Chapter XIII

Chapter XIII

HISTORY OF MORAL AND POLITICAL PHILOSOPHY AND OF JURISPRUDENCE, FROM 1550 TO 1600.

SECT. I.--ON MORAL PHILOSOPHY.

Soto--Hooker--Essays of Montaigne--Their Influence on the Public--Italian and English Moralists.

1. It must naturally be supposed that by far the greater part of what was written on moral obligations in the sixteenth century will be found in the theological quarter of ancient libraries. The practice of auricular confession brought with it an entire science of casuistry, which had gradually been wrought into a complicated system. Many, once conspicuous writers in this province, belong to the present period; but we shall defer the subject till we arrive at the next, when it had acquired a more prominent importance.

|Soto, De Justitia.|

2. The first original work of any reputation in ethical philosophy since the revival of letters, and which, being apparently designed in great measure for the chair of the confessional, serves as a sort of link between the class of mere casuistry and the philosophical systems of morals which were to follow, is by Dominic Soto, a Spanish Dominican, who played an eminent part in the deliberations of the council of Trent, in opposition both to the papal court and to the theologians of the Scotist, or, as it was then reckoned by its adversaries, the Semi-Pelagian school. This folio volume, entitled De Justitia et Jure, was first published, according to the Biographie Universelle at Antwerp, in 1568. It appears to be founded on the writings of Thomas Aquinas, the polar star of every true Dominican. Every question is discussed with that remarkable observation of distinctions, and that unremitting desire, both to comprehend and to distribute a subject, which is displayed in many of these forgotten folios, and ought to inspire us with reverence for the zealous energy of their authors, even when we find it impossible, as must generally be the case, to read so much as a few pages consecutively, or when we light upon trifling and insufficient arguments in the course of our casual glances over the volume.

|Hooker.|

3. Hooker’s Ecclesiastical Polity might seem more properly to fall under the head of theology; but the first book of this work being by much the best, Hooker ought rather to be reckoned among those who have weighed the principles, and delineated the boundaries of moral and political science. I have on another occasion,[1062] done full justice to the wisdom and eloquence of this earliest among the great writers of England, who, having drunk at the streams of ancient philosophy, has acquired from Plato and Tully somewhat of their redundancy and want of precision, with their comprehensiveness of observation and their dignity of soul. The reasonings of Hooker, though he bore in the ensuing century the surname of judicious, are not always safe or satisfactory, nor, perhaps, can they be reckoned wholly clear or consistent; his learning, though beyond that of most English writers in that age, is necessarily uncritical; and his fundamental theory, the mutability of ecclesiastical government, has as little pleased those for whom he wrote as those whom he repelled by its means. But he stood out at a vast height above his predecessors and contemporaries in the English church, and was, perhaps, the first of our writers who had any considerable acquaintance with the philosophers of Greece, not merely displayed in quotation, of which others may have sometimes set an example, but in a spirit of reflection and comprehensiveness which the study of antiquity alone could have infused. The absence of minute ramifications of argument, in which the schoolmen loved to spread out, distinguishes Hooker from the writers who had been trained in those arid dialectics, such as Soto or Suarez: but, as I have hinted, considering the depth and difficulty of several questions that he deals with in the first book of the Polity, we might wish for a little less of the expanded palm of rhetoric, and somewhat of more dialectical precision in the reasoning.[1063]

[1062] Constitut. Hist. Engl. chap. iv.

[1063] It has been shown with irresistible proof by the last editor of Hooker, that the sixth book of the Ecclesiastical Polity has been lost; that which we read as such being, with the exception of a few paragraphs at the beginning, altogether a different production, though bearing marks of the same author. This is proved, not only by its want of relation to the general object of the work, and to the subject announced in the title of this very book, but by the remarkable fact, that a series of remarks by two friends of Hooker on the sixth book are extant, and published in the last edition, which were obviously designed for a totally different treatise from that which has always passed for the sixth book of the Ecclesiastical Polity. This can only be explained by the confusion in which Hooker’s manuscripts were left at his death, and upon which suspicions of interpolation have been founded. Such suspicions are not reasonable; and notwithstanding the exaggerated language which has sometimes been used, I think it very questionable whether any more perfect manuscript was ever in existence. The reasoning in the seventh and eighth books appears as elaborate, the proofs as full, the grammatical structure as perfect as in the earlier books; and the absence of those passages of eloquence, which we occasionally find in the former, cannot afford even a presumption that the latter were designed to be written over again. The eighth book is manifestly incomplete, wanting some discussions which the author had announced; but this seems rather adverse to the hypothesis of a more elaborate copy. The more probable inference is, that Hooker was interrupted by death before he had completed his plan. It is possible also that the conclusion of the eighth book has been lost like the sixth. All the stories on this subject in Walton’s Life of Hooker, who seems to have been a man always too credulous of anecdote, are unsatisfactory to any one who exacts real proof.

|His theory of natural law.|

4. Hooker, like most great moral writers both of antiquity and of modern ages, rests his positions on one solid basis, the eternal obligation of natural law. A small number had been inclined to maintain an arbitrary power of the Deity, even over the fundamental principles of right and wrong; but the sounder theologians seem to have held that, however the will of God may be the proper source of moral obligation in mankind, concerning which they were not more agreed then than they have been since, it was impossible for him to deviate from his immutable rectitude and holiness. They were unanimous also in asserting the capacity of the human faculties to discern right from wrong, little regarding what they deemed the prejudices or errors that had misled many nations, and more or less influenced the majority of mankind.

|Doubts felt by others.|

5. But there had never been wanting those who, struck by the diversity of moral judgments and behaviour among men, and especially under circumstances of climate, manners, or religion, different from our own, had found it hard to perceive how reason could be an unerring arbiter, when there was so much discrepancy in what she professed to have determined. The relations of travellers, continually pressing upon the notice of Europe in the sixteenth century, and perhaps rather more exaggerated than at present, in describing barbarous tribes, afforded continual aliment to the suspicion. It was at least evident, without anything that could be called unreasonable scepticism, that these diversities ought to be well explained and sifted before we acquiesced in the pleasant conviction that we alone could be in the right.

|Essays of Montaigne.|

6. The Essays of Montaigne, the first edition of which appeared at Bordeaux in 1580,[1064] make in several respects an epoch in literature, less on account of their real importance, or the novel truths they contain, than of their influence upon the taste and the opinions of Europe. They are the first provocatio ad populum, the first appeal from the porch and the academy to the haunts of busy and of idle men, the first book that taught the unlearned reader to observe and reflect for himself on questions of moral philosophy. In an age when every topic of this nature was treated systematically and in a didactic form, he broke out without connection of chapters, with all the digressions that levity and garrulous egotism could suggest, with a very delightful, but at that time, most unusual rapidity of transition from seriousness to gaiety. It would be to anticipate much of what will demand attention in the ensuing century, were we to mention here the conspicuous writers who, more or less directly, and with more or less of close imitation, may be classed in the school of Montaigne; it embraces, in fact, a large proportion of French and English literature, and especially of that which has borrowed his title of Essays. No prose writer of the sixteenth century has been so generally read, nor probably given so much delight. Whatever may be our estimate of Montaigne as a philosopher, a name which he was far from arrogating, there will be but one opinion of the felicity and brightness of his genius.

[1064] This edition contains only the first and second books of the Essays; the third was published in that of Paris, 1588.

|Their characteristics.|

7. It is a striking proof of these qualities, that we cannot help believing him to have struck out all his thoughts by a spontaneous effort of his mind, and to have fallen afterwards upon his quotations and examples by happy accident. I have little doubt but that the process was different; and that, either by dint of memory, though he absolutely disclaims the possessing a good one, or by the usual method of common-placing, he had made his reading instrumental to excite his own ingenious and fearless understanding. His extent of learning was by no means great for that age, but the whole of it was brought to bear on his object; and it is a proof of Montaigne’s independence of mind that, while a vast mass of erudition was the only regular passport to fame, he read no authors but such as were most fitted to his own habits of thinking. Hence he displays an unity, a self-existence, which we seldom find so complete in other writers. His quotations, though they perhaps make more than one half of his Essays, seem parts of himself, and are like limbs of his own mind, which could not be separated without laceration. But over all is spread a charm of a fascinating simplicity, and an apparent abandonment of the whole man to the easy inspiration of genius, combined with a good-nature, though rather too epicurean and destitute of moral energy, which, for that very reason, made him a favourite with men of similar dispositions, for whom courts, and camps, and country mansions were the proper soil.

