolis, Mercatoribus, Peregrinis, Aliis Similibus.

23. De Vastitate et Incendiis.

24. De Cæsis sepeliendis.

Lib. iii.

c. 1. De Belli Fine et Pace.

2. De Ultione Victoris.

3. De Sumptibus et Damnis Belli.

4. Tributis et Agris multari Victos.

5. Victoris Acquisitio Universalis.

6. Victos Ornamentis Spoliari.

7. Urbes diripi, dirui.

8. De Ducibus Hostium Captis.

9. De Servis.

10. De Statu Mutando.

11. De Religionis Aliarumque Rerum Mutatione.

12. Si Utile cum Honesto Pugnet.

13. De Pace Futura Constituenda.

14. De Jure Conveniendi.

15. De Quibus cavetur in Fœderibus et in Duello.

16. De Legibus et Libertate.

17. De Agris et Postliminio.

18. De Amicitia et Societate.

19. Si Fœdus recte contrahitur cum Diversæ Religionis Hominibus.

20. De Armis et Classibus.

21. De Arcibus et Præsidiis.

22. Si Successores Fœderatorum tenentur.

23. De Ratihabitione, Privatis, Piratis, Exulibus, Adhærentibus.

24. Quando Fœdus violatur.

92. Much that bears on the subject of international law may probably be

latent in the writings of the jurists, Baldus, Covarruvias, Vasquez,

especially the two latter, who seem to have combined the science of

casuistry with that of the civil law. Gentilis, and even Grotius, refer

much to them; and the former, who is no great philosopher, appears to

have borrowed from that source some of his general principles. It is

honourable to these men, as we have already seen in Soto, Victoria, and

Ayala, that they strenuously defended the maxims of political justice.

CHAPTER XIV.

HISTORY OF POETRY FROM 1550 TO 1600.

SECT. I.--ON ITALIAN POETRY.

_Character of the Italian Poets of this Age--Some of the best

enumerated--Bernardino Rota--Gaspara Stampa--Bernardo Tasso--

Gierusalemme Liberata of Torquato Tasso._

|General character of Italian poets in this age.|

|Their usual faults.|

1. The school of Petrarch, restored by Bembo, was prevalent in Italy at

the beginning of this period. It would demand the use of a library,

formed peculiarly for this purpose, as well as a great expenditure of

time, to read the original volumes which this immensely numerous class

of poets, the Italians of the sixteenth century, filled with their

sonnets. In the lists of Crescimbeni, they reach the number of 661. We

must, therefore, judge of them chiefly through selections, which, though

they may not always have done justice to every poet, cannot but present

to us an adequate picture of the general style of poetry. The majority

are feeble copyists of Petrarch. Even in most of those who have been

preferred to the rest, an affected intensity of passion, a monotonous

repetition of customary metaphors, of hyperboles reduced to commonplaces

by familiarity, of mythological allusions, pedantic without novelty,

cannot be denied incessantly to recur. But, in observing how much they

generally want of that which is essentially the best, we might be in

danger of forgetting that there is a praise due to selection of words,

to harmony of sound, and to skill in overcoming metrical impediments,

which it is for natives alone to award. The authority of Italian critics

should, therefore, be respected, though not without keeping in mind both

their national prejudice, and that which the habit of admiring a very

artificial style must always generate.

|Their beauties.|

2. It is perhaps hardly fair to read a number of these compositions in

succession. Every sonnet has its own unity, and is not, it might be

pleaded, to be charged with tediousness or monotony, because the same

structure of verse, or even the same general sentiment, may recur in an

equally independent production. Even collectively taken, the minor

Italian poetry of the sixteenth century may be deemed a great repertory

of beautiful language, of sentiments and images, that none but minds

finely tuned by nature produce, and that will ever be dear to congenial

readers, presented to us with exquisite felicity and grace, and

sometimes with an original and impressive vigour. The sweetness of the

Italian versification goes far towards their charm; but are poets

forbidden to avail themselves of this felicity of their native tongue,

or do we invidiously detract, as we might on the same ground, from the

praise of Theocritus and Bion?

|Character given by Muratori.|

3. “The poets of this age,” says one of their best critics, “had, in

general, a just taste, wrote with elegance, employed deep, noble, and

natural sentiments, and filled their compositions with well-chosen

ornaments. There may be observed, however, some difference between the

authors who lived before the middle of the century and those who

followed them. The former were more attentive to imitate Petrarch, and

unequal to reach the fertility and imagination of this great master,

seemed rather dry, with the exception, always, of Casa and Costanzo,

whom, in their style of composition, I greatly admire. The later

writers, in order to gain more applause, deviated in some measure from

the spirit of Petrarch, seeking ingenious thoughts, florid conceits,

splendid ornaments, of which they became so fond, that they fell

sometimes into the vicious extreme of saying too much.”[1141]

