75. In developing, therefore, the origin of civil society, Hobbes, though not essentially differing from his predecessors, has placed the truth in a fuller light. It does not seem equally clear, that his own theory of a mutual covenant between the members of an unanimous multitude to become one people and to be represented, in all time to come, by such a sovereign government as the majority should determine, affords a satisfactory groundwork for the rights of political society. It is, in the first place, too hypothetical as a fact. That such an agreement may have been sometimes made by independent families, in the first coming together of communities, it would be presumptuous to deny—it carries upon the face of it no improbability except as to the design of binding posterity, which seems too refined for such a state of mankind as we must suppose; but it is surely possible to account for the general fact of civil government in a simpler way; and what is most simple, though not always true, is on the first appearance most probable. If we merely suppose an agreement, unanimous, of course, in those who concur in it, to be governed by one man, or by one council promising that they shall wield the force of the whole against anyone who shall contravene their commands issued for the public good, the foundation is as well laid, and the commonwealth as firmly established, as by the double process of a mutual covenant to constitute a people, and a popular determination to constitute a government. It is true that Hobbes distinguishes a commonwealth by institution, which he supposes to be founded on this unanimous consent, from one by acquisition, for which force alone is required. But as the force of one man goes but a little way towards compelling the obedience of others, so as to gain the name of sovereign power, unless it is aided by the force of many who voluntarily conspire to its ends, this sort of commonwealth by conquest will be found to involve the previous institution of the more peaceable kind.
76. This theory of a mutual covenant is defective also in a most essential point. It furnishes no adequate basis for any commonwealth beyond the lives of those who established it. The right indeed of men to bind their children and through them a late posterity is sometimes asserted by Hobbes, but in a very transient manner, and as if he was aware of the weakness of his ground. It might be inquired whether the force on which alone he rests the obligation of children to obey, can give any right beyond its own continuance; whether the absurdity he imputes to those who do not stand by their own engagements is imputable to such as disregard the covenants of their forefathers; whether, in short, any law of nature requires our obedience to a government we deem hurtful, because in a distant age, a multitude whom we cannot trace bestowed unlimited power on some unknown persons from whom that government pretends to derive its succession.
77. A better ground for the subsisting rights of his Leviathan, is sometimes suggested, though faintly, by Hobbes himself. “If one refuse to stand to what the major part shall ordain, or make protestation against any of their decrees, he does contrary to his covenant, and therefore unjustly: and whether he be of the congregation or not, whether his consent be asked or not, he must either submit to their decrees, or be left in the condition of war he was in before, wherein he might without injustice be destroyed by any man whatsoever.”[352] This renewal of the state of war which is the state of nature, this denial of the possibility of doing an injury to anyone who does not obey the laws of the commonwealth, is enough to silence the question why we are obliged still to obey. The established government and those who maintain it, being strong enough to wage war against gainsayers, give them the option of incurring the consequences of such warfare, or of complying with the laws. But it seems to be a corollary from this, that the stronger part of a commonwealth, which may not always be the majority, have not only a right to despise the wishes but the interests of dissentients. Thus, the more we scrutinize the theories of Hobbes, the more there appears a deficiency of that which only a higher tone of moral sentiment can give, a security against the appetites of others, and for them against our own. But it may be remarked that his supposition of a state of war, not as a permanent state of nature, but as just self-defence, is perhaps the best footing on which we can place the right to inflict severe, and especially capital, punishment upon offenders against the law.
[352] Lev., c. 18.
78. The positions so dogmatically laid down as to the impossibility of mixing different sorts of government were, even in the days of Hobbes, contradicted by experience. Several republics had lasted for ages under a mixed aristocracy and democracy; and there had surely been sufficient evidence that a limited monarchy might exist, though, in the revolution of ages, it might one way or other, pass into some new type of polity. And these prejudices in favour of absolute power are rendered more dangerous by paradoxes unusual from an Englishman, even in those days of high prerogative when Hobbes began to write, that the subject has no property relatively to the sovereign, and, what is the fundamental error of his whole system, that nothing done by the prince can be injurious to any one else. This is accompanied by the other portents of Hobbism, scattered through these treatises, especially the Leviathan, that the distinctions of right and wrong, moral good and evil, are made by the laws, that no man can do amiss who obeys the sovereign authority, that though private belief is of necessity beyond the prince’s control, it is according to his will, and in no other way, that we must worship God.
79. The political system of Hobbes, like his moral system, of which, in fact, it is only a portion, sears up the heart. It takes away the sense of wrong, that has consoled the wise and good in their dangers, the proud appeal of innocence under oppression, like that of Prometheus to the elements, uttered to the witnessing world, to coming ages, to the just ear of Heaven. It confounds the principles of moral approbation, the notions of good and ill desert, in a servile idolatry of the monstrous Leviathan it creates, and after sacrificing all right at the altar of power, denies to the Omnipotent the prerogative of dictating the laws of his own worship.
Sect. III.
Roman Jurisprudence—Grotius on the Laws of War and Peace—Analysis of this Work—Defence of it against some Strictures.
Civil jurists of this period. 80. In the Roman jurisprudence we do not find such a cluster of eminent men during this period as in the sixteenth century; and it would of course be out of our province to search for names little now remembered, perhaps, even in forensic practice. Many of the writings of Fabre of Savoy, who has been mentioned in the last volume, belong to the first years of this century. Farinacci, or Farinaceus, a lawyer of Rome, obtained a celebrity, which, after a long duration, has given way in the progress of legal studies, less directed than formerly towards a superfluous erudition.[353] But the work of Menochius de præsumptionibus, or, as we should say, on the rules of evidence, is said to have lost none of its usefulness, even since the decline of the civil law in France.[354] No book, perhaps, belonging to this period is so generally known as the commentaries of Vinnius on the Institutes, which, as far as I know, has not been superseded by any of later date. Conringius of Helmstadt may be reckoned in some measure among the writers on jurisprudence, though chiefly in the line of historical illustration. The Elementa Juris Civilis, by Zouch, is a mere epitome, but neatly executed, of the principal heads of the Roman law, and nearly in its own words. Arthur Duck, another Englishman, has been praised even by foreigners, for a succinct and learned, though elementary and popular, treatise on the use and authority of the civil law in different countries of Europe. This little book is not disagreeably written; but it is not of course, from England that much could be contributed towards Roman jurisprudence.
[353] Biogr. Univ.