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.|