[1141] Muratori, della Perfetta Poesia, i. 22.

|Poetry of Casa.|

4. Casa and Costanzo, whom Muratori seems to place in the earlier part

of the century, belong, by the date of publication at least, to this

latter period. The former was the first to quit the style of Petrarch,

which Bembo had rendered so popular. Its smoothness evidently wanted

vigour, and it was the aim of Casa to inspire a more masculine tone into

the sonnet, at the expense of a harsher versification. He occasionally

ventured to carry on the sense without pause from the first to the

second tercet; an innovation praised by many, but which, at that time,

few attempted to imitate, though, in later ages, it has become common,

not much perhaps to the advantage of the sonnet. The poetry of Casa

speaks less to the imagination, the heart, or the ear, than to the

understanding.[1142]

[1142] Casa ... per poco deviando dalla dolcezza del Petrarca, a un

novello stile diede principio, col quale le sue rime compose,

intendendo sopra il tutto alla gravitâ; per conseguir la quale, si

valse spezialmente del carattere aspro, e de’ raggirati periodi e

rotondi, insino a condurre uno stesso sentimento d’uno in altro

quadernario, e d’uno in altro terzetto; cosa in prima da alcuno non

più tentata; perlochè somma lode ritrasse de chiunque coltivò in

questi tempi la toscana poesia. Ma perche si fatto stile era

proprio, e adattato all’ingengo del suo inventore, molto difficile

riuscì il seguitarlo. Crescimbeni della volgar poesia, ii. 410. See

also Ginguéné, ix. 329. Tiraboschi, x. 22. Casa is generally, to my

apprehension, very harsh and prosaic.

|Of Costanzo.|

|Baldi.|

|Caro.|

5. Angelo di Costanzo, a Neapolitan, and author of a well-known history

of his country, is highly extolled by Crescimbeni and Muratori; perhaps

no one of these lyric poets of the sixteenth century is so much in

favour with the critics. Costanzo is so regular in his versification,

and so strict in adhering to the unity of subject, that the Society of

Arcadians, when, towards the close of the seventeenth century, they

endeavoured to rescue Italian poetry from the school of Marini, selected

him as the best model of imitation. He is ingenious, but perhaps a

little too refined; and by no means free from that coldly hyperbolical

tone in addressing his mistress, which most of these sonnetteers assume.

Costanzo is not to me, in general, a pleasing writer; though sometimes

he is very beautiful, as in the sonnet on Virgil, Quella cetra gentil,

justly praised by Muratori, and which will be found in most collections;

remarkable, among higher merits, for being contained in a single

sentence. Another, on the same subject, Cigni felici, is still better.

The poetry of Camillo Pellegrini much resembles that of Costanzo.[1143]

The sonnets of Baldi, especially a series on the ruins and antiquities

of Rome, appear to me deserving of a high place among those of the age.

They may be read among his poems; but few have found their way into the

collections by Gobbi and Rubbi, which are not made with the best taste.

Caro, says Crescimbeni, is less rough than Casa, and more original than

Bembo. Salfi extols the felicity of his style, and the harmony of his

versification; while he owns that his thoughts are often forced and

obscure.[1144]

[1143] Crescimbeni, vol. iv. p. 23.

[1144] Crescimbeni, ii. 429. Ginguéné (continuation par Salfi), ix. 12.

Caro’s sonnets on Castelvetro, written during their quarrel, are

full of furious abuse with no wit. They have the ridiculous

particularity that the last line of each is repeated so as to begin

the next.

|Odes of Celio Magno.|

6. Among the canzoni of this period, one by Celio Magno on the Deity

stands in the eyes of foreigners, and I believe of many Italians,

prominent above the rest. It is certainly a noble ode.[1145] Rubbi,

editor of the Parnaso Italiano, says that he would call Celio the

greatest lyric poet of his age, if he did not dread the clamour of the

Petrarchists. The poetry of Celio Magno, more than one hundred pages

extracted from which will be found in the thirty-second volume of that

collection, is not in general amatory, and displays much of that

sonorous rhythm and copious expression which afterwards made Chiabrera

and Guidi famous. Some of his odes, like those of Pindar, seem to have

been written for pay, and have somewhat of that frigid exaggeration

which such conditions produce. Crescimbeni thinks that Tansillo, in the

ode, has no rival but Petrarch.[1146] The poetry in general of Tansillo,

especially La Balia, which contains good advice to mothers about nursing

their infants very prosaically delivered, seems deficient in

spirit.[1147]

[1145] This will be found in the Componimenti Lirici of Mathias; a

collection good on the whole, yet not perhaps the best that might

have been made; nor had the editor at that time so extensive an

acquaintance with Italian poetry as he afterwards acquired.

