103. In treating of the acquisition of property by the law of nations,

he means only the arbitrary constitutions of the Roman and other

codes. Some of these he deems founded in no solid reason, though the

lawgivers of every country have a right to determine such matters as

they think fit. Thus, the Roman law recognises no property in animals

_feræ naturæ_, which that of modern nations gives, he says, to

the owner of the soil where they are found, not unreasonably any more

than the opposite maxim is unreasonable. So of a treasure found in the

earth, and many other cases, wherein it is hard to say that the law of

nature and reason prescribes one rule more than another.[381]

[381] § 8.

|Extinction of rights.|

104. The rights of sovereignty and property may terminate by

extinction of the ruling or possessing family without provision of

successors. Slaves then become free, and subjects their own masters.

For there can be no new right by occupancy in such. Even a people or

community may cease to exist, though the identity of persons or even

of race is not necessary for its continuance. It may expire by

voluntary dispersion, or by subjugation to another state. But mere

change of place by simultaneous emigration will not destroy a

political society, much less a change of internal government. Hence, a

republic becoming a monarchy, it stands in the same relation to other

communities as before, and in particular, is subject to all its former

debts.[382]

[382] § 2. At the end of this chapter, Grotius unfortunately

raises a question, his solution of which laid him open to

censure. He inquires to whom the countries formerly subject to

the Roman empire belong? And here he comes to the inconceivable

paradox that that empire and the rights of the citizens of Rome

still subsist. Gronovius bitterly remarks, in a note on this

passage: Mirum est hoc loco summum virum, cum in præcipua

questione non male sentiret, in tot salebras se conjecisse,

totque monstra et chimæras confinxisse, ut aliquid novum diceret,

et Germanis potius ludibrium deberet, quam Gallis et Papæ parum

placeret. This, however, is very uncandid, as Barbeyrac truly

points out; since neither of these could take much interest in a

theory which reserved a supremacy over the world to the Roman

people. It is probably the weakest passage in all the writings of

Grotius, though there are too many which do not enhance his fame.

|Some casuistical questions.|

105. In a chapter on the obligations which the right of property

imposes on others than the proprietor, we find some of the more

delicate questions in the casuistry of natural law, such as relate to

the bonâ fide possessor of another’s property. Grotius, always siding

with the stricter moralists, asserts that he is bound not only to

restore the substance but the intermediate profits, without any claim

for the valuable consideration which he may have paid. His commentator

Barbeyrac, of a later and laxer school of casuistry, denies much of

this doctrine.[383]

[383] C. 10. Our own jurisprudence goes upon the principles of

Grotius, and even denies the possessor by a bad title, though

bonâ fide, any indemnification for what he may have laid out to

the benefit of the property, which seems hardly consonant to the

strictest rules of natural law.

|Promises.|

106. That great branch of ethics which relates to the obligation of

promises has been so diffusely handled by the casuists, as well as

philosophers, that Grotius deserves much credit for the brevity with

which he has laid down the simple principles, and discussed some of

the more difficult problems. That mere promises, or nuda

pacta, where there is neither mutual benefit, nor what the jurists

call synallagmatic contract, are binding on the conscience, whatever

they may be, or ought to be, in law, is maintained against a

distinguished civilian, Francis Connan; nor does Barbeyrac seem to

dispute this general tenet of moral philosophers. Puffendorf, however,

says, that there is a tacit condition in promises of this kind, that

they can be performed without great loss to the promiser, and Cicero

holds them to be released, if their performance would be more

detrimental to one party, than serviceable to the other. This gives a

good deal of latitude; but, perhaps, they are in such cases open to

compensation without actual fulfilment. A promise given without

deliberation, according to Grotius himself, is not binding. Those

founded on deceit or error admit of many distinctions; but he

determines, in the celebrated question of extorted promises, that they

are valid by the natural, though their obligation may be annulled by

the civil law. But the promisee is bound to release a promise thus

unduly obtained.[384] Thus also the civil law may annul other

promises, which would naturally be binding, as one of prospective

marriage between persons already under that engagement towards

another. These instances are sufficient to show the spirit in which

Grotius always approaches the decision of moral questions; serious and

learned, rather than profound, in seeking a principle, or acute in

establishing a distinction. In the latter quality he falls much below

his annotator Barbeyrac, who had indeed the advantage of coming nearly

a century after him.

[384] C. 11, § 7. It is not very probable that the promisee will

fulfil this obligation in such a case; and the decision of

Grotius, though conformable to that of the theological casuists

in general, is justly rejected by Puffendorf and Barbeyrac, as

well as by many writers of the last century. The principle seems

to be, that right and obligation in matters of agreement are

correlative, and where the first does not arise, the second

cannot exist. Adam Smith and Paley incline to think the promise

ought, under certain circumstances, to be kept; but the reasons

they give are not founded on the _justitia expletrix_, which the

proper obligation of promises, as such, requires. It is also a

proof how little the moral sense of mankind goes along with the

rigid casuists in this respect, that no one is blamed for

defending himself against a bond given through duress or illegal

violence, if the plea be a true one.

In a subsequent passage, 1. iii., c. 19, § 4, Grotius seems to

carry this theory of the duty of releasing an unjust promise so

far, as to deny its obligation, and thus circuitously to agree

with the opposite class of casuists.

|Contracts.|

107. In no part of his work has Grotius dwelt so much on the rules and

distinctions of the Roman law, as in his chapter on contracts, nor was

it very easy or desirable to avoid it.[385] The wisdom of those great

men, from the fragments of whose determinations the existing

jurisprudence of Europe, in subjects of this kind, has been chiefly

derived, could not be set aside without presumption, nor appropriated

without ingratitude. Less fettered, at least in the best age of Roman

jurisprudence, by legislative interference than our modern lawyers

have commonly been, they resorted to no other principles than those of

natural justice. That the Roman law, in all its parts, coincides with

the best possible platform of natural jurisprudence it would be

foolish to assert; but that in this great province, or rather demesne

land, of justice, the regulation of contracts between man and man, it

does not considerably deviate from the right line of reason, has never

been disputed by anyone in the least conversant with the Pandects.

[385] C. 12.

|Considered ethically.|

108. It will be manifest, however, to the attentive reader of Grotius

in this chapter that he treats the subject of contract as a part of

ethics rather than of jurisprudence; and it is only by the frequent

parallelism of the two sciences that the contrary could be suspected.

Thus, he maintains that, equality being the principle of the contract

by sale, either party is forced to restore the difference arising from

a misapprehension of the other, even without his own fault, and this

whatever may be the amount, though the civil law gives a remedy only

where the difference exceeds one half of the price.[386] And in

several other places he diverges equally from that law. Not that he

ever contemplated what Smith seems to have meant by “natural

jurisprudence,” a theory of the principles which ought to run through

and to be the foundation of the laws of all nations. But he knew that

the judge in the tribunal, and the inward judge in the breast, even

where their subjects of determination appear essentially the same,

must have different boundaries to their jurisdiction; and that, as the

general maxims and inflexible forms of external law, in attempts to

accommodate themselves to the subtleties of casuistry, would become

uncertain and arbitrary, so the finer emotions of the conscience would

lose all their moral efficacy, by restraining the duties of justice to

that which can be enforced by the law. In the course of this twelfth

chapter we come to a question much debated in the time of Grotius, the

lawfulness of usury. After admitting, against the common opinion, that

it is not repugnant to the law of nature, he yet maintains the

prohibition in the Mosaic code to be binding on all mankind.[387] An

extraordinary position, it would seem, in one who had denied any part

of that system to be truly an universal law. This was, however, the

usual determination of casuists; but he follows it up, as was also

usual, with so many exceptions as materially relax and invalidate the

application of his rule.

[386] C. 12, § 12.

[387] § 20.

|Promissory oaths.|

109. The next chapter, on promissory oaths, is a corollary to the last

two. It was the opinion of Grotius, as it had been of all theologians,

and, in truth, of all mankind, that a promise or contract not only

becomes more solemn, and entails on its breach a severer penalty, by

means of this adjuration of the Supreme Being, but may even acquire a

substantial validity by it in cases where no prior obligation would

subsist.[388] This chapter is distinguished by a more than usually

profuse erudition. But notwithstanding the rigid observance of oaths

which he deems incumbent by natural and revealed law, he admits of a

considerable authority in the civil magistrate, or other superior, as

a husband or father, to annul the oaths of inferiors beforehand, or to

dispense with them afterwards; not that they can release a moral

obligation, but that the obligation itself is incurred under a tacit

condition of their consent. And he seems, in rather a singular manner,

to hint a kind of approval of such dispensations by the church.[389]

[388] C. 13.

[389] § 20. Ex hoc fundamento defendi possunt absolutiones

juramentorum, quæ olim a principibus, nunc ipsorum principum

voluntate, quo magis cautum sit pietati, ab ecclesiæ præsidibus

exercentur.

|Engagements of kings towards subjects.|

110. Whatever has been laid down by Grotius in the last three chapters

as to the natural obligations of mankind, has an especial reference to

the main purport of this great work, the duties of the supreme power.

But the engagements of sovereigns give rise to many questions which

cannot occur in those of private men. In the chapter which ensues, on

the promises, oaths, and contracts of sovereigns, he confines himself

to those engagements which immediately affect their subjects. These it

is of great importance, in the author’s assumed province of the

general confessor or casuist of kings, to place on a right footing;

because they have never wanted subservient counsellors, who would

wrest the law of conscience, as well as that of the land, to the

interests of power. Grotius, in denying that the sovereign may revoke

his own contracts, extends this case to those made by him during his

minority, without limitation to such as have been authorised by his

guardians.[390] His contracts with his subjects create a true

obligation, of which they may claim, though not enforce, the

performance. He hesitates whether to call this obligation a civil, or

only a natural one; and, in fact, it can only be determined by

positive law.[391] Whether the successors of a sovereign are bound by

his engagements, must depend on the political constitution, and on the

nature of the engagement. Those of an usurper he determines not to be

binding, which should probably be limited to domestic contracts,

though his language seems large enough to comprise engagements towards

foreign states.[392]

[390] C. 14, § 1.

[391] § 6.

[392] Contractibus vero eorum qui sine jure imperium invaserunt,

non tenebuntur populi aut veri reges, nam hi jus obligandi

populum non habuerunt. § 14.

|Public treaties.|

111. We now return from what, in strict language, may pass for a long

digression, though not a needless one, to the main stream of

international law. The title of the fifteenth chapter is on Public

Treaties. After several divisions, which it would at present be

thought unnecessary to specify so much at length, Grotius enters on a

question not then settled by theologians, whether alliances with

infidel powers were in any circumstances lawful. Francis I. had given

great scandal in Europe by his league with the Turk. And though

Grotius admits the general lawfulness of such alliances, it is under

limitations which would hardly have borne out the court of France in

promoting the aggrandizement of the common enemy of Christendom.

Another and more extensive head in the casuistry of nations relates to

treaties that have been concluded without the authority of the

sovereign. That he is not bound by these engagements is evident as a

leading rule; but the course which, according to natural law, ought to

be taken in such circumstances is often doubtful. The famous

capitulation of the Roman army at the Caudine Forks is in point.

Grotius, a rigid casuist, determines that the senate were not bound to

replace their army in the condition from which the treaty had

delivered them. And this seems to be a rational decision, though the

Romans have sometimes incurred the censure of ill faith for their

conduct. But if the sovereign has not only by silence acquiesced in

the engagement of his ambassador or general, which of itself,

according to Grotius, will not amount to an implied ratification, but

recognised it by some overt act of his own, he cannot afterwards plead

the defect of sanction.[393]

[393] C. 15.

|Their interpretation.|

112. Promises consist externally in words, really in the intention of

the parties. But as the evidence of this intention must usually depend

on words, we should adapt our general rules to their natural meaning.