8. Montaigne is superior to any of the ancients in liveliness, in that careless and rapid style, where one thought springs naturally, but not consecutively, from another, by analogical rather than deductive connection; so that, while the reader seems to be following a train of arguments, he is imperceptibly hurried to a distance by some contingent association. This may be observed in half his essays, the titles of which often give us little insight into their general scope. Thus the apology for Raimond de Sebonde is soon forgotten in the long defence of moral Pyrrhonism, which occupies the twelfth chapter of the second book. He sometimes makes a show of coming back from his excursions; but he has generally exhausted himself before he does so. This is what men love to practise (not advantageously for their severer studies) in their own thoughts; they love to follow the casual associations that lead them through pleasant labyrinths--as one riding along the high road is glad to deviate a little into the woods, though it may sometimes happen that he will lose his way, and find himself far remote from his inn. And such is the conversational style of lively and eloquent old men. We converse with Montaigne, or rather hear him talk; it is almost impossible to read his essays without thinking that he speaks to us; we see his cheerful brow, his sparkling eye, his negligent, but gentlemanly demeanour; we picture him in his armchair, with his few books round the room, and Plutarch on the table.

9. The independence of his mind produces great part of the charm of his writing; it redeems his vanity, without which it could not have been so fully displayed, or perhaps, so powerfully felt. In an age of literary servitude, when every province into which reflection could wander was occupied by some despot; when, to say nothing of theology, men found Aristotle, or Ulpian, or Hippocrates, at every turning to dictate their road, it was gratifying to fall in company with a simple gentleman who, with much more reading than generally belonged to his class, had the spirit to ask a reason for every rule.

10. Montaigne has borrowed much, besides his quotations, from the few ancient authors he loved to study. In one passage he even says that his book is wholly compiled from Plutarch and Seneca; but this is evidently intended to throw the critics off their scent. “I purposely conceal the authors from whom I borrow,” he says in another place, “to check the presumption of those who are apt to censure what they find in a modern. I am content that they should lash Seneca and Plutarch through my sides.”[1065] These were his two favourite authors; and in order to judge of the originality of Montaigne in any passage, it may often be necessary to have a considerable acquaintance with their works. “When I write,” he says, “I care not to have books about me; but I can hardly be without a Plutarch.”[1066] He knew little Greek, but most editions at that time had a Latin translation: he needed not for Plutarch to go beyond his own language. Cicero he did not much admire, except the epistles to Atticus. He esteemed the moderns very slightly in comparison with antiquity, though praising Guicciardini and Philip de Comines. Dugald Stewart observes, that Montaigne cannot be suspected of affectation, and therefore must himself have believed what he says of the badness of his memory, forgetting, as he tells us, the names of the commonest things, and even of those he constantly saw. But his vanity led him to talk perpetually of himself; and, as often happens to vain men, he would rather talk of his own failings than of any foreign subject. He could not have had a very defective memory so far as it had been exercised, though he might fall into the common mistake of confounding his inattention to ordinary objects with weakness of the faculty.

[1065] l. ii. c. 32.

[1066] l. ii. c. 10.

11. Montaigne seldom defines or discriminates; his mind had great quickness, but little subtlety; his carelessness and impatience of labour rendered his views practically one-sided; for though he was sufficiently free from prejudice to place the objects of consideration in different lights, he wanted the power, or did not use the diligence, to make that comparative appreciation of facts which is necessary to distinguish the truth. He appears to most advantage in matters requiring good sense and calm observation, as in the education of children. The twenty-fourth and twenty-eighth chapters of the first book, which relate to this subject, are among the best in the collection. His excellent temper made him an enemy to the harshness and tyranny so frequent at that time in the management of children, as his clear understanding did to the pedantic methods of overloading and misdirecting their faculties. It required some courage to argue against the grammarians who had almost monopolised the admiration of the world. Of these men Montaigne observes, that though they have strong memories, their judgment is usually very shallow, making only an exception for Turnebus, who, though in his opinion, the greatest scholar that had existed for a thousand years, had nothing of the pedant about him but his dress. In all the remarks of Montaigne on human character and manners, we find a liveliness, simplicity, and truth. They are such as his ordinary opportunities of observation, or his reading suggested; and though several writers have given proofs of deeper reflection or more watchful discernment, few are so well calculated to fall in with the apprehension of the general reader.

12. The scepticism of Montaigne, concerning which so much has been said, is not displayed in religion, for he was a steady Catholic, though his faith seems to have been rather that of acquiescence than conviction, nor in such subtleties of metaphysical Pyrrhonism as we find in Sanchez, which had no attraction for his careless nature. But he had read much of Sextus Empiricus, and might perhaps have derived something from his favourite Plutarch. He had also been forcibly struck by the recent narratives of travellers, which he sometimes received with a credulity as to evidence, not rarely combined with theoretical scepticism, and which is too much the fault of his age to bring censure on an individual. It was then assumed that all travellers were trustworthy, and still more that none of the Greek and Roman authors have recorded falsehoods. Hence he was at a loss to discover a general rule of moral law, as an implanted instinct, or necessary deduction of common reason, in the varying usages and opinions of mankind. But his scepticism was less extravagant and unreasonable at that time than it would be now. Things then really doubtful have been proved, and positions, entrenched by authority which he dared not to scruple, have been overthrown;[1067] truth, in retiring from her outposts, has become more unassailable in her citadel.

[1067] Montaigne’s scepticism was rightly exercised on witchcraft and other supernatural stories; and he had probably some weight in discrediting those superstitions. See l. iii. c. 11.

13. It may be deemed a symptom of wanting a thorough love of truth when a man overrates, as much as when he overlooks, the difficulties he deals with. Montaigne is perhaps not exempt from this failing. Though sincere and candid in his general temper, he is sometimes more ambitious of setting forth his own ingenuity than desirous to come to the bottom of his subject. Hence he is apt to run into the fallacy common to this class of writers, and which La Mothe le Vayer employed much more--that of confounding the variations of the customs of mankind in things morally indifferent with those which affect the principles of duty; and hence the serious writers on philosophy in the next age, Pascal, Arnauld, Malebranche, animadvert with much severity on Montaigne. They considered him, not perhaps unjustly, as an enemy to the candid and honest investigation of truth, both by his bias towards Pyrrhonism, and by the great indifference of his temperament; scarcely acknowledging so much as was due the service he had done by chasing the servile pedantry of the schools, and preparing the way for closer reasoners than himself. But the very tone of their censures is sufficient to prove the vast influence he had exerted over the world.

14. Montaigne is the earliest classical writer in the French language, the first whom a gentleman is ashamed not to have read. So long as an unaffected style and an appearance of the utmost simplicity and good nature shall charm, so long as the lovers of desultory and cheerful conversation shall be more numerous than those who prefer a lecture or a sermon, so long as reading is sought by the many as an amusement in idleness, or a resource in pain, so long will Montaigne be among the favourite authors of mankind. I know not whether the greatest blemish of his Essays has much impeded their popularity; they led the way to the indecency so characteristic of French literature, but in no writer on serious topics, except Bayle, more habitual than in Montaigne. It may be observed, that a larger portion of this quality distinguishes the third book, published after he had attained a reputation, than the two former. It is also more overspread by egotism; and it is not agreeable to perceive that the two leading faults of his disposition became more unrestrained and absorbing as he advanced in life.

|Writers on Morals in Italy.|

15. The Italians have a few moral treatises of this period, but chiefly scarce and little read. The Instituzioni Morali of Alexander Piccolomini, the Instituzioni di Tutta la Vita dell’Uomo Nato Nobile e in città Libera, by the same author, the Latin treatise of Mazzoni de Triplici Vita, which, though we mention it here as partly ethical, seems to be rather an attempt to give a general survey of all science, are among the least obscure, though they have never been of much reputation in Europe.[1068] But a more celebrated work, relating indeed to a minor department of ethics, the rules of polite and decorous behaviour, is the Galateo of Casa, bishop of Benevento, and an elegant writer of considerable reputation. This little treatise is not only accounted superior in style to most Italian prose, but serves to illustrate the manners of society in the middle of the sixteenth century. Some of the improprieties which he censures are such as we should hardly have expected to find in Italy, and almost remind us of a strange but graphic poem of one Dedekind, on the manners of Germany in the sixteenth century, called Grobianus. But his own precepts in other places, though hardly striking us as novel, are more refined, and relate to the essential principles of social intercourse, rather than to its conventional forms.[1069] Casa wrote also a little book on the duties to be observed between friends of equal ranks. The inferior, he advises, should never permit himself to jest upon his patron; but, if he is himself stung by any unpleasing wit or sharp word, ought to receive it with a smiling countenance, and to answer so as to conceal his resentment. It is probable that this art was understood in an Italian palace without the help of books.