Crescimbeni reckons Celio the last of the good age in poetry; he

died in 1612. He praises also Scipio Gaetano (not the painter of

that name) whose poems were published, but posthumously, in the

same year.

[1146] Della Volgar Poesia, ii. 436.

[1147] Roscoe republished La Balia, which was very little worth while;

the following is an average specimen:--

Questo degenerar, ch’ognor si vede,

Sendo voi caste, donne mie, vi dico,

Che d’Altro che dal latte non precede.

L’altrui latte oscurar fa’l pregio antico

Degli avi illustri e adulterar le razze,

E s’infetta talor sangue pudico.

|Coldness of the amatory sonnets.|

7. The amatory sonnets of this age, forming the greater number,

are very frequently cold and affected. This might possibly be ascribed

in some measure to the state of manners in Italy, where, with abundant

licentiousness, there was still much of jealousy, and public sentiment

applauded alike the successful lover and the vindictive husband. A

respect for the honour of families, if not for virtue, would impose on

the poet who felt or assumed a passion for any distinguished lady, the

conditions of Tasso’s Olindo, to desire much, to hope for little, and to

ask nothing. It is also at least very doubtful, whether much of the

amorous sorrow of the sonnetteers were not purely ideal.

|Studied imitation of Petrarch.|

8. Lines and phrases from Petrarch are as studiously introduced as we

find those of classical writers in modern Latin poetry. It cannot be

said that this is unpleasing; and to the Italians, who knew every

passage of their favourite poet, it must have seemed at once a grateful

homage of respect, and an ingenious artifice to bespeak attention. They

might well look up to him as their master, but could not hope that even

a foreigner would ever mistake the hand through a single sonnet. He is

to his disciples, especially those towards the latter part of the

century, as Guido is to Franceschini or Elisabetta Serena; an effeminate

and mannered touch enfeebles the beauty which still lingers round the

pencil of the imitator. If they produce any effect upon us beyond

sweetness of sound and delicacy of expression, it is from some natural

feeling, some real sorrow, or from some occasional originality of

thought, in which they cease for a moment to pace the banks of their

favourite Sorga. It would be easy to point out not a few sonnets of this

higher character, among those especially of Francesco Coppetta, of

Claudio Tolomei, of Ludovico Paterno, or of Bernardo Tasso.

|Their fondness for description.|

9. A school of poets, that has little vigour of sentiment, falls readily

into description, as painters of history or portrait that want

expression of character endeavour to please by their landscape. The

Italians, especially in this part of the sixteenth century, are profuse

in the song of birds, the murmur of waters, the shade of woods; and, as

these images are always delightful, they shed a charm over much of their

poetry, which only the critical reader, who knows its secret, is apt to

resist, and that to his own loss of gratification. The pastoral

character, which it became customary to assume, gives much opportunity

for these secondary, yet very seducing beauties of style. They belong to

the decline of the art, and have something of the voluptuous charm of

evening. Unfortunately they generally presage a dull twilight, or a

thick darkness of creative poetry. The Greeks had much of this in the

Ptolemaic age, and again in that of the first Byzantine emperors. It is

conspicuous in Tansillo, Paterno, and both the Tassos.

|Judgment of Italian critics.|

10. The Italian critics, Crescimbeni, Muratori, and Quadrio, have given

minute attention to the beauties of particular sonnets culled from the

vast stores of the sixteenth century. But as the development of the

thought, the management of the four constituent clauses of the sonnet,

especially the last, the propriety of every line, for nothing digressive

or merely ornamental should be admitted, constitute in their eyes the

chief merit of these short compositions, they extol some which in our

eyes are not so pleasing, as what a less regular taste might select.