Common usage is to determine the interpretation of agreements, except

where terms of a technical sense have been employed. But if the

expressions will bear different senses, or if there is some apparent

inconsistency in different clauses, it becomes necessary to collect

the meaning conjecturally, from the nature of the subject, from the

consequences of the proposed interpretation, and from its bearing on

other parts of the agreement. This serves to exclude unreasonable and

unfair constructions from the equivocal language of treaties, such as

was usual in former times to a degree which the greater prudence of

contracting parties, if not their better faith, has rendered

impossible in modern Europe. Among other rules of interpretation,

whether in private or public engagements, he lays down one, familiar

to the jurists, but concerning the validity of which some have

doubted, that things favourable, as they style them, or conferring a

benefit, are to be construed largely; things odious, or onerous to one

party, are not to be stretched beyond the letter. Our own law, as is

well known, adopts this distinction between remedial and penal

statutes; and it seems (wherever that which is favourable in one

sense, is not odious in another) the most equitable principle in

public conventions. The celebrated question, the cause, or, as

Polybius more truly calls it, the pretext of the second Punic war,

whether the terms of a treaty binding each party not to attack the

allies of the other will comprehend those who had entered subsequently

into alliance, seems, but rather on doubtful grounds, to be decided in

the negative. Several other cases from history are agreeably

introduced in this chapter.[394]

[394] C. 16.

113. It is often, he observes, important to ascertain, whether a

treaty be personal or real, that is, whether it affect only the

contracting sovereign or the state. The treaties of republics are

always real or permanent, even if the form of government should become

monarchical; but the converse is not true as to those of kings, which

are to be interpreted according to the probable meaning, where there

are no words of restraint or extension. A treaty subsists with a king,

though he may be expelled by his subjects; nor is it any breach of

faith to take up arms against an usurper with the lawful sovereign’s

consent. This is not a doctrine which would now be endured.[395]

[395] C. 16, § 17.

114. Besides those rules of interpretation which depend on explaining

the words of an engagement, there are others which must sometimes be

employed to extend or limit the meaning beyond any natural

construction. Thus, in the old law-case, a bequest, in the event of

the testator’s posthumous son dying, was held valid, where none was

born, and instances of this kind are continual in the books of

jurisprudence. It is equally reasonable sometimes to restrain the

terms of a promise, where they clearly appear to go beyond the design

of the promiser, or where supervenient circumstances indicate an

exception which he would infallibly have made. A few sections in this

place seem, perhaps, more fit to have been inserted in the eleventh

chapter.

|Obligation to repair injury.|

115. There is a natural obligation to make amends for injury to the

natural rights of another, which is extended by means of the

establishment of property and of civil society to all which the laws

have accorded him.[396] Hence, a correlative right arises, but a right

which is to be distinguished from fitness or merit. The jurists were

accustomed to treat expletive justice, which consists in giving to

every one what is strictly his own, separately from attributive

justice, the equitable and right dispensation of all things according

to desert. With the latter Grotius has nothing to do; nor is he to be

charged with introducing the distinction of perfect and imperfect

rights, if indeed those phrases are as objectionable as some have

accounted them. In the far greater part of this chapter he

considers the principles of this important province of natural law,

the obligation to compensate damage, rather as it affects private

persons than sovereign states. As, in most instances, this falls

within the jurisdiction of civil tribunals, the rules laid down by

Grotius may, to a hasty reader, seem rather intended as directory to

the judge, than to the conscience of the offending party. This,

however, is not by any means the case; he is here, as almost

everywhere else, a master in morality and not in law. That he is not

obsequiously following the Roman law will appear by his determining

against the natural responsibility of the owner for injuries

committed, without his fault, by a slave or a beast.[397] But

sovereigns, he holds, are answerable for the piracies and robberies of

their subjects when they are able to prevent them. This is the only

case of national law which he discusses. But it is one of high

importance, being, in fact, one of the ordinary causes of public

hostility. This liability, however, does not exist where subjects,

having obtained a lawful commission by letters of marque, become

common pirates, and do not return home.

[396] C. 17.

[397] This is in the 8th title of the 4th book of the Institutes:

Si quadrupes pauperiem fecerit. Pauperies means damnum sine

injuria.

|Rights by law of nations.|

|Those of ambassadors.|

116. Thus far, the author begins in the eighteenth chapter, we have

treated of rights founded on natural law, with some little mixture of

the arbitrary law of nations. We come now to those which depend wholly

on the latter. Such are the rights of ambassadors. We have now,

therefore, to have recourse more to the usage of civilized people,

than to theoretical principles. The practice of mankind has, in fact,

been so much more uniform as to the privileges of ambassadors than

other matters of national intercourse, that they early acquired the

authority and denomination of public law. The obligation to receive

ambassadors from other sovereign states, the respect due to them,

their impunity in offences committed by their principals or by

themselves, are not indeed wholly founded on custom, to the exclusion

of the reason of the case, nor have the customs of mankind, even here,

been so unlike themselves as to furnish no contradictory precedents;

but they afford, perhaps, the best instance of a tacit agreement,

distinguishable both from moral right and from positive convention,

which is specifically denominated the law of nations. It may be

mentioned that Grotius determines in favour of the absolute impunity

of ambassadors, that is, their irresponsibility to the tribunals of

the country where they reside, in the case of personal crimes, and

even of conspiracy against the government. This, however, he founds

altogether upon what he conceives to have been the prevailing usage of

civilized states.[398]

[398] C. 18.

|Right of Sepulture.|

|Punishments.|

117. The next chapter, on the right of sepulture, appears more

excursive than any other in the whole treatise. The right of sepulture

can hardly become a public question, except in time of war, and as

such it might have been shortly noticed in the third book. It supplies

Grotius, however, with a brilliant prodigality of classical

learning.[399] But the next is far more important. It is entitled On

Punishments. The injuries done to us by others give rise to our right

of compensation and to our right of punishment. We have to examine the

latter with the more care, that many have fallen into mistakes from

not duly apprehending the foundation and nature of punishment.

Punishment is, as Grotius rather quaintly defines it. Malum passionis,

quod infligitur ob malum actionis, evil inflicted on another for the

evil which he has committed. It is not a part of attributive, and

hardly of expletive justice, nor is it, in its primary design,

proportioned to the guilt of the criminal, but to the magnitude of the

crime. All men have naturally a right to punish crimes, except those

who are themselves equally guilty; but though the criminal would have

no ground to complain, the mere pleasure of revenge is not a

sufficient motive to warrant us; there must be an useful end to render

punishment legitimate. This end may be the advantage of the criminal

himself, or of the injured party, or of mankind in general. The

interest of the injured party here considered is not that of

reparation, which, though it may be provided for in punishment, is no

proper part of it, but security against similar offences of the guilty

party or of others. All men may naturally seek this security by

punishing the offender, and though it is expedient in civil society

that this right should be transferred to the judge, it is not taken

away, where recourse cannot be had to the law. Every man may even, by

the law of nature, punish crimes by which he has sustained no injury;

the public good of society requiring security against offenders, and

rendering them common enemies.[400]

[399] C. 19.

[400] C. 20.

118. Grotius next proceeds to consider whether these rights of

punishment are restrained by revelation, and concludes that a private

Christian is not at liberty to punish any criminal, especially with

death, for his own security or that of the public, but that the

magistrate is expressly empowered by Scripture to employ the sword

against malefactors. It is rather an excess of scrupulousness, that he

holds it unbecoming to seek offices which give a jurisdiction in

capital cases.[401]

[401] Id.

119. Many things essentially evil are not properly punishable by human

laws. Such are thoughts and intentions, errors of frailty, or actions

from which, though morally wrong, human society suffers no mischief;

or the absence of such voluntary virtues as compassion and gratitude.

Nor is it always necessary to inflict lawful punishment, many

circumstances warranting its remission. The ground of punishment is

the guilt of the offender, its motive is the advantage expected from

it. No punishment should exceed what is deserved, but it may be

diminished according to the prospect of utility, or according to

palliating circumstances. But though punishments should bear

proportion to offences, it does not follow that the criminal should

suffer no more evil than he has occasioned, which would give him too

easy a measure of retribution. The general tendency of all that

Grotius has said in this chapter is remarkably indulgent and humane,

beyond the practice or even the philosophy of his age.[402]

[402] C. 20.

120. War is commonly grounded upon the right of punishing injuries, so

that the general principles upon which this right depends upon

mankind, ought well to be understood before we can judge of so great a

matter of national law. States, Grotius thinks, have a right,

analogous to that of individuals out of society, to punish heinous

offences against the law of nature or of nations, though not affecting

themselves, or even any other independent community. But this is to be

done very cautiously, and does not extend to violations of the

positive divine law, or to any merely barbarous and irrational

customs. Wars undertaken only on this score are commonly suspicious.

But he goes on to determine that war may be justly waged against those

who deny the being and providence of God, though not against

idolaters, much less for the sake of compelling any nation to embrace

Christianity, unless they persecute its professors, in which case they

are justly liable to punishment. He pronounces strongly in this place

against the persecution of heretics.[403]

[403] C. 20.

121. This is the longest chapter in the work of Grotius. Several of

his positions, as the reader may probably have observed, would not

bear a close scrutiny; the rights of individuals in a state of nature,

of magistrates in civil society, and of independent communities, are

not kept sufficiently distinct; the equivocal meaning of right, as it

exists correlatively between two parties, and as it comprehends the

general obligations of moral law, is not always guarded against. It

is, notwithstanding these defects, a valuable commentary, regard being

had to the time when it appeared, on the principles both of penal

jurisprudence, and of the rights of war.

|Their responsibility.|

122. It has been a great problem, whether the liability to punishment

can be transmitted from one person to another. This may be asked as to

those who have been concerned in the crime, and those who have not. In

the first case, they are liable as for their own offence, in having

commanded, connived at, permitted, assisted, the actors in the crime

before or after its perpetration. States are answerable for the

delinquencies of their subjects when unpunished. They are also bound

either to punish, or to deliver up, those who take refuge within their

dominions from the justice of their own country. He seems, however, to

admit afterwards, that they need only command such persons to quit the

country. But they have a right to inquire into and inform themselves

of the guilt alledged, the ancient privileges of suppliants being

established for the sake of those who have been unjustly persecuted at

home. The practice of modern Europe, he owns, has limited this right

of demanding the delivery or punishment of refugees within narrow

bounds. As to the punishment of those who have been wholly innocent of

the offence, Grotius holds it universally unjust, but distinguishes it

from indirect evil, which may often fall on the innocent. Thus, when

the estate of a father is confiscated, his children suffer, but are

not punished; since their succession was only a right contingent on

his possession at his death.[404] It is a consequence from this

principle, that a people, so far subject to its sovereign as

to have had no control upon his actions, cannot justly incur

punishment on account of them.

[404] C. 21. § 10. Hence it would follow, by the principle of

Grotius, that our law of forfeiture in high treason is just,

being part of the direct punishment of the guilty; but that of

attainder, or corruption of blood, is unjust, being an infliction

on the innocent alone. I incline to concur in this distinction,

and think it at least plausible, though it was seldom or never

taken in the discussions concerning those two laws. Confiscation

is no more unjust towards the posterity of an offender than fine,

from which of course it only differs in degree: and, on the other

hand, the law has as much right to exclude that posterity from

enjoying property at all, as from enjoying that which descends

from a third party through the blood, as we call it, of a

criminal ancestor.

|Insufficient causes of war.|

|Duty of avoiding it.|

123. After distinguishing the causes of war into pretexts and motives,

and setting aside wars without any assignable justification as mere

robberies, he mentions several pretexts which he deems insufficient,

such as the aggrandisement of a neighbour; his construction of

fortresses; the right of discovery, where there is already a

possessor, however barbarous; the necessity of occupying more land.

