Conclusion of the work. 73. In the concluding chapter of the work, Bodin, with too much parade of mathematical language, descants on what he calls arithmetical, geometrical, and harmonic proportions, as applied to political regimen. As the substance of all this appears only to be, that laws ought sometimes to be made according to the circumstances and conditions of different ranks in society, sometimes to be absolutely equal, it will probably be thought by most rather incumbered by this philosophy, which, however, he borrowed from the ancients, and found conformable to the spirit of learned men in his own time. Several interesting questions in the theory of jurisprudence are incidentally discussed in this chapter, such as that of the due limits of judicial discretion.
Bodin compared with Aristotle and Machiavel. 74. It must appear, even from this imperfect analysis, in which much has been curtailed of its fair proportion, and many both curious and judicious observations omitted, that Bodin possessed a highly philosophical mind, united with the most ample stores of history and jurisprudence. No former writer on political philosophy had been either so comprehensive in his scheme, or so copious in his knowledge; none, perhaps, more original, more independent and fearless in his inquiries. Two names alone, indeed, could be compared with his: Aristotle and Machiavel. Without, however, pretending that Bodin was equal to the former in acuteness and sagacity, we may say that the experience of two thousand years, and the maxims of reason and justice, suggested or corrected by the gospel and its ministers, by the philosophers of Greece and Rome, and by the civil law, gave him advantages, of which his judgment and industry fully enabled him to avail himself. Machiavel, again, has discussed so few, comparatively, of the important questions in political theory, and has seen many things so partially, according to the narrow experience of Italian republics, that, with all his superiority in genius, and still more in effective eloquence, we can hardly say that his Discourses on Livy are a more useful study than the Republic of Bodin.
And with Montesquieu. 75. It has been often alleged, as we have mentioned above, that Montesquieu owed something, and especially his theory of the influence of climate, to Bodin. But, though he had unquestionably read the Republic with that advantage which the most fertile minds derive from others, this ought not to detract in our eyes from his real originality. The Republic, and the Spirit of Laws bear, however, a more close comparison than any other political systems of celebrity. Bodin and Montesquieu are, in this province of political theory, the most philosophical of those who have read so deeply, the most learned of those who have thought so much. Both acute, ingenious, little respecting authority in matters of opinion, but deferring to it in established power, and hence apt to praise the fountain of waters whose bitterness they exposed; both in advance of their age, but one so much that his genius neither kindled a fire in the public mind, nor gained its own due praise, the other more fortunate in being the immediate herald of a generation which he stimulated, and which repaid him by its admiration; both conversant with ancient and mediæval history, and with the Roman as well as national law; both just, benevolent, and sensible of the great object of civil society, but displaying this with some variation according to their times; both sometimes seduced by false analogies, but the one rather through respect to an erroneous philosophy, the other through personal thirst of praise and affectation of originality; both aware that the basis of the philosophy of man is to be laid in the records of his past existence; but the one prone to accumulate historical examples without sufficient discrimination, and to overwhelm, instead of convincing the reader by their redundancy, the other aiming at an induction from select experience, but hence appearing sometimes to reason generally from particular premises, or dazzling the student by a proof that does not satisfy his reason.[1123]
[1123] This account of Bodin’s Republic will be found too long by many readers; and I ought, perhaps, to apologise for it on the score that M. Lerminier, in his brilliant and agreeable Introduction à l’Histoire Generale du Droit (Paris, 1829), has pre-occupied the same ground. This, however, had escaped my recollection (though I was acquainted with the work of M. L.) when I made my own analysis, which has not been borrowed in a single line from his. The labours of M. Lerminier are not so commonly known in England as to render it unnecessary to do justice to a great French writer of the sixteenth century.
As I have mentioned M. Lerminier, I would ask whether the following is a fair translation of the Latin of Bodin:—Eo nos ipsa ratio deducit, imperia scilicet ac respublicas vi primum coaluisse, etiam si ab historia deseramur; quamquam pleni sunt libri, plenæ leges, plena antiquitas. En établissant la théorie de l’origine des sociétés, il declare qu’il y persiste, quand même les faits iraient à l’encontre. Hist. du Droit. p. 62 and 67.
Sect. III.—On Jurisprudence.
Golden Age of Jurisprudence—Cujacius—Other Civilians—Anti-Tribonianus of Hottoman—Law of Nations—Franciscus a Victoria—Balthazar Ayala—Albericus Gentilis.
Golden age of jurisprudence. 76. The latter part of the sixteenth century, denominated by Andrès the golden age of jurisprudence, produced the men who completed what Alciat and Augustinus had begun in the preceding generation, by elucidating and reducing to order the dark chaos which the Roman law, enveloped in its own obscurities and those of its earlier commentators, had presented to the student. |Cujacius.| The most distinguished of these, Cujacius, became professor at Bourges, the chief scene of his renown, and the principal seminary of the Roman law in France, about the year 1555. His works, of which many had been separately published, were collected in 1577, and they make an epoch in the annals of jurisprudence. This greatest of all civil lawyers pursued the track that Alciat had so successfully opened, avoiding all scholastic subtleties of interpretation, for which he substituted a general erudition that rendered the science at once more intelligible and more attractive. Though his works are voluminous, Cujacius has not the reputation of diffuseness; on the contrary, the art of lucid explanation with brevity is said to have been one of his great characteristics. Thus, in the Paratitla on the Digest, a little book which Hottoman, his rival and enemy, advised his own son to carry constantly about with him, we find a brief exposition, in very good Latin, of every title in order, but with little additional matter. And it is said that he thought nothing requisite for the Institutes but short clear notes, which his thorough admirers afterwards contrasted with the celebrated but rather verbose commentaries of Vinnius.
Eulogies bestowed upon him. 77. Notwithstanding this conciseness, his works extend to a formidable length. For the civil law itself is, for the most part, very concisely written, and stretches to such an extent, that his indefatigable diligence in illustrating every portion of it could not be satisfied within narrow bounds. “Had Cujacius been born sooner,” in the words of the most elegant of his successors, “he would have sufficed instead of every other interpreter. For neither does he permit us to remain ignorant of anything, nor to know anything which he has not taught. He alone instructs us on every subject, and what he teaches is always his own. Hence, though the learned style of jurisprudence began with Alciat, we shall call it Cujacian.”[1124] “Though the writings of Cujacius are so voluminous,” says Heineccius, “that scarce any one seems likely to read them all, it is almost peculiar to him, that the longer any of his books is, the more it is esteemed. Nothing in them is trivial, nothing such as might be found in any other; everything so well chosen that the reader can feel no satiety; and the truth is seen of what he answered to his disciples, when they asked for more diffuse commentaries, that his lectures were for the ignorant, his writings for the learned.”[1125] A later writer, Gennari, has given a more fully elaborate character of this illustrious lawyer, who might seem to have united every excellence without a failing.[1126] But without listening to the enemies whom his own eminence, or the polemical fierceness of some disputes in which he was engaged, created among the jurists of that age, it has since been observed, that in his writings may be detected some inconsistencies, of which whole books have been invidiously compiled, and that he was too prone to abuse his acuteness by conjectural emendations of the text; a dangerous practice, as Bynkershoek truly remarks, when it may depend upon a single particle whether the claim of Titius or of Marius shall prevail.[1127]
[1124] Gravina, Origines, Juris Civilis, p. 219.