Without presuming to rely on my own judgment, defective both as that of

a foreigner, and of one not so extensively acquainted with the minor

poetry of this age, I will mention two writers, well-known indeed, but

less prominent in the critical treatises than some others, as possessing

a more natural sensibility and a greater truth of sorrow than most of

their contemporaries, Bernardino Rota and Gaspara Stampa.

|Bernardino Rota.|

11. Bernardino Rota, a Neapolitan of ancient lineage and considerable

wealth, left poems in Latin as well as Italian; and among the latter his

eclogues are highly praised by his editor. But he is chiefly known by a

series of sonnets intermixed with canzoni, upon a single subject, Portia

Capece, his wife, whom, “what is unusual among our Tuscan poets (says

his editor), he loved with an exclusive affection.” But be it

understood, lest the reader should be discouraged, that the poetry

addressed to Portia Capece is all written before their marriage, or

after her death. The earlier division of the series, “Rime in Vita”

seems not to rise much above the level of amorous poetry. He wooed, was

delayed; complained, and won--the natural history of an equal and

reasonable love. Sixteen years intervened of that tranquil bliss which

contents the heart without moving it, and seldom affords much to the

poet in which the reader can find interest. Her death in 1559 gave rise

to poetical sorrows, as real and certainly full as rational as

those of Petrarch, to whom some of his contemporaries gave him the

second place; rather probably from the similarity of their subject, than

from the graces of his language. Rota is by no means free from conceits,

and uses sometimes affected and unpleasing expressions, as _mia dolce

guerra_, speaking of his wife, even after her death; but his images

are often striking;[1148] and, above all, he resembles Petrarch, with

whatever inferiority, in combining the ideality of a poetical mind with

the naturalness of real grief. It has never again been given to man, nor

will it probably be given, to dip his pen in those streams of ethereal

purity which have made the name of Laura immortal; but a sonnet of Rota

may be not disadvantageously compared with one of Milton, which we

justly admire for its general feeling, though it begins in pedantry and

ends in conceit.[1149] For my own part, I would much rather read again

the collection of Rota’s sonnets than those of Costanzo.

[1148] Muratori blames a line of Rota as too bold, and containing a

false thought.

Feano i begl’occhi a se medesmi giorno.

It seems to me not beyond the limits of poetry, nor more

hyperbolical than many others which have been much admired. It is,

at least, _Petrarchesque_ in a high degree.

[1149] This sonnet is in Mathias, iii. 256. That of Milton will be

remembered by most readers.

In lieto e pien di riverenza aspetto,

Con veste di color bianco e vermiglio,

Di doppia luce serenato il ciglio,

Mi viene in sonno il mio dolce diletto.

Io me l’inchino, e con cortese affetto

Seco ragiono e seco mi consiglio,

Com’abbia a governarmi in quest’esigilo,

E piango intanto, e la risposta aspetto.

Ella m’ascolta fiso, e dice cose

Veramente celesti, ed io l’apprendo,

E serbo ancor nella memoria ascose.

Mi lascia alfine e parte, e va spargendo

Per l’aria nel partir viole e rose;

Io le porgo la man; poi mi reprendo.

In one of Rota’s sonnets we have the thought of Pope’s epitaph on

Gay.

Questo cor, questa mente e questo petto

Sia ’l tuo sepolcro, e non la tomba o ’l sasso,

Ch’io t’apparecchio qui doglioso e lasso;

Non si deve a te, donna, altro ricetto.

He proceeds very beautifully:--

Ricca sia la memoria e l’intelletto,

Del ben per cui tutt’altro a dietro io lasso;

E mentre questo mar di pianto passo,

Vadami sempre innanzi il caro objetto.

Alma gentil, dove bitar solei

Donna e reina, in terren fascio avvolta,

Ivi regnar celeste immortal dei.

Vantisi pur la morte averti tolta

Al mondo, a me non già; ch’a pensier miei

Una sempre sarai viva e sepolta.

The poems of Rota are separately published in two volumes. Naples,

1726. They contain a mixture of Latin. Whether Milton intentionally

borrowed the sonnet on his wife’s death,

“Methought I saw my last espoused saint,”

from that above quoted, I cannot pretend to say; certainly his

resemblances to the Italian poets often seem more than accidental.

Thus two lines in an indifferent writer, Girolamo Preti (Mathias,

iii. 329) are exactly like one of the sublimest flights in the

Paradise Lost.

Tu per soffrir della cui luce i rai

Si fan con l’ale i serafini un velo.

Dark with excessive light thy skirts appear:

Yet dazzle Heaven, that brightest seraphim

Approach not, but with both wings veil their eyes.

|Gaspara Stampa. Her love for Collalto.|

|Is ill-requited.|

|Her second love.|

12. The sorrows of Gaspara Stampa were of a different kind, but not less

genuine than those of Rota. She was a lady of the Paduan territory,

living near the small river Anaso, from which she adopted the poetical

name of Anasilla. This stream bathes the foot of certain lofty hills,

from which a distinguished family, the Counts of Collalto, took their

appellation. The representative of this house, himself a poet as well as

a soldier, and, if we believe his fond admirer, endowed with every

virtue except constancy, was loved by Gaspara with enthusiastic passion.

