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tion in the Laws of Nations, it has, in that department also, been always regarded as a primary work. It soon gave rise to Puffendorf's Treatise On the Laws of Nature and Nations, and to other books of the same kind; of which some, like our own Rutherforth's Course of Lectures on Grotius, show the celebrity of the work, by taking from it nothing but the name. Mackintosh, in more than one place, gives to the work the highest terms of his eloquent praise; and how Mr Hallam speaks of it has been mentioned above.
Several objections have, however, been made to the work; and among them, one which I shall especially notice, since an attempt is made in the present edition to remedy the inconvenience thus complained of. It has been said that Grotius's composition is so encumbered, in almost every page, with a multitude of quotations from ancient historians, orators, philosophers and poets, as to confuse the subject, obscure the reasoning, and weary the reader. I am not at all disposed to dissent from what several eminent men have said in answer to this; defending Grotius's quotations, as evidences of men's moral judgments, as appeals to general sympathy, and as graceful literary ornaments; but I am also ready to allow that these citations go to the extent of disturbing the didactic clearness and convenient brevity which we wish to find in a philosophical work. Hence, in the translation with which I have accompanied the text, I have omitted all the quotations except those which were necessary to carry on the argument. By this means, the bulk of the work has been reduced more than one half; while, the names of the authors quoted, being retained in the translation, the reader can, if he chooses, pass to the passages adduced, which he will find on the same page. The translation is thus rather a selective than an abridged translation; for the didactic and argumentative parts are, in general, so
far from being here abridged, that explanatory expressions and clauses are introduced in a great number of passages where they seemed likely to make the meaning
It appears to me that the scheme and reasoning of Grotius's work are well worthy of being thus carefully presented to the reader. I agree with a former editor, Barbeyrac, that Grotius's learning, wonderful as it was, was far from being the greatest of his qualifications for the task which he undertook. His work is characterized throughout by solid philosophical principles consistently applied; by clear and orderly distinction of parts; by definite and exact notions, improved by the intellectual discipline of legal studies; by a pure and humane morality, always inclining to the higher side in disputed questions; and by a pervading though temperate spirit of religion. It may be doubted whether, even yet, we can place philosophical morality on any better basis than that which he lays down in his Prolegomena; namely, the social impulse by which man is actuated, in addition to the desire of his individual good. This social impulse is, he holds, the source of Jus, or Natural Law;-the basis of property and contract (Art. 8.) It is, he says, (Art. 16), too narrow a view to say that Utility is the Mother of Rights; the Mother of Rights is Human Nature, taken as a whole, with its impulses of kindness, pity, sociality, as well as its desire of individual pleasure and fear of pain. Human Nature is the Mother of Natural Law, and Natural Law is the Mother of Civil or Instituted Law.
By thus founding Morality and Law upon the whole compass of man's human and social, as well as animal and individual nature, Grotius, as I conceive, makes his system more true and philosophical than many of the more recent schemes of the philosophy of morals. He is thus favourably distinguished, not only from those who, like
Hobbes, found law and morality on the mutual fear of men, and from those who proclaim utility as the basis of their system; but also from later and celebrated dissertators upon Natural Law, such as Kant and Fichte, and other German philosophers. A recent writer* on this subject has justly remarked this distinction: that Grotius does not, as those philosophers do, seek the ground and basis of Rights in the insulated existence of the individual, but in the social relations of men. The critic remarks, also, that we do not find in him that strenuous attempt to separate jural from moral doctrines, which, in the Kantian period, was regarded as the essential condition for the proper development of jural philosophy: nor, again, do we meet in Grotius with that perpetual hammering upon the innate freedom of the Person as such; with the assumption that the Person, in virtue of his mere existence as a Person, is the bearer and possessor of an indefinite mass of Rights, all which may be asserted by force; while yet, on the other hand, the Person may, in cases of necessity, have to acquiesce in the mere possibility of acquiring Right, as the sole result of his Personality. And hence, as the writer just quoted further remarks, we do not find in him the harsh and startling propositions which occur so frequently in the jural speculations of the Kantian period.