[1068] For these books see Tiraboschi, Corniani, and Ginguéné. Niceron, vol. xxiii., observes of Piccolomini, that he was the first who employed the Italian language in moral philosophy. This must, however, be taken very strictly, for in a general sense of the word, we have seen earlier instances than his Instituzioni Morali in 1575.

[1069] Casa inveighs against the punctilious and troublesome ceremonies, introduced, as he supposes, from Spain, making distinctions in the mode of addressing different ranks of nobility. One of these innovations was the use of the third person for the second in letters.

|In England.|

16. There was never a generation in England which, for worldly prudence and wise observation of mankind, stood higher than the subjects of Elizabeth. Rich in men of strong mind, that age had given them a discipline unknown to ourselves; the strictness of the Tudor government, the suspicious temper of the queen, the spirit not only of intolerance, but of inquisitiveness as to religious dissent, the uncertainties of the future, produced a caution rather foreign to the English character, accompanied by a closer attention to the workings of other men’s minds, and their exterior signs. This, for similar reasons, had long distinguished the Italians; but it is chiefly displayed, perhaps, in their political writings. We find it, in a larger and more philosophical sense, near the end of Elizabeth’s reign, when our literature made its first strong shoot, prompting the short condensed reflections of Burleigh and Raleigh, or saturating with moral observation the mighty soul of Shakspeare.

|Bacon’s Essays.|

17. The first in time, and we may justly say, the first in excellence of English writings on moral prudence are the Essays of Bacon. But these, as we now read them, though not very bulky, are greatly enlarged since their first publication in 1597. They then were but ten in number:--entitled, 1. Of Studies; 2. Of Discourse; 3. Of Ceremonies and Respects; 4. Of Followers and Friends; 5. Of Suitors; 6. Of Expense; 7. Of Regimen of Health; 8. Of Honour and Reputation; 9. Of Faction; 10. Of Negotiating. And even these few have been expanded in later editions to nearly double their extent. The rest were added chiefly in 1612, and the whole were enlarged in 1625. The pith indeed of these ten essays will be found in the edition of 1597; the editions being merely to explain, correct, or illustrate. But, as a much greater number were incorporated with them in the next century, we shall say no more of Bacon’s Essays for the present.

SECT. II.--ON POLITICAL PHILOSOPHY.

Freedom of Writing on Government at this Time--Its Causes--Hottoman-- Languet--La Boetie--Buchanan--Rose--Mariana--The Jesuits--Botero and Paruta--Bodin--Analysis of his Republic.

|Number of political writers.|

18. The present period, especially after 1570, is far more fruitful than the preceding in the annals of political science. It produced several works both of temporary and permanent importance. Before we come to Bodin, who is its most conspicuous ornament, it may be fit to mention some less considerable books, which, though belonging partly to the temporary class, have in several instances survived the occasion which drew them forth, and indicate a state of public opinion not unworthy of notice.

|Oppression of Governments.|

|And spirit generated by it.|

19. A constant progress towards absolute monarchy, sometimes silent, at other times attended with violence, had been observable in the principal kingdoms of Europe for the last hundred years. This had been brought about by various circumstances which belong to civil history; but among others, by a more skilful management, and a more systematic attention to the maxims of state-craft, which had sometimes assumed a sort of scientific form, as in the Prince of Machiavel, but were more frequently inculcated in current rules familiar to the counsellors of kings. The consequence had been, not only many flagrant instances of violated public right, but in some countries, especially France, an habitual contempt for every moral as well as political restraint on the ruler’s will. But oppression is always felt to be such, and the breach of known laws cannot be borne without resentment, though it may without resistance; and there were several causes that tended to generate a spirit of indignation against the predominant despotism. Independent of those of a political nature, which varied according to the circumstances of kingdoms, there were three that belonged to the sixteenth century as a learned and reflecting age, which, if they did not all exercise a great influence over the multitude, were sufficient to affect the complexion of literature, and to indicate a somewhat novel state of opinion in the public mind.

|Derived from classic history.|

20. I. From the Greek and Roman poets, orators, or historians, the scholar derived the principles, not only of equal justice, but of equal privileges; he learned to reverence free republics, to abhor tyranny, to sympathise with a Timoleon or a Brutus. A late English historian, who carried to a morbid excess his jealousy of democratic prejudices, fancied that these are perceptible in the versions of Greek authors by the learned of the sixteenth century, and that Xylander or Rhodomann gratified their spite against the sovereigns of their own time, by mistranslating their text in order to throw odium on Philip or Alexander. This is probably unfounded; but it may still be true that men, who had imbibed notions, perhaps as indefinite as exaggerated, of the blessings of freedom in ancient Rome and Greece, would draw no advantageous contrast with the palpable outrages of arbitrary power before their eyes. We have seen, fifty years before, a striking proof of almost mutinous indignation in the Adages of Erasmus; and I have little doubt that further evidence of it might be gleaned from the letters and writings of the learned.

|From their own and the Jewish.|

21. II. In proportion as the antiquities of the existing European monarchies came to be studied, it could not but appear that the royal authority had outgrown many limitations that primitive usage or established law had imposed upon it; and the farther back these researches extended, the more they seemed, according to some inquirers, to favour a popular theory of constitutional polity. III. Neither of these considerations, which affected only the patient scholar, struck so powerfully on the public mind as the free spirit engendered by the Reformation, and especially the Judaizing turn of the early Protestants, those at least of the Calvinistic school, which sought for precedents and models in the Old Testament, and delighted to recount how the tribes of Israel had fallen away from Rehoboam, how the Maccabees had repelled the Syrian, how Eglon had been smitten by the dagger of Ehud. For many years the Protestants of France had made choice of the sword, when their alternative was the stake; and amidst, defeat, treachery, and massacre, sustained an unequal combat with extraordinary heroism, and a constancy that only a persuasion of acting according to conscience could impart. That persuasion it was the business of their ministers and scholars to encourage by argument. Each of these three principles of liberty was asserted by means of the press in the short period between 1570 and 1580.

|Franco-Gallia of Hottoman.|

22. First in order of publication is the Franco-Gallia of Francis Hottoman, one of the most eminent lawyers of that age. This is chiefly a collection of passages from the early French historians, to prove the share of the people in government, and especially their right of electing the kings of the first two races. No one, in such inquiries, would now have recourse to the Franco-Gallia, which has certainly the defect of great partiality, and an unwarrantable extension of the author’s hypothesis. But it is also true that Hottoman revealed some facts as to the ancient monarchy of France, which neither the later historians, flatterers of the court, nor the lawyers of the parliament of Paris, against whom he is prone to inveigh, had suffered to transpire.

|Vindiciæ of Languet.|

23. An anonymous treatise, Vindiciæ contra Tyrannos, Auctore Stephano Junio Bruto Celta, 1579, commonly ascribed to Hubert Languet, the friend of Sir Philip Sydney, breathes the stern spirit of Judaical Huguenotism. Kings, that lay waste the church of God, and support idolatry, kings, that trample upon their subjects’ privileges, may be deposed by the states of their kingdom, who indeed are bound in duty to do so, though it is not lawful for private men to take up arms without authority. As kings derive their pre-eminence from the will of the people, they may be considered as feudally vassals of their subjects, so far that they may forfeit their crown by felony against them. Though Languet speaks honourably of ancient tyrannicides, it seems as if he could not mean to justify assassination, since he refuses the right of resistance to private men.