Unhappily she learned only by sad experience the want of generosity too

common to man, and sacrificing, not the honour, but the pride of her

sex, by submissive affection, and finally by querulous importunity, she

estranged a heart never so susceptible as her own. Her sonnets, which

seem arranged nearly in order, begin with the delirium of sanguine love;

they are extravagant effusions of admiration, mingled with joy and hope;

but soon the sense of Collalto’s coldness glides in and overpowers her

bliss.[1150] After three years’ expectation of seeing his promise of

marriage fulfilled, and when he had already caused alarm by his

indifference, she was compelled to endure the pangs of absence by his

entering the service of France. This does not seem to have been of long

continuance; but his letters were infrequent, and her complaints, always

vented in a sonnet, become more fretful. He returned, and Anasilla

exults with tenderness, yet still timid in the midst of her joy.

Oserò io, con queste fide braccia,

Cingerli il caro collo, ed accostare

La mia tremante alla sua viva faccia?

But jealousy, not groundless, soon intruded, and we find her doubly

miserable. Collalto became more harsh, avowed his indifference, forbade

her to importune him with her complaints; and in a few months espoused

another woman. It is said by the historians of Italian literature, that

the broken heart of Gaspara sunk very soon under these accumulated

sorrows into the grave.[1151] And such, no doubt, is what my readers

expect, and (at least the gentler of them), wish to find. But inexorable

truth, to whom I am the sworn vassal, compels me to say that the poems

of the lady herself contain unequivocal proof that she avenged herself

better on Collalto,--by falling in love again. We find the

acknowledgment of another incipient passion, which speedily comes to

maturity; and, while declaring that her present flame is much stronger

than the last, she dismisses her faithless lover with the handsome

compliment, that it was her destiny always to fix her affections on a

noble object. The name of her second choice does not appear in her

poems; nor has any one hitherto, it would seem, made the very easy

discovery of his existence. It is true that she died young; “but not of

love.”[1152]

[1150] In an early sonnet she already calls Collalto, “il Signor,

_ch’io amo, e ch’io pavento_;” an expression descriptive enough of

the state in which poor Gaspara seems to have lived several years.

[1151] She anticipated her epitaph, on this hypothesis of a broken

heart, which did not occur.

Per amar molto, ed esser poco amata

Visse e mori infelice; ed or quì giace

La più fedel amante che sia stata.

Pregale, viator, riposo e pace,

Ed impara de lei si mal trattata

A non seguire un cor crudo e fugace.

[1152] It is impossible to dispute the evidence of Gaspara herself in

several sonnets, so that Corniani, and all the rest, must have read

her very inattentively. What can we say to these lines?

Perchè mi par vedere a certi segni

Ch’ordisci (Amor) nuovi lacci e nuove faci,

E di ritrarme al giogo tuo t’ingegni.

And afterwards more fully:

Qual darai fine, Amor, alle mie pene,

Se dal cinere estinto d’uno ardore

Rinasce l’altro, tua mercè, maggiore,

E si vivace a consumar mi viene?

Qual nelle più felici e calde arene

Nel nido acceso sol di vario odore

D’una fenice estinta esce poi fuore

Un verme, che fenice altra diviene.

In questo io debbo à tuoi cortesi strali

Che sempre è degno, ed onorato oggetto

Quello, onde mi ferisci, onde m’assali.

Ed ora è tale, e tanto, e sì perfetto,

Ha tante doti alla bellezza eguali,

Ch’ardor per lui m’è sommo alto diletto.

|Style of Gaspara Stampa.|

13. The style of Gaspara Stampa is clear, simple, graceful; the Italian

critics find something to censure in the versification. In purity of

taste, I should incline to set her above Bernardino Rota, though she has

less vigour of imagination. Corniani has applied to her the well-known

lines of Horace upon Sappho.[1153] But the fires of guilt and shame,

that glow along the strings of the Æolian lyre, ill resemble the pure

sorrows of the tender Anasilla. Her passion for Collalto, ardent and

undisguised, was ever virtuous; the sense of gentle birth, though so

inferior to his, as perhaps to make a proud man fear disparagement,

sustained her against dishonourable submission.

E ben ver, che ’l desio, con che amo voi,

E tutto d’onestà pieno, e d’Amore;[1154]

Perchè altrimente non convien tra noi.[1155]

But not less in elevation of genius than in dignity of character, she is

very far inferior to Vittoria Colonna, or even to Veronica Gambara, a

poetess, who, without equalling Vittoria, had much of her nobleness and

purity. We pity the Gasparas; we should worship, if we could find them,

the Vittorias.

[1153]

... spirat adhuc amor,

Vivuntque commissi calores

Æoliæ fidibus puellæ.

