18. These heads may give some slight notion to the reader of the

character of the book, as the book itself may serve as a typical

instance of that form of theology, of metaphysics of ethics, of

jurisprudence, which occupies the unread and unreadable folios of the

sixteenth and seventeenth centuries, especially those issuing from the

church of Rome, and may be styled generally the scholastic method. Two

remarkable characteristics strike us in these books, which are

sufficiently to be judged by reading their table of contents, and by

taking occasional samples of different parts. The extremely systematic

form they assume, and the multiplicity of divisions render this

practice more satisfactory than it can be in works of less regular

arrangement. One of these characteristics is that spirit of system

itself, and another is their sincere desire to exhaust the subject by

presenting it to the mind in every light, and by tracing all its

relations and consequences. The fertility of those men who, like

Suarez, superior to most of the rest, were trained in the scholastic

discipline, to which I refer the methods of the canonists and

casuists, is sometimes surprising; their views are not one-sided; they

may not solve objections to our satisfaction, but they seldom suppress

them; they embrace a vast compass of thought and learning; they write

less for the moment, and are less under the influence of local and

temporary prejudices than many who have lived in better ages of

philosophy. But, again, they have great defects; their distinctions

confuse instead of giving light; their systems being not founded on

clear principles become embarrassed and incoherent; their method is

not always sufficiently consecutive; the difficulties which they

encounter are too arduous for them; they labour under the multitude,

and are entangled by the discordance of their authorities.

|Quotations of Suarez.|

19. Suarez, who discusses all these important problems of his second

book with acuteness, and, for his circumstances, with an

independent mind, is weighed down by the extent and nature of his

learning. If Grotius quotes philosophers and poets too frequently,

what can we say of the perpetual reference to Aquinas, Cajetan, Soto,

Turrecremata, Vasquius, Isidore, Vincent of Beauvais or Alensis, not

to mention the canonists and fathers, which Suarez employs to prove or

disprove every proposition. The syllogistic forms are unsparingly

introduced. Such writers as Soto or Suarez held all sort of ornament

not less unfit for philosophical argument than it would be for

geometry. Nor do they ever appeal to experience or history for the

rules of determination. Their materials are nevertheless abundant,

consisting of texts of Scripture, sayings of the fathers and

schoolmen, established theorems in natural theology and metaphysics,

from which they did not find it hard to select premises which, duly

arranged, gave them conclusions.

|His definition of eternal law.|

20. Suarez, after a prolix discussion, comes to the conclusion, that

“eternal law is the free determination of the will of God, ordaining a

rule to be observed, either, first, generally by all parts of the

universe as a means of common good, whether immediately belonging to

it in respect of the entire universe or at least in respect of the

singular parts thereof; or, secondly, to be specially observed by

intellectual creatures in respect of their free operations.”[324] This

is not instantly perspicuous; but definitions of a complex nature

cannot be rendered such, and I do not know that it perplexes more at

first sight than the enunciation of the last proposition in the fifth

book of Simson’s Euclid, or many others in the conic sections and

other parts of geometry. It is, however, what the reader may think

curious, that this crabbed piece of scholasticism is nothing else, in

substance, than the celebrated sentence on law, which concludes the

first book of Hooker’s Ecclesiastical Polity. Whoever takes the pains

to understand Suarez, will perceive that he asserts exactly that which

is unrolled in the majestic eloquence of our countryman.

[324] Legem æternam esse decretum liberum voluntatis Dei

statuentis ordinem servandum, aut generaliter ab omnibus partibus

universi in ordine ad commune bonum, vel immediatè illi

conveniens ratione totius universi, vel saltem ratione singularum

specierum ejus, aut specialiter servandum a creaturis

intellectualibus quoad liberas operationes earum, c. 3, § 6.

Compare with Hooker: Of Law no less can be said than that her

throne is the bosom of God, &c.

21. By this eternal law God is not necessarily bound. But this seems

to be said rather for the sake of avoiding phrases which were

conventionally rejected by the scholastic theologians, since, in

effect, his theory requires the affirmative, as we shall soon

perceive; and he here says that the law is God himself (Deus ipse),

and is immutable. This eternal law is not immediately known to man in

this life, but either “in other laws, or through them,” which he thus

explains. “Men, while pilgrims here, (viatores homines), cannot learn

the divine will in itself, but only as much as by certain signs or

effects is proposed to them; and hence, it is peculiar to the blessed

in heaven that, contemplating the divine will, they are ruled by it as

by a direct law. The former know the eternal law, because they partake

of it by other laws, temporal and positive; for, as second causes

display the first, and creatures the Creator, so temporal laws (by

which he means laws respective of man on earth), being streams from

that eternal law, manifest the fountain whence they spring. Yet all do

not arrive even at this degree of knowledge, for all are not able to

infer the cause from the effect. And thus, though all men necessarily

perceive some participation of the eternal laws in themselves, since

there is no one endowed with reason who does not in some manner

acknowledge that what is morally good ought to be chosen, and what is

evil rejected, so that in this sense men have all some notion of the

eternal law, as St. Thomas, and Hales, and Augustin say; yet

nevertheless they do not all know it formally, nor are aware of their

participation of it, so that it may be said the eternal law is not

universally known in a direct manner. But some attain that knowledge,

either by natural reasoning, or more properly by revelation of faith;

and hence we have said that it is known by some only in the inferior

laws, but by others through the means of those laws.”[325]

[325] Lib. ii., c. 4, § 9.

|Whether God is a legislator?|

22. In every chapter Suarez propounds the arguments of doctors on

either side of the problem, ending with his own determination, which

is frequently a middle course. On the question, Whether natural law is

of itself preceptive, or merely indicative of what is intrinsically

right or wrong, or, in other words, whether God, as to this law, is a

legislator, he holds this line with Aquinas and most theologians (as

he says), contending that natural law does not merely indicate

right and wrong, but commands the one and prohibits the other; though

this will of God is not the whole ground of the moral good and evil

which belongs to the observance or transgression of natural law,

inasmuch as it presupposes a certain intrinsic right and wrong in the

actions themselves, to which it superadds the special obligation of a

divine law. God, therefore, may be truly called a legislator in

respect of natural law.[326]

[326] Hæc Dei voluntas, prohibitio aut præceptio non est

tota ratio bonitatis et malitiæ quæ est in observatione vel

transgressione legis naturalis, sed supponit in ipsis actubus

necessariam quandam honestatem vel turpitudinem, et illis

adjungit specialem legis divinæ obligationem, c. 6, § 11.

|Whether God could permit or commend wrong actions.|

23. He next comes to a profound but important inquiry, Whether God

could have permitted by his own law actions against natural reason?

Ockham and Gerson had resolved this in the affirmative, Aquinas the

contrary way. Suarez assents to the latter, and thus determines that

the law is strictly immutable. It must follow of course that the pope

cannot alter or dispense with the law of nature, and he might have

spared the fourteenth chapter, wherein he controverts the doctrine of

Sanchez and some casuists who had maintained so extraordinary a

prerogative.[327] This, however, is rather episodical. In the

fifteenth chapter he treats more at length the question, Whether God

can dispense with the law of nature? which is not, perhaps, at least

according to the notions of many, decided in denying his power to

repeal it. He begins by distinguishing three classes of moral laws.

The first are the most general, such as that good is to be done rather

than evil; and with these it is agreed that God cannot dispense. The

second is of such as the precepts of the decalogue, where the chief

difficulty had arisen. Ockham, Peter d’Ailly, Gerson, and others,

incline to say that he can dispense with all these, inasmuch as they

are only prohibitions which he has himself imposed. These were the

heads of the nominalist party; and their opinion might be connected,

though not necessarily, with the denial of the _reality_ of mixed

modes. This tenet, Suarez observes, is rejected by all other

theologians as false and absurd. He decidedly holds that there is an

intrinsic goodness or malignity in actions independent of the command

of God. Scotus had been of opinion that God might dispense with the

commandments of the second table, but not those of the first. Durand

seems to have thought the fifth commandment (our sixth) more

dispensable than the rest, probably on account of the case of Abraham.

But Aquinas, Cajetan, Soto, with many more, deny absolutely the

dispensability of the decalogue in any part. The Gordian knot about

the sacrifice of Isaac is cut by a distinction, that God did not act

here as a legislator, but in another capacity, as lord of life and

death, so that he only used Abraham as an instrument for that which he

might have done himself. The third class of moral precepts is of those

not contained in the decalogue, as to which he decides also that God

cannot dispense with them, though he may change the circumstances upon

which their obligation rests, as when he releases a vow.

[327] Nulla potestas humana, etiamsi pontificia sit, potest

proprium aliquod præceptum legis naturalis abrogare, nec illud

proprie et in se minuere, neque in ipso dispensare, § 8.

|English Casuists--Perkins, Hall.|

24. The Protestant churches were not generally attentive to

casuistical divinity, which smelt too much of the opposite system.

Eichhorn observes that the first book of that class, published among

the Lutherans, was by a certain Baldwin of Wittenberg, in 1628.[328] A

few books of casuistry were published in England during this period,

though nothing, as well as I remember, that can be reckoned a system

or even a treatise of moral philosophy. Perkins, an eminent

Calvinistic divine of the reign of Elizabeth, is the first of these in

point of time. His Cases of Conscience appeared in 1606. Of this book

I can say nothing from personal knowledge. In the works of Bishop Hall

several particular questions of this kind are treated, but not with

much ability. His distinctions are more than usually feeble. Thus,

usury is a deadly sin, but it is very difficult to commit it unless we

love the sin for its own sake; for almost every possible case of

lending money will be found by his limitations of the rule to justify

the taking a profit for the loan.[329] His casuistry about selling

goods is of the same description: a man must take no advantage of the

scarcity of the commodity, unless there should be just reason to raise

the price, which he admits to be often the case in a scarcity. He

concludes by observing that, in this, as in other well ordered

nations, it would be a happy thing to have a regulation of prices. He

decides, as all the old casuists did, that a promise extorted by a

robber is binding. Sanderson was the most celebrated of the

English casuists. His treatise, De Juramenti Obligatione, appeared in

1647.

[328] Vol. vi., part i., p. 346.

[329] Hall’s Works (edit. Pratt), vol. viii., p. 375.

|Selden, De Jure Naturali juxta Hebræos.|

25. Though no proper treatise of moral philosophy came from any

English writer in this period, we have one which must be placed in

this class, strangely as the subject has been handled by its

distinguished author. Selden published in 1640 his learned work, De

Jure Naturali et Gentium juxta Disciplinam Ebræorum.[330] The object

of the author was to trace the opinions of the Jews on the law of

nature and nations, or of moral obligation, as distinct from the

Mosaic law; the former being a law to which they held all mankind to

be bound. This theme had been of course untouched by the Greek and

Roman philosophers, nor was much to be found upon it in modern

writers. His purpose is therefore rather historical than

argumentative; but he seems so generally to adopt the Jewish theory of

natural law that we may consider him the disciple of the rabbis as

much as their historian.

[330] _Juxta_ for _secundum_, we need hardly say, is bad Latin: it

was, however, very common, and is even used by Joseph Scaliger,

as Vossius mentions in his treatise, De Vitiis Sermonis.

|Jewish theory of natural law.|

26. The origin of natural law was not drawn by the Jews, as some of

the jurists imagined it ought to be, from the habits and instincts of

all animated beings, quod natura omnia animalia docuit, according to

the definition of the Pandects. Nor did they deem, as many have done,

the consent of mankind and common customs of nations to be a

sufficient basis for so permanent and invariable a standard. Upon the

discrepancy of moral sentiments and practices among mankind Selden

enlarges in the tone which Sextus Empiricus had taught scholars, and

which the world had learned from Montaigne. Nor did unassisted reason

seem equal to determine moral questions, both from its natural

feebleness, and because reason alone does not create an obligation,

which depends wholly on the command of a superior.[331] But God, as

the ruler of the universe, has partly implanted in our minds, partly

made known to us by exterior revelation, his own will, which is our

law. These positions he illustrates with a superb display of

erudition, especially oriental, and certainly with more prolixity, and

less regard to opposite reasonings, than we should desire.