|Contr’Un of Boetie.|

24. Hottoman and Languet were both Protestants; and the latter especially may have been greatly influenced by the perilous fortunes of their religion. A short treatise, however, came out in 1578, written probably near thirty years before, by Stephen de la Boetie, best known to posterity by the ardent praises of his friend Montaigne, and an adherent to the church. This is called Le Contr’Un, ou Discours de la Servitude Volontaire. It well deserves its title. Roused by the flagitious tyranny of many contemporary rulers, and none were worse than Henry II., under whose reign it was probably written, La Boetie pours forth the vehement indignation of a youthful heart, full of the love of virtue and of the brilliant illusions which a superficial knowledge of ancient history creates, against the voluntary abjectness of mankind, who submit as slaves to one no wiser, no braver, no stronger than any of themselves. “He who so plays the master over you has but two eyes, has but two hands, has but one body, has nothing more than the least among the vast number who dwell in our cities; nothing has he better than you, save the advantage that you give him, that he may ruin you. Whence has he so many eyes to watch you, but that you give them to him? How has he so many hands to strike you, but that he employs your own? How does he come by the feet which trample on your cities, but by your means? How can he have any power over you, but what you give him? How could he venture to persecute you, if he had not an understanding with yourselves? What harm could he do you, if you were not receivers of the robber that plunders you, accomplices of the murderer who kills you, and traitors to your own selves? You, you sow the fruits of the earth, that he may waste them; you furnish your houses, that he may pillage them; you rear your daughters, that they may glut his wantonness, and your sons, that he may lead them at the best to his wars, or that he may send them to execution, or make them the instruments of his concupiscence, the ministers of his revenge. You exhaust your bodies with labour, that he may revel in luxury, or wallow in base and vile pleasures; you weaken yourselves, that he may become more strong, and better able to hold you in check. And yet from so many indignities, that the beasts themselves, could they be conscious of them, would not endure, you may deliver yourselves, if you but make an effort, not to deliver yourselves, but to show the will to do it. Once resolve to be no longer slaves, and you are already free. I do not say that you should assail him, or shake his seat; merely support him no longer, and you will see that, like a great Colossus, whose basis has been removed from beneath him, he will fall by his own weight, and break to pieces.”[1070]

[1070] Le Contr’Un of La Boetie is published at the end of some editions of Montaigne.

25. These bursts of a noble patriotism, which no one who is in the least familiar with the history of that period will think inexcusable, are much unlike what we generally expect from the French writers. La Boetie, in fact, is almost a single instance of a thoroughly republican character till nearly the period of the Revolution. Montaigne, the staunchest supporter of church and state, excuses his friend, “le plus grand homme, a mon avis, de notre siècle,” assuring us that he was always a loyal subject, though if he had been permitted his own choice, “he would rather have been born at Venice than at Sarlat.” La Boetie died young in 1561; and his Discourse was written some years before; he might have lived to perceive how much more easy it is to inveigh against the abuses of government, than to bring about anything better by rebellion.

|Buchanan, De Jure Regni.|

26. The three great sources of a free spirit in politics, admiration of antiquity, zeal for religion, and persuasion of positive right, which separately had animated La Boetie, Languet, and Hottoman, united their streams to produce, in another country, the treatise of George Buchanan (De Jure Regni apud Scotos), a scholar, a protestant, and the subject of a very limited monarchy. This is a dialogue elegantly written, and designed first, to show the origin of royal government from popular election; then, the right of putting tyrannical kings to death, according to Scripture, and the conditional allegiance due to the crown of Scotland, as proved by the coronation oath, which implies, that it is received in trust from the people. The following is a specimen of Buchanan’s reasoning, which goes very materially farther than Languet had presumed to do:--“Is there then,” says one of the interlocutors, “a mutual compact between the king and the people? M. Thus it seems.--B. Does not he, who first violates the compact, and does anything against his own stipulations, break his agreement? M. He does.--B. If then, the bond which attached the king to the people is broken, all rights he derived from the agreement are forfeited. M. They are forfeited.--B. And he who was mutually bound becomes as free as before the agreement? M. He has the same rights and the same freedom as he had before.--B. But if a king should do things tending to the dissolution of human society, for the preservation of which he has been made, what name should we give him? M. We should call him a tyrant.--B. But a tyrant not only possesses no just authority over his people, but is their enemy? M. He is surely their enemy.--B. Is there not a just cause of war against an enemy who has inflicted heavy and intolerable injuries upon us? M. There is.--B. What is the nature of a war against the enemy of all mankind, that is, against a tyrant? M. None can be more just.--B. Is it not lawful in a war justly commenced, not only for the whole people, but for any single person to kill an enemy? M. It must be confessed.--B. What, then, shall we say of a tyrant, a public enemy, with whom all good men are in eternal warfare? may not any one of all mankind inflict on him every penalty of war? M. I observe that all nations have been of that opinion, for Theba is extolled for having killed her husband, and Timoleon for his brother’s, and Cassius for his son’s, death.”[1071]

[1071] P. 96.

|Poynet, on Politique Power.|

27. We may include among political treatises of this class some published by the English and Scottish exiles during the persecution of their religion by the two Maries. They are, indeed, prompted by circumstances, and in some instances have too much of a temporary character to deserve a place in literary history. I will, however, give an account of one, more theoretical than the rest, and characteristic of the bold spirit of these early Protestants, especially as it is almost wholly unknown except by name. This is in the title-page, “A Short Treatise of Politique Power, and of the true obedience which subjects owe to kings and other civil governors, being an answer to seven questions:--‘1. Whereof politique power groweth, wherefore it was ordained, and the right use and duty of the same? 3. Whether kings, princes, and other governors have an absolute power and authority over their subjects? 3. Whether kings, princes, and other politique governors be subject to God’s laws, or the positive laws of their countries? 4. In what things and how far subjects are bound to obey their princes and governors? 5. Whether all the subject’s goods be the emperor’s or king’s own, and that they may lawfully take them for their own? 6. Whether it be lawful to depose an evil governor and kill a tyrant? 7. What confidence is to be given to princes and potentates?’”

|Its liberal theory.|

28. The author of this treatise was John Poynet, or Ponnet, as it is spelled in the last edition, bishop of Winchester under Edward VI., and who is said to have had a considerable share in the reformation.[1072] It was first published in 1558, and reprinted in 1642, “to serve,” says Strype, “the turn of those times.” “This book,” observes truly the same industrious person, “was not over favourable to princes.” Poynet died very soon afterwards, so that we cannot determine whether he would have thought it expedient to speak as fiercely under the reign that was to come. The place of publication of the first edition I do not know, but I presume it was at Geneva or Frankfort. It is closely and vigorously written, deserving, in many parts, a high place among the English prose of that age, though not entirely free from the usual fault--vulgar and ribaldrous invective. He determines all the questions stated in the title-page on principles adverse to royal power, contending, in the sixth chapter, that “the manifold and continual examples that have been, from time to time, of the deposing of kings and killing of tyrants, do most certainly confirm it to be most true, just, and consonant to God’s judgment. The history of kings in the Old Testament is full of it; and, as Cardinal Pole truly citeth, England lacketh not the practice and experience of the same; for they deprived King Edward II., because, without law, he killed the subjects, spoiled them of their goods, and wasted the treasures of the realm. And upon what just causes Richard II. was thrust out, and Henry IV. put in his place, I refer it to their own judgment. Denmark also now, in our days, did nobly the like act, when they deprived Christiern the tyrant, and committed him to perpetual prison.