Corniani, v. 212, and Salfi in Ginguéné, ix. 406, have done some

justice to the poetry of Gaspara Stampa, though by no means more

than it deserves. Bouterwek, ii. 150, observes only, viel Poesie

zeigt sich nicht in diesen Sonetten; which, I humbly conceive,

shows, that either he had not read them, or was an indifferent

judge; and from his general taste I prefer the former hypothesis.

[1154] _Sic._ leg. onore?

[1155] I quote these lines on the authority of Corniani, v. 215. But

I must own that they do not appear in the two editions of the Rime

della Gaspara Stampa which I have searched. I must also add that,

willing as I am to believe all things in favour of a lady’s honour,

there is one very awkward sonnet among those of poor Gaspara, upon

which it is by no means easy to put such a construction as we

should wish.

|La Nautica, of Baldi.|

14. Among the longer poems which Italy produced in this period two may

be selected. The Art of Navigation, La Nautica, published by Bernardino

Baldi in 1590, is a didactic poem in blank verse, too minute sometimes

and prosaic in its details, like most of that class, but neither low,

nor turgid, nor obscure, as many others have been. The descriptions,

though never very animated, are sometimes poetical and pleasing.

Baldi is diffuse; and this conspires with the triteness of his matter to

render the poem somewhat uninteresting. He by no means wants the power

to adorn his subject, but does not always trouble himself to exert it,

and is tame where he might be spirited. Few poems bear more evident

marks that their substance had been previously written down in prose.

|Amadigi of Bernardo Tasso.|

15. Bernardo Tasso, whose memory has almost been effaced with the

majority of mankind by the splendour of his son, was not only the most

conspicuous poet of the age wherein he lived, but was placed by its

critics, in some points of view, above Ariosto himself. His minor poetry

is of considerable merit.[1156] But that to which he owed most of his

reputation is an heroic romance on the story of Amadis, written about

1540, and first published in 1560. L’Amadigi is of prodigious length,

containing 100 cantos, and about 57,000 lines. The praise of facility,

in the best sense, is fully due to Bernardo. His narration is fluent,

rapid, and clear; his style not in general feeble or low, though I am

not aware that many brilliant passages will be found. He followed

Ariosto in his tone of relating the story: his lines perpetually remind

us of the Orlando; and I believe it would appear on close examination

that much has been borrowed with slight change. My own acquaintance,

however, with the Amadigi is not sufficient to warrant more than a

general judgment. Ginguéné, who rates this poem very highly, praises the

skill with which the disposition of the original romance has been

altered and its canvas enriched by new insertions, the beauty of the

images and sentiments, the variety of the descriptions, the sweetness,

though not always free from languor, of the style, and finally

recommends its perusal to all lovers of romantic poetry, and to all who

would appreciate that of Italy.[1157] It is evident, however, that the

choice of a subject become frivolous in the eyes of mankind, not less

than the extreme length of Bernardo Tasso’s poem, must render it almost

impossible to follow this advice.

[1156] “The character of his lyric poetry is a sweetness and abundance

of expressions and images, by which he becomes more flowing and

full (più morbido e più pastoso, metaphors not translatable by

single English words) than his contemporaries of the school of

Petrarch.” Corniani, v. 127.

A sonnet of Bernardo Tasso, so much admired at the time, that

almost every one, it is said, of a refined taste had it by heart,

will be found in Panizzi’s edition of the Orlando Innamorato, vol.

i. p. 376, with a translation by a lady well known for the skill

with which she has transferred the grace and feeling of Petrarch

into our language. The sonnet, which begins, Poichè la parte men

perfetta e bella, is not found in Gobbi or Mathias. It is

distinguished from the common crowd of Italian sonnets in the

sixteenth century by a novelty, truth, and delicacy of sentiment,

which is comparatively rare in them.

[1157] Vol. v. p. 61-108. Bouterwek (vol. ii. 159), speaks much less

favourably of the Amadigi, and, as far as I can judge, in too

disparaging a tone. Corniani, a great admirer of Bernardo, owns

that his _morbidezza_ and fertility have rendered him too

frequently diffuse and flowery. See also Panizzi, p. 393, who

observes that the Amadigi wants interest, but praises its

imaginative descriptions as well as its delicacy and softness.