[331] Selden says, in his Table Talk, that he can understand no

law of nature but a law of God. He might mean this in the sense

of Suarez, without denying an intrinsic distinction of right and

wrong.

|Seven precepts of the sons of Noah.|

27. The Jewish writers concur in maintaining that certain short

precepts of moral duty were orally enjoined by God on the parent of

mankind, and afterwards on the sons of Noah. Whether these were simply

preserved by tradition, or whether, by an innate moral faculty,

mankind had the power of constantly discerning them, seems to have

been an unsettled point. The principal of these divine rules are

called, for distinction, The Seven Precepts of the Sons of Noah. There

appears, however, to be some variance in the lists, as Selden has

given them from the ancient writers. That most received consists of

seven prohibitions--namely, of idolatry, blasphemy, murder, adultery,

theft, rebellion, and cutting a limb from a living animal. The last of

these, the sense of which, however, is controverted, as well as the

third, but no other, are indicated in the ninth chapter of Genesis.

|Character of Selden’s work.|

28. Selden pours forth his unparalleled stores of erudition on all

these subjects, and upon those which are suggested in the course of

his explanations. These digressions are by no means the least useful

part of his long treatise. They elucidate some obscure passages of

Scripture. But the whole works belongs far more to theological than to

philosophical investigation; and I have placed it here chiefly out of

conformity to usage; for undoubtedly Selden, though a man of very

strong reasoning faculties, had not greatly turned them to the

principles of natural law. His reliance on the testimony of Jewish

writers, many of them by no means ancient, for those primæval

traditions as to the sons of Noah, was in the character of his times,

but it will scarcely suit the more rigid criticism of our own. His

book, however, is excellent for its proper purpose, that of

representing Jewish opinion, and is among the greatest achievements in

erudition that any English writer has performed.

|Grotius and Hobbes.|

29. The moral theories of Grotius and Hobbes are so much interwoven

with other parts of their philosophy, in the treatise De Jure Belli

and in the Leviathan, that it would be dissecting those works too

much, were we to separate what is merely ethical from what falls

within the provinces of politics and jurisprudence. The whole must

therefore be deferred to the ensuing sections of this chapter. Nor is

there much in the writings of Bacon or of Descartes which

falls, in the sense we have hitherto been considering it, under the

class of moral philosophy. We may therefore proceed to another

description of books, relative to the passions and manners of mankind,

rather than, in a strict sense, to their duties, though of course

there will frequently be some intermixture of subjects so intimately

allied.

|Charron on Wisdom.|

30. In the year 1601, Peter Charron, a French ecclesiastic, published

his Treatise on Wisdom. The reputation of this work has been

considerable; his countrymen are apt to name him with Montaigne; and

Pope has given him the epithet of “more wise” than his predecessor, on

account, as Warburton expresses it, of his “moderating everywhere the

extravagant Pyrrhonism of his friend.” It is admitted that he has

copied freely from the Essays of Montaigne, in fact, a very large

portion of the Treatise on Wisdom, not less, I should conjecture, than

one fourth, is extracted from them with scarce any verbal alteration.

It is not the case that he moderates the sceptical tone which he found

there; on the contrary, the most remarkable passages of that kind have

been transcribed; but we must do Charron the justice to say that he

has retrenched the indecencies, the egotism, and the superfluities.

Charron does not dissemble his debts. “This,” he says in his preface,

“is the collection of a part of my studies; the form and method are my

own. What I have taken from others, I have put in their words, not

being able to say it better than they have done.” In the political

part he has borrowed copiously from Lipsius and Bodin, and he is said

to have obligations to Duvair.[332] The ancients also must have

contributed their share. It becomes therefore difficult to estimate

the place of Charron as a philosopher, because we feel a good deal of

uncertainty whether any passage may be his own. He appears to have

been a man formed in the school of Montaigne, not much less bold in

pursuing the novel opinions of others, but less fertile in original

thoughts, so that he often falls into the common-places of ethics;

with more reading than his model, with more disciplined habits as well

of arranging and distributing his subject, as of observing the

sequence of an argument; but, on the other hand, with far less of

ingenuity in thinking and of sprightliness of language.

[332] Biogr. Universelle.

|La Mothe le Vayer--His dialogues.|

31. A writer of rather less extensive celebrity than Charron belongs

full as much to the school of Montaigne, though he does not so much

pillage his Essays. This was La Mothe le Vayer, a man distinguished by

his literary character in the court of Louis XIII., and ultimately

preceptor both to the Duke of Orleans and the young king (Louis XIV.)

himself. La Mothe was habitually and universally a sceptic. Among

several smaller works we may chiefly instance his Dialogues published

many years after his death under the name of Horatius Tubero. They

must have been written in the reign of Louis XIII., and belong

therefore to the present period. In attacking every established

doctrine, especially in religion, he goes much farther than Montaigne,

and seems to have taken much of his metaphysical system immediately

from Sextus Empiricus. He is profuse of quotation, especially in a

dialogue entitled Le Banquet Sceptique, the aim of which is to show

that there is no uniform taste of mankind as to their choice of food.

His mode of arguing against the moral sense is entirely that of

Montaigne, or, if there be any difference, is more full of the two

fallacies by which that lively writer deceives himself--namely, the

accumulating examples of things arbitrary and fanciful, such as modes

of dress and conventional usages, with respect to which no one

pretends that any natural law can be found, and, when he comes to

subjects more truly moral, the turning our attention solely to the

external action, and not to the motive or principle, which under

different circumstances may prompt men to opposite courses.

32. These dialogues are not unpleasing to read, and exhibit a polite

though rather pedantic style not uncommon in the seventeenth century.

They are, however, very diffuse, and the sceptical paradoxes become

merely common-place by repetition. One of them is more grossly

indecent than any part of Montaigne. La Mothe le Vayer is not, on the

whole, much to be admired as a philosopher; little appears to be his

own and still less is really good. He contributed, no question, as

much as anyone to the irreligion and contempt for morality prevailing

in that court where he was in high reputation. Some other works of

this author may be classed under the same description.

|Bacon’s Essays.|

33. We can hardly refer Lord Bacon’s Essays to the school of

Montaigne, though their title may lead us to suspect that they were in

some measure suggested by that most popular writer. The first

edition, containing ten essays only, and those much shorter than as we

now possess them, appeared, as has been already mentioned, in 1597.

They were reprinted with very little variation in 1606. But the

enlarged work was published in 1612, and dedicated to Prince Henry. He

calls them, in this dedication, “certain brief notes, set down rather

significantly than curiously, which I have called Essays. The word is

late, but the thing is ancient; for Seneca’s Epistles to Lucilius, if

you mark them well, are but Essays, that is, dispersed meditations,

though conveyed in the form of epistles.” The resemblance, at all

events, to Montaigne is not greater than might be expected in two men

equally original in genius, and entirely opposite in their characters

and circumstances. One, by an instinctive felicity, catches some of

the characteristics of human nature; the other, by profound

reflection, scrutinizes and dissects it. One is too negligent for the

inquiring reader, the other too formal and sententious for one who

seeks to be amused. We delight in one, we admire the other; but this

admiration has also its own delight. In one we find more of the sweet

temper and tranquil contemplation of Plutarch, in the other more of

the practical wisdom and somewhat ambitious prospects of Seneca. It is

characteristic of Bacon’s philosophical writings, that they have in

them a spirit of movement, a perpetual reference to what man is to do

in order to an end, rather than to his mere speculation upon what is.

In his Essays, this is naturally still more prominent. They are, as

quaintly described in the title page of the first edition, “places

(loci) of persuasion and dissuasion;” counsels for those who would be

great as well as wise. They are such as sprang from a mind ardent in

two kinds of ambition, and hesitating whether to found a new

philosophy, or to direct the vessel of the state. We perceive,

however, that the immediate reward attending greatness, as is almost

always the case, gave it a preponderance in his mind; and hence, his

Essays are more often political than moral; they deal with mankind,

not in their general faculties or habits, but in their mutual strife,

their endeavours to rule others, or to avoid their rule. He is more

cautious and more comprehensive, though not more acute than Machiavel,

who often becomes too dogmatic through the habit of referring

everything to a particular aspect of political societies. Nothing in

the Prince or the Discourses on Livy is superior to the Essays on

Seditions, on Empire, on Innovations, or generally those which bear on

the dexterous management of a people by their rulers. Both these

writers have what to our more liberal age appears a counselling of

governors for their own rather than their subjects’ advantage; but, as

this is generally represented to be the best means, though not, as it

truly is, the real end, their advice tends on the whole to advance the

substantial benefits of government.

|Their excellence.|

34. The transcendent strength of Bacon’s mind is visible in the whole

tenor of these Essays, unequal as they must be from the very nature of

such compositions. They are deeper and more discriminating than any

earlier, or almost any later work in the English language, full of

recondite observation long matured and carefully sifted. It is true

that we might wish for more vivacity and ease; Bacon, who had much

wit, had little gaiety; his Essays are consequently stiff and grave,

where the subject might have been touched with a lively hand; thus it

is in those on Gardens and on Building. The sentences have sometimes

too apophthegmatic a form and want coherence; the historical

instances, though far less frequent than with Montaigne, have a little

the look of pedantry to our eyes. But it is from this condensation,

from this gravity, that the work derives its peculiar impressiveness.

Few books are more quoted, and, what is not always the case with such

books, we may add that few are more generally read. In this respect

they lead the van of our prose literature; for no gentleman is ashamed

of owning that he has not read the Elizabethan writers; but it would

be somewhat derogatory to a man of the slightest claim to polite

letters, were he unacquainted with the Essays of Bacon. It is indeed

little worth while to read this or any other book for reputation sake;

but very few in our language so well repay the pains, or afford more

nourishment to the thoughts. They might be judiciously introduced,

with a small number more, into a sound method of education, one that

should make wisdom, rather than mere knowledge, its object, and might

become a textbook of examination in our schools.

|Feltham’s Resolves.|

35. It is rather difficult to fix upon the fittest place for bringing

forward some books, which, though moral in their subject, belong to

the general literature of the age, and we might strip the province of

polite letters of what have been reckoned its chief ornaments.

I shall therefore select here such only, as are more worthy of

consideration for their matter than for the style in which it is

delivered. Several that might range, more or less, under the

denomination of moral essays, were published both in English and in

other languages. But few of them are now read, or even much known by

name. One, which has made a better fortune than the rest, demands

mention, the Resolves of Owen Feltham. Of this book, the first part of

which was published in 1627, the second not till after the middle of

the century, it is not uncommon to meet with high praises in those

modern writers, who profess a faithful allegiance to our older

literature. For myself, I can only say that Feltham appears not only a

laboured and artificial, but a shallow writer. Among his many faults

none strikes me more than a want of depth, which his pointed and

sententious manner renders more ridiculous. Sallust, among the

ancients, is a great dealer in such oracular truisms, a style of

writing that soon becomes disagreeable. There are certainly exceptions

to this vacuity of original meaning in Feltham; it would be possible

to fill a few pages with extracts not undeserving of being read, with

thoughts just and judicious, though never deriving much lustre from

his diction. He is one of our worst writers in point of style; with

little vigour, he has less elegance; his English is impure to an

excessive degree, and full of words unauthorised by any usage.

Pedantry, and the novel phrases which Greek and Latin etymology was

supposed to warrant, appear in most productions of this period; but

Feltham attempted to bend the English idiom to his own affectations.

The moral reflections of a serious and thoughtful mind are generally

pleasing, and to this perhaps is partly owing the kind of popularity

which the Resolves of Feltham have obtained; but they may be had more

agreeably and profitably in other books.[333]

[333] This is a random sample of Feltham’s style: “Of all objects

of sorrow a distressed king is the most pitiful, because it

presents us most the frailty of humanity, and cannot but most

_midnight_ the soul of him that is fallen. The sorrows of a

deposed king are like the _distorquements_ of a _darted_

conscience which none can know but he that hath lost a crown.”