[1072] Chalmers. Strype’s Memorials.

|Argues for tyrannicide.|

29. “The reasons, arguments, and laws, that serve for the deposing and displacing of an evil governor will do as much for the proof that it is lawful to kill a tyrant, if they may be indifferently heard. As God hath ordained magistrates to hear and determine private men’s matters, and to punish their vices, so also willeth he that the magistrates’ doings be called to account and reckoning, and their vices corrected and punished by the body of the whole congregation or commonwealth; as it is manifest by the memory of the ancient office of the High Constable of England, unto whose authority it pertained, not only to summon the king personally before the parliament, or other courts of judgment, to answer and receive according to justice, but also upon just occasion to commit him unto ward.[1073] Kings, princes, and governors have their authority of the people, as all laws, usages, and policies, do declare and testify. For in some places and countries they have more and greater authority; in some places, less; and in some the people have not given this authority to any other, but retain and exercise it themselves. And is any man so unreasonable to deny that the whole may do as much as they have permitted one member to do, or those that have appointed an office upon trust have not authority upon just occasion (as the abuse of it) to take away what they gave? All laws do agree, that men may revoke their proxies and letters of attorney when it pleaseth them, much more when they see their proctors and attorneys abuse it.

[1073] It is scarcely necessary to observe that this is an impudent falsehood.

30. “But now, to prove the latter part of this question affirmatively, that it is lawful to kill a tyrant, there is no man can deny, but that the Ethnics, albeit they had not the right and perfect true knowledge of God, were endued with the knowledge of the law of nature--for it is no private law to a few or certain people, but common to all--not written in books, but grafted in the hearts of men, not made by men, but ordained of God, which we have not learned, received, or read, but have taken, sucked, and drawn it out of nature, whereunto we are not taught, but made, not instructed, but seasoned;[1074] and, as St. Paul saith, ‘Man’s conscience bearing witness of it,’” &c. He proceeds in a strain of some eloquence (and this last passage is not ill-translated from Cicero), to extol the ancient tyrannicides, accounting the first nobility to have been “those who had revenged, and delivered the oppressed people out of the hands of their governors. Of this land of nobility was Hercules, Theseus, and such like.”[1075] It must be owned, the worthy bishop is a bold man in assertions of fact. Instances from the Old Testament, of course, follow, wherein Jezebel and Athalia are not forgotten, for the sake of our bloody queen.

[1074] Sic. The Latin in Cic. pro Mil. is imbuti.

[1075] P. 49.

|The tenets of parties swayed by circumstances.|

31. If too much space has been allowed to so obscure a production, it must be excused on account of the illustration it gives to our civil and ecclesiastical history, though of little importance in literature. It is also well to exhibit an additional proof that the tenets of all parties, however general and speculative they may appear, are espoused on account of the position of those who hold them, and the momentary consequences that they may produce. In a few years time the Church of England, strong in the protection of that royalty which Poynet thus assailed in his own exile, enacted the celebrated homily against rebellion, which denounces every pretext of resistance to governors. Churches, even the best, are but factions in the strife to retain or recover their ascendency; and, like other factions, will never weaken themselves by a scrupulous examination of the reasoning or the testimony which is to serve their purpose. Those have lived and read to little advantage who have not discovered this.

|Similar tenets among the Leaguers.|

32. It might appear that there was some peculiar association between these popular theories of resistance and the Protestant faith. Perhaps, in truth, they had a degree of natural connection; but circumstances, more than general principles, affect the opinions of mankind. The rebellion of the League against Henry III., their determination not to acknowledge Henry IV., reversed the state of parties, and displayed, in an opposite quarter, the republican notions of Languet and Buchanan as fierce and as unlimited as any Protestants had maintained them. Henry of Bourbon could only rely upon his legitimate descent, upon the indefeasible rights of inheritance. If France was to choose for herself, France demanded a Catholic king; all the topics of democracy were thrown into that scale; and, in fact, it is well known that Henry had no prospect whatever of success but by means of a conversion, which, though not bearing much semblance of sincerity, the nation thought fit to accept. But during that struggle of a few years we find, among other writings of less moment, one ascribed by some to Rose, bishop of Senlis, a strenuous partisan of the League, which may perhaps deserve to arrest our attention.[1076]

[1076] The author calls himself Rossæus, and not, as has been asserted, bishop of Senlis. But Pitts attributes this book to Rainolds (brother of the more celebrated Dr. John Rainolds), who is said to have called himself Rossæus. The Biographie Universelle (art. Rose) says this opinion has not gained ground; but it is certainly favoured by M. Barbier in the Dictionnaire des Anonymes, and some grounds for it are alleged. From internal evidence it seems rather the work of a Frenchman than a foreigner; but I have not paid much attention to so unimportant a question. Jugler, in his Historia Literaria, c. 9, does not even name Rose. By a passage in Schelhorn, viii. 465, the book seems to have been sometimes ascribed to Genebrard.

|Rose, on the Authority of Christian States over Kings.|

33. This book, De Justa Reipublicæ Christianæ in Reges Potestate, published in 1590, must have been partly written before the death of Henry III. in the preceding year. He begins with the origin of human society, which he treats with some eloquence, and on the principle of an election of magistrates by the community, that they might live peaceably, and in enjoyment of their possessions. The different forms and limitations of government have sprung from the choice of the people, except where they have been imposed by conquest. He exhibits many instances of this variety: but there are two dangers, one of limiting too much the power of kings, and letting the populace change the dynasty at their pleasure; the other, that of ascribing a sort of divinity to kings, and taking from the nation all the power of restraining them in whatever crimes they may commit. The Scottish Calvinists are an instance of the first error; the modern advocates of the house of Valois of the other. The servile language of those who preach passive obedience has encouraged not only the worst Roman emperors, but such tyrants as Henry VIII., Edward VI., and Elizabeth of England.

34. The author goes, in the second chapter, more fully into a refutation of this doctrine, as contrary to the practice of ancient nations, who always deposed tyrants, to the principles of Christianity, and to the constitution of European communities, whose kings are admitted under an oath to keep the laws and to reign justly. The subject’s oath of allegiance does not bind him, unless the king observe what is stipulated from him; and this right of withdrawing obedience from wicked kings is at the bottom of all the public law of Europe. It is also sanctioned by the church. Still more has the nation a right to impose laws and limitations on kings, who have certainly no superiority to the law, so that they can transgress it at pleasure.

35. In the third chapter he inquires who is a tyrant; and, after a long discussion comes to this result, that a tyrant is one who despoils his subjects of their possessions, or offends public decency by immoral life, but above all, who assails the Christian faith, and uses his authority to render his subjects heretical. All these characters are found in Henry of Valois. He then urges, in the two following chapters, that all Protestantism is worse than Paganism, inasmuch as it holds out less inducement to a virtuous life, but that Calvinism is much the worst form of the Protestant heresy. The Huguenots, he proceeds to prove, are neither parts of the French church nor commonwealth. He infers, in the seventh chapter, that the king of Navarre, being a heretic of this description, is not fit to rule over Christians. The remainder of the book is designed to show that every king, being schismatic or heretical, may be deposed by the pope, of which he brings many examples; nor has any one deserved this sentence more than Henry of Navarre. It has always been held lawful that an heretical king should be warred upon by his own subjects and by all Christian sovereigns; and he maintains that a real tyrant, who, after being deposed by the wiser part of his subjects, attempts to preserve his power by force, may be put to death by any private person. He adds that Julian was probably killed by a Christian soldier, and quotes several fathers and ecclesiastical historians who justify and commend the act. He concludes by exhorting the nobility and other orders of France, since Henry is a relapsed heretic, who is not to be believed for any oaths he may make, to rally round their Catholic king, Charles of Bourbon.

|Treatise of Boucher in the same spirit.|

|Answered by Barclay.|

36. The principles of Rose, if he were truly the author, both as to rebellion and tyrannicide, belonged naturally to those who took up arms against Henry III., and who applauded his assassin. They were adopted, and perhaps extended, by Boucher, a leaguer still more furious, if possible, than Rose himself, in a book published in 1589, De Justa Henrici III. Abdicatione a Francorum Regno. This book is written in the spirit of Languet, asserting the general right of the people to depose tyrants, rather than confining it to the case of heresy. The deposing power of the pope, consequently, does not come much into question. He was answered, as well as other writers of the same tenets, by a Scottish Catholic residing at Paris, William Barclay, father of the more celebrated author of the Argenis, in a treatise “De Regno et Regali Potestate adversus Buchananum, Brutum, Boucherum et Reliquos Monarchomachos,” 1600. Barclay argues on the principles current in France, that the king has no superior in temporals; that the people are bound in all cases to obey him; that the laws owe their validity to his will. The settlement of France by the submission of the League on the one hand, and by the edict of Nantes on the other, naturally put a stop to the discussion of questions which, theoretical and universal as they might seem, would never have been brought forward but through the stimulating influence of immediate circumstances.