And here he denies, both to single men and to a people, the right of

taking up arms in order to recover their liberty. He laughs at the

pretended right of the emperor or of the pope to govern the world; and

concludes with a singular warning against wars undertaken upon any

pretended explanation of scriptural prophecies.[405] It will be

anticipated from the scrupulousness of Grotius in all his casuistry,

that he enjoins sovereigns to abstain from war in a doubtful cause,

and to use all convenient methods of avoiding it by conference,

arbitration, or even by lot. Single combat itself, as a mode of lot,

he does not wholly reject. In answer to a question often put, Whether

a war can be just on both sides? he replies that, in relation to the

cause or subject, it cannot be so, since there cannot be two opposite

rights; but since men may easily be deceived as to the real right, a

war may be just on both sides with respect to the agents.[406] In

another part of his work, he observes that resistance, even where the

cause is not originally just, may become such by the excess of the

other party.

[405] C. 22.

[406] C. 23.

|And expediency.|

|War for the sake of other subjects.|

124. The duty of avoiding war, even in a just cause, as long as

possible, is rather part of moral virtue in a large sense, than of

mere justice. But, besides the obligations imposed on us by humanity

and by Christian love, it is often expedient for our own interests to

avoid war. Of this, however, he says little, it being plainly a matter

of civil prudence with which he has no concern.[407] Dismissing,

therefore, the subject of this chapter, he comes to the justice of

wars undertaken for the sake of others. Sovereigns, he conceives, are

not bound to take up arms in defence of any one of their subjects, who

may be unjustly treated. Hence, a state may abandon those whom it

cannot protect without great loss to the rest; but whether an innocent

subject may be delivered up to an enemy is a more debated question.

Soto and Vasquez, casuists of great name, had denied this; Grotius

however determines it affirmatively. This seems a remarkable exception

from the general inflexibility of his adherence to the rule of right.

For on what principle of strict justice can a people, any more than

private persons, sacrifice, or put in jeopardy, the life of an

innocent man? Grotius is influenced by the supposition that the

subject ought voluntarily to surrender himself into the hands of the

enemy for the public good: but no man forfeits his natural rights by

refusing to perform an action not of strict social obligation.[408]

[407] C. 24.

[408] C. 25.

|Allies.|

|Strangers.|

125. Next to subjects are allies, whom the state has bound itself to

succour; and friendly powers, though without alliance, may also be

protected from unjust attack. This extends even to all mankind; though

war in behalf of strangers is not obligatory. It is also lawful to

deliver the subjects of others from extreme manifest oppression of

their rulers; and though this has often been a mere pretext, we are

not on that account to deny the justice of an honest interference. He

even thinks the right of foreign powers, in such a case, more

unequivocal than that of the oppressed people themselves. At the close

of this chapter he protests strongly against those who serve in any

cause for the mere sake of pay, and holds them worse than the common

executioner, who puts none but criminals to death.[409]

[409] C. 25.

|None to serve in an unjust war.|

126. In the twenty-sixth and concluding chapter of this second book,

Grotius investigates the lawfulness of bearing arms at the command of

superiors and determines that subjects are indispensably bound not

to serve in a war which they conceive to be clearly unjust. He

even inclines, though admitting the prevailing opinion to be

otherwise, to think, that in a doubtful cause, they should adhere to

the general moral rule in case of doubt, and refuse their personal

service. This would evidently be impracticable and ultimately

subversive of political society. It, however, denotes the extreme

scrupulosity of his mind. One might smile at another proof of this,

where he determines that the hangman, before the performance of his

duly, should satisfy himself as to the justice of the sentence.[410]

[410] C. 26.

|Rights in war.|

127. The rights of war, that is, of commencing hostility, have thus

far been investigated with a comprehensiveness that has sometimes

almost hidden the subject. We come now, in the third book, to rights

in war. Whatever may be done in war, is permitted either by the law of

nature or that of nations. Grotius begins with the first. The means

morally, though not physically, necessary to attain a lawful end are

themselves lawful; a proposition which he seems to understand

relatively to the rights of others, not to the absolute moral quality

of actions; distinctions which are apt to embarrass him. We have

therefore a right to employ force against an enemy, though it may be

the cause of suffering to innocent persons. The principles of natural

law authorize us to prevent neutrals from furnishing an enemy with the

supplies of war, or with anything else essential for his resistance to

our just demands of redress, such as provisions in a state of siege.

And it is remarkable that he refers this latter question to natural

law, because he had not found any clear decision of it by the positive

law of nations.[411]

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

|Use of deceit.|

128. In acting against an enemy force is the nature of war. But it may

be inquired, whether deceit is not also a lawful means of success? The

practice of nations and the authority of most writers seem to warrant

it. Grotius dilates on different sorts of artifice, and after

admitting the lawfulness of such as deceive by indications, comes to

the questions of words equivocal or wholly false. This he first

discusses on the general moral principle of veracity, more prolixly,

and with more deference to authority, than would suit a modern reader;

yet this basis is surely indispensable for the support of any decision

in public casuistry. The right, however, of employing falsehood

towards an enemy, which he generally admits, does not extend to

promises, which are always to be kept, whether express or implied,

especially when confirmed by oath. And more greatness of mind, as well

as more Christian simplicity would be shown by abstaining wholly from

falsehood in war. The law of nature does not permit us to tempt any

one to do that which in him would be criminal, as to assassinate his

sovereign, or to betray his trust. But we have a right to make use of

his voluntary offers.[412]

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

|Rules and Customs of nations.|

|Reprisals.|

129. Grotius now proceeds from the consideration of natural law or

justice to that of the general customs of mankind, in which,

according, to him, the arbitrary law of nations consists. By this, in

the first place, though naturally no one is answerable for another, it

has been established that the property of every citizen is as it were

mortgaged for the liabilities of the state to which he belongs. Hence,

if justice is refused to us by the sovereign, we have a right to

indemnification out of the property of his subjects. This is commonly

called reprisals; and it is a right which every private person would

enjoy, were it not for the civil laws of most countries, which compel

him to obtain the authorisation of his own sovereign, or of some

tribunal. By an analogous right the subjects of a foreign state have

sometimes been seized in return for one of our own subjects unjustly

detained by their government.[413]

[413] C. 2.

|Declarations of war.|

130. A regular war, by the law of nations, can only be waged between

political communities. Wherever there is a semblance of civil justice

and fixed law, such a community exists however violent may be its

actions. But a body of pirates or robbers are not one. Absolute

independence, however, is not required for the right of war. A formal

declaration of war, though not necessary by the law of nature, has

been rendered such by the usage of civilized nations. But it is

required, even by the former, that we should demand reparation for an

injury, before we seek redress by force. A declaration of war may be

conditional or absolute; and it has been established as a ratification

of regular hostilities, that they may not be confounded with the

unwarranted acts of private men. No interval of time is required for

their commencement after declaration.[414]

[414] C. 3.

|Rights by law of nations over enemies.|

131. All is lawful during war, in one sense of the word, which by the

law and usage of nations is dispunishable. And this, in formal

hostilities, is as much the right of one side as of the other. The

subjects of our enemy, whether active on his side or not, become

liable to these extreme rights of slaughter and pillage; but it seems

that, according to the law of nations, strangers should be exempted

from them, unless by remaining in the country they serve his cause.

Women, children, and prisoners may be put to death; quarter or

capitulation for life refused. On the other hand, if the law of

nations is less strict in this respect than that of nature, it forbids

some things which naturally might be allowable means of defence, as

the poisoning an enemy, or the wells from which he is to drink. But

the assassination of an enemy is not contrary to the law of nations,

unless by means of traitors, and even this is held allowable against a

rebel or robber, who are not protected by the rules of formal war. But

the violation of women is contrary to the law of nations.[415] The

rights of war with respect to enemies’ property are unlimited, without

exception even of churches or sepulchral monuments, sparing always the

bodies of the dead.[416]

[415] C. 4.

[416] C. 5.

132. By the law of nature, Grotius thinks that we acquire a property

in as much of the spoil as is sufficient to indemnify us, and to

punish the aggressor. But the law of nations carries this much

farther, and gives an unlimited property in all that has been acquired

by conquest, which mankind are bound to respect. This right commences

as soon as the enemy has lost all chance of recovering his losses;

which is in moveables, as soon as they are in a place within our sole

power. The transfer of property in territories is not so speedy. The

goods of neutrals are not thus transferred, when found in the cities

or on board the vessels of an enemy. Whether the spoil belongs to the

captors, or to their sovereign, is so disputed a question, that it can

hardly be reckoned a part of that law of nations, or universal usage,

with which Grotius is here concerned. He thinks, however, that what is

taken in public enterprises appertains to the state; and that this has

been the general practice of mankind. The civil laws of each people

may modify this, and have frequently done so.[417]

[417] C. 6.

|Prisoners become slaves.|

133. Prisoners, by the law of nations, become slaves of the captor,

and their posterity also. He may treat them as he pleases with

impunity. This has been established by the custom of mankind, in order

that the conqueror might be induced to spare the lives of the

vanquished. Some theologians deny the slave, even when taken in an

unjust war, the right of making his escape, from whom Grotius

dissents. But he has not a right, in conscience, to resist the

exercise of his master’s authority. This law of nations, as to the

slavery of prisoners, as he admits, has not been universally received,

and is now abolished in christian countries out of respect to

religion.[418] But, strictly, as an individual may be reduced into

slavery, so may a whole conquered people. It is of course at the

discretion of the conqueror to remit a portion of his right, and to

leave as much of their liberties and possessions untouched as he

pleases.[419]

[418] C. 7.

[419] C. 8.

|Right of postliminium.|

134. The next chapter relates to the right of postliminium, one

depending so much on the peculiar fictions of the Roman jurists, that

it seems strange to discuss it as part of an universal law of nations

at all. Nor does it properly belong to the rights of war, which are

between belligerent parties. It is certainly consonant to natural

justice, that a citizen returning from captivity should be fully

restored to every privilege and all property that he had enjoyed at

home. In modern Europe there is little to which the jus postliminii

can even by analogy be applied. It has been determined, in courts of

admiralty, that vessels recaptured after a short time do not revert to

their owner. This chapter must be reckoned rather episodical.[420]

[420] C. 9.

|Moral limitation of rights in war.|

135. We have thus far looked only at the exterior right, accorded by

the law of nations to all who wage regular hostilities in a just or

unjust quarrel. This right is one of impunity alone, but before our

own conscience, or the tribunal of moral approbation in mankind, many

things hitherto spoken of as lawful must be condemned. In the first

place, an unjust war renders all acts of force committed in its

prosecution unjust, and binds the aggressor before God to reparation.

Every one, general or soldier, is responsible in such cases for the

wrong he has commanded or perpetrated. Nor can any one knowingly

retain the property of another obtained by such a war, though he

should come to the possession of it with good faith.[421] And as

nothing can be done, consistently with moral justice in an unjust war,

so, however legitimate our ground for hostilities may be, we

are not at liberty to transgress the boundaries of equity and

humanity. In this chapter, Grotius, after dilating with a charitable

abundance of examples and authorities in favour of clemency in war,

even towards those who have been most guilty in provoking it specially

indicates women, old men, and children, as always to be spared,

extending this also to all whose occupations are not military.

Prisoners are not to be put to death, nor are towns to be refused

terms of capitulation. He denies that the law of retaliation, or the

necessity of striking terror, or the obstinate resistance of an enemy,

dispense with the obligation of saving his life. Nothing but some

personal crime can warrant the refusal of quarter or the death of a

prisoner. Nor is it allowable to put hostages to death.[422]

[421] C. 10.