Cent. i. 61. We find not long after the following precious

phrase: “The nature that is arted with the subtleties of time and

practice.” I. 63. In one page we have _obnubilate_, _nested_,

_parallel_ (as a verb), _fails_ (failings) _uncurtain_,

_depraving_ (calumniating). I. 50. And we are to be disgusted

with such vile English, or properly no English, for the sake of

the sleepy saws of a trivial morality. Such defects are not

compensated by the better and more striking thoughts we may

occasionally light upon. In reading Feltham, nevertheless, I

seemed to perceive some resemblance to the tone and way of

thinking of the Turkish Spy, which is a great compliment to the

former; for the Turkish Spy is neither disagreeable nor

superficial. The resemblance must lie in a certain contemplative

melancholy, rather serious than severe, in respect to the world

and its ways; and as Feltham’s Resolves seem to have a charm, by

the editions they have gone through, and the good name they have

gained, I can only look for it in this.

|Browne’s Religo Medici.|

36. A superior genius to that of Feltham is exhibited in the Religio

Medici of Sir Thomas Browne. This little book made a remarkable

impression; it was soon translated into several languages, and is

highly extolled by Conringius and others, who could only judge through

these versions. Patin, though he rather slights it himself, tells us

in one of his letters that it was very popular at Paris. The character

which Johnson has given of the Religio Medici is well known; and,

though perhaps rather too favourable, appears in general just.[334]

The mind of Browne was fertile, and, according to the current use of

the word, ingenious: his analogies are original and sometimes

brilliant; and as his learning is also of things out of the beaten

path, this gives a peculiar and uncommon air to all his writings, and

especially to the Religio Medici. He was, however, far removed from

real philosophy, both by his turn of mind and by the nature of his

erudition; he seldom reasons, his thoughts are desultory, sometimes he

appears sceptical or paradoxical, but credulity and deference to

authority prevail. He belonged to the class, numerous at that time in

our church, who halted between popery and protestantism; and this

gives him, on all such topics, an appearance of vacillation and

irresoluteness which probably represents the real state of his mind.

His paradoxes do not seem very original, nor does he arrive at them by

any process of argument; they are more like traces of his reading

casually suggesting themselves, and supported by his own

ingenuity. His style is not flowing, but vigorous; his choice of words

not elegant, and even approaching to barbarism as English phrase; yet

there is an impressiveness, an air of reflection and sincerity in

Browne’s writings, which redeem many of their faults. His egotism is

equal to that of Montaigne, but with this difference, that it is the

egotism of a melancholy mind, which generally becomes unpleasing. This

melancholy temperament is characteristic of Browne. “Let’s talk of

graves and worms and epitaphs” seems his motto. His best written work,

the Hydriotaphia, is expressly an essay on sepulchral urns; but the

same taste for the circumstances of mortality leavens also the Religio

Medici.

[334] “The Religio Medici was no sooner published that it excited

the attention of the public by the novelty of paradoxes, the

dignity of sentiment, the quick succession of images, the

multitude of abstruse allusions, the subtlety of disquisition,

and the strength of language.” Life of Browne (in Johnson’s

Works, xii. 275).

|Selden’s Table Talk.|

37. The thoughts of Sir Walter Raleigh on moral prudence are few but

precious. And some of the bright sallies of Selden recorded in his

Table Talk are of the same description, though the book is too

miscellaneous to fall under any single head of classification. The

editor of this very short and small volume, which gives, perhaps, a

more exalted notion of Selden’s natural talents than any of his

learned writings, requests the reader to distinguish times, and “in

his fancy to carry along with him the when and the why many of these

things were spoken.” This intimation accounts for the different spirit

in which he may seem to combat the follies of the prelates at one

time, and of the presbyterians or fanatics at another. These sayings

are not always, apparently, well reported; some seem to have been

misunderstood, and in others the limiting clauses to have been

forgotten. But on the whole they are full of vigour, raciness, and a

kind of scorn of the half-learned, far less rude, but more cutting

than that of Scaliger. It has been said that the Table Talk of Selden

is worth all the Ana of the continent. In this I should be disposed to

concur; but they are not exactly works of the same class.

|Osborn’s Advice to his Son.|

38. We must now descend much lower, and could find little worth

remembering. Osborn’s Advice to his Son may be reckoned among the

moral and political writings of this period. It is not very far above

mediocrity, and contains a good deal that is common-place, yet with a

considerable sprinkling of sound sense and observation. The style is

rather apophthegmatic, though by no means more so than was then usual.

|John Valentine Andreæ.|

39. A few books, English as well as foreign, are purposely deferred

for the present; I am rather apprehensive that I shall be found to

have overlooked some not unworthy of notice. One written in Latin by a

German writer has struck me as displaying a spirit which may claim for

it a place among the livelier and lighter class, though with serious

intent, of moral essays. John Valentine Andreæ was a man above his

age, and a singular contrast to the narrow and pedantic herd of German

scholars and theologians. He regarded all things around him with a

sarcastic but benevolent philosophy, keen in exposing the errors of

mankind, yet only for the sake of amending them. It has been supposed

by many that he invented the existence of the famous Rosicrucian

society, not so much, probably, for the sake of mystification, as to

suggest an institution so praiseworthy and philanthropic as he

delineated for the imitation of mankind. This, however, is still a

debated problem in Germany.[335] But among his numerous writings, that

alone of which I know anything is entitled in the original Latin,

Mythologiæ Christianæ, sive Virtutum et Vitiorum Vitæ Humanæ Imaginum

Libri Tres. (Strasburg, 1618.) Herder has translated a part of this

book in the fifth volume of his Zerstreute Blätter; and it is here

that I have met with it. Andreæ wrote, I believe, solely in Latin, and

his works appear to be scarce, at least in England. These short

apologues, which Herder has called Parables, are written with uncommon

terseness of language, a happy and original vein of invention, and a

philosophy looking down on common life without ostentation and without

passion. He came too before Bacon, but he had learned to scorn the

disputes of the schools, and had sought for truth with an entire love,

even at the hands of Cardan and Campanella. I will give a specimen, in

a note, of the peculiar manner of Andreæ, but my translation does not,

perhaps, justice to that of Herder. The idea, it may be observed, is

now become more trite.[336]

[335] Brucker, iv. 735. Biogr. Univ. art. Andreæ, et alibi.

[336] “The Pen and the Sword strove with each other for

superiority, and the voices of the judges were divided. The men

of learning talked much and persuaded many; the men of arms were

fierce and compelled many to join their side. Thus nothing could

be determined; it followed that both were left to fight it out,

and settle their dispute in single combat.

“On one side books rustled in the libraries, on the other arms

rattled in the arsenals; men looked on in hope and fear, and

waited the end.

“The Pen, consecrated to truth, was notorious for much falsehood;

the Sword, a servant of God, was stained with innocent blood:

both hoped for the aid of heaven, both found its wrath.

“The State, which had need of both, and disliked the manners of

both, would put on the appearance of caring for the weal and woe

of neither. The Pen was weak, but quick, glib, well exercised,

and very bold, when one provoked it. The Sword was stern,

implacable, but less compact and subtle, so that on both sides

the victory remained uncertain. At length for the security of

both, the common weal pronounced that both in turn should stand

by her side and bear with each other. For that only is a happy

country where the Pen and the Sword are faithful servants, not

where either governs by its arbitrary will and passion.”

If the touches in this little piece are not always clearly laid

on, it may be ascribed as much, perhaps, to their having passed

through two translations, as to the fault of the excellent

writer. But in this early age we seldom find the entire neatness

and felicity which later times attained.

SECT. II.

ON POLITICAL PHILOSOPHY.

_Change in the Character of political Writings--Bellenden and

others--Patriarchal Theory refuted by Suarez--Allhusius--Political

Economy of Serra--Hobbes--and Analysis of his political Treatises._

40. The recluse philosopher, who, like Descartes in his country-house

near Utrecht, investigates the properties of quantity, or the

operations of the human mind, while nations are striving for conquest

and factions for ascendancy, hears that tumultuous uproar but as the

dash of the ocean waves at a distance, and it may even serve, like

music that falls upon the poet’s ear, to wake in him some new train of

high thought, or at the least to confirm his love of the absolute and

the eternal, by comparison with the imperfection and error that besets

the world. Such is the serene temple of philosophy, which the Roman

poet has contrasted with the storm and the battle, with the passions

of the great and the many, the perpetual struggle of man against his

fellows. But if he who might dwell on this vantage-ground descends

into the plain, and takes so near a view of the world’s strife, that

he sees it as a whole very imperfectly, while the parts to which he

approaches are magnified beyond their proportion, if, especially, he

mingles with the combat, and shares its hopes and its perils, though

in many respects he may know more than those who keep aloof, he will

lose something of that faculty of equal and comprehensive vision, in

which the philosophical temper consists. Such has very frequently, or

more or less, perhaps, in almost every instance, been the fate of the

writer on general politics; if his pen has not been solely employed

with a view to the questions that engage attention in his own age, it

has generally been guided in a certain degree by regard to them.

|Abandonment of anti-monarchical theories.|

41. In the sixteenth century, we have seen that notions of popular

rights, and of the amissibility of sovereign power for misconduct,

were alternately broached by the two great religious parties of

Europe, according to the necessity in which they stood for such

weapons against their adversaries. Passive obedience was preached as a

duty by the victorious, rebellion was claimed as a right by the

vanquished. The history of France and England, and partly of other

countries, was the clue to these politics. But in the following

period, a more tranquil state of public opinion, and a firmer hand

upon the reigns of power, put an end to such books as those of

Languet, Buchanan, Rose, and Mariana. The last of these, by the

vindication of tyrannicide in his treatise De Rege, contributed to

bring about a reaction in political literature. The Jesuits in France,

whom Henry IV. was inclined to favour, publicly condemned the doctrine

of Mariana in 1606. A book by Becanus, and another by Suarez,

justifying regicide, were condemned by the parliament of Paris, in

1612.[337] The assassination indeed of Henry IV., committed by one,

not perhaps metaphysically speaking sane, but whose aberration of

intellect had evidently been either brought on or nourished by the

pernicious theories of that school, created such an abhorrence of the

doctrine, that neither the Jesuits nor others ventured afterwards to

teach it. Those also who magnified, as far as circumstances would

permit, the alleged supremacy of the See of Rome over temporal

princes, were little inclined to set up, like Mariana, a popular

sovereignty, a right of the multitude not emanating from the Church,

and to which the Church itself might one day be under the necessity of

submitting. This became therefore a period favourable to the theories

of absolute power; not so much shown by means of their positive

assertion through the press as by the silence of the press,

comparatively speaking, on all political theories whatever.

[337] Mezeray, Hist. de la Mère et du Fils.

|Political literature becomes historical.|

42. The political writings of this part of the seventeenth century

assumed in consequence more of an historical, or, as we might

say, a statistical character. Learning was employed in systematic

analyses of ancient or modern forms of government, in dissertations

explanatory of institutions, in copious and exact statements of the

true, rather than arguments upon the right or the expedient. Some of

the very numerous works of Herman Conringius, a professor at

Helmstadt, seem to fall within this description. But none are better

known than a collection, made by the Elzevirs, at different times near

the middle of this century, containing accounts, chiefly published

before, of the political constitutions of European commonwealths. This

collection, which is in volumes of the smallest size, may be called

for distinction the Elzevir Republics. It is very useful in respect of

the knowledge of facts it imparts, but rarely contains anything of a

philosophical nature. Statistical descriptions of countries are much

allied to these last; some indeed are included in the Elzevir series.

They were as yet not frequent; but I might have mentioned in the last

volume one of the earliest, the Description of the Low Countries by

Ludovico Guicciardini, brother of the historian.

|Bellenden de Statu.|

43. Those, however, were not entirely wanting who took a more

philosophical view of the social relations of mankind. Among these a

very respectable place should be assigned to a Scotsman, by name

Bellenden, whose treatise De Statu, in three books, is dedicated to

Prince Charles in 1615. The first of these books is entitled De Statu

prisci orbis in religione, re politica et literis; the second,

Ciceronis Princeps, sive de statu principis et imperii; the third,

Ciceronis Consul, Senator, Senatusque Romanus, sive de statu

reipublicæ et urbis imperantis orbi. The first two books are, in a

general sense, political; the last relates entirely to the Roman

polity, but builds much political precept on this. Bellenden seems to

have taken a more comprehensive view of history in his first book, and

to have reflected more philosophically on it, than perhaps anyone had

done before; at least I do not remember any work of so early an age

which reminds me so much of Vico and the Grandeur et Decadence of

Montesquieu. We can hardly make an exception for Bodin, because the

Scot is so much more regularly historical, and so much more concise.

The first book contains little more than forty pages. Bellenden’s

learning is considerable and without that pedantry of quotation which

makes most books of the age intolerable. The latter parts have less

originality and reach of thought. This book was reprinted, as is well

known, in 1787; but the celebrated preface of the editor has had the

effect of eclipsing the original author; Parr was constantly read and

talked of, Bellenden never.

|Campanella’s Politics.|

|La Mothe le Vayer.|

44. The Politics of Campanella are warped by a desire to please the

court of Rome, which he recommends as fit to enjoy an universal

monarchy, at least by supreme control, and observes with some

acuteness, that no prince had been able to obtain an universal

ascendant over Christendom, because the presiding vigilance of the

Holy See has regulated their mutual contentions, exalting one and

depressing another, as seemed expedient for the good of religion.[338]

This book is pregnant with deep reflection on history, it is enriched,

perhaps, by the study of Bodin, but is much more concise. In one of

the Dialogues of La Mothe le Vayer, we find the fallacy of some

general maxims in politics drawn from a partial induction well

exposed, by showing the instances where they have wholly failed.