|Satirical and burlesque poetry; Aretin.|

16. The satires of Bentivoglio, it is agreed, fall short of those by

Ariosto, though some have placed them above those of Alamanni.[1158] But

all these are satires on the regular model, assuming at least a

half-serious tone. A style more congenial to the Italians was that of

burlesque poetry, sometimes poignantly satirical, but as destitute of

any grave aim, as it was light and familiar, even to popular vulgarity,

in its expression, though capable of grace in the midst of its gaiety,

and worthy to employ the best master of Tuscan language.[1159] But it

was disgraced by some of its cultivators, and by none more than Peter

Aretin. The character of this profligate and impudent person is well

known; it appears extraordinary that, in an age so little scrupulous as

to political or private revenge, some great princes, who had never

spared a worthy adversary, thought it not unbecoming to purchase the

silence of an odious libeller, who called himself their scourge. In a

literary sense, the writings of Aretin are unequal; the serious are for

the most part reckoned wearisome and prosaic; in his satires a poignancy

and spirit, it is said, frequently breaks out; and though his

popularity, like that of most satirists, was chiefly founded on the

ill-nature of mankind, he gratified this with a neatness and point of

expression, which those who cared nothing for the satire might

admire.[1160]

[1158] Ginguéné, ix. 198. Biogr. Univ. Tiraboschi, x. 66.

[1159] A canzon by Coppetta on his cat, in the twenty-seventh volume

of the Parnaso Italiano, is rather amusing.

[1160] Bouterwek, ii. 207. His authority does not seem sufficient; and

Ginguéné, ix. 212, gives a worse character of the style of Aretin.

But Muratori (della Perfetta Poesia, ii. 284), extols one of his

sonnets, as deserving a very high place in Italian poetry.

|Other burlesque writers.|

|Attempts at Latin metres.|

17. Among the writers of satirical, burlesque, or licentious poetry,

after Aretin, the most remarkable are Firenzuola, Casa (one of whose

compositions passed so much all bounds as to have excluded him from the

purple, and has become the subject of a sort of literary controversy, to

which I can only allude),[1161] Franco, and Grazzini, surnamed Il Lasco.

I must refer to the regular historians of Italian literature for

accounts of these, as well as for the styles of poetry called

_macaronica_ and _pedantesca_, which appear wholly contemptible, and the

attempts to introduce Latin metres, a folly with which every nation has

been inoculated in its turn.[1162] Claudio Tolomei, and Angelo Costanzo

himself, by writing sapphics and hexameters, did more honour to so

strange a pedantry than it deserved.

[1161] A more innocent and diverting capitolo of Casa turns on the ill

luck of being named John.

S’io avessi manco quindici o vent’anni,

Messer Gandolfo, io mi sbattezzerei,

Per non aver mai più nome Giovanni.

Perch’io non posso andar pe’ fatti miei,

Nè partirmi di qui per ir si presso

Ch’io nol senta chiamar da cinque e sei.

He ends by lamenting that no alteration mends the name.

Mutalo, o sminuiscil, se tu sai,

O Nanni, o Gianni, o Giannino, o Giannozzo,

Come più tu lo tocchi, peggio fai,

Che gli è cattivo intero, e peggior mozzo.

[1162] Macaronic verse was invented by one Folengo, in the first part

of the century. This worthy had written an epic poem, which he

thought superior to the Æneid. A friend, to whom he showed the

manuscript, paid him the compliment, as he thought, of saying that

he had _equalled_ Virgil. Folengo, in a rage, threw his poem into

the fire, and sat down for the rest of his life to write

Macaronics. Journal des Savans, Dec. 1831.

|Poetical translations.|

18. The translation of the Metamorphoses of Ovid by Anguillara, seems to

have acquired the highest name with the critics;[1163] but that of the

Æneid by Caro is certainly the best known in Europe. It is not, however,

very faithful, though written in blank verse, which leaves a translator

no good excuse for deviating from his original; the style is diffuse,

and, upon the whole, it is better that those who read it should not

remember Virgil. Many more Italian poets ought, possibly, to be

commemorated; but we must hasten forward to the greatest of them all.

[1163] Salfi (continuation de Ginguéné), x. 180. Corniani, vi. 113.

|Torquato Tasso.|

19. The life of Tasso is excluded from these pages by the rule I have

adopted; but I cannot suppose any reader to be ignorant of one of the

most interesting and affecting stories that literary biography presents.