[422] C. 11.

|Moderation required as to spoil.|

136. All unnecessary devastation ought to be avoided, such as the

destruction of trees, of houses, especially ornamental and public

buildings, and of everything not serviceable in war, nor tending to

prolong it, as pictures and statues. Temples and sepulchres are to be

spared for the same or even stronger reasons. Though it is not the

object of Grotius to lay down any political maxims, he cannot refrain

in this place from pointing out several considerations of expediency,

which should induce us to restrain the licence of arms within the

limits of natural law.[423] There is no right by nature to more booty,

strictly speaking, than is sufficient for our indemnity, wherein are

included the expenses of the war. And the property of innocent

persons, being subjects of our enemies, is only liable in failure of

those who are primarily aggressors.[424]

[423] C. 12.

[424] C. 13.

|And as to prisoners.|

137. The persons of prisoners are only liable, in strict moral

justice, so far as is required for satisfaction of our injury. The

slavery into which they may be reduced ought not to extend farther

than an obligation of perpetual servitude in return for maintenance.

The power over slaves by the law of nature is far short of what the

arbitrary law of nations permits, and does not give a right of

exacting too severe labour, or of inflicting punishment beyond desert.

The peculium, or private acquisitions of a slave by economy or

donation, ought to be reckoned his property. Slaves, however, captured

in a just war, though one in which they have had no concern, are not

warranted in conscience to escape and recover their liberty. But the

children of such slaves are not in servitude by the law of nature,

except so far as they have been obliged to their master for

subsistence in infancy. With respect to prisoners, the better course

is to let them redeem themselves by a ransom, which ought to be

moderate.[425]

[425] C. 14.

|Also in conquest.|

138. The acquisition of that sovereignty which was enjoyed by a

conquered people, or by their rulers, is not only legitimate, so far

as is warranted by the punishment they have deserved, or by the value

of our own loss, but also so far as the necessity of securing

ourselves extends. This last is what it is often unsafe to remit out

of clemency. It is a part of moderation in victory to incorporate the

conquered with our own citizens on equal terms, or to leave their

independence on reasonable precautions for our own security. If this

cannot be wholly conceded, their civil laws and municipal magistracies

may be preserved, and, above all, the free exercise of their religion.

The interests of conquerors are as much consulted, generally, as their

reputation, by such lenient use of their advantages.[426]

[426] C. 15.

|And in restitution to right owners.|

139. It is consonant to natural justice that we should restore to the

original owners all of which they have been despoiled in an unjust

war, when it falls into our hands by a lawful conquest, without regard

to the usual limits of postliminium. Thus, if an ambitious state comes

to be stripped of its usurpations, this should be not for the benefit

of the conqueror but of the ancient possessors. Length of time,

however, will raise the presumption of abandonment.[427] Nothing

should be taken in war from neutral states, except through necessity

and with compensation. The most ordinary case is that of the passage

of troops. The neutral is bound to strict impartiality in a war of

doubtful justice.[428] But it seems to be the opinion of Grotius, that

by the law of nature, every one, even a private man, may act in favour

of the innocent party as far as the rights of war extend, except that

he cannot appropriate to himself the possessions of the enemy; that

right being one founded on indemnification. But civil and military

laws have generally restrained this to such as obey the express order

of their government.[429]

[427] C. 16.

[428] C. 17.

[429] C. 19.

|Promises to enemies and pirates.|

140. The licence of war is restrained either by the laws of nature and

nations, which have been already discussed, or by particular

engagement. The obligation of promises extends to enemies, who

are still parts of the great society of mankind. Faith is to be kept

even with tyrants, robbers, and pirates. He here again adverts to the

case of a promise made under an unjust compulsion; and possibly his

reasoning on the general principle is not quite put in the most

satisfactory manner. It would now be argued that the violation of

engagements towards the worst of mankind, who must be supposed to have

some means of self-defence, on account of which we propose to treat

with them, would produce a desperation among men in similar

circumstances injurious to society. Or it might be urged, that men do

not lose by their crimes a right to the performance of all

engagements, especially when they have fulfilled their own share in

them, but only of such as involve a positive injustice towards the

other party. In this place he repeats his former doctrine, that the

most invalid promise may be rendered binding by the addition of an

oath. It follows from the general rule, that a prince is bound by his

engagements to rebel subjects; above all, if they have had the

precaution to exact his oath. And thus a change in the constitution of

a monarchy may legitimately take place, and it may become mixed

instead of absolute by the irrevocable concession of the sovereign.

The rule, that promises made under an unjust compulsion are not

obligatory, has no application in a public and regular war.[430]

Barbeyrac remarks on this, that if a conqueror, like Alexander,

subdues an unoffending people with no specious pretext at all, he does

not perceive why they should be more bound in conscience to keep the

promises of obedience they may have been compelled to enter into, than

if he had been an ordinary bandit. And this remark shows us, that the

celebrated problem in casuistry, as to the obligation of compulsory

promises, has far more important consequences than the payment of a

petty sum to a robber. In two cases, however, Grotius holds that we

are dispensed from keeping an engagement towards an enemy. One of

these is, when it has been conditional, and the other party has not

fulfilled his part of the convention. This is of course obvious, and

can only be open to questions as to the precedence of the condition.

The other case is where we retain what is due to us by way of

compensation, notwithstanding our promise. This is permissible in

certain instances.[431]

[430] C. 19, § 11. There seems, as has been intimated

above, to be some inconsistency in the doctrine of Grotius with

respect to the general obligation of such promises, which he

maintains in the second book; and now, as far as I collect his

meaning, denies by implication.

[431] C. 19.

|Treaties concluded by competent authority.|

141. The obligation of treaties of peace depends on their being

concluded by the authority which, according to the constitution of the

state, is sovereign for this purpose. Kings who do not possess a

patrimonial sovereignty cannot alienate any part of their dominions

without the consent of the nation or its representatives; they must

even have the consent of the city or province which is thus to be

transferred. In patrimonial kingdoms, the sovereign may alienate the

whole, but not always a part, at pleasure. He seems however to admit

an ultimate right of sovereignty, or _dominium eminens_, by which

all states may dispose of the property of their subjects, and

consequently alienate it for the sake of a great advantage, but

subject to the obligation of granting them an indemnity. He even holds

that the community is naturally bound to indemnify private subjects

for the losses they sustain in war, though this right or reparation

may be taken away by civil laws. The right of alienation by a treaty

of peace is only questionable between the sovereign and his subjects;

foreign states may presume its validity in their own favour.[432]

[432] C. 20.

|Matters relating to them.|

142. Treaties of peace are generally founded on one of two principles:

that the parties shall return to the condition wherein they were

before the commencement of hostilities, or that they shall retain what

they possess at their conclusion. The last is to be presumed in a case

of doubtful interpretation. A treaty of peace extinguishes all public

grounds of quarrel, whether known to exist or not, but does not put an

end to the claims of private men subsisting before the war, the

extinguishment of which is never to be presumed. The other rules of

interpretation which he lays down are, as usual with him, derived

rather from natural equity than the practice of mankind, though with

no neglect or scorn of the latter. He maintains the right of giving an

asylum to the banished, but not of receiving large bodies of men who

abandon their country.[433]

[433] Id.

143. The decision of lot may be adopted in some cases, in order to

avoid a war, wherein we have little chance of resisting an enemy. But

that of single combat, according to Grotius’s opinion, though

not repugnant to the law of nature, is incompatible with Christianity;

unless in the case where a party, unjustly assailed, has no other

means of defence. Arbitration by a neutral power is another method of

settling differences, and in this we are bound to acquiesce. Wars may

also be terminated by implicit submission or by capitulation. The

rights this gives him have been already discussed. He concludes this

chapter with a few observations upon hostages and pledges. With

respect to the latter he holds that they may be reclaimed after any

lapse of time, unless there is a presumption of tacit abandonment.[434]

[434] C. 20.

|Truces and conventions.|

144. A truce is an interval of war, and does not require a fresh

declaration at its close. No act of hostility is lawful during its

continuance; the infringement of this rule by either party gives the

other a right to take up arms without delay. Safe conducts are to be

construed liberally, rejecting every meaning of the words which does

not reach their spirit. Thus a safe conduct to go to a place implies

the right of returning unmolested. The ransom of prisoners ought to be

favoured.[435] A state is bound by the conventions in war made by its

officers, provided they are such as may reasonably be presumed to lie

within their delegated authority, or such as they have a special

commission to warrant, known to the other contracting party. A state

is also bound by its tacit ratification in permitting the execution of

any part of such a treaty, though in itself not obligatory, and also

by availing itself of any advantage thereby. Grotius dwells afterwards

on many distinctions relating to this subject, which, however, as far

as they do not resolve themselves into the general principle, are to

be considered on the ground of positive regulation.[436]

[435] C. 21.

[436] C. 22.

|Those of private persons.|

145. Private persons, whether bearing arms or not, are as much bound

as their superiors by the engagements they contract with an enemy.

This applies particularly to the parole of a prisoner. The engagement

not to serve again, though it has been held null by some jurists, as

contrary to our obligation towards our country, is valid. It has been

a question, whether the state ought to compel its citizens to keep

their word towards the enemy? The better opinion is that it should do

so; and this has been the practice of the most civilized nations.[437]

Those who put themselves under the protection of a state engage to do

nothing hostile towards it. Hence, such actions as that of Zopyrus,

who betrayed Babylon under the guise of a refugee, are not excusable.

Several sorts of tacit engagements are established by the usage of

nations, as that of raising a white flag in token of a desire to

suspend arms. These are exceptions from the general rule which

authorises deceit in war.[438] In the concluding chapter of the whole

treatise Grotius briefly exhorts all states to preserve good faith and

to seek peace at all times, upon the mild principles of

Christianity.[439]

[437] C. 23.

[438] C. 24.

[439] C. 25.

|Objections to Grotius made by Paley unreasonable.|

146. If the reader has had the patience to make his way through the

abstract of Grotius, De Jure Belli, that we have placed before him, he

will be fully prepared to judge of the criticisms made upon this

treatise by Paley and Dugald Stewart. “The writings of Grotius and

Puffendorf,” says the former, “are of too forensic a cast, too much

mixed up with civil law and with the jurisprudence of Germany, to

answer precisely the design of a system of ethics, the direction of

private consciences in the general conduct of human life.” But it was

not the intention of Grotius (we are not at present concerned with

Puffendorf) to furnish a system of ethics; nor did anyone ever hold

forth his treatise in this light. Upon some most important branches of

morality he has certainly dwelt so fully as to answer the purpose of

“directing the private conscience in the conduct of life.” The great

aim, however, of his inquiries was to ascertain the principles of

natural right applicable to independent communities.

147. Paley, it must be owned, has a more specious ground of accusation

in his next charge against Grotius for the profusion of classical

quotations. “To anything more than ornament they can make no claim. To

propose them as serious arguments, gravely to attempt to establish or

fortify a moral duty by the testimony of a Greek or Roman poet, is to

trifle with the reader, or rather take off his attention from all just

principles in morals.”

|Reply of Mackintosh.|

148. A late eminent writer has answered this from the text of Grotius,

but in more eloquent language than Grotius could have employed.

“Another answer,” says Mackintosh, “is due to some of those who have

criticised Grotius, and that answer might be given in the words of

Grotius himself. He was not of such a stupid and servile cast

of mind, as to quote the opinions of poets or orators, of historians

and philosophers, as those of judges from whose decision there was no

appeal. He quotes them, as he tells us himself, as witnesses, whose

conspiring testimony, mightily strengthened and confirmed by their

discordance on almost every other subject, is a conclusive proof of

the unanimity of the whole human race on the great rules of duty and

the fundamental principles of morals. On such matters, poets and

orators are the most unexceptionable of all witnesses; for they

address themselves to the general feelings and sympathies of mankind;

they are neither warped by system, nor prevented by sophistry; they

can attain none of their objects, they can neither please nor

persuade, if they dwell on moral sentiments not in unison with those

of their readers. No system of moral philosophy can surely disregard

the general feelings of human nature, and the according judgment of

all ages and nations. But where are these feelings and that judgment

recorded and preserved? In those very writings which Grotius is

gravely blamed for having quoted. The usages and laws of nations, the

events of history, the opinions of philosophers, the sentiments of

orators and poets, as well as the observation of common life are, in

truth, the materials out of which the science of morality is formed;

and those who neglect them are justly chargeable with a vain attempt

to philosophise without regard to fact and experience, the sole

foundation of all true philosophy.”[440]

[440] Mackintosh, Discourse on the Study of the Law of

Nature and Nations, p. 23 (edit. 1828).