Though he pays high compliments to Louis XIII. and to Richelieu, he

speaks freely enough, in his sceptical way, of the general advantages

of monarchy.

[338] Nullus hactenus Christianus princeps monarchiam super

cunctos Christianos populos sibi conservare potuit. Quoniam papa

præ est illis, et dissipat erigitque illorum conatus prout

religioni expedit. C. 8.

|Naudé’s Coups d’Etat|

45. Gabriel Naudé, a man of extensive learning, acute understanding,

and many good qualities, but rather lax in religious and moral

principle, excited some attention by a very small volume, entitled

Considerations sur les coups d’état, which he wrote while young, at

Rome, in the service of the Cardinal de Bagne. In this he maintains

the bold contempt of justice and humanity in political emergencies

which had brought disgrace on the Prince of Machiavel, blaming those

who, in his own country, had abandoned the defence of the St.

Bartholomew massacre. The book is in general heavy and not well

written, but coming from a man of cool head, clear judgment and

considerable historical knowledge, it contains some remarks not

unworthy of notice.

|Patriarchal theory of government.|

46. The ancient philosophers, the civil lawyers, and by far the

majority of later writers had derived the origin of government from

some agreement, or tacit consent, of the community. Bodin,

explicitly rejecting this hypothesis, referred it to violent

usurpation. But, in England, about the beginning of the reign of

James, a different theory gained ground with the church; it was

assumed, for it did not admit of proof, that a patriarchal authority

had been transferred by primogeniture to the heir-general of the human

race; so that kingdoms were but enlarged families, and an indefeasible

right of monarchy was attached to their natural chief, which, in

consequence of the impossibility of discovering him, developed upon

the representative of the first sovereign who could be historically

proved to have reigned over any nation. This had not perhaps hitherto

been maintained at length in any published book, but will be found to

have been taken for granted in more than one. It was of course in

favour with James I., who had a very strong hereditary title; and it

might seem to be countenanced by the fact of Highland and Irish

clanship, which does really affect to rest on a patriarchal basis.

|Refuted by Suarez.|

47. This theory as to the origin of political society, or one akin to

it, appears to have been espoused by some on the Continent. Suarez, in

the second book of his great work on law, observes in a remarkable

passage, that certain canonists hold civil magistracy to have been

conferred by God on some prince, and to remain always in his heirs by

succession; but “that such an opinion has neither authority nor

foundation. For this power, by its very nature, belongs to no one man,

but to a multitude of men. This is a certain conclusion, being common

to all our authorities as we find by St. Thomas, by the civil laws,

and by the great canonists and casuists; all of whom agree that the

prince has that power of lawgiving which the people have given him.

And the reason is evident, since all men are born equal, and

consequently no one has a political jurisdiction over another, nor any

dominion; nor can we give any reason from the nature of the thing, why

one man should govern another rather than the contrary. It is true

that one might alledge the primacy which Adam at his creation

necessarily possessed, and hence deduce his government over all men,

and suppose that to be derived by some one, either through

primogenitary descent, or through the special appointment of Adam

himself. Thus Chrysostom has said that the descent of all men from

Adam signifies their subordination to one sovereign. But in fact we

could only infer from the creation and natural origin of mankind that

Adam possessed a domestic or patriarchal (œconomicam), not a political

authority; for he had power over his wife, and afterwards a paternal

power over his sons till they were emancipated; and he might even in

course of time have servants and a complete family, and that power in

respect of them which is called patriarchal. But after families began

to be multiplied, and single men who were heads of families to be

separated, they had each the same power with respect to their own

families. Nor did political power begin to exist till many families

began to be collected into one entire community. Hence, as that

community did not begin by Adam’s creation, nor by any will of his,

but by that of all who formed it, we cannot properly say, that Adam

had naturally a political headship in such a society; for there are no

principles of reason from which this could be inferred, since by the

law of nature it is no right of the progenitor to be even king of his

own posterity. And if this cannot be proved by the principles of

natural law, we have no ground for asserting that God has given such a

power by the special gift of providence, inasmuch as we have no

revelation or scripture testimony to the purpose.[339] So clear,

brief, and dispassionate a refutation might have caused our English

divines, who became very fond of this patriarchal theory, to blush

before the Jesuit of Granada.

[339] Lib. ii., c. 2, § 3.

|His opinion of law.|

48. Suarez maintains it to be of the essence of a law that it be

exacted for the public good. An unjust law is no law, and does not

bind the conscience.[340] In this he breathes the spirit of Mariana.

But he shuns some of his bolder assertions. He denies the right of

rising in arms against a tyrant, unless he is an usurper; and though

he is strongly for preserving the concession made by the kings of

Spain to their people, that no taxes shall be levied without the

consent of the Cortes, does not agree with those who lay it down as a

general rule, that no prince can impose taxes on his people by his own

will.[341] Suarez asserts the direct power of the church over

heretical princes, but denies it as to infidels.[342] In this last

point, as has been seen, he follows the most respectable authorities

of his nation.

[340] Lib. i., c. 7, and lib. iii., c. 22.

[341] Lib. iii., c. 10.

[342] Lib. v., c. 17.

49. Bayle has taken notice of a systematic treatise on Politics, by

John Althusius, a native of Germany. Of this I have only seen

an edition published at Groningen in 1615, and dedicated to the states

of West Friesland. It seems, however, from the article in Bayle, that

there was one printed at Herborn in 1603. Several German writers

inveigh against this work as full of seditious principles, inimical to

every government. It is a political system, taken chiefly from

preceding authors, and very freely from Bodin; with great learning,

but not very profitable to read. The ephori, as he calls them, by

which he means the estates of a kingdom, have the right to resist a

tyrant. But this right he denies to the private citizen. His chapter

on this subject is written more in the tone of the sixteenth than of

the seventeenth century, which indeed had scarcely commenced.[343] He

answers in it Albericus Gentilis, Barclay and others who had contended

for passive obedience, not failing to draw support from the canonists

and civilians whom he quotes. But the strongest passage is in his

dedication to the States of Friesland. Here he declares his principle,

that the supreme power or sovereignty (jus majestatis) does not reside

in the chief magistrate, but in the people themselves, and that no

other is proprietor or usufructuary of it, the magistrate being the

administrator of this supreme power, but not its owner, nor entitled

to use it for his benefit. And these rights of sovereignty are so much

confined to the whole community, that they can no more alienate them

to another, whether they will or not, than a man can transfer his own

life.[344]

[343] Cap. 38. De tyrannide et ejus remediis.

[344] Administratorem, procuratorem, gubernatorem jurium

majestatis, principem agnosco. Proprietarium vero et

usufructuarium majestatis nullum alium quam populum universum in

corpus unum symbioticum ex pluribus minoribus consociationibus

consociatum, &c.

50. Few, even among the Calvinists, whose form of government was in

some cases republican, would in the seventeenth century have approved

this strong language of Althusius. But one of their noted theologians,

Paræus, incurred the censure of the university of Oxford in 1623, for

some passages in his commentary on the Epistle to the Romans which

seemed to impugn their orthodox tenet of unlimited submission. He

merely holds that subjects, when not private men but inferior

magistrates, may defend themselves and the state and the true religion

even by arms against the sovereign under certain conditions; because,

these superior magistrates are themselves responsible to the laws of

God and of the state.[345] It was, in truth, impossible to deny the

right of resistance in such cases without “branding the unsmirched

brow” of protestantism itself; for by what other means had the

reformed religion been made to flourish in Holland and Geneva, or in

Scotland? But in England, where it had been planted under a more

auspicious star, there was little occasion to seek this vindication of

the protestant church, which had not, in the legal phrase, come in by

disseizin of the state, but had united with the state to turn out of

doors its predecessor. That the Anglican refugees under Mary were ripe

enough for resistance, or even regicide, has been seen in the last

volume by an extract from one of their most distinguished prelates.

[345] Subditi non privati, sed in magistratu inferiori constituti

adversus superiorem magistratum se et rempublicam et ecclesiam

seu veram religionem etiam armis defendere jure possunt, his

positis conditionibus: 1. Cum superior magistratus degenerat in

tyrannum; 2. Aut ad manifestam idololatriam atque blasphemias

ipsos vel subditos alios vult cogere; 3. Cum ipsis atrox infertur

injuria; 4. Si aliter incolumes fortunis vita et conscientia esse

non possint; 5. Ne prætextu religionis aut justitiæ sua quærant;

6. Servata semper επιεικειᾳ [epieikeia] et moderamine inculpatæ

tutelæ juxta leges. Paræus in Epist. ad Roman, col. 1350.

|Bacon.|

|Political œconomy.|

51. Bacon ought to appear as a prominent name in political philosophy,

if we had never met with it in any other. But we have anticipated much

of his praise on this score; and it is sufficient to repeat generally

that on such subjects he is among the most sagacious of mankind. It

would be almost ridiculous to descend from Bacon, even when his giant

shadow does but pass over our scene, to the feebler class of political

moralists, such as Saavedra, author of Idea di un principe politico, a

wretched effort of Spain in her degeneracy; but an Italian writer must

not be neglected, from the remarkable circumstance that he is esteemed

one of the first who have treated the science of political œconomy. It

must, however, be understood that, besides what may be found on the

subject in the ancients, many valuable observations which must be

referred to political œconomy occur in Bodin, that the Italians had,

in the sixteenth century, a few tracts on coinage, that Botero touches

some points of the science, and that in English there were, during the

same age, pamphlets on public wealth, especially one entitled,

A Brief Conceit of English Policy.[346]

[346] This bears the initials of W. S., which some have

idiotically taken for William Shakspeare. I have some reason to

believe, that there was an edition considerably earlier than that

of 1584, but, from circumstances unnecessary to mention, cannot

produce the manuscript authority on which this opinion is

founded. It has been reprinted more than once, if I mistake not,

in modern times.

|Serra on the means of obtaining money without mines.|

52. The author to whom we allude is Antonio Serra, a native of

Cosenza, whose short treatise on the causes which may render gold and

silver abundant in countries that have no mines, is dedicated to the

Count de Lemos, “from the prison of Vicaria this tenth day of July,

1613.” It has hence been inferred, but without a shadow of proof, that

Serra had been engaged in the conspiracy of his fellow citizen

Campanella fourteen years before. The dedication is in a tone of great

flattery, but has no allusion to the cause of his imprisonment, which

might have been any other. He proposes, in his preface, not to discuss

political government in general, of which he thinks that the ancients

have treated sufficiently, if we well understood their works, and

still less to speak of justice and injustice, the civil law being

enough for this, but merely of what are the causes that render a

country destitute of mines abundant in gold and silver, which no one

has ever considered, though some have taken narrow views, and fancied

that a low rate of exchange is the sole means of enriching a country.

|His causes of wealth.|

53. In the first part of this treatise, Serra divides the causes of

wealth, that is, of abundance of money, into general and particular

accidents (accidenti communi e proprj), meaning by the former

circumstances which may exist in any country, by the latter such as

are peculiar to some. The common accidents are four: abundance of

manufactures, character of the inhabitants, extent of commerce, and

wisdom of government. The peculiar are, chiefly, the fertility of the

soil, and convenience of geographical position. Serra prefers

manufacture to agriculture; one of his reasons is their indefinite

capacity of multiplication; for no man whose land is fully cultivated

by sowing a hundred bushels of wheat, can sow with profit a hundred

and fifty; but in manufactures he may not only double the produce, but

do this a hundred times over, and that with less proportion of

expense. Though this is now evident, it is perhaps what had not been

much remarked before.

|His praise of Venice.|

54. Venice, according to Serra, held the first place as a commercial

city, not only in Italy, but Europe; “for experience demonstrates that

all the merchandizes which come from Asia to Europe pass through

Venice and thence are distributed to other parts.” But as this must

evidently exclude all the traffic by the Cape of Good Hope, we can

only understand Serra to mean the trade with the Levant. It is,

however, worthy of observation, that we are apt to fall into a vulgar

error in supposing that Venice was crushed, or even materially

affected, as a commercial city, by the discoveries of the Portuguese.