|The Jesuits adopt these tenets.|

|Mariana, De Rege.|

37. But while the war was yet raging, and the fate of the Catholic religion seemed to hang upon its success, many of the Jesuits had been strenuous advocates of the tyrannicidal doctrine; and the strong spirit of party attachment in that order renders it hardly uncandid to reckon among its general tenets whatever was taught by its most conspicuous members. The boldest and most celebrated assertion of these maxims was by Mariana, in a book, De Rege et Regis Institutione. The first edition of this remarkable book, and which is of considerable scarcity, was published at Toledo in 1599, dedicated to Philip III., and sanctioned with more than an approbation, with a warm eulogy by the censor (one of the same order, it may be observed), who by the king’s authority had perused the manuscript. It is, however, not such as in an absolute monarchy we should expect to find countenance. Mariana, after inquiring what is the best form of government, and deciding for hereditary monarchy, but only on condition that the prince shall call the best citizens to his councils, and administer all affairs according to the advice of a senate, comes to show the difference between a king and a tyrant. His invectives against the latter prepare us for the sixth chapter, which is entitled, Whether it be lawful to overthrow a tyrant? He begins by a short sketch of the oppression of France under Henry III., which had provoked his assassination. Whether the act of James Clement, “the eternal glory of France, as most reckon him,”[1077] were in itself warrantable, he admits to be a controverted question, stating the arguments on both sides, but placing last those in favour of the murder, to which he evidently leans. All philosophers and theologians, he says, agree that an usurper may be put to death by any one. But in the case of a lawful king, governing to the great injury of the commonwealth or of religion (for we ought to endure his vices so long as they do not reach an intolerable height), he thinks that the states of the realm should admonish him, and on his neglect to reform his life, may take up arms, and put to death a prince whom they have declared to be a public enemy; and any private man may do the same. He concludes, therefore, that it is only a question of fact who is a tyrant, but not one of right, whether a tyrant may be killed. Nor does this maxim give a license to attempts on the lives of good princes; since it can never be applied till wise and experienced men have conspired with the public voice in declaring the prince’s tyranny. “It is a wholesome thing,” he proceeds, “that sovereigns should be convinced that, if they oppress the state, and become intolerable by their wickedness, their assassination will not only be lawful but glorious to the perpetrator.”[1078] This language, whatever indignation it might excite against Mariana and his order, is merely what we have seen in Buchanan.

[1077] These words, æternum Gallilæ decus, are omitted in the subsequent editions, but as far as I have compared them there is very little other alteration; yet the first alone is in request.

[1078] Est salutaris cognitio, ut sit principibus persuasum, si rempublicam oppresserint, si vitiis et fœditate intolerandi erunt, ea conditione vivere, ut non jure tantum sed cum laude et gloria perire possint, p. 77.

38. Mariana discusses afterwards the question, whether the power of the king or of the commonwealth be the greater; and after intimating the danger of giving offence, and the difficulty of removing the blemishes which have become inveterate by time (with allusion, doubtless, to the change of the Spanish constitution under Charles and Philip), declares in strong terms for limiting the royal power by laws. In Spain, he asserts, the king cannot impose taxes against the will of the people. “He may use his influence, he may offer rewards, sometimes he may threaten, he may solicit with promises and bribes (we will not say whether he may do this rightly), but if they refuse he must give way; and it is the same with new laws, which require the sanction of the people. Nor could they preserve their right of deposing and putting to death a tyrant, if they had not retained the superior power to themselves when they delegated a part to the king. It may be the case in some nations, who have no public assemblies of the states, that of necessity the royal prerogative must compel obedience--a power too great, and approaching to tyranny--but we speak (says Mariana) not of barbarians, but of the monarchy which exists, and ought to exist among us, and of that form of polity which of itself is the best.” Whether any nation has a right to surrender its liberties to a king, he declines to inquire, observing only that it would act rashly in making such a surrender, and the king almost as much so in accepting it.

39. In the second book Mariana treats of the proper education of a prince; and in the third on the due administration of his government, inveighing vehemently against excessive taxation, and against debasement of the coin, which he thinks ought to be the last remedy in a public crisis. The whole work, even in its reprehensible exaggerations, breathes a spirit of liberty and regard to the common good. Nor does Mariana, though a Jesuit, lay any stress on the papal power to depose princes, which, I believe, he has never once intimated through the whole volume. It is absolutely on political principles that he reasons, unless we except that he considers impiety as one of the vices which constitute a tyrant.[1079]

[1079] Bayle, art. Mariana, notes G, H, and I, has expatiated upon this notable treatise, which did the Jesuits infinite mischief, though they took pains to disclaim any participation in the doctrine.

|Popular theories in England.|

|Hooker.|

40. Neither of the conflicting parties in Great Britain had neglected the weapons of their contemporaries; the English Protestants under Mary, the Scots under her unfortunate namesake, the Jesuits and Catholic priests under Elizabeth, appealed to the natural rights of men, or to those of British citizens. Poynet, Goodman, Knox are of the first description; Allen and Persons of the second. Yet this was not done, by the latter at least, so boldly and so much on broad principles as it was on the continent; and Persons in his celebrated Conference, under the name of Doleman, tried the different and rather inconsistent path of hereditary right. The throne of Elizabeth seemed to stand in need of a strongly monarchical sentiment in the nation. Yet we find that the popular origin of government, and the necessity of popular consent to its due exercise, are laid down by Hooker in the first and eighth books of the Ecclesiastical Polity, with a boldness not very usual in her reign, and, it must be owned, with a latitude of expression that leads us forward to the most unalloyed democracy. This theory of Hooker, which he endeavoured in some places to qualify with little success or consistency, though it excited not much attention at the time, became the basis of Locke’s more celebrated Essay on Government, and, through other stages, of the political creed which actuates at present, as a possessing spirit, the great mass of the civilised world.[1080]

[1080] Bilson, afterwards bishop of Winchester, in his “Difference between Christian Subjection and Unchristian Rebellion,” published in 1585, argues against the Jesuits, that Christian subjects may not bear arms against their princes for any religious quarrel, but admits, “if a prince should go about to subject his kingdom to a foreign realm, or change the form of the commonwealth from impery to tyranny, or neglect the laws established by common consent of prince and people to execute his own pleasure, in these and other cases which might be named, if the nobles and commons join together to defend their ancient and accustomed liberty, regiment, and laws, they may not well be counted rebels,” p. 520.

|Political memoirs.|

|La Noue.|

41. The bold and sometimes passionate writers, who perhaps will be thought to have detained us too long, may be contrasted with another class more cool and prudent, who sought rather to make the most of what they found established in civil polity, than to amend or subvert it. The condition of France was such as to force men into thinking, where nature had given them the capacity of it. In some of the memoirs of the age, such as those of Castelnau or Tavannes, we find an habitual tendency to reflect, to observe the chain of causes, and to bring history to bear on the passing time. De Comines had set a precedent; and the fashion of studying his writings and those of Machiavel conspired with the force of circumstances to make a thoughtful generation. The political and military discourses of La Noue, being thrown into the form of dissertation, come more closely to our purpose than merely historical works. They are full of good sense, in a high moral tone, without pedantry or pretension, and throw much light on the first period of the civil wars. The earliest edition is referred by the Biographie Universelle to 1587, which I believe should be 1588; but the book seems to have been finished long before.

|Lipsius.|

|Botero.|

42. It would carry us beyond the due proportions of this chapter were I to seek out every book belonging to the class of political philosophy, and we are yet far from its termination. The Politica of Justus Lipsius deserve little regard; they are chiefly a digest of Aristotle, Tacitus, and other ancient writers. Charron has incorporated or abridged the greater part of this work in his own. In one passage Lipsius gave great and just offence to the best of the Protestant party, whom he was about to desert, by recommending the extirpation of heresy by fire and sword. A political writer of the Jesuit school was Giovanni Botero, whose long treatise, Ragione di Stato, 1589, while deserving of considerable praise for acuteness, has been extolled by Ginguéné, who had never read it, for some merits it is far from possessing.[1081] The tolerant spirit, the maxims of good faith, the enlarged philosophy, which on the credit of a Piedmontese panegyrist, he ascribes to Botero will be sought in vain. This Jesuit justifies the massacre of St. Bartholomew, and all other atrocities of that age; observing that the duke of Alba made a mistake in the public execution of Horn and Egmont, instead of getting rid of them privately.[1082] Conservation is with him, as with Machiavel, the great end of government, which is to act so as neither to deserve nor permit opposition. The immediate punishment of the leaders of sedition, with as much silence and secrecy as possible, is the best remedy where the sovereign is sufficiently powerful. In cases of danger, it is necessary to conquer by giving way, and to wait for the cooling of men’s tempers, and the disunion that will infallibly impair their force; least of all should he absent himself, like Henry III., from the scene of tumult, and thus give courage to the seditious, while he diminishes their respect for himself.