149. The passage in Grotius which has suggested this noble defence

will be found above. It will be seen on reference to it, that he

proposes to quote the poets and orators cautiously, and rather as

ornamental than authoritative supports of his argument. In no one

instance, I believe, will he be found to “enforce a moral duty,” as

Paley imagines, by their sanction. It is, nevertheless, to be fairly

acknowledged, that he has sometimes gone a good deal farther than the

rules of a pure taste allow in accumulating quotations from the poets,

and that, in an age so impatient of prolixity as the last, this has

stood much in the way of the general reader.

|Censures of Stewart.|

150. But these criticisms of Paley contain very trifling censure in

comparison with the unbounded scorn poured on Grotius by Dugald

Stewart, in his first Dissertation on the Progress of Philosophy. I

have never read these pages of an author whom I had unfortunately not

the opportunity of personally knowing, but whose researches have

contributed so much to the delight and advantage of mankind, without

pain and surprise. It would be too much to say that, in several parts

of this Dissertation, by no means in the first class of Stewart’s

writings, other proofs of precipitate judgment do not occur; but that

he should have spoken of a work so distinguished by fame, and so

effective, as he himself admits, over the public mind of Europe, in

terms of unmingled depreciation, without having done more than glanced

at some of its pages, is an extraordinary symptom of that tendency

towards prejudices, hasty but inveterate, of which this eminent man

seems to have been not a little susceptible. The attack made by

Stewart on those who have taken the law of nature and nations as their

theme, and especially on Grotius who stands forward in that list, is

protracted for several pages, and it would be tedious to examine every

sentence in succession. Were I to do so, it is not, in my opinion, an

exaggeration to say that almost every successive sentence would lie

open to criticism. But let us take the chief heads of accusation.

|Answer to them.|

151. “Grotius,” we are told, under the title, De Jure Belli et Pacis,

“has aimed at a complete system of natural law. Condillac says, that

he chose the title in order to excite a more general curiosity.” The

total erroneousness of this passage must appear to every one who has

seen what Grotius declares to have been his primary object. He chose

the title because it came nearest to express that object--the

ascertainment of laws binding on independent communities in their

mutual relations, whether of war or peace. But as it was not possible

to lay down any solid principles of international right till the

notions of right, of sovereignty, of dominion over things and persons,

of war itself, were clearly established, it became indispensable to

build upon a more extensive basis than later writers on the law of

nations, who found the labour performed to their hands, have thought

necessary. All ethical philosophy, even in those parts which bear a

near relation to jurisprudence and to international law, was in the

age of Grotius a chaos of incoherent and arbitrary notions, brought in

from various sources, from the ancient schools, from the

scriptures, the fathers, the canons, the casuistical theologians, the

rabbins, the jurists, as well as from the practice and sentiments of

every civilised nation, past and present, the Jews, the Greeks, and

Romans, the trading republics, the chivalrous kingdoms of modern

Europe. If Grotius has not wholly disentangled himself from this

bewildering maze, through which he painfully traces his way by the

lights of reason and revelation, he has at least cleared up much, and

put others still oftener in the right path, where he has not been able

to follow it. Condillac, as here quoted by Stewart, has anticipated

Paley’s charge against Grotius, of labouring to support his

conclusions by the authority of others, and of producing a long string

of quotations to prove the most indubitable propositions. In what

degree this very exaggerated remark is true we have already seen. But

it should be kept in mind, that neither the disposition of the age in

which Grotius lived, nor the real necessity of illustrating every part

of his inquiries by the precedent usages of mankind, would permit him

to treat of moral philosophy as of the abstract theorems of geometry.

If his erudition has sometimes obstructed or misled him, which perhaps

has not so frequently happened as these critics assume, it is still

true that a contemptuous ignorance of what has been done or has been

taught, such as belonged to the school of Condillac and to that of

Paley, does not very well qualify the moral philosopher for inquiry

into the principles which are to regulate human nature.

152. “Among the different ideas,” Stewart observes, “which have been

formed of natural jurisprudence, one of the most common, especially in

the earlier systems, supposes its object to be--to lay down those

rules of justice which would be binding on men living in a social

state without any positive institutions; or, as it is frequently

called by writers on this subject, living together in a state of

nature. This idea of the province of jurisprudence seems to have been

uppermost in the mind of Grotius in various parts of his treatise.”

After some conjectures on the motives which led the early writers to

take this view of national law, and admitting that the rules of

justice are in every case precise and indispensable, and that their

authority is altogether independent of that of the civil magistrate,

he deems it “obviously absurd to spend much time in speculating about

the principles of this natural law, as applicable to men before the

institution of governments.” It may possibly be as absurd as he thinks

it. But where has Grotius shown that this condition of natural society

was uppermost in his thoughts? Of the state of nature, as it existed

among individuals before the foundation of civil institutions, he says

no more than was requisite in order to exhibit the origin of those

rights which spring from property and government. But that he has, in

some part especially of his second book, dwelt upon the rules of

justice binding on men subsequent to the institution of property, but

independently of positive laws, is most certain; nor is it possible

for any one to do otherwise, who does not follow Hobbes in confounding

moral with legal obligation; a theory to which Mr. Stewart was of all

men the most averse.

153. Natural jurisprudence is a term that is not always taken in the

same sense. It seems to be of English origin; nor am I certain, though

my memory may deceive me, that I have ever met with it in Latin or in

French. Strictly speaking, as jurisprudence means the science of law,

and is especially employed with respect to the Roman, natural

jurisprudence must be the science of morals, or the law of nature. It

is, therefore, in this sense, co-extensive with ethics, and

comprehends the rules of temperance, liberality, and benevolence, as

much as those of justice. Stewart, however, seems to consider this

idea of jurisprudence as an arbitrary extension of the science derived

from the technical phraseology of the Roman law. “Some vague notion of

this kind,” he says, “has manifestly given birth to many of the

digressions of Grotius.” It may have been seen by the analysis of the

entire treatise of Grotius above given, that none of his digressions,

if such they are to be called, have originated in any vague notion of

an identity, or proper analogy, between the strict rules of justice

and those of the other virtues. The Aristotelian division of justice

into commutative and distributive, which Grotius has adopted, might

seem in some respect to bear out this supposition; but it is evident,

from the contents of Stewart’s observations, that he was referring

only to the former species, or justice in its more usual sense, the

observance of perfect rights, whose limits may be accurately

determined, and whose violation may be redressed.

154. Natural jurisprudence has another sense imposed upon it by Adam

Smith. According to this sense, its object, in the words of

Stewart, is “to ascertain the general principles of justice which

ought to be recognised in every municipal code, and to which it ought

to be the aim of every legislator to accommodate his institutions.”

Grotius, in Smith’s opinion, was “the first who attempted to give the

world anything like a system of those principles which ought to run

through, and to be the foundation of, the laws of all nations; and his

treatise on the laws of peace and war, with all its imperfections, is

perhaps at this day the most complete book that has yet been given on

the subject.”

155. The first probably, in modern times, who conceived this idea of

an universal jurisprudence was Lord Bacon. He places among the

desiderata of political science, the province of universal justice, or

the sources of law. Id nunc agatur, ut fontes justitiæ et utilitatis

publicæ petantur, et in singulis juris partibus character quidam et

idea justi exhibeatur, ad quem particularium regnorum et

rerumpublicarum leges probare, atque inde emendationem moliri quisque,

cui hæc cordi erit et curæ possit.[441] The maxims which follow are an

admirable illustration of the principles which should regulate the

enactment and expression of laws, as well as much that should guide,

in a general manner, the decision of courts of justice. They touch

very slightly, if at all, any subject which Grotius has handled; but

certainly come far closer to natural jurisprudence, in the sense of

Smith, inasmuch as they contain principles which have no limitation to

the circumstances of particular societies. These maxims of Bacon, and

all others that seem properly to come within the province of

jurisprudence in this sense, which is now become not uncommon, the

science of universal _law_, are resolvable partly into those of

natural justice, partly into those of public expediency. Little,

however, could be objected against the admission of universal

jurisprudence, in this sense, among the sciences. But if it is meant

that any systematic science, whether by the name of jurisprudence or

legislation, can be laid down as to the principles which ought to

determine the institutions of all nations, or that, in other words,

the laws of each separate community ought to be regulated by any

universal standard, in matters not depending upon eternal justice, we

must demur to receiving so very disputable a proposition. It is

probable that Adam Smith had no thoughts of asserting it; yet his

language is not very clear, and he seems to have assigned some object

to Grotius, distinct from the establishment of natural and

international law. “Whether this was,” says Stewart, “or was not, the

leading object of Grotius, it is not material to decide; but if this

was his object, it will not be disputed that he has executed his

design in a very desultory manner, and that he often seems to have

lost sight of it altogether, in the midst of those miscellaneous

speculations on political, ethical, and historical subjects, which

form so large a portion of his treatise, and which so frequently

succeed each other without any apparent connexion or common aim.”

[441] De Augmentis, lib. vii.

156. The unfairness of this passage, it is now hardly incumbent upon

me to point out. The reader has been enabled to answer that no

political speculation will be found in the volume, De Jure Belli ac

Pacis, unless the disquisition on the origin of human society is thus

to be denominated; that the instances continually adduced from history

are always in illustration of the main argument; and that what are

here called ethical speculations are, in fact, the real subject of the

book, since it avowedly treats of obligations on the conscience of

mankind, and especially of their rulers. Whether the various topics in

this treatise “succeed each other without apparent connection or

common aim,” may best be seen by the titles of the chapters, or by the

analysis of their contents. There are certainly a very few of these

that have little in common, even by deduction or analogy, with

international law, though scarce any, I think, which do not rise

naturally out of the previous discussion. Exuberances of this kind are

so common in writers of great reputation, that where they do not

transgress more than Grotius has done, the censure of irrelevancy has

been always reckoned hypercritical.

157. “The Roman system of jurisprudence,” Mr. Stewart proceeds, “seems

to have warped in no inconsiderable degree the notions of Grotius on

all questions connected with the theory of legislation, and to have

diverted his attention from that philosophical idea of law so well

expressed by Cicero, Non a prætoris edicto, neque a duodecim tabulis,

sed penitus ex intima philosophia hauriendam juris disciplinam. In

this idolatry, indeed, of the Roman law, he has not gone so far as

some of his commentators, who have affirmed that it is only a

different name for the law of nature: but that his partiality for his

professional pursuits has often led him to overlook the immense

difference between the state of society in ancient and modern Europe,

will not, I believe, now be disputed.” It is probable that it will be

disputed by all who are acquainted with Grotius. The questions

connected with the theory of legislation which he has discussed, are

chiefly those relating to the acquisition and alienation of property

in some of the earlier chapters of the second book. That he has not,

in these disquisitions, adopted all the determinations of the Roman

jurists is certain; whether he may in any particular instance have

adhered to them more than the best theory of legislation would admit,

is a matter of variable opinion. But Stewart, wholly unacquainted with

the civil laws, appears to have much underrated their value. In all

questions of private right, they form the great basis of every

legislation; and, as all civilised nations, including our own, have

derived a large portion of their jurisprudence from this source, so

even the modern theorists, who would disdain to be ranked as disciples

of Paullus and Papinian, are not ashamed to be their plagiaries.

|Grotius vindicated against Rousseau.|

158. It has been thrown out against Grotius by Rousseau,[442] and the

same insinuation may be found in other writers, that he confounds the

fact with the right, and the duties of nations with their practice.