She was in fact more opulent, as her buildings of themselves may

prove, in the sixteenth century than in any preceding age. The French

trade from Marseilles to the Levant, which began later to flourish,

was what impoverished Venice, rather than that of Portugal with the

East Indies. This republic was the perpetual theme of admiration with

the Italians. Serra compares Naples with Venice; one, he says, exports

grain to a vast amount, the other imports its whole subsistence; money

is valued higher at Naples, so that there is a profit in bringing it

in, its export is forbidden; at Venice it is free; at Naples the

public revenues are expended in the kingdom; at Venice they are

principally hoarded. Yet Naples is poor and Venice rich. Such is the

effect of her commerce and of the wisdom of her government, which is

always uniform, while in kingdoms, and far more in vice-royalties, the

system changes with the persons. In Venice the method of choosing

magistrates is in such perfection, that no one can come in by

corruption or favour, nor can any one rise to high offices who has not

been tried in the lower.

|Low rate of exchange not essential to wealth.|

55. All causes of wealth, except those he has enumerated, Serra holds

to be subaltern or temporary; thus the low rate of exchange is subject

to the common accidents of commerce. It seems, however, to have been a

theory of superficial reasoners on public wealth, that it depended on

the exchanges far more than is really the case; and in the second part

of this treatise Serra opposes a particular writer, named De Santis,

who had accounted in this way alone for abundance of money in a state.

Serra thinks that to reduce the weight of coin may sometimes

be an allowable expedient, and better than to raise its denomination.

The difference seems not very important. The coin of Naples was

exhausted by the revenues of absentee proprietors, which some had

proposed to withhold: a measure to which Serra justly objects. This

book has been reprinted at Milan in the collection of Italian

œconomists, and as it anticipates the principles of what has been

called the mercantile theory, deserves some attention in following the

progress of opinion. The once celebrated treatise of Mun, England’s

Treasure by Foreign Trade, is supposed to have been written before

1640; but as it was not published till after the Restoration, we may

postpone it to the next period.

|Hobbes.--His political works.|

56. Last in time among political philosophers before the middle of the

century we find the greatest and most famous, Thomas Hobbes. His

treatise De Cive was printed in 1642 for his private friends. It

obtained however a considerable circulation and excited some

animadversion. In 1647, he published it at Amsterdam with notes to

vindicate and explain what had been censured. In 1650 an English

treatise, with the Latin title, De Corpore Politico, appeared; and in

1651 the complete system of his philosophy was given to the world in

the Leviathan. These three works bear somewhat the same relation to

one another as the Advancement of Learning does to the treatise de

Augmentis Scientiarum; they are in effect the same; the same order of

subjects, the same arguments, and in most places either the same words

or such variances as occurred to the second thoughts of the writer;

but much is more copiously illustrated and more clearly put in the

latter than in the former; while much also, from whatever cause, is

withdrawn or considerably modified. Whether the Leviathan is to be

reckoned so exclusively his last thoughts that we should presume him

to have retracted the passages that do not appear in it, is what every

one must determine for himself. I shall endeavour to present a

comparative analysis of the three treatises, with some preference to

the last.

|Analysis of his three treatises.|

57. Those, he begins by observing, who have hitherto written upon

civil polity have assumed that man is an animal framed for society; as

if nothing else were required for the institution of commonwealths

than that men should agree upon some terms of compact which they call

laws. But this is entirely false. That men do naturally seek each

other’s society, he admits in a note on the published edition of De

Cive; but political societies are not mere meetings of men, but unions

founded on the faith of covenants. Nor does the desire of men for

society imply that they are fit for it. Many may desire it who will

not readily submit to its necessary conditions.[347] This he left out

in the two other treatises, thinking it, perhaps, too great a

concession to admit any desire of society in man.

[347] Societates autem civiles non sunt meri congressus, sed

fœdera, quibus faciendis fides et pacta necessaria sunt.... Alia

res est appetere, alia esse capacem. Appetunt enim illi qui tamen

conditiones æquas, sine quibus societas esse non potest, accipere

per superbiam non dignantur.

58. Nature has made little odds among men of mature age as to strength

or knowledge. No reason, therefore, can be given why one should by any

intrinsic superiority command others, or possess more than they. But

there is a great difference in their passions; some through vain glory

seeking pre-eminence over their fellows, some willing to allow

equality, but not to lose what they know to be good for themselves.

And this contest can only be decided by battle, showing which is the

stronger.

59. All men desire to obtain good and to avoid evil, especially death.

Hence, they have a natural right to preserve their own lives and

limbs, and to use all means necessary for this end. Every man is judge

for himself of the necessity of the means, and the greatness of the

danger. And hence, he has a right by nature to all things, to do what

he wills to others, to possess and enjoy all he can. For he is the

only judge whether they tend or not to his preservation. But every

other man has the same right. Hence, there can be no injury towards

another in a state of nature. Not that in such a state a man may not

sin against God, or transgress the laws of nature.[348] But injury,

which is doing anything without right, implies human laws that limit

right.

[348] Non quod in tali statu peccare in Deum, aut leges naturales

violare impossibile sit. Nam injustitia erga homines supponit

leges humanas, quales in statu naturali nullæ sunt. De Cive, c.

1. This he left out in the later treatises. He says afterwards

(sect. 28), omne damnum homini illatum legis naturalis violatio

atque in Deum injuria est.

60. Thus the state of man in natural liberty is a state of war, a war

of every man against every man, wherein the notions of right and

wrong, justice and injustice have no place. Irresistible might

gives of itself right, which is nothing but the physical liberty of

using our power as we will for our own preservation and what we deem

conducive to it. But as, through the equality of natural powers, no

man possesses this irresistible superiority, this state of universal

war is contrary to his own good which he necessarily must desire.

Hence, his reason dictates that he should seek peace as far as he can,

and strengthen himself by all the helps of war against those with whom

he cannot have peace. This, then, is the first fundamental law of

nature. For a law of nature is nothing else than a rule or precept

found out by reason for the avoiding what may be destructive to our

life.

61. From this primary rule another follows, that a man should be

willing, when others are so too, as far forth as for peace and defence

of himself he shall think it necessary, to lay down his right to all

things, and to be contented with so much liberty against other men, as

he would allow to other men against himself. This may be done by

renouncing his right to anything, which leaves it open to all, or by

transferring it specially to another. Some rights indeed, as those to

his life and limbs, are inalienable, and no man lays down the right of

resisting those who attack them. But, in general, he is bound not to

hinder those to whom he has granted or abandoned his own right, from

availing themselves of it; and such hindrance is injustice or injury;

that is, it is _sine jure_, his _jus_ being already gone.

Such injury may be compared to absurdity in argument, being in

contradiction to what he has already done, as an absurd proposition is

in contradiction to what the speaker has already allowed.

62. The next law of nature, according to Hobbes, is that men should

fulfil their covenants. What contracts and covenants are, he explains

in the usual manner. None can covenant with God, unless by special

revelation; therefore, vows are not binding, nor do oaths add anything

to the swearer’s obligation. But covenants entered into by fear he

holds to be binding in a state of nature, though they may be annulled

by the law. That the observance of justice, that is, of our covenants,

is never against reason, Hobbes labours to prove, for if ever its

violation may have turned out successful, this being contrary to

probable expectation ought not to influence us. “That which gives to

human actions the relish of justice, is a certain nobleness or

gallantness of courage rarely found; by which a man scorns to be

beholden for the contentment of his life to fraud or breach of

promise.”[349] A short gleam of something above the creeping

selfishness of his ordinary morality!

[349] Leviathan, c. 15.

63. He then enumerates many other laws of nature, such as gratitude,

complaisance, equity, all subordinate to the main one of preserving

peace, by the limitation of the natural right, as he supposes, to

usurp all. These laws are immutable and eternal; the science of them

is the only true science of moral philosophy. For that is nothing but

the science of what is good and evil in the conversation and society

of mankind. In a state of nature private appetite is the measure of

good and evil. But all men agree that peace is good, and therefore the

means of peace, which are the moral virtues or laws of nature, are

good also, and their contraries evil. These laws of nature are not

properly called such, but conclusions of reason as to what should be

done or abstained from; they are but theorems concerning what conduces

to conservation and defence; whereas, law is strictly the word of him

that by right has command over others. But so far as these are enacted

by God in Scripture, they are truly laws.

64. These laws of nature, being contrary to our natural passions, are

but words of no strength to secure any one without a controlling

power. For till such a power is erected, every man will rely on his

own force and skill. Nor will the conjunction of a few men or families

be sufficient for security, nor that of a great multitude guided by

their own particular judgments and appetites. “For if we could suppose

a great multitude of men to consent in the observation of justice and

other laws of nature without a common power to keep them all in awe,

we might as well suppose all mankind to do the same, and then there

neither would be, nor need to be, any civil government or commonwealth

at all, because there would be peace without subjection.”[350] Hence,

it becomes necessary to confer all their power on one man, or assembly

of men, to bear their person or represent them; so that every one

shall own himself author of what shall be done by such representative.

It is a covenant of each with each, that he will be governed in such a

manner, if the other will agree to the same. This is the generation of

the great Leviathan, or mortal God, to whom, under the immortal God,

we owe our peace and defence. In him consists the essence of

the commonwealth, which is one person, of whose acts a great multitude

by mutual covenant have made themselves the authors.

[350] Lev., c. 17.

65. This person (including of course an assembly as well as

individual) is the sovereign, and possesses sovereign power. And such

power may spring from agreement or from force. A commonwealth by

agreement or institution is when a multitude do agree and covenant one

with another that whatever the major part shall agree to represent

them, shall be the representative of them all. After this has been

done, the subjects cannot change their government without its consent,

being bound by mutual covenant to own its actions. If any one man

should dissent, the rest would break their covenant with him. But

there is no covenant with the sovereign. He cannot have covenanted

with the whole multitude, as one party, because it has no collective

existence till the commonwealth is formed; nor with each man

separately, because the acts of the sovereign are no longer his sole

acts, but those of the society, including him who would complain of

the breach. Nor can the sovereign act unjustly towards a subject; for

he who acts by another’s authority cannot be guilty of injustice

towards him; he may, it is true, commit iniquity, that is, violate the

laws of God and nature, but not injury.

66. The sovereign is necessarily judge of all proper means of defence,

of what doctrines shall be taught, of all disputes and complaints, of

rewards and punishments, of war and peace with neighbouring

commonwealths, and even of what shall be held by each subject in

property. Property, he admits in one place, existed in families before

the institution of civil society; but between different families there

was no meum and tuum. These are by the law and command of the

sovereign; and hence, though every subject may have a right of

property against his fellow, he can have none against the sovereign.

These rights are incommunicable, and inseparable from the sovereign

power; there are others of minor importance, which he may alienate;

but if anyone of the former is taken away from him he ceases to be

truly sovereign.

67. The sovereign power cannot be limited nor divided. Hence, there

can be but three simple forms of commonwealth; monarchy, aristocracy,

and democracy. The first he greatly prefers. The king has no private

interest apart from the people, whose wealth, honour, security from

enemies, internal tranquility, are evidently for his own good. But in

the other forms each man may have a private advantage to seek. In

popular assemblies, there is always an aristocracy of orators,

interrupted sometimes by the temporary monarchy of one orator. And

though a king may deprive a man of all he possesses to enrich a

flatterer or favourite, so may also a democratic assembly, where there

may be as many Neros as orators, each with the whole power of the

people he governs. And these orators are usually more powerful to hurt

others than to save them. A king may receive counsel of whom he will,

an assembly from those only who have a right to belong to it, nor can

their counsel be secret. They are also more inconstant both from

passion and from their numbers; the absence of a few often undoing all

that had been done before. A king cannot disagree with himself, but an

assembly may do so, even to producing civil war.

68. An elective or limited king is not the sovereign, but the

sovereign’s minister; nor can there be a perfect form of government,

where the present ruler has not power to dispose of the succession.

His power, therefore, is wholly without bounds, and correlative must

be the people’s obligation to obey. Unquestionably there are risks of

mischiefs and inconveniences attending a monarchy; but these are less

than in the other forms; and the worst of them is not comparable to

those of civil war, or the anarchy of a state of nature, to which the

dissolution of the commonwealth would reduce us.

69. In the exercise of government the sovereign is to be guided by one

maxim, which contains all his duty: Salus populi suprema lex. And in

this is to be reckoned not only the conservation of life, but all that

renders it happy. For this is the end for which men entered into civil

society, that they might enjoy as much happiness as human nature can

attain. It would be, therefore, a violation of the law of nature, and

of the trust reposed in them, if sovereigns did not study, as far as

by their power it may be, that their subjects should be furnished with

everything necessary, not for life alone but for the delights of life.