[1081] Vol. viii. p. 210.

[1082] Poteva contentarsi di sbrigarsene con dar morte quanto si può segretamente fosse possibile. This is in another treatise by Botero, Relazioni Universali dè Capitani Illustri.

|His remarks on population.|

43. Botero had thought and observed much; he is, in extent of reading, second only to Bodin, and his views are sometimes luminous. The most remarkable passage that has occurred to me is on the subject of population. No encouragement to matrimony, he observes, will increase the numbers of the people without providing also the means of subsistence, and without due care for breeding children up. If this be wanting, they either die prematurely, or grow up of little service to their country.[1083] Why else, he asks, did the human race reach, three thousand years ago, as great a population as exists at present? Cities begin with a few inhabitants, increase to a certain point, but do not pass it, as we see at Rome, at Naples, and in other places. Even if all the monks and nuns were to marry, there would not, he thinks, be more people in the world than there are; two things being requisite for their increase--generation and education (or what we should perhaps rather call rearing), and if the multiplication of marriages may promote the one, it certainly hinders the other.[1084] Botero must here have meant, though he does not fully express it, that the poverty attending upon improvident marriages is the great impediment to rearing their progeny.

[1083] Concio sia cosa chè se bene senza il congiungimento dell’uomo e della donna non si può il genere umano moltiplicarsi, non dimeno la moltitudine di congiungimenti non è sola causa della moltiplicazione; si ricerca oltre di ciò, la cura d’Allevarli, e la commodità di sustentarli; senza la quale o muojono innanzi tempo, o riescono inutili, e di poco giovimento alla patria lib. viii. p. 284.

[1084] Ibid. Ricercandosi due cose per la propagazione de popoli, la generazione et l’educazione, se bene la moltitudine de matrimonj ajuta forte l’una, impedisce però del sicuro l’altro.

|Paruta.|

44. Paolo Paruta, in his Discorsi Politici, Venice, 1599, is perhaps less vigorous and acute than Botero; yet he may be reckoned among judicious writers on general politics. The first book of these discourses relates to Roman, the second chiefly to modern history. His turn of thinking is independent and unprejudiced by the current tide of opinion, as when he declares against the conduct of Hannibal in invading Italy. Paruta generally states both sides of a political problem very fairly, as in one of the most remarkable of his discourses, where he puts the famous question on the usefulness of fortified towns. His final conclusion is favourable to them. He was a subject of Venice, and after holding considerable offices, was one of those historians employed by the Senate, whose writings form the series entitled Istorici Veneziani.

|Bodin.|

45. John Bodin, author of several other less valuable works, acquired so distinguished a reputation by his Republic, published in French in 1577, and by himself in Latin, with many additions in 1586,[1085] and has in fact so far outstripped the political writers of his own period, that I shall endeavour to do justice to his memory by something like an analysis of this treatise, which is far more known by name than generally read. Many have borne testimony to his extraordinary reach of learning and reflection. “I know of no political writer of the same period,” says Stewart, “whose extensive, and various, and discriminating reading appear to me to have contributed more to facilitate and guide the researches of his successors, or whose references to ancient learning have been more frequently transcribed without acknowledgment.”[1086]

[1085] This treatise, in its first edition, made so great an impression, that when Bodin came to England in the service of the Duke of Alençon, he found it explained by lecturers both in London and Cambridge, but not, as has sometimes been said, in the public schools of the university. This put him upon translating it into Latin himself, to render its fame more European. See Bayle, who has a good article on Bodin. I am much inclined to believe that the perusal of Bodin had a great effect in England. He is not perhaps very often quoted, and yet he is named with honour by the chief writers of the next age; but he furnished a store, both of arguments and of examples, which were not lost on the thoughtful minds of our countrymen.

Grotius, who is not very favourable to Bodin, though of necessity he often quotes the Republic, imputes to him incorrectness as to facts, which in some cases raises a suspicion of ill-faith. Epist. cccliii. It would require a more close study of Bodin than I have made, to judge of the weight of this charge.

[1086] Dissertation on the Progress of Philosophy, p. 40. Stewart, however, thinks Bodin became so obscure that he makes an apology for the space he has allotted to the Republic, though not exceeding four pages. He was better known in the seventeenth century than at present.

|Analysis of his treatise called The Republic.|

|Authority of heads of families.|

46. What is the object of political society? Bodin begins by inquiring. The greatest good, he answers, of every citizen, which is that of the whole state. And this he places in the exercise of the virtues proper to man, and in the knowledge of things natural, human, and divine. But as all have not agreed as to the chief good of a single man, nor whether the good of individuals be also that of the state, this has caused a variety of laws and customs according to the humours and passions of rulers. This first chapter is in a more metaphysical tone than we usually find in Bodin. He proceeds in the next to the rights of families (jus familiare), and to the distinction between a family and a commonwealth. A family is the right government of many persons under one head, as a commonwealth is that of many families.[1087] Patriarchal authority he raises high, both marital and paternal, on each subject pouring out a vast stream of knowledge: nothing that sacred and profane history, the accounts of travellers, or the Roman lawyers could supply, ever escapes the comprehensive researches of Bodin.[1088] He intimates his opinion in favour of the right of repudiation, one of the many proofs that he paid more regard to the Jewish than the Christian law,[1089] and vindicates the full extent of the paternal power in the Roman republic, deducing the decline of the empire from its relaxation.

[1087] Familia est plurium sub unius ac ejusdem patris familias imperium subditorum, earumque rerum quæ ipsius propria sunt, recta moderatio. He has an odd theory, that a family must consist of five persons, in which he seems to have been influenced by some notions of the jurists, that three families may constitute a republic, and that fifteen persons are also the minimum of a community.

[1088] Cap. iii. 34. Bodin here protests against the stipulation sometimes made before marriage, that the wife shall not be in the power of the husband; “agreements so contrary to divine and human laws, that they cannot be endured, nor are they to be observed even when ratified by oath, since no oath in such circumstances can be binding.”