The speculations on the subject of Jus, the Doctrine of Rights and Obligations, both in the hands of the German writers whom I have mentioned, in those of Grotius †, and in those of the Roman jurists from whom this strain of
*Hartenstein: Darstellung der Rechtsphilosophie des Hugo Grotius. In the Transactions of the Royal Society of Saxony, 1850.
The title of the work in full is, Hugonis Grotii De Jure Belli et Pacis Libri Tres, in quibus Jus Nature et Gentium, item Juris Publici præcipua explicantur.
speculation was originally derived, proceed upon the supposition that there is a body of Natural Law, Jus Naturæ, distinct from Instituted Law (Jus Gentium and Jus Civile), and belonging to man by his nature. I have elsewhere* endeavoured to shew that though man nowhere exists, and by his nature cannot exist, without Laws, there is no special body of Laws which can distinctively be called Natural Law, Jus Naturæ. I have noted (Elements of Morality, 1052) the inconsistencies into which Grotius, as well as others, is led, when he attempts to exemplify this distinction in particular cases. But I have also (1053, 1054) pointed out the truths which were often expressed by means of this distinction; namely, that the actual Law of any community might be worse than it is; and that it may be better. The Jus Nature may be the mere rudiments out of which the Jus Gentium is to be fashioned; or it may be the lofty ideal which the Jus Gentium never reaches. Both these lines of speculation are very interesting and instructive; and we may readily concede to the philosophical jurists the use of the phraseology which they have been accustomed to employ on such questions; and which is often convenient and useful for these and other purposes.
Jus Gentium is a phrase which, about the time of Grotius, was passing from its ancient Roman meaning, the Law common to most Nations, to its modern meaning, the Law between Nations. The prolix and multifarious character of Grotius's work arises, in a great measure, from his setting out from the first of these meanings, in order to discuss the second. He thus begins with the philosophy of ethics, and ends with exhortations to humanity, truth, and justice, even in the conduct of wars. The latter indeed, was more peculiarly his object than the former; for the narrow and
* Elements of Morality, Art. 650. Mr Bentham also denies the existence of such a body of Natural Rights.
savage view which derives law and justice from mutual fear, had not been prominently put forwards in that period, as it was soon afterwards by Hobbes; and Grotius, in debating the question, is driven to seek the opponents of his wider and humaner morality, in the ancient world, among the Grecian sophists. But the miseries arising from unregulated war pressed upon his thoughts with present and severe reality; for the Thirty Years' War had long been ravaging Europe. To this spectacle he himself ascribes the origin of his work. He says (Proleg. Art. 28), "I saw prevailing throughout the Christian world a license in making war, of which even barbarous nations would have been ashamed; recourse was had to arms for slight reasons, or for no reason; and when arms were once taken up, all reverence for divine and human law was thrown away; just as if men were thenceforth authorized to commit all crimes without restraint." The sight of these atrocities had led many men, he says, to hold all war to be unlawful to Christians; but he, more temperately, thought that the remedy was to bring it about that war itself should be subject to rules of humanity and decency. And he adds, that he conceived himself in some degree prepared for such a task by the practice of jurisprudence in his own country; and hoped, that, though unworthily ejected from that country, which had been honoured by so many of his works, he might still promote the science by the labours of his pen.
He claims (Proleg. 30), to be the first who had reduced International Law to the form of an Art or Science. Nor do I conceive that this claim goes beyond his due: though I am aware that certain writers have been recently brought to light and pointed out as his "Precursors." The Precursors thus newly brought into notice are Johannes Oldendorp,
* Die Vorläufer des Hugo Grotius auf dem Gebiete des Jus Naturæ et Gentium. Von Carl von Kaltenborn, 1848.