And even those who have acquired empire by conquest must desire to

have men fit to serve them, and should, in consistency with their own

aims, endeavour to provide what will increase their strength and

courage. Taxes, in the opinion of Hobbes, should be laid

equally, and rather on expenditure than on revenue; the prince should

promote agriculture, fisheries, and commerce, and in general whatever

makes men happy and prosperous. Many just reflections on the art of

government are uttered by Hobbes, especially as to the inexpediency of

interfering too much with personal liberty. No man, he observes in

another place, is so far free as to be exempted from the sovereign

power; but if liberty consists in the paucity of restraining laws, he

sees not why this may not be had in monarchy as well as in a popular

government. The dream of so many political writers, a wise and just

despotism, is pictured by Hobbes as the perfection of political

society.

70. But, most of all, is the sovereign to be without limit by the

power of the priesthood. This is chiefly to be dreaded, that he should

command anything under the penalty of death, and the clergy forbid it

under the penalty of damnation. The pretensions of the See of Rome, of

some bishops at home, and those of even the lowest citizens to judge

for themselves and determine upon public religion, are dangerous to

the state and the frequent cause of wars. The sovereign, therefore, is

alone to judge whether religions are safely to be admitted or not. And

it may be urged, that princes are bound to cause such doctrine as they

think conducive to their subject’s salvation to be taught, forbidding

every other, and that they cannot do otherwise in conscience. This,

however, he does not absolutely determine. But he is clearly of

opinion that, though it is not the case where the prince is

infidel,[351] the head of the state, in a Christian commonwealth, is

head also of the church; that he, rather than any ecclesiastics, is

the judge of doctrines; that a church is the same as a commonwealth

under the same sovereign, the component members of each being

precisely the same. This is not very far removed from the doctrine of

Hooker, and still less from the practice of Henry VIII.

[351] Imperantibus autem non Christianis in temporalibus quidem

omnibus eandem deberi obedientiam etiam a cive Christiano extra

controversiam est: in spiritualibus vero, hoc est, in iis quæ

pertinent ad modum colendi Dei Sequenda est ecclesia aliqua

Christianorum. De Cive, c. 18, § 3.

71. The second class of commonwealths, those by forcible acquisition,

differ more in origin than in their subsequent character from such as

he has been discussing. The rights of sovereignty are the same in

both. Dominion is acquired by generation or by conquest; the one

parental, the other despotical. Parental power, however, he derives

not so much from having given birth to, as from having preserved, the

child, and, with originality and acuteness, thinks it belongs by

nature to the mother rather than to the father, except where there is

some contract between the parties to the contrary. The act of

maintenance and nourishment conveys, as he supposes, an unlimited

power over the child, extending to life and death, and there can be no

state of nature between parent and child. In his notion of patriarchal

authority he seems to go as far as Filmer; but, more acute than

Filmer, perceives that it affords no firm basis for political society.

By conquest and sparing the lives of the vanquished they become

slaves; and so long as they are held in bodily confinement, there is

no covenant between them and their master; but in obtaining corporal

liberty they expressly or tacitly covenant to obey him as their lord

and sovereign.

72. The political philosophy of Hobbes had much to fix the attention

of the world and to create a sect of admiring partizans. The

circumstances of the time, and the character of the passing

generation, no doubt powerfully conspired with its intrinsic

qualities; but a system so original, so intrepid, so disdainful of any

appeal but to the common reason and common interests of mankind, so

unaffectedly and perspicuously proposed, could at no time have failed

of success. From the two rival theories; on the one hand, that of

original compact between the prince and people, derived from

antiquity, and sanctioned by the authority of fathers and schoolmen;

on the other, that of an absolute patriarchal transmuted into an

absolute regal power, which had become prevalent among part of the

English clergy, Hobbes took as much as might conciliate a hearing from

both, an original covenant of the multitude, and an unlimited

authority of the sovereign. But he had a substantial advantage over

both these parties, and especially the latter, in establishing the

happiness of the community as the sole final cause of government, both

in its institution and its continuance; the great fundamental theorem

upon which all political science depends, but sometimes obscured or

lost in the pedantry of theoretical writers.

73. In the positive system of Hobbes we find less cause for praise. We

fall in at the very outset with a strange and indefensible

paradox; the natural equality of human capacities, which he seems to

have adopted rather in opposition to Aristotle’s notion of a natural

right in some men to govern, founded on their superior qualities, than

because it was at all requisite for his own theory. By extending this

alledged equality, or slightness of difference, among men to physical

strength, he has more evidently shown its incompatibility with

experience. If superiority in mere strength has not often been the

source of political power it is for two reasons: first, because,

though there is a vast interval between the strongest man and the

weakest, there is generally not much between the former and him who

comes next in vigour; and secondly, because physical strength is

multiplied by the aggregation of individuals, so that the stronger few

may be overpowered by the weaker many; while in mental capacity,

comprehending acquired skill and habit as well as natural genius and

disposition, both the degrees of excellence are removed by a wider

distance, and what is still more important, the aggregation of

individual powers does not regularly and certainly augment the value

of the whole. That the real or acknowledged superiority of one man to

his fellows has been the ordinary source of power is sufficiently

evident from what we daily see among children, and must, it should

seem, be admitted by all who derive civil authority from choice or

even from conquest, and therefore is to be inferred from the very

system of Hobbes.

74. That a state of nature is a state of war, that men, or at least a

very large proportion of men, employ force of every kind in seizing to

themselves what is in the possession of others is a proposition for

which Hobbes incurred as much obloquy as for anyone in his writings;

yet it is one not easy to controvert. But soon after the publication

of the Leviathan, a dislike of the Calvinistic scheme of universal

depravity as well as of his own, led many considerable men into the

opposite extreme of elevating too much the dignity of human nature, if

by that term they meant, and in no other sense could it be applicable

to this question, the real practical character of the majority of the

species. Certainly, the sociableness of man is as much a part of his

nature as his selfishness; but whether this propensity to society

would necessarily or naturally have led to the institution of

political communities, may not be very clear; while we have proof

enough in historical traditions and in what we observe of savage

nations, that mutual defence by mutual concession, the common

agreement not to attack the possessions of each other, or to permit

strangers to do so, has been the true basis, the final aim, of those

institutions, be they more or less complex, to which we give the

appellation of commonwealths.

75. In developing, therefore, the origin of civil society, Hobbes,

though not essentially differing from his predecessors, has placed the

truth in a fuller light. It does not seem equally clear, that his own

theory of a mutual covenant between the members of an unanimous

multitude to become one people and to be represented, in all time to

come, by such a sovereign government as the majority should determine,

affords a satisfactory groundwork for the rights of political society.

It is, in the first place, too hypothetical as a fact. That such an

agreement may have been sometimes made by independent families, in the

first coming together of communities, it would be presumptuous to

deny--it carries upon the face of it no improbability except as to the

design of binding posterity, which seems too refined for such a state

of mankind as we must suppose; but it is surely possible to account

for the general fact of civil government in a simpler way; and what is

most simple, though not always true, is on the first appearance most

probable. If we merely suppose an agreement, unanimous, of course, in

those who concur in it, to be governed by one man, or by one council

promising that they shall wield the force of the whole against anyone

who shall contravene their commands issued for the public good, the

foundation is as well laid, and the commonwealth as firmly

established, as by the double process of a mutual covenant to

constitute a people, and a popular determination to constitute a

government. It is true that Hobbes distinguishes a commonwealth by

institution, which he supposes to be founded on this unanimous

consent, from one by acquisition, for which force alone is required.

But as the force of one man goes but a little way towards compelling

the obedience of others, so as to gain the name of sovereign power,

unless it is aided by the force of many who voluntarily conspire to

its ends, this sort of commonwealth by conquest will be found to

involve the previous institution of the more peaceable kind.

76. This theory of a mutual covenant is defective also in a most

essential point. It furnishes no adequate basis for any

commonwealth beyond the lives of those who established it. The right

indeed of men to bind their children and through them a late posterity

is sometimes asserted by Hobbes, but in a very transient manner, and

as if he was aware of the weakness of his ground. It might be inquired

whether the force on which alone he rests the obligation of children

to obey, can give any right beyond its own continuance; whether the

absurdity he imputes to those who do not stand by their own

engagements is imputable to such as disregard the covenants of their

forefathers; whether, in short, any law of nature requires our

obedience to a government we deem hurtful, because in a distant age, a

multitude whom we cannot trace bestowed unlimited power on some

unknown persons from whom that government pretends to derive its

succession.

77. A better ground for the subsisting rights of his Leviathan, is

sometimes suggested, though faintly, by Hobbes himself. “If one refuse

to stand to what the major part shall ordain, or make protestation

against any of their decrees, he does contrary to his covenant, and

therefore unjustly: and whether he be of the congregation or not,

whether his consent be asked or not, he must either submit to their

decrees, or be left in the condition of war he was in before, wherein

he might without injustice be destroyed by any man whatsoever.”[352]

This renewal of the state of war which is the state of nature, this

denial of the possibility of doing an injury to anyone who does not

obey the laws of the commonwealth, is enough to silence the question

why we are obliged still to obey. The established government and those

who maintain it, being strong enough to wage war against gainsayers,

give them the option of incurring the consequences of such warfare, or

of complying with the laws. But it seems to be a corollary from this,

that the stronger part of a commonwealth, which may not always be the

majority, have not only a right to despise the wishes but the

interests of dissentients. Thus, the more we scrutinize the theories

of Hobbes, the more there appears a deficiency of that which only a

higher tone of moral sentiment can give, a security against the

appetites of others, and for them against our own. But it may be

remarked that his supposition of a state of war, not as a permanent

state of nature, but as just self-defence, is perhaps the best footing

on which we can place the right to inflict severe, and especially

capital, punishment upon offenders against the law.

[352] Lev., c. 18.

78. The positions so dogmatically laid down as to the impossibility of

mixing different sorts of government were, even in the days of Hobbes,

contradicted by experience. Several republics had lasted for ages

under a mixed aristocracy and democracy; and there had surely been

sufficient evidence that a limited monarchy might exist, though, in

the revolution of ages, it might one way or other, pass into some new

type of polity. And these prejudices in favour of absolute power are

rendered more dangerous by paradoxes unusual from an Englishman, even

in those days of high prerogative when Hobbes began to write, that the

subject has no property relatively to the sovereign, and, what is the

fundamental error of his whole system, that nothing done by the prince

can be injurious to any one else. This is accompanied by the other

portents of Hobbism, scattered through these treatises, especially the

Leviathan, that the distinctions of right and wrong, moral good and

evil, are made by the laws, that no man can do amiss who obeys the

sovereign authority, that though private belief is of necessity beyond

the prince’s control, it is according to his will, and in no other

way, that we must worship God.

79. The political system of Hobbes, like his moral system, of which,

in fact, it is only a portion, sears up the heart. It takes away the

sense of wrong, that has consoled the wise and good in their dangers,

the proud appeal of innocence under oppression, like that of

Prometheus to the elements, uttered to the witnessing world, to coming

ages, to the just ear of Heaven. It confounds the principles of moral

approbation, the notions of good and ill desert, in a servile idolatry

of the monstrous Leviathan it creates, and after sacrificing all right

at the altar of power, denies to the Omnipotent the prerogative of

dictating the laws of his own worship.

SECT. III.

_Roman Jurisprudence--Grotius on the Laws of War and Peace--Analysis

of this Work--Defence of it against some Strictures._

|Civil jurists of this period.|

80. In the Roman jurisprudence we do not find such a cluster of

eminent men during this period as in the sixteenth century; and it

would of course be out of our province to search for names

little now remembered, perhaps, even in forensic practice. Many of the

writings of Fabre of Savoy, who has been mentioned in the last volume,

belong to the first years of this century. Farinacci, or Farinaceus, a

lawyer of Rome, obtained a celebrity, which, after a long duration,

has given way in the progress of legal studies, less directed than

formerly towards a superfluous erudition.[353] But the work of

Menochius de præsumptionibus, or, as we should say, on the rules of

evidence, is said to have lost none of its usefulness, even since the

decline of the civil law in France.[354] No book, perhaps, belonging

to this period is so generally known as the commentaries of Vinnius on

the Institutes, which, as far as I know, has not been superseded by

any of later date. Conringius of Helmstadt may be reckoned in some

measure among the writers on jurisprudence, though chiefly in the line

of historical illustration. The Elementa Juris Civilis, by Zouch, is a

mere epitome, but neatly executed, of the principal heads of the Roman

law, and nearly in its own words. Arthur Duck, another Englishman, has

been praised even by foreigners, for a succinct and learned, though

elementary and popular, treatise on the use and authority of the civil

law in different countries of Europe. This little book is not

disagreeably written; but it is not of course, from England that much

could be contributed towards Roman jurisprudence.