How little foundation there is for this calumny is sufficiently

apparent to our readers. Scrupulous, as a casuist, to an excess hardly

reconcilable with the security and welfare of good men, he was the

first, beyond the precincts of the confessional or the church, to pour

the dictates of a saint-like innocence into the ears of princes. It is

true, that, in recognising the legitimacy of slavery, and in carrying

too far the principles of obedience to government, he may be thought

to have deprived mankind of some of their security against injustice,

but this is exceedingly different from a sanction to it. An implicit

deference to what he took for divine truth was the first axiom in the

philosophy of Grotius; if he was occasionally deceived in his

application of this principle, it was but according to the notions of

his age; but those who wholly reject the authority must of course want

a common standard by which his speculations in moral philosophy can be

reconciled with their own.

[442] Contrat Social.

159. I must now quit a subject upon which, perhaps, I have dwelt too

long. The high fame of Dugald Stewart has rendered it a sort of duty

to vindicate from his hasty censures the memory of one still more

illustrious in reputation, till the lapse of time, and the fickleness

of literary fashion, conspired with the popularity of his assailants

to magnify his defects, and meet the very name of his famous treatise

with a kind of scornful ridicule. That Stewart had never read much of

Grotius, or even gone over the titles of his chapters, is very

manifest; and he displays a similar ignorance as to the other writers

on natural law, who, for more than a century afterwards, as he admits

himself, exercised a great influence over the studies of Europe. I

have commented upon very few, comparatively, of the slips which occur

in his pages on this subject.

|His arrangement.|

160. The arrangement of Grotius has been blamed as unscientific by a

more friendly judge, Sir James Mackintosh. Though I do not feel very

strongly the force of his objections, it is evident that the law of

nature might have been established on its basis, before the author

passed forward to any disquisition upon its reference to independent

communities. This would have changed a good deal the principal object

that Grotius had in view, and brought his treatise, in point of

method, very near to that of Puffendorf. But assuming, as he did, the

authority recognised by those for whom he wrote, that of the

Scriptures, he was less inclined to dwell on the proof which reason

affords for a natural law, though fully satisfied of its validity,

even without reference to the Supreme Being.

|His defects.|

161. The real faults of Grotius, leading to erroneous determinations,

seem to be rather an unnecessary scrupulousness, and somewhat of old

theological prejudice, from which scarce any man in his age, who was

not wholly indifferent to religion, had liberated himself. The notes

of Barbeyrac seldom fail to correct this leaning. Several later

writers on international law have treated his doctrine of an universal

law of nations founded on the agreement of mankind, as an empty

chimera of his invention. But if he only meant by this the tacit

consent, or, in other words, the general custom of civilized nations,

it does not appear that there is much difference between his theory

and that of Wolf or Vattel.

CHAPTER XXII.

HISTORY OF POETRY FROM 1600 TO 1650.

SECT. I.

ON ITALIAN POETRY.

_Characters of the Poets of the Seventeenth Century--Sometimes too

much depreciated--Marini--Tassoni--Chiabrera._

|Low estimation of the Seicentisti.|

1. At the close of the sixteenth century, few remained in Italy to

whom posterity has assigned a considerable reputation for their

poetry. But the ensuing period has stood lower, for the most part, in

the opinion of later ages than any other since the revival of letters.

The _seicentisti_, the writers of the seventeenth century, were

stigmatised in modern criticism, till the word has been associated

with nothing but false taste and everything that should be shunned and

despised. Those who had most influence in leading the literary

judgment of Italy went back, some almost exclusively, to the

admiration of Petrarch and his contemporaries, some to the various

writers who cultivated their native poetry in the sixteenth century.

Salvini is of the former class, Muratori of the latter.[443]

[443] Muratori, Della Perfetta Poesia, is one of the best books

of criticism in the Italian language; in the second volume are

contained some remarks by Salvini, a bigoted Florentine.

|Not quite so great as formerly.|

2. The last age, that is, the concluding twenty years of the

eighteenth century, brought with it, in many respects, a change of

public sentiment in Italy. A masculine turn of thought, an expanded

grasp of philosophy, a thirst, ardent to excess, for great exploits

and noble praise, has distinguished the Italian people of the last

fifty years from their progenitors of several preceding generations.

It is possible that the enhanced relative importance of the Lombards

in their national literature, may have not been without its influence

in rendering the public taste less fastidious as to purity of

language, less fine in that part of æsthetic discernment which relates

to the grace and felicity of expression, while it became also more apt

to demand originality, nervousness, and the power of exciting emotion.

The writers of the seventeenth century may, in some cases, have gained

by this revolution; but those of the preceding ages, especially the

Petrarchists whom Bembo had led, have certainly lost ground in

national admiration.

|Praise of them by Rubbi.|

3. Rubbi, editor of the voluminous collection, called Parnaso

Italiano, had the courage to extol the “seicentisti” for their genius

and fancy, and even to place them, in all but style, above their

predecessors. “Give them,” he says, “but grace and purity, take from

them their capricious exaggerations, their perpetual and forced

metaphors, you will think Marini the first poet of Italy, and his

followers, with their fulness of imagery and personification, will

make you forget their monotonous predecessors. I do not advise you to

make a study of the seicentisti; it would spoil your style, perhaps

your imagination; I only tell you that they were the true Italian

poets; they wanted a good style, it is admitted, but they were so far

from wanting genius and imagination, that these perhaps tended to

impair their style.”[444]

[444] Parnaso Italiano, vol. xli. (Avvertimento). Rubbi, however,

gives but two out of his long collection in fifty volumes, to the

writers of the seventeenth century.

|Also by Salfi.|

4. It is probable that every native critic would think some parts of

this panegyric, and especially the strongly hyperbolical praise of

Marini, carried too far. But I am not sure that we should be wrong in

agreeing with Rubbi, that there is as much _Catholic_ poetry, by

which I mean that which is good in all ages and countries, in some of

the minor productions of the seventeenth as in those of the sixteenth

age. The sonnets, especially, have more individuality and more

meaning. In this, however, I should wish to include the latter portion

of the seventeenth century. Salfi, a writer of more taste and judgment

than Rubbi, has recently taken the same side, and remarked the

superior originality, the more determined individuality, the greater

variety of subjects, above all, what the Italians now most value, the

more earnest patriotism of the later poets.[445] Those immediately

before us, belonging to the first half of the century, are less

numerous than in the former age; the sonnetteers, especially,

have produced much less; and in the collections of poetry, even in

that of Rubbi, notwithstanding his eulogy, they take up very little

room. Some, however, have obtained a durable renown, and are better

known in Europe than any, except the Tassos, that flourished in the

last fifty years of the golden age.

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

vol. xii., p. 424.

|Adone of Marini.|

5. It must be confessed that the praise of a masculine genius, either

in thought or language, cannot be bestowed on the poet of the

seventeenth century whom his contemporaries most admired, Giovanni

Battista Marini. He is, on the contrary, more deficient than all the

rest in such qualities, and is indebted to the very opposite

characteristics for the sinister influence he exerted on the public

taste. He was a Neapolitan by birth, and gave to the world his famous

Adone, in 1623. As he was then fifty-four years old, it may be

presumed, from the character of the poem, that it was in great part

written long before; and he had already acquired a considerable

reputation by his other works. The Adone was received with an

unbounded and ill-judging approbation; ill-judging in a critical

sense, because the faults of this poem are incapable of defence, but

not unnatural, as many parallel instances of the world’s enthusiasm

have shown. No one had before carried the corruption of taste so far;

extravagant metaphors, false thoughts and conceits on equivocal words

are very frequent in the Adone; and its author stands accountable in

some measure for his imitators, who during more than half a century

looked up to Marini with emulous folly, and frequently succeeded in

greater deviations from pure taste, without his imagination and

elegance.

|Its character.|

6. The Adone is one of the longest poems in the world, containing more

than 45,000 lines. He has shown some ingenuity in filling up the

canvas of so slight a story by additional incidents from his own

invention, and by long episodes allusive to the times in which he

lived. But the subject, expanded so interminably, is essentially

destitute of any superior interest, and fit only for an enervated

people, barren of high thoughts and high actions, the Italy,

notwithstanding some bright exceptions, of the seventeenth century. If

we could overcome this essential source of weariness, the Adone has

much to delight our fancy and our ear. Marini is, more than any other

poet, the counterpart of Ovid; his fertility of imagination, his ready

accumulation of circumstances and expressions, his easy flow of

language, his harmonious versification, are in no degree inferior; his

faults are also the same; for in Ovid we have all the overstrained

figures and the false conceits of Marini. But the Italian poet was

incapable of imitating the truth to nature and depth of feeling which

appear in many parts of his ancient prototype, nor has he as vigorous

an expression. Never does Marini rise to any high pitch; few stanzas,

perhaps, are remembered by natives for their beauty, but many are

graceful and pleasing, all are easy and musical.[446] “Perhaps,” says

Salfi, “with the exception of Ariosto, no one has been more a poet by

nature than he;”[447] a praise, however, which may justly seem

hyperbolical to those who recall their attention to the highest

attributes of poetry.

[446] Five stanzas of the seventh canto, being a choral song of

satyrs and bacchanti, are thrown into _versi sdruccioli_, and

have been accounted by the Italians an extraordinary effort of

skill, from the difficulty of sustaining a metre which is not

strong in rhymes with so much spirit and ease. Each verse also is

divided into three parts, themselves separately _sdruccioli_,

though not rhyming. One stanza will make this clear:--

Hor d’ellera s’adornino, e di pampino

I giovani, e le vergini più tenere,

E gemina nell’anima si stampino

L’imagine di Libero, e di Venere.

Tutti ardano, s’accendano, ed avampino,

Qual Semele, ch’al folgore fù cenere;

E cantino a Cupidine, ed a Bromio,

Con numeri poetici un’encomio.

Cant. vii., st. 118.

Though this metrical skill may not be of the highest merit in

poetry, it is no more to be slighted than facility of touch in a

painter.

[447] Vol. xiv., p. 147. The character of Marini’s poetry, which

this critic has given, is in general very just, and in good

taste. Corniani (vii., 123) has also done justice, and no more

than justice, to Marini. Tiraboschi has hardly said enough in his

favour; and as to Muratori, it was his business to restore and

maintain a purity of taste, which rendered him severe towards the

excesses of such poets as Marini.

|And popularity.|

7. Marini belongs to that very numerous body of poets who, delighted

with the spontaneity of their ideas, never reject any that arise;

their parental love forbids all preference, and an impartial law of

gavelkind shares their page among all the offspring of their brain.

Such were Ovid and Lucan, and such have been some of our own poets of

great genius and equal fame. Their fertility astonishes the reader,

and he enjoys for a time the abundant banquet; but satiety is too sure

a consequence, and he returns with less pleasure to a second

perusal. The censure of criticism falls invariably, and sometimes too

harshly, on this sort of poetry; it is one of those cases where the

critic and the world are most at variance; but the world is apt, in

this instance, to reverse its own judgment, and yield to the tribunal

it had rejected. “To Marini,” says an eminent Italian writer, “we owe

the lawlessness of composition: the ebullition of his genius,

incapable of restraint, burst through every bulwark, enduring no rule

but that of his own humour, which was all for sonorous verse, bold and

ingenious thoughts, fantastical subjects, a phraseology rather Latin

than Italian, and in short aimed at pleasing by a false appearance of

beauty. It would almost pass belief how much this style was admired,

were it not so near our own time that we hear as it were the echo of

its praise; nor did Dante, or Petrarch, or Tasso, or perhaps any of

the ancient poets, obtain in their lives so much applause.”[448] But

Marini, who died in 1625, had not time to enjoy much of this glory.

