[354] Id.
Suarez on laws. 81. The larger principles of jurisprudence, which link that science with general morals, and especially such as relate to the intercourse of nations, were not left untouched in the great work of Suarez on laws. I have not, however, made myself particularly acquainted with this portion of his large volume. Spain appears to have been the country in which these questions were originally discussed upon principles broader than precedent, as well as upon precedents themselves; and Suarez, from the general comprehensiveness of his views in legislation and ethics, is likely to have said well whatever he may have said on the subject of international law. It does not appear however that he is much quoted by later writers.
Grotius De Jure Belli et Pacis. 82. The name of Suarez is obscure in comparison of one who soon came forward in the great field of natural jurisprudence. This was Hugo Grotius, whose famous work, De Jure Belli et Pacis, was published at Paris in 1625. It may be reckoned a proof of the extraordinary diligence as well as quickness of parts which distinguished this writer, that it had occupied a very short part of his life. He first mentions, in a letter to the younger Thuanus, in August, 1623, that he was employed in examining the principal questions which belong to the law of nations.[355] In the same year he recommends the study of that law to another of his correspondents in such terms as bespeak his own attention to it.[356] According to one of his letters to Gassendi, quoted by Stewart, the scheme was suggested to him by Peiresc.
[355] Versor in examinandis controversiis præcipuis quæ ad jus gentium pertinent. Epist. 75. This is not from the folio collection of his epistles, so often quoted in the second chapter of this volume, but from one antecedently published in 1648, and entitled Grotii Epistolæ ad Gallos.
[356] Hoc spatio exacto, nihil restat quod tibi æque commendem atque studium juris, non illius privati, ex quo leguleii et rabulæ victitant, sed gentium ac publici; quam præstabilem scientiam Cicero vocans consistere ait in fœderibus, pactionibus conditionibus populorum, regum, nationum, in omni denique jure belli et pacis. Hujus juris principia quomodo ex morali philosophia petenda sunt, monstrare poterunt Platonis ac Ciceronis de legibus liber. Sed Platonis summas aliquas legisse suffecerit. Neque pœniteat ex scholasticis Thomam Aquinatem, si non perlegere, saltem inspicere secunda parte secundæ partis libri, quem Summam Theologiæ inscripsit; præsertim ubi de justitia agit ac de legibus. Usum propius monstrabunt Pandectæ, libro primo atque ultimo; et codex Justinianeus, libro primo et tribus postremis. Nostri temporis juris consulti pauci juris gentium ac publici controversias attigere, eoque magis eminent, qui id fecere, Vasquius, Hottomannus, Gentilis. Epist. xvi. This passage is useful in showing the views Grotius himself entertained as to the subject and groundwork of his treatise.
Success of this work. 83. It is acknowledged by every one that the publication of this treatise made an epoch in the philosophical and almost we might say in the political history of Europe. Those who sought a guide to their own conscience or that of others, those who dispensed justice, those who appealed to the public sense of right in the intercourse of nations, had recourse to its copious pages for what might direct or justify their actions. Within thirty or forty years from its publication, we find the work of Grotius generally received as authority by professors of the continental universities, and deemed necessary for the student of civil law, at least in the protestant countries of Europe. In England, from the difference of laws and from some other causes which might be assigned, the influence of Grotius was far slower, and even ultimately much less general. He was, however, treated with great respect as the founder of the modern law of nations, which is distinguished from what formerly bore that name by its more continual reference to that of nature. But when a book is little read it is easily misrepresented; and as a new school of philosophers rose up, averse to much of the principles of their predecessors, but, above all things, to their tediousness, it became the fashion not so much to dispute the tenets of Grotius, as to set aside his whole work, among the barbarous and obsolete schemes of ignorant ages. For this purpose various charges have been alledged against it by men of deserved eminence, not, in my opinion, very candidly, or with much real knowledge of its contents. They have had, however, the natural effect of creating a prejudice, which, from the sort of oblivion fallen upon the book, is not likely to die away. I shall, therefore, not think myself performing an useless task in giving an analysis of the treatise De Jure Belli et Pacis; so that the reader, having seen for himself what it is, may not stand in need of any arguments or testimony to refute those who have represented it as it is not.
Its originality. 84. The book may be considered as nearly original, in its general platform, as any work of man in an advanced stage of civilization and learning can be. It is more so, perhaps, than those of Montesquieu and Smith. No one had before gone to the foundations of international law so as to raise a complete and consistent superstructure; few had handled even separate parts, or laid down any satisfactory rules concerning it. Grotius enumerates a few preceding writers, especially Ayala and Albericus Gentilis, but does not mention Soto in this place. Gentilis, he says, is wont in determining controverted questions to follow either a few precedents not always of the best description, or even the authority of modern lawyers in their answers to cases, many of which are written with more regard to what the consulting parties desire, than to what real justice and equity demand.
Its motive and object. 85. The motive assigned for this undertaking is the noblest. “I saw,” he says, “in the whole Christian world a licence of fighting, at which even barbarians might blush, wars begun on trifling pretexts or none at all, and carried on without reverence for any divine or human law, as if that one declaration of war let loose every crime.” The sight of such a monstrous state of things had induced some, like Erasmus, to deny the lawfulness of any war to a christian. But this extreme, as he justly observes, is rather pernicious than otherwise; for when a tenet so paradoxical and impracticable is maintained, it begets a prejudice against the more temperate course which he prepares to indicate. “Let, therefore,” he says afterwards, “the laws be silent in the midst of arms; but those laws only which belong to peace, the laws of civil life and public tribunals, not such as are eternal, and fitted for all seasons, unwritten laws of nature, which subsist in what the ancient form of the Romans denominated ‘a pure and holy war.’”[357]
[357] Eas res puro pioque duello repetundas censeo. It was a case prodigiously frequent in the opinion of the Romans.
His authorities. 86. “I have employed in confirmation of this natural and national law the testimonies of philosophers, of historians, of poets, lastly even of orators; not that we should indiscriminately rely upon them; for they are apt to say what may serve their party, their subject, or their cause; but because when many at different times and places affirm the same thing for certain, we may refer this unanimity to some general cause, which in such questions as these can be no other than either a right deduction from some natural principle or some common agreement. The former of these denotes the law of nature, the latter that of nations; the difference whereof must be understood, not by the language of these testimonies, for writers are very prone to confound the two words, but from the nature of the subject. For whatever cannot be clearly deduced from true premises, and yet appears to have been generally admitted, must have had its origin in free consent.... The sentences of poets and orators have less weight than those of history; and we often make use of them not so much to corroborate what we say, as to throw a kind of ornament over it.” “I have abstained,” he adds afterwards, “from all that belongs to a different subject, as what is expedient to be done; since this has its own science, that of politics, which Aristotle has rightly treated by not intermingling anything extraneous to it, while Bodin has confounded that science with this which we are about to treat. If we sometimes allude to utility, it is but in passing, and distinguishing it from the question of justice.”[358]