[353] Biogr. Univ.

[354] Id.

|Suarez on laws.|

81. The larger principles of jurisprudence, which link that science

with general morals, and especially such as relate to the intercourse

of nations, were not left untouched in the great work of Suarez on

laws. I have not, however, made myself particularly acquainted with

this portion of his large volume. Spain appears to have been the

country in which these questions were originally discussed upon

principles broader than precedent, as well as upon precedents

themselves; and Suarez, from the general comprehensiveness of his

views in legislation and ethics, is likely to have said well whatever

he may have said on the subject of international law. It does not

appear however that he is much quoted by later writers.

|Grotius De Jure Belli et Pacis.|

82. The name of Suarez is obscure in comparison of one who soon came

forward in the great field of natural jurisprudence. This was Hugo

Grotius, whose famous work, De Jure Belli et Pacis, was published at

Paris in 1625. It may be reckoned a proof of the extraordinary

diligence as well as quickness of parts which distinguished this

writer, that it had occupied a very short part of his life. He first

mentions, in a letter to the younger Thuanus, in August, 1623, that he

was employed in examining the principal questions which belong to the

law of nations.[355] In the same year he recommends the study of that

law to another of his correspondents in such terms as bespeak his own

attention to it.[356] According to one of his letters to Gassendi,

quoted by Stewart, the scheme was suggested to him by Peiresc.

[355] Versor in examinandis controversiis præcipuis quæ ad jus

gentium pertinent. Epist. 75. This is not from the folio

collection of his epistles, so often quoted in the second chapter

of this volume, but from one antecedently published in 1648, and

entitled Grotii Epistolæ ad Gallos.

[356] Hoc spatio exacto, nihil restat quod tibi æque commendem

atque studium juris, non illius privati, ex quo leguleii et

rabulæ victitant, sed gentium ac publici; quam præstabilem

scientiam Cicero vocans consistere ait in fœderibus, pactionibus

conditionibus populorum, regum, nationum, in omni denique jure

belli et pacis. Hujus juris principia quomodo ex morali

philosophia petenda sunt, monstrare poterunt Platonis ac

Ciceronis de legibus liber. Sed Platonis summas aliquas legisse

suffecerit. Neque pœniteat ex scholasticis Thomam Aquinatem, si

non perlegere, saltem inspicere secunda parte secundæ partis

libri, quem Summam Theologiæ inscripsit; præsertim ubi de

justitia agit ac de legibus. Usum propius monstrabunt Pandectæ,

libro primo atque ultimo; et codex Justinianeus, libro primo et

tribus postremis. Nostri temporis juris consulti pauci juris

gentium ac publici controversias attigere, eoque magis eminent,

qui id fecere, Vasquius, Hottomannus, Gentilis. Epist. xvi. This

passage is useful in showing the views Grotius himself

entertained as to the subject and groundwork of his treatise.

|Success of this work.|

83. It is acknowledged by every one that the publication of this

treatise made an epoch in the philosophical and almost we might say in

the political history of Europe. Those who sought a guide to their own

conscience or that of others, those who dispensed justice, those who

appealed to the public sense of right in the intercourse of nations,

had recourse to its copious pages for what might direct or justify

their actions. Within thirty or forty years from its publication, we

find the work of Grotius generally received as authority by professors

of the continental universities, and deemed necessary for the student

of civil law, at least in the protestant countries of Europe.

In England, from the difference of laws and from some other causes

which might be assigned, the influence of Grotius was far slower, and

even ultimately much less general. He was, however, treated with great

respect as the founder of the modern law of nations, which is

distinguished from what formerly bore that name by its more continual

reference to that of nature. But when a book is little read it is

easily misrepresented; and as a new school of philosophers rose up,

averse to much of the principles of their predecessors, but, above all

things, to their tediousness, it became the fashion not so much to

dispute the tenets of Grotius, as to set aside his whole work, among

the barbarous and obsolete schemes of ignorant ages. For this purpose

various charges have been alledged against it by men of deserved

eminence, not, in my opinion, very candidly, or with much real

knowledge of its contents. They have had, however, the natural effect

of creating a prejudice, which, from the sort of oblivion fallen upon

the book, is not likely to die away. I shall, therefore, not think

myself performing an useless task in giving an analysis of the

treatise De Jure Belli et Pacis; so that the reader, having seen for

himself what it is, may not stand in need of any arguments or

testimony to refute those who have represented it as it is not.

|Its originality.|

84. The book may be considered as nearly original, in its general

platform, as any work of man in an advanced stage of civilization and

learning can be. It is more so, perhaps, than those of Montesquieu and

Smith. No one had before gone to the foundations of international law

so as to raise a complete and consistent superstructure; few had

handled even separate parts, or laid down any satisfactory rules

concerning it. Grotius enumerates a few preceding writers, especially

Ayala and Albericus Gentilis, but does not mention Soto in this place.

Gentilis, he says, is wont in determining controverted questions to

follow either a few precedents not always of the best description, or

even the authority of modern lawyers in their answers to cases, many

of which are written with more regard to what the consulting parties

desire, than to what real justice and equity demand.

|Its motive and object.|

85. The motive assigned for this undertaking is the noblest. “I saw,”

he says, “in the whole Christian world a licence of fighting, at which

even barbarians might blush, wars begun on trifling pretexts or none

at all, and carried on without reverence for any divine or human law,

as if that one declaration of war let loose every crime.” The sight of

such a monstrous state of things had induced some, like Erasmus, to

deny the lawfulness of any war to a christian. But this extreme, as he

justly observes, is rather pernicious than otherwise; for when a tenet

so paradoxical and impracticable is maintained, it begets a prejudice

against the more temperate course which he prepares to indicate. “Let,

therefore,” he says afterwards, “the laws be silent in the midst of

arms; but those laws only which belong to peace, the laws of civil

life and public tribunals, not such as are eternal, and fitted for all

seasons, unwritten laws of nature, which subsist in what the ancient

form of the Romans denominated ‘a pure and holy war.’”[357]

[357] Eas res puro pioque duello repetundas censeo. It was a case

prodigiously frequent in the opinion of the Romans.

|His authorities.|

86. “I have employed in confirmation of this natural and national law

the testimonies of philosophers, of historians, of poets, lastly even

of orators; not that we should indiscriminately rely upon them; for

they are apt to say what may serve their party, their subject, or

their cause; but because when many at different times and places

affirm the same thing for certain, we may refer this unanimity to some

general cause, which in such questions as these can be no other than

either a right deduction from some natural principle or some common

agreement. The former of these denotes the law of nature, the latter

that of nations; the difference whereof must be understood, not by the

language of these testimonies, for writers are very prone to confound

the two words, but from the nature of the subject. For whatever cannot

be clearly deduced from true premises, and yet appears to have been

generally admitted, must have had its origin in free consent.... The

sentences of poets and orators have less weight than those of history;

and we often make use of them not so much to corroborate what we say,

as to throw a kind of ornament over it.” “I have abstained,” he adds

afterwards, “from all that belongs to a different subject, as what is

expedient to be done; since this has its own science, that of

politics, which Aristotle has rightly treated by not intermingling

anything extraneous to it, while Bodin has confounded that science

with this which we are about to treat. If we sometimes allude

to utility, it is but in passing, and distinguishing it from the

question of justice.”[358]

[358] Prolegomena in librum de Jure Belli.

|Foundation of natural law.|

87. Grotius derives the origin of natural law from the sociable

character of mankind. “Among things common to mankind is the desire of

society, that is, not of every kind of society, but of one that is

peaceable and ordered according to the capacities of his nature with

others of his species. Even in children before all instruction a

propensity to do good to others displays itself, just as pity in that

age is a spontaneous affection.” We perceive by this remark that

Grotius looked beyond the merely rational basis of natural law to the

moral constitution of human nature. The conservation of such a

sociable life is the source of that law which is strictly called

natural, which comprehends, in the first place, the abstaining from

all that belongs to others, and the restitution of it if by any means

in our possession, the fulfilment of promises, the reparation of

injury, and the right of human punishment. In a secondary sense,

natural law extends to prudence, temperance and fortitude, as being

suitable to man’s nature. And in a similar lax sense we have that kind

of justice itself called distributive (διανεμητικη [dianemêtikê]),

which prefers a better man to a worse, a relation to a stranger, a

poorer man to a richer, according to the circumstances of the party

and the case.[359] And this natural law is properly defined, “the

dictate of right reason, pointing out a moral guilt or rectitude to be

inherent in any action, on account of its agreement or disagreement

with our rational and social nature; and consequently that such an

action is either forbidden or enjoined by God the author of

nature.”[360] It is so immutable, that God himself cannot alter it; a

position which he afterwards limits by a restriction we have seen in

Suarez; that if God command anyone to be killed, or his goods to be

taken, this would not render murder or theft lawful, but being

commanded by the lord of life and all things, it would cease to be

murder or theft. This seems little better than a sophism unworthy of

Grotius; but he meant to distinguish between an abrogation of the law

of nature, and a dispensation with it in a particular instance. The

original position, in fact, is not stated with sufficient precision or

on a right principle.

[359] Id. § 6-10.

[360] Jus naturale est dictatum rectæ rationis, indicans actui

alicui, ex ejus convenientia aut disconvenientia cum ipsa natura

rationali ac sociali, inesse moralem turpitudinem aut

necessitatem moralem, ac consequenter ab auctore naturæ Deo talem

actum aut vetari aut præcipi. L. i., c. 1., § 10.

|Positive law.|

88. Voluntary, or positive law is either human or revealed. The former

is either that of civil communities, which are assemblages of freemen,

living in society for the sake of laws and common utility, or that of

nations, which derives its obligation from the consent of all or many

nations; a law which is to be proved, like all unwritten law, by

continual usage and the testimony of the learned. The revealed law he

divides in the usual manner, but holding that no part of the Mosaic,

so far as it is strictly a law, is at present binding upon us. But

much of it is confirmed by the Christian Scriptures, and much is also

obligatory by the law of nature. This last law is to be applied, _à

priori_, by the conformity of the act in question to the natural

and social nature of man; _à posteriori_, by the consent of

mankind; the latter argument, however, not being conclusive, but

highly probable, when the agreement is found in all, or in all the

more civilized nations.[361]

[361] Lib. i., c. 1.

|Perfect and imperfect rights.|

89. Perfect rights, after the manner of the jurists, he distinguishes

from imperfect. The former are called sua, our own, properly speaking,

the objects of what they styled commutative justice; the latter are

denominated fitnesses, (aptitudines) such as equity, gratitude, or

domestic affection prescribe, but which are only the objects of

distributive or equitable justice. This distinction is of the highest

importance in the immediate subject of the work of Grotius; since it

is agreed on all hands, that no law gives a remedy for the denial of

these, nor can we justly, in the state of nature, have recourse to

arms in order to enforce them.[362]

[362] Id. ibid.

|Lawful cases of war.|

90. War, however, as he now proceeds to show, is not absolutely

unlawful either by the law of nature or that of nations, or of

revelation. The proof is, as usual with Grotius, very diffuse; his

work being in fact a magazine of arguments and examples with rather a

supererogatory profusion.[363] But the Anabaptist and Quaker

superstition has prevailed enough to render some of his refutation not

unnecessary. After dividing war into public and private, and showing

that the establishment of civil justice does not universally put an

end to the right of private war, since cases may arise, when

the magistrate cannot be waited for, and others, where his

interference cannot be obtained, he shows that public war may be

either solemn and regular according to the law of nations, or less

regular on a sudden emergency of self-defence; classing also under the

latter any war, which magistrates not sovereign may in peculiar

circumstances levy.[364] And this leads him to inquire what

constitutes sovereignty; defining, after setting aside other

descriptions, that power to be sovereign, whose acts cannot be

invalidated at the pleasure of any other human authority, except one,

which, as in the case of a successor, has exactly the same sovereignty

as itself.[365]

[363] C. 2.

[364] C. 3.