The length of this poem, and the diffuseness which produces its

length, render it nearly impossible to read through the Adone; and it

wants that inequality which might secure preference to detached

portions. The story of Psyche in the fourth canto may perhaps be as

fair a specimen of Marini as could be taken: it is not easy to destroy

the beauty of that fable, nor was he unfitted to relate it with grace

and interest; but he has displayed all the blemishes of his own

style.[449]

[448] Crescimbeni, ii. 470.

[449] The Adone has been frequently charged with want of decency.

It was put to the ban of the Roman Inquisition, and grave writers

have deemed it necessary to protest against its licentiousness.

Andrès even goes so far as to declare, that no one can read the

Adone whose heart as well as taste is not corrupt; and that both

for the sake of good morals and good poetry, it should be taken

out of every one’s hands. After such invectives, it may seem

extraordinary that, though the poem of Marini must by its nature

be rather voluptuous, it is by far less open to such an objection

than the Orlando Furioso, nor more, I believe, than the Faëry

Queen. No charge is apt to be made so capriciously as this.

|Secchia Rapita of Tassoni.|

8. The Secchia Rapita of Alessandro Tassoni, published at Paris in

1622, is better known in Europe than might have been expected from its

local subject, idiomatic style, and unintelligible personalities. It

turns, as the title imports, on one of the petty wars frequent among

the Italian cities as late as the beginning of the fourteenth century,

wherein the Bolognese endeavoured to recover the bucket of a well,

which the citizens of Modena, in a prior incursion, had carried off.

Tassoni, by a poetical anachronism, mixed this with an earlier contest

of rather more dignity between the little republics, wherein Enzio,

king of Sardinia, a son of Frederic II., had been made prisoner. He

has been reckoned by many the inventor, or at least the reproducer in

modern times, of the mock heroic style.[450] Pulci, however, had led

the way; and when Tassoni claims originality, it must be in a very

limited view of the execution of his poem. He has certainly more of

parody than Pulci could have attempted; the great poems of Ariosto and

Tasso, especially the latter, supply him with abundant opportunities

for this ingenious and lively, but not spiteful, exercise of wit, and

he has adroitly seized the ridiculous side of his contemporary Marini.

The combat of the cities, it may be observed, is serious enough,

however trifling the cause, and has its due proportion of slaughter;

but Tassoni, very much in the manner of the Morgante Maggiore, throws

an air of ridicule over the whole. The episodes are generally in a

still more comic style. A graceful facility and a light humour, which

must have been incomparably better understood by his countrymen and

contemporaries, make this a very amusing poem. It is exempt from the

bad taste of the age; and the few portions where the burlesque tone

disappears are versified with much elegance. Perhaps it has not been

observed that the Count de Culange, one of his most ludicrous

characters, bears a certain resemblance to Hudibras, both by his

awkward and dastardly appearance as a knight, and by his ridiculous

addresses to the lady whom he woos.[451] None, however, will question

the originality of Butler.

[450] Boileau seems to acknowledge himself indebted to Tassoni

for the Lutrin; and Pope may have followed both in the first

sketch of the Rape of the Lock, though what he has added is a

purely original conception. But in fact the mock heroic or

burlesque style, in a general sense, is so natural, and,

moreover, so common, that it is idle to talk of its inventor.

What else is Rabelais, Don Quixote, or, in Italian, the romance

of Bertoldo, all older than Tassoni? What else are the popular

tales of children, John the Giganticide, and many more? The poem

of Tassoni had a very great reputation. Voltaire did it

injustice, though it was much in his own line.

[451] Cantos X. and XI. It was intended as a ridicule on Marini,

but represents a real personage. Salfi, xiii., 147.

|Chiabrera.|

9. But the poet of whom Italy has, in later times, been far

more proud than of Marini or Tassoni was Chiabrera. Of his long life

the greater part fell within the sixteenth century; and some of his

poems were published before its close; but he has generally been

considered as belonging to the present period. Chiabrera is the

founder of a school in the lyric poetry of Italy, rendered afterwards

more famous by Guidi, which affected the name of Pindaric. It is the

Theban lyre which they boast to strike: it is from the fountain of

Dirce that they draw their inspiration; and these allusions are as

frequent in their verse, as those to Valclusa and the Sorga in the

followers of Petrarch. Chiabrera borrowed from Pindar that grandeur of

sound, that pomp of epithets, that rich swell of imagery, that

unvarying majesty of conception, which distinguish the odes of both

poets. He is less frequently harsh or turgid, though the latter

blemish has been sometimes observed in him, but wants also the

masculine condensation of his prototype; nor does he deviate so

frequently, or with so much power of imagination, into such

digressions as those which generally shade from our eyes, in a skilful

profusion of ornament, the victors of the Grecian games whom Pindar

professes to celebrate. The poet of the house of Medici and of other

princes of Italy, great at least in their own time, was not so much

compelled to desert his immediate subject, as he who was paid for an

ode by some wrestler or boxer, who could only become worthy of heroic

song by attaching his name to the ancient glories of his native city.

The profuse employment of mythological allusions, frigid as it appears

at present, was so customary, that we can hardly impute to it much

blame; and it seemed peculiarly appropriate to a style which was

studiously formed on the Pindaric model.[452] The odes of Chiabrera

are often panegyrical, and his manner was well fitted for that style,

though sometimes we have ceased to admire those whom he extols. But he

is not eminent for purity of taste, nor, I believe, of Tuscan

language: he endeavoured to force the idiom, more than it would bear,

by constructions and inventions borrowed from the ancient tongues; and

these odes, splendid and noble as they are, bear in the estimation of

critics some marks of the seventeenth century.[453] The satirical

epistles of Chiabrera are praised by Salfi as written in a moral

Horatian tone, abounding with his own experience and allusions to his

time.[454] But in no other kind of poetry has he been so highly

successful as in the lyric; and, though the Grecian robe is never cast

away, he imitated Anacreon with as much skill as Pindar. “His lighter

odes,” says Crescimbeni, “are most beautiful and elegant, full of

grace, vivacity, spirit, and delicacy, adorned with pleasing

inventions, and differing in nothing but language from those of

Anacreon. His dithyrambics I hold incapable of being excelled, all the

qualities required in such compositions being united with a certain

nobleness of expression which elevates all it touches upon.”[455]

[452] Salfi justifies the continual introduction of mythology by

the Italian poets, on the ground that it was a part of their

national inheritance, associated with the monuments and

recollections of their glory. This would be more to the purpose

if this mythology had not been almost exclusively Greek. But

perhaps all that was of classical antiquity might be blended in

their sentiments with the memory of Rome.

[453] Salfi, xii. 250.

[454] Id. xiii. 2012.

[455] Storia della volgar poesia, ii. 483.

10. The greatest lyric poet of Greece was not more the model of

Chiabrera than his Roman competitor was of Testi. “Had he been more

attentive to the choice of his expression,” says Crescimbeni, “he

might have earned the name of the Tuscan Horace.” The faults of his

age are said to be frequently discernible in Testi; but there is, to

an ordinary reader, an Horatian elegance, a certain charm of grace and

ease in his canzoni, which render them pleasing. One of these,

beginning, Ruscelletto orgoglioso, is highly admired by Muratori, the

best, perhaps, of the Italian critics, and one not slow to censure any

defects of taste. It apparently alludes to some enemy in the court of

Modena.[456] The character of Testi was ambitious and restless, his

life spent in seeking and partly in enjoying public offices, but

terminated in prison. He had taken, says a later writer, Horace for

his model; and perhaps like him he wished to appear sometimes a stoic,

sometimes an epicurean; but he knew not like him how to profit by the

lessons either of Zeno or Epicurus, so as to lead a tranquil and

independent life.[457]

[456] This canzon is in Matthias, Componimenti Lirici, ii. 190.

[457] Salfi, xii. 281.

|His followers.|

11. The imitators of Chiabrera were generally unsuccessful; they

became hyperbolical and exaggerated. The translation of Pindar by

Alessandro Adimari, though not very much resembling the original, has

been praised for its own beauty. But these poets are not to be

confounded with the Marinists, to whom they are much superior.

Ciampoli, whose Rime were published in 1628, may perhaps be the best

after Chiabrera.[458] Several obscure epic poems, some of which are

rather to be deemed romances, are commemorated by the last historian

of Italian literature. Among these is the Conquest of Granada by

Graziani, published in 1650. Salfi justly observes that the subject is

truly epic; but the poem itself seems to be nothing but a series of

episodical intrigues without unity. The style, according to the same

writer, is redundant, the similes too frequent and monotonous; yet he

prefers it to all the heroic poems which had intervened since that of

Tasso.[459]

[458] Id. p. 303. Tiraboschi, xi. 364. Baillet, on the authority

of others, speaks less honourably of Ciampoli. N. 1451.

[459] Id. vol. xiii., p. 94-129.

SECT. II.

ON SPANISH POETRY.

_Romances--The Argensolas--Villegas--Gongora, and his School._

|The styles of Spanish poetry.|

12. The Spanish poetry of the sixteenth century might be arranged in

three classes. In the first we might place that which was formed in

the ancient school, though not always preserving its characteristics;

the short trochaic metres, employed in the song or the ballad,

altogether national, or aspiring to be such, either in its subjects or

in its style. In the second would stand that to which the imitation of

the Italians had given rise, the school of Boscan and Garcilasso; and

with these we might place also the epic poems which do not seem to be

essentially different from similar productions of Italy. A third and

not inconsiderable division, though less extensive than the others, is

composed of the poetry of good sense; the didactic, semi-satirical,

Horatian style, of which Mendoza was the founder, and several

specimens of which occur in the Parnaso Español of Sedano.

|The romances.|

|The brothers Argensola.|

13. The romances of the Cid and many others are referred by the most

competent judges to the reign of Philip III.[460] These are by no

means among the best of Spanish romances, and we should naturally

expect that so artificial a style as the imitation of ancient manners

and sentiments by poets in wholly a different state of society, though

some men of talent might succeed in it, would soon degenerate into an

affected mannerism. The Italian style continued to be cultivated:

under Philip III., the decline of Spain in poetry, as in arms and

national power, was not so striking as afterwards. Several poets

belong to the age of that prince, and even that of Philip IV. was not

destitute of men of merited reputation.[461] Among the best were two

brothers, Lupercio and Bartholomew Argensola. These were chiefly

distinguished in what I have called the third or Horatian manner of

Spanish poetry, though they by no means confined themselves to any

peculiar style. “Lupercio,” says Bouterwek, “formed his style after

Horace with no less assiduity than Luis de Leon; but he did not

possess the soft enthusiasm of that pious poet, who in the religious

spirit of his poetry is so totally unlike Horace. An understanding at

once solid and ingenious, subject to no extravagant illusion, yet full

of true poetic feeling, and an imagination more plastic than creative,

impart a more perfect Horatian colouring to the odes, as well as to

the canciones and sonnets of Lupercio. He closely imitated Horace in

his didactic satires, a style of composition in which no Spanish poet

had preceded him. But he never succeeded in attaining the bold

combination of ideas which characterizes the ode style of Horace; and

his conceptions have therefore seldom anything like the Horatian

energy. On the other hand, all his poems express no less precision of

language than the models after which he formed his style. His odes, in

particular, are characterized by a picturesque tone of expression

which he seems to have imbibed from Virgil rather than from Horace.

The extravagant metaphors by which some of Herrera’s odes are deformed

were uniformly avoided by Lupercio.”[462] The genius of Bartholomew

Argensola was very like that of his brother, nor are their writings

easily distinguishable; but Bouterwek assigns on the whole a higher

place to Bartholomew. Dieze inclines to the same judgment, and thinks

the eulogy of Nicolas Antonio on these brothers, extravagant as it

seems, not beyond their merits.