It was in the first stages of a morbid melancholy, almost of

intellectual derangement, that the Gierusalemme Liberata was finished;

it was during a confinement, harsh in all its circumstances, though

perhaps necessary, that it was given to the world. Several portions had

been clandestinely published, in consequence of the author’s inability

to protect his rights; and even the first complete edition in 1581 seems

to have been without his previous consent. In the later editions of the

same year he is said to have been consulted; but his disorder was then

at a height, from which it afterwards receded, leaving his genius

undiminished, and his reason somewhat more sound, though always

unsteady. Tasso died at Rome in 1595, already the object of the world’s

enthusiastic admiration, rather than of its kindness and sympathy.

|The Jerusalem excellent in choice of subject.|

20. The Jerusalem is the great epic poem, in the strict sense, of modern

times. It was justly observed by Voltaire, that in the choice of his

subject Tasso is superior to Homer. Whatever interest tradition might

have attached among the Greeks to the wrath of Achilles and the death of

Hector, was slight to those genuine recollections which were associated

with the first crusade. It was not the theme of a single people, but of

Europe; not a fluctuating tradition, but certain history; yet history so

far remote from the poet’s time, as to adapt itself to his purpose with

almost the flexibility of fable. Nor could the subject have been chosen

so well in another age or country; it was still the holy war, and the

sympathies of his readers were easily excited for religious chivalry;

but, in Italy, this was no longer an absorbing sentiment; and the stern

tone of bigotry, which perhaps might still have been required from a

Castilian poet, would have been dissonant amidst the soft notes that

charmed the court of Ferrara.

|Superior to Homer and Virgil in some points.|

21. In the variety of occurrences, the change of scenes and images, and

of the trains of sentiment connected with them in the reader’s mind, we

cannot place the Iliad on a level with the Jerusalem. And again, by the

manifest unity of subject, and by the continuance of the crusading army

before the walls of Jerusalem, the poem of Tasso has a coherence

and singleness, which is wanting to that of Virgil. Every circumstance

is in its place; we expect the victory of the Christians, but

acknowledge the probability and adequacy of the events that delay it.

The episodes, properly so to be called, are few and short; for the

expedition of those who recall Rinaldo from the arms of Armida, though

occupying too large a portion of the poem, unlike the fifth and sixth,

or even the second and third books of the Æneid, is an indispensable

link in the chain of its narrative.

|Its characters.|

22. In the delineation of character, at once natural, distinct, and

original, Tasso must give way to Homer, perhaps to some other epic and

romantic poets. There are some indications of the age in which he wrote,

some want of that truth to nature, by which the poet, like the painter,

must give reality to the conceptions of his fancy. Yet here also the

sweetness and nobleness of his mind, and his fine sense of moral beauty

are displayed. The female warrior had been an old invention, and few,

except Homer, had missed the opportunity of diversifying their battles

with such a character. But it is of difficult management; we know not

how to draw the line between the savage virago, from whom the

imagination revolts, and the gentler fair one, whose feats in arms are

ridiculously incongruous to her person and disposition. Virgil first

threw a romantic charm over his Camilla; but he did not render her the

object of love. In modern poetry, this seemed the necessary compliment

to every lady; but we hardly envy Rogero the possession of Bradamante,

or Arthegal that of Britomart. Tasso alone, with little sacrifice of

poetical probability, has made his readers sympathise with the

enthusiastic devotion of Tancred for Clorinda. She is so bright an

ideality, so heroic, and yet, by the enchantment of verse, so lovely,

that no one follows her through the combat without delight, or reads her

death without sorrow. And how beautiful is the contrast of this

character with the tender and modest Erminia! The heroes, as has been

hinted, are drawn with less power. Godfrey is a noble example of calm

and faultless virtue, but we find little distinctive character in

Rinaldo. Tancred has seemed to some rather too much enfeebled by his

passion, but this may be justly considered as part of the moral of the

poem.

|Excellence of its style.|

23. The Jerusalem is read with pleasure in almost every canto. No poem,

perhaps, if we except the Æneid, has so few weak or tedious pages; the

worst passages are the speeches, which are too diffuse. The native

melancholy of Tasso tinges all his poem; we meet with no lighter strain,

no comic sally, no effort to relieve for an instant the tone of

seriousness that pervades every stanza. But it is probable, that some

become wearied by this uniformity which his metre serves to augment. The

_ottava rima_ has its inconveniences; even its intricacy, when once

mastered, renders it more monotonous, and the recurrence of marked

rhymes, the breaking of the sense into equal divisions, while they

communicate to it a regularity that secures the humblest verse from

sinking to the level of prose, deprive it of that variety which the

hexameter most eminently possesses. Ariosto lessened this effect by the

rapid flow of his language, and perhaps by its negligence and

inequality; in Tasso, who is more sustained at a high pitch of elaborate

expression than any great poet except Virgil, and in whom a prosaic or

feeble stanza will rarely be found, the uniformity of cadence may

conspire with the lusciousness of style to produce a sense of satiety in

the reader. This is said rather to account for the injustice, as it

seems to me, with which some speak of Tasso, than to express my own

sentiments; for there are few poems of great length which I so little

wish to lay aside as the Jerusalem.