[365] Summa potestas illa dicitur, cujus actus alterius juri non

subjacet, ita ut alterius voluntatis humanæ arbitrio irriti

possint reddi. § 7.

|Resistance by subjects unlawful.|

91. Grotius rejects the opinion of those who hold the people to be

everywhere sovereign, so that they may restrain and punish kings for

misgovernment; quoting many authorities for the irresponsibility of

kings. Here he lays down the principles of non-resistance, which he

more fully inculcates in the next chapter. But this is done with many

distinctions as to the nature of the principality, which may be held

by very different conditions. He speaks of patrimonial kingdoms,

which, as he supposes, may be alienated like an inheritance. But where

the government can be traced to popular consent, he owns that this

power of alienation should not be presumed to be comprised in the

grant. Those, he says, are much deceived who think that in kingdoms

where the consent of a senate or other body is required for new laws,

the sovereignty itself is divided; for these restrictions must be

understood to have been imposed by the prince on his own will, least

he should be entrapped into something contrary to his deliberate

intention.[366] Among other things in this chapter, he determines that

neither an unequal alliance, that is, where one party retains great

advantages, nor a feudal homage take away the character of

sovereignty, so far at least as authority over subjects is concerned.

[366] § 18.

92. In the next chapter, Grotius dwells more at length on the alledged

right of subjects to resist their governors, and altogether repels it,

with the exception of strict self-defence, or the improbable case of a

hostile spirit, on the prince’s part, extending to the destruction of

his people. Barclay, the opponent of Buchanan and the Jesuits, had

admitted the right of resistance against enormous cruelty. If the king

has abdicated the government, or manifestly relinquished it, he may,

after a time, be considered merely a private person. But mere

negligence in government is by no means to be reckoned a

relinquishment.[367] And he also observes, that if the sovereignty be

divided between a king and part of his subjects or the whole, he may

be resisted by force in usurping their share, because he is no longer

sovereign as to that; which he holds to be the case, even if the right

of war be in him, since that must be understood of a foreign war, and

it could not be maintained that those who partake the sovereignty have

not the right to defend it; in which predicament a king may lose even

his own share by the right of war. He proceeds to the case of

usurpation; not such as is warranted by long prescription, but while

the circumstances that led to the unjust possession subsist. Against

such an usurper he thinks it lawful to rebel, so long as there is no

treaty or voluntary act of allegiance, at least if the government de

jure sanctions the insurrection. But where there may be a doubt

whether the lawful ruler has not acquiesced in the usurpation, a

private person ought rather to stand by possession, than to take the

decision upon himself.[368]

[367] Si rex aut alius quis imperium abdicavit, aut manifeste

habet pro derelicto, in eum post id tempus omnia licent, quæ in

privatum. Sed minimè pro derelicto habere rem censendus est, qui

eam tractat negligentius. C. 4, § 9.

[368] § 20.

|All men naturally have right of war.|

93. The right of war, which we must here understand in the largest

sense, the employment of force to resist force, though by private men,

resides in all mankind. Solon, he says, taught us that those

commonwealths would be happy, wherein each man thought the injuries of

others were like his own.[369] The mere sociability of human nature

ought to suggest this to us. And, though Grotius does not proceed with

this subject, he would not have doubted that we are even bound by the

law of nature, not merely that we have a right, to protect the lives

and goods of others against lawless violence, without the

least reference to positive law or the command of a magistrate. If

this has been preposterously doubted, or affected to be doubted, in

England of late years, it has been less owing to the pedantry which

demands an express written law upon the most pressing emergency, than

to lukewarmness, at the best, in the public cause of order and

justice. The expediency of vindicating these by the slaughter of the

aggressors must depend on the peculiar circumstances; but the right is

paramount to any positive laws, even if, which with us is not the

case, it were difficult to be proved from them.

[369] Εν ᾑ των αδικουμενων ουχ ἡττον οἱ μη αδικουμενοι

προβαλλονται και κολαζουσι τους αδικουντας. [En hê tôn

adikoumenôn ouch hêtton hoi mê adikoumenoi proballontai kai

kolazousi tous adikountas.] Ut cætera desint vincula, sufficit

humanæ naturæ communio.

|Right of self-defence.|

94. We now arrive at the first and fundamental inquiry, what is the

right of self-defence, including the defence of what is our own. There

can, says Grotius, be no just cause of war (that is, of using force,

for he is now on the most general ground) but injury. For this reason

he will not admit of wars to preserve the balance of power. An

imminent injury to ourselves or our property renders repulsion of the

aggressor by force legitimate. But here he argues rather weakly and

inconsistently through excess of charity, and acknowledging the strict

right of killing one who would otherwise kill us, thinks it more

praiseworthy to accept the alternative.[370] The right of killing one

who inflicts a smaller personal injury he wholly denies; and with

respect to a robber, while he admits he may be slain by natural law,

is of opinion that the Gospel has greatly limited the privilege of

defending our property by such means. Almost all jurists and

theologians of his day, he says, carry it farther than he does.[371]

To public warfare he gives a greater latitude than to private

self-defence, but without assigning any satisfactory reason; the true

reason being that so rigid a scheme of ethics would have rendered his

book an Utopian theory, instead of a practicable code of law.

[370] Lib. ii., c. 1., § 8. Gronovius observes pithily and truly

on this: melius occidi quam occidere injuria; non melius occidi

injuria quam occidere jure.

[371] Hodie omnes ferme tam jurisconsulti quam theologi doceant

recte homines a nobis interfici rerum defendendarum causa, § 13.

95. Injury to our rights, therefore, is a just cause of war. But what

are our rights? What is property? whence does it come? what may be its

subjects? in whom does it reside? Till these questions are determined,

we can have but crude and indefinite notions of injury, and

consequently of the rights we have to redress it. The disquisition is

necessary, but it must be long; unless indeed we acquiesce in what we

find already written, and seek for no stable principles upon which

this grand and primary question in civil society, the rights of

property and dominion, may rest. Here then begins what has seemed to

many the abandonment by Grotius of his general subject, and what

certainly suspends for a considerable time the inquiry into

international law, but still not, as it seems to me, an episodical

digression, at least for the greater part, but a natural and

legitimate investigation, springing immediately from the principal

theme of the work, connected with it more closely at several

intervals, and ultimately reverting into it. But of this the reader

will judge as we proceed with the analysis.

|Its origin and limitations.|

96. Grotius begins with rather too romantic a picture of the early

state of the world, when men lived on the spontaneous fruits of the

earth, with no property except in what each had taken from the common

mother’s lap. But this happy condition did not, of course, last very

long, and mankind came to separate and exclusive possession, each man

for himself and against the world. Original occupancy by persons, and

division of lands by the community, he rightly holds to be the two

sources of territorial propriety. Occupation is of two sorts, one by

the community (per universitatem), the other (per fundos) by several

possession. What is not thus occupied is still the domain of the

state. Grotius conceives that mankind have reserved a right of taking

what belongs to others in extreme necessity. It is a still more

remarkable limitation of the right of property, that he carries very

far his notions of that of transit, maintaining that not only rivers,

but the territory itself of a state may be peaceably entered, and that

permission cannot be refused, consistently with natural law, even in

the case of armies; nor is the apprehension of incurring the hostility

of the power who is thus attacked by the army passing through our

territory a sufficient excuse.[372] This of course must now be

exploded. Nor can, he thinks, the transit of merchandise be forbidden

or impeded by levying any farther tolls than are required for the

incident expenses. Strangers ought to be allowed to settle, on

condition of obeying the laws, and even to occupy any waste tracts in

the territory;[373] a position equally untenable. It is less

unreasonably that he maintains the general right of mankind to buy

what they want, if the other party can spare it; but he extends too

far his principle, that no nation can be excluded by another from

privileges which it concedes to the rest of the world. In all these

positions, however, we perceive the enlarged and philanthropic spirit

of the system of Grotius, and his disregard of the usages of mankind,

when they clashed with his Christian principles of justice. But as the

very contrary supposition has been established in the belief of the

present generation, it may be doubtful whether his own testimony will

be thought sufficient.

[372] Sic etiam metus ab eo in quem bellum justum movet is qui

transit, ad negandum transitum non valet. Lib. ii., c. 2, § 13.

[373] 16, 17.

|Right of occupancy.|

97. The original acquisition of property was in the infancy of human

societies, by division or by occupancy; it is now by occupancy alone.

Paullus has reckoned as a mode of original acquisition, if we have

caused anything to exist, si quid ipsi, ut in rerum natura esset,

fecimus. This, though not well expressed, must mean the produce of

labour. Grotius observes, that this resolves itself into a continuance

of a prior right, or a new one by occupancy, and therefore no peculiar

mode of acquisition. In those things which naturally belong to no one,

there may be two sorts of occupation, dominion or sovereignty, and

property. And, in the former sense at least, rivers and bays of the

sea are capable of occupation. In what manner this may be done he

explains at length.[374] But those who occupy a portion of the sea

have no right to obstruct others in fishing. This had been the subject

of a controversy with Selden; the one in his Mare Liberum denying, the

other in his Mare Clausum sustaining, the right of England to exclude

the fishermen of Holland from the seas which she asserted to be her

own.

[374] C. 3.

|Relinquishment of it.|

98. The right of occupancy exists as to things derelict or abandoned

by their owners. But it is of more importance to consider the

presumptions of such relinquishment by sovereign states, as

distinguished from mere prescription. The non-claim of the owner

during a long period seems the only means of giving a right where none

originally existed. It must be the silent acquiescence of one who

knows his rights and has his free will. But when this abandonment has

once taken place, it bars unborn claimants; for he who is not born,

Grotius says, has no rights; ejus qui nondum est natus nullum est

jus.[375]

[375] C. 4.

|Right over persons. By generation.|

99. A right over persons may be acquired in three ways, by generation,

by their consent, by their crime. In children we are to consider three

periods: that of imperfect judgment, or infancy; that of adult age in

the father’s family; and that of emancipation or foris-familiation,

when they have ceased to form a part of it. In the first of these, a

child is capable of property in possession but not in enjoyment. In

the second, he is subject to the parent only in actions which affect

the family. In the third, he is wholly his own master. All beyond this

is positive law. The paternal power was almost peculiar to the Romans,

though the Persians are said to have had something of the same.

Grotius, we perceive, was no ally of those who elevated the

patriarchal power in order to found upon it a despotic polity; nor

does he raise it by any means so high as Bodin. The customs of Eastern

nations would, perhaps, have warranted somewhat more than he

concedes.[376]

[376] C. 5.

|By consent. In marriage.|

100. Consent is the second mode of acquiring dominion. The

consociation of male and female is the first species of it, which is

principally in marriage, for which the promise of the woman to be

faithful is required. But he thinks that there is no mutual obligation

by the law of nature; which seems designed to save the polygamy of the

patriarchs. He then discusses the chief questions as to divorce,

polygamy, clandestine marriages, and incest; holding that no unions

are forbidden by natural law except in the direct line. Concubines, in

the sense of the Roman jurisprudence, are true Christian wives.[377]

[377] Id.

|In commonwealths.|

101. In all other consociations except marriage, it is a rule that the

majority can bind the minority. Of these the principal is a

commonwealth. And here he maintains the right of every citizen to

leave his country, and that the state retains no right over those it

has banished. Subjection, which may arise from one kind of consent, is

either private or public; the former is of several species, among

which adoption, in the Roman sense, is the noblest, and servitude the

meanest. In the latter case, the master has not the right of life and

death over his servants, though some laws give him impunity. He is

perplexed about the right over persons born in slavery, since his

theory of its origin will not support it. But, in the case of public

subjection, where one state becomes voluntarily subject to

another, he finds no difficulty about the unborn, because the people

is the same, notwithstanding the succession of individuals; which

seems paying too much deference to a legal fiction.[378]

[378] C. 5.

|Right of alienating subjects.|

|Alienation by testament.|

102. The right of alienating altogether the territory he grants to

patrimonial sovereigns. But he denies that a part can be separated

from the rest without its consent, either by the community or by the

sovereign, however large his authority may be. This he extends to

subjection of the kingdom to vassalage. The right of alienating

private property by testament is founded, he thinks in natural

law;[379] a position wherein I can by no means concur. In conformity

with this, he derives the right of succession by intestacy from the

presumed intention of the deceased, and proceeds to dilate on the

different rules of succession established by civil laws. Yet the rule

that paternal and maternal heirs shall take respectively what

descended from the ancestors on each side, he conceives to be founded

in the law of nature, though subject to the right of bequest.[380]

[379] C. 6, § 14.

[380] C. 7. In this chapter Grotius decides that parents are not

bound by strict justice to maintain their children. The case is

stronger the other way, in return for early protection. Barbeyrac

thinks that aliment is due to children by strict right during

infancy.

|Rights of property by positive law.|