[1089] It has always been surmised that Bodin, though not a Jew by nativity, was such by conviction. This is strongly confirmed by his Republic, wherein he quotes the Old Testament continually, and with great deference, but seldom or never the New. Several passages might be alleged in proof, but I have not noted them all down. In one place, lib. i. c. 6, he says, Paulus, Christianorum sæculi sui facile princeps, which is at least a singular mode of expression. In another he mentions the test of true religion so as to exclude all but the Mosaic. An unpublished work of Bodin, called the Heptaplomeres, is said to exist in many manuscripts, both in France and Germany; in which, after debating different religions in a series of dialogues, he gives the advantage to Deism or Judaism, for those who have seen it seem not to have determined which. No one has thought it worth while to print this production. Jugler, Hist. Literaria, p. 1740. Biogr. Univ. Niceron, xvii. 264.

|Domestic servitude.|

47. The patriarchal government includes the relation of master to servant, and leads to the question whether slavery should be admitted into a well-constituted commonwealth. Bodin, discussing this with many arguments on both sides, seems to think that the Jewish law, with its limitations as to time of servitude, ought to prevail, since the divine rules were not laid down for the boundaries of Palestine, but being so wise, so salutary, and of such authority, ought to be preferred above the constitutions of men. Slavery, therefore, is not to be permanently established; but where it already exists, it will be expedient that emancipations should be gradual.[1090]

[1090] A posthumous work of Bodin, published in 1596, Universæ Naturæ Theatrum, has been called by some a disguised Pantheism. This did not appear, from what I have read of it, to be the case.

|Origin of commonwealths.|

48. These last are the rights of persons in a state of nature, to be regulated, but not created by the law. “Before there was either city or citizen, or any form of a commonwealth amongst men (I make use in this place of Knolles’s very good translation), every master of a family was master in his own house, having power of life and death over his wife and children; but, after that force, violence, ambition, covetousness, and desire of revenge had armed one against another, the issues of wars and combats giving victory unto the one side, made the other to become unto them slaves; and amongst them that overcame he that was chosen chief and captain, under whose conduct and leading they had obtained the victory, kept them also in his power and command as his faithful and obedient servants, and the other as his slaves. Then that full and entire liberty by nature, given to every man to live as himself best pleased, was altogether taken from the vanquished, and in the vanquishers themselves in some measure also diminished in regard of the conqueror; for that now it concerned every man in private to yield his obedience unto his chief sovereign; and he that would not abate anything of his liberty, to live under the laws and commandments of another, lost all. So the words of lord and servant, of prince and subject, before unknown to the world, were first brought into use. Yea reason, and the very light of nature leadeth us to believe very force and violence to have given cause and beginning unto commonwealths.”[1091]

[1091] c. 6.

|Privileges of citizens.|

49. Thus, then, the patriarchal simplicity of government was overthrown by conquest, of which Nimrod seems to have been the earliest instance; and now fathers of families, once sovereign, are become citizens. A citizen is a free man under the supreme government of another.[1092] Those who enjoy more privileges than others are not citizens more than they. “It is the acknowledgment of the sovereign by his free subject, and the protection of the sovereign towards him that makes the citizen.” This is one of the fundamental principles, it may be observed by us in passing, which distinguish a monarchical from a republican spirit in constitutional jurisprudence. Wherever mere subjection, or even mere nativity, are held to give a claim to citizenship, there is an abandonment of the republican principle. This, always reposing on a real or imaginary contract, distinguishes the nation, the successors of the first community, from alien settlers, and, above all, from those who are evidently of a different race. Length of time must, of course, ingraft many of foreign origin upon the native tree; but to throw open civil privileges at random to new-comers is to convert a people into a casual aggregation of men. In a monarchy the hereditary principle maintains an unity of the commonwealth; which, though not entirely without danger, may better permit an equality of privileges among all its subjects. Thus under Caracalla, but in a period in which we should not look for good precedents, the great name, as once it had been, of Roman citizen was extended, east and west, to all the provinces of the empire.

[1092] Est civis nihil aliud quam liber homo, qui summa alterius potestate obligatur.

|Nature of sovereign power.|

50. Bodin comes next to the relation between patron and client, and to those alliances among states which bear an analogy to it. But he is careful to distinguish patronage or protection from vassalage. Even in unequal alliances, the inferior is still sovereign; and, if this be not reserved, the alliance must become subjection.[1093] Sovereignty, of which he treats in the following chapter, he defines a supreme and perpetual power, absolute and subject to no law.[1094] A limited prince, except so far as the limitation is confined to the laws of nature, is not sovereign. A sovereign cannot bind his successor, nor can he be bound by his own laws, unless confirmed by oath; for we must not confound the laws and contracts of princes, the former depend upon his will, but the latter oblige his conscience. It is convenient to call parliaments or meetings of states-general for advice and consent, but the king is not bound by them; the contrary notion has done much harm. Even in England, where laws made in parliament cannot be repealed without its consent, the king, as he conceives, does not hesitate to dispose of them at his pleasure.[1095] And though no taxes are imposed in England without consent of parliament, this is the case also in other countries, if necessity does not prevent the meeting of the states. He concludes, that the English parliament may have a certain authority, but that the sovereignty and legislative power is solely in the king. Whoever legislates is sovereign, for this power includes all other. Whether a vassal or tributary prince is to be called sovereign, is a question that leads Bodin into a great quantity of feudal law and history; he determines it according to his own theory.[1096]

[1093] c. 7.

[1094] Majestas est summa in cives ac subditos legibusque soluta postestas.

[1095] Hoc tamen singulare videri possit, quod, quæ leges populi rogatione ac principis jussu feruntur, non aliter quam populi comitiis abrogari possunt. Id enim Dellus Anglorum in Gallia legatus mihi confirmavit; idem tamen confitetur legem probari aut respui consuevisse contra populi voluntatem utcunque principi placuerit. He is evidently perplexed by the case of England; and having been in this country before the publication of his Latin edition, he might have satisfied himself on the subject.

[1096] c. 9 and 10.

|Forms of government.|

|Despotism and monarchy.|

51. The second book of the Republic treats of the different species of civil government. These, according to Bodin, are but three, no mixed form being possible, since sovereignty or the legislative power is indivisible. A democracy he defines to be a government where the majority of the citizens possess the sovereignty. Rome he holds to have been a democratic republic, in which, however, he is not exactly right; and he is certainly mistaken in his general theory, by arguing as if the separate definition of each of the three forms must be applicable after their combination.[1097] In this chapter on despotic monarchy, he again denies that governments were founded on original contract. The power of one man, in the origin of political society, was absolute; and Aristotle was wrong in supposing a fabulous golden age, in which kings were chosen by suffrage.[1098] Despotism is distinguished from monarchy by the subjects being truly slaves, without a right over their properties; but as the despot may use them well, even this is not necessarily a tyranny.[1099] Monarchy, on the other hand, is the rule of one man according to the law of nature, who maintains the liberties and properties of others as much as his own.[1100] As this definition does not imply any other restraint than the will of the prince imposes on himself, Bodin labours under the same difficulty as Montesquieu. Every English reader of the Esprit des Loix has been struck by the want of a precise distinction between despotism and monarchy. Tyranny differs, Bodin says, from despotism, merely by the personal character of the prince; but severity towards a seditious populace is not tyranny; and here he censures the lax government of Henry II. Tyrannicide he justifies in respect of an usurper who has no title except force, but not as to lawful princes, or such as have become so by prescription.[1101]

[1097] lib. ii. c. 1.

[1098] In the beginning of states, quo societas hominum coalescere cœpit, ac reipublicæ forma quædam constitui, unius imperio ac dominatu omnia tenebantur. Fallit enim Aristoteles, qui aureum illud genus hominum fabulis poeticis quam reipsa illustrius, reges heroas suffragio creasse prodidit; cum omnibus persuasum sit ac perspicuum monarchiam omnium primam in Assyria fuisse constitutam Nimrodo principe, &c.

[1099] c. 2.

[1100] c. 3.

[1101] c. 4.

|Aristocracy.|

52. An aristocracy he conceives always to exist where a smaller body of the citizens governs the greater.[1102] This definition, which has been adopted by some late writers, appears to lead to consequences hardly compatible with the common use of language. The electors of the House of Commons in England are not a majority of the people. Are they, therefore, an aristocratical body? The same is still more strongly the case in France, and in most representative governments of Europe. We might better say, that the distinguishing characteristic of an aristocracy is the enjoyment of privileges, which are not communicable to other citizens simply by anything they can themselves do to obtain them. Thus no government would be properly aristocratical where a pecuniary qualification is alone sufficient to confer political power; nor did the ancients ever use the word in such a sense. Yet the question might be asked, under what category we would place the timocracy, or government of the rich.

|Senates and councils of state.|

53. Sovereignty resides in the supreme legislative authority; but this requires the aid of other inferior and delegated ministers, to the consideration of which the third book of Bodin is directed. A senate he defines, “a lawful assembly of counsellors of state, to give advice to them who have the sovereignty in every commonwealth; we say, to give advice, that we may not ascribe any power of command to such