[460] Duran, Romançero de romances doctrinales, amatorios,

festivos, &c., 1829. The Moorish romances, with a few exceptions,

and those of the Cid, are ascribed by this author to the latter

part of the sixteenth and the first half of the seventeenth

century. In the preface to a former publication, Romances

Moriscos, this writer has said, Cosî todos los romances que

publicamos en este libro pertenecen al siglo 16^{mo}, y algunos

pocos a principio del 17^{mo}. Los autores son desconoscidos,

pero sub obras han llegado, y merecido llegar à la posteridad. It

seems manifest from internal evidence, without critical knowledge

of the language, that those relating to the Cid are not of the

middle ages, though some seem still inclined to give them a high

antiquity. It is not sufficient to say that the language has been

modernised; the whole structure of these ballads is redolent of a

low age; and if the Spanish critics agree in this, I know not why

foreigners should strive against them.

[461] Antonio bestows unbounded praise on a poem of the epic class,

the Bernardo of Balbuena, published at Madrid, in 1624, though he

complains that in his own age it lay hid in the corners of

booksellers’ shops. Balbuena, in his opinion, has left all

Spanish poets far behind him. The subject of his poem is the very

common fable of Roncesvalles. Dieze, a more judicious and

reasonable critic than Antonio, while he denies this absolute

pre-eminence of Balbuena, gives him a respectable place among the

many epic writers of Spain. But I do not find him mentioned in

Bouterwek; in fact most of these poems are very scarce, and are

treasures for the bibliomaniacs.

[462] Hist. of Spanish Literature, p. 396.

|Villegas.|

14. But another poet, Manuel Estevan de Villegas, whose poems, written

in very early youth, entitled Amatorias or Eroticas, were published in

1620, has attained a still higher reputation, especially in other

parts of Europe. Dieze calls him “one of the best lyric poets of

Spain, excellent in the various styles he has employed, but above all

in his odes and songs. His original poems are full of genius; his

translations of Horace and Anacreon might often pass for original. Few

surpass him in harmony of verse; he is the Spanish Anacreon, the poet

of the Graces.”[463] Bouterwek, a more discriminating judge than

Dieze, who is perhaps rather valuable for research than for taste, has

observed that “the graceful luxuriance of the poetry of Villegas has

no parallel in modern literature; and, generally speaking, no modern

writer has so well succeeded in blending the spirit of ancient poetry

with the modern. But constantly to observe that correctness of ideas,

which distinguished the classical compositions of antiquity, was by

Villegas, as by most Spanish poets, considered too rigid a

requisition, and an unnecessary restraint on genius. He accordingly

sometimes degenerates into conceits and images, the monstrous

absurdity of which are characteristic of the author’s nation and age.

For instance, in one of his odes in which he entreats Lyda to suffer

her tresses to flow, he says that ‘agitated by Zephyr, her locks would

occasion a thousand deaths, and subdue a thousand lives;’ and then he

adds, in a strain of extravagance, surpassing that of the Marinists,

‘that the sun himself would cease to give light, if he did not snatch

beams from her radiant countenance to illumine the east.’ But faults

of this glaring kind are by no means frequent in the poetry of

Villegas, and the fascinating grace with which he emulates his models,

operates with so powerful a charm, that the occasional occurrence of

some little affectations, from which he could scarcely be expected

entirely to abstain, is easily overlooked by the reader.”[464]

[463] Geschichte der Spanischen Dichtkunst, p. 210.

[464] Bouterwek, i. 479.

|Quevedo.|

15. Quevedo, who, having borne the surname of Villegas, has sometimes

been confounded with the poet we have just named, is better known in

Europe for his prose than his verse; but he is the author of numerous

poems both serious and comic or satirical. The latter are by much the

more esteemed of the two. He wrote burlesque poetry with success, but

it is frequently unintelligible except to natives. In satire he

adopted the Juvenalian style.[465] A few more might be added, perhaps,

especially Espinel, a poet of the classic school, Borja of Esquillace,

once viceroy of Peru, who is called by Bouterwek the last

representative of that style in Spain, but more worthy of praise for

withstanding the bad taste of his contemporaries than for any vigour

of genius, and Christopher de la Mena.[466] No Portuguese poetry about

this time seems to be worthy of notice in European literature, though

Manuel Faria y Sousa and a few more might attain a local reputation by

sonnets and other amatory verse.

[465] Id. p. 468.

[466] Bouterwek, p. 488.

|Defects of taste in Spanish verse.|

16. The original blemish of Spanish writing, both in prose and verse,

had been an excess of effort to say everything in an unusual manner, a

deviation from the beaten paths of sentiment and language in a wider

curve than good taste permits. Taste is the presiding faculty which

regulates, in all works within her jurisdiction, the struggling powers

of imagination, emotion, and reason. Each has its claim to mingle in

the composition; each may sometimes be allowed in a great measure to

predominate; and a phlegmatic application of what men call common

sense in æsthetic criticism is almost as repugnant to its principles

as a dereliction of all reason for the sake of fantastic

absurdity. Taste also must determine, by an intuitive sense of right

somewhat analogous to that which regulates the manners of polished

life, to what extent the most simple, the most obvious, the most

natural, and, therefore, in a popular meaning, the most true, is to be

modified by a studious introduction of the new, the striking, and the

beautiful, so that neither what is insipid and trivial, nor yet what

is forced and affected, may displease us. In Spain, as we have

observed, the latter was always the prevailing fault. The public taste

had been formed on bad models, on the Oriental poetry, metaphorical

beyond all perceptible analogy, and on that of the Provençals, false

in sentiment, false in conception, false in image and figure. The

national character, proud, swelling, and ceremonious, conspired to

give an inflated tone; it was also grave and sententious, rather than

lively or delicate, and therefore fond of a strained and ambitious

style. These vices of writing are carried to excess in romances of

chivalry, which became ridiculous in the eyes of sensible men, but

were certainly very popular: they affect also, though in a different

manner, much of the Spanish prose of the sixteenth century, and they

belong to a great deal of the poetry of that age, though it must be

owned that much appears wholly exempt from them, and written in a very

pure and classical spirit. Cervantes strove by example and by precept

to maintain good taste; and some of his contemporaries took the same

line.[467] But they had to fight against the predominant turn of their

nation, which soon gave the victory to one of the worst manners of

writing that ever disgraced public favour.

[467] Cervantes, in his Viage del Parnaso, praises Gongora, and

even imitates his style; but this, Dieze says, is all ironical.

Gesch. der Dichtkunst, p. 250.

|Pedantry and far-fetched allusions.|

17. Nothing can be more opposite to what is strictly called a

classical style, or one formed upon the best models of Greece and

Rome, than pedantry. This was, nevertheless, the weed that overspread

the face of literature in those ages when Greece and Rome were the

chief objects of veneration. Without an intimate discernment of their

beauty, it was easy to copy allusions that were no longer

intelligible, to counterfeit trains of thought that belonged to past

times, to force reluctant idioms into modern form, as some are said to

dress after a lady for whom nature has done more than for themselves.

From the revival of letters downwards, this had been more or less

observable in the learned men of Europe, and after that class grew

more extensive, in the current literature of modern languages.

Pedantry, which consisted in unnecessary, and perhaps unintelligible,

references to ancient learning, was afterwards combined with other

artifices to obtain the same end, far-fetched metaphors and

extravagant conceits. The French versifiers of the latter end of the

sixteenth century were eminent in both, as the works of Ronsard and Du

Bartas attest. We might, indeed, take the Creation of Du Bartas more

properly than the Euphues of our English Lilly, which, though very

affected and unpleasing, does hardly such violence to common speech

and common sense, for the prototype of the style which, in the early

part of the seventeenth century, became popular in several countries,

but especially in Spain, through the misplaced labours of Gongora.

|Gongora.|

18. Luis de Gongora, a man of very considerable talents, and capable

of writing well, as he has shown, in different styles of poetry, was

unfortunately led by an ambitious desire of popularity to introduce

one which should render his name immortal, as it has done in a mode

which he did not design. This was his _estilo culto_, as it was

usually called, or highly polished phraseology, wherein every word

seems to have been out of its natural place. “In fulfilment of this

object,” says Bouterwek, “he formed for himself with the most

laborious assiduity, a style as uncommon as affected, and opposed to

all the ordinary rules of the Spanish language, either in prose or

verse. He particularly endeavoured to introduce into his native tongue

the intricate constructions of the Greek and Latin, though such an

arrangement of words had never been attempted in Spanish composition.

He consequently found it necessary to invent a particular system of

punctuation, in order to render the sense of his verses intelligible.

Not satisfied with this patch-work kind of phraseology, he affected to

attach an extraordinary depth of meaning to each word, and to diffuse

an air of superior dignity over his whole style. In Gongora’s poetry

the most common words received a totally new signification; and in

order to impart perfection to his _estilo culto_, he summoned all

his mythological learning to his aid.”[468] “Gongora,” says an English

writer, “was the founder of a sect in literature. The style

called in Castilian _cultismo_ owes its origin to him. This

affectation consists in using language so pedantic, metaphors so

strained, and constructions so involved, that few readers have the

knowledge requisite to understand the words, and still fewer ingenuity

to discover the allusion, or patience to unravel the sentences. These

authors do not avail themselves of the invention of letters for the

purpose of conveying, but of concealing their ideas.”[469]

[468] Bouterwek, p. 434.

[469] Lord Holland’s Lope de Vega, p. 64.

|The schools formed by him.|

19. The Gongorists formed a strong party in literature, and carried

with them the public voice. If we were to believe some writers of the

seventeenth century, he was the greatest poet of Spain.[470] The age

of Cervantes was over, nor was there vitality enough in the criticism

of the reign of Philip IV. to resist the contagion. Two sects soon

appeared among these _cultoristos_; one who retained that name,

and, like their master, affected a certain precision of style;

another, called _conceptistos_, which went still greater lengths

in extravagance, desirous only of expressing absurd ideas in unnatural

language.[471] The prevalence of such a disease, for no other analogy

can so fitly be used, would seem to have been a bad presage for Spain;

but in fact, like other diseases, it did but make the tour of Europe,

and rage worse in some countries than in others. It had spent itself

in France, when it was at its height in Italy and England. I do not

perceive the close connection of the _estilo culto_ of Gongora

with that of Marini, whom both Bouterwek and Lord Holland suppose to

have formed his own taste on the Spanish school. It seems rather too

severe an imputation on that most ingenious and fertile poet, who, as

has already been observed, has no fitter parallel than Ovid. The

strained metaphors of the Adone are easily collected by critics, and

seem extravagant in juxtaposition, but they recur only at intervals;

while those of Gongora are studiously forced into every line, and are

besides incomparably more refined and obscure. His style, indeed,

seems to be like that of Lycophron, without the excuse of that

prophetical mystery, which breathes a certain awfulness over the

symbolic language of the Cassandra. Nor am I convinced that our own

metaphysical poetry in the reigns of James and Charles, had much to do

with either Marini or Gongora, except as it bore marks of the same

vice, a restless ambition to excite wonder by overstepping the

boundaries of nature.

[470] Dieze, p. 250. Nicolas Antonio, to the disgrace of his

judgment, maintains this with the most extravagant eulogy on

Gongora; and Baillet copies him; but the next age unhesitatingly

reversed the sentence. The Portuguese have laid claim to the

estilo culto as their property, and one of their writers who

practises it, Manuel de Faria y Sousa, gives Don Sebastian the

credit of having been the first who wrote it in prose.

[471] Bouterwek, p. 438.

SECT. III.

_Malherbe--Regnier--Other French Poets._

|Malherbe.|

Introduction to the Literature of Europe in the Fifteenth, Sixteenth, and Seventeenth Centuries, Vol. 2 · 第 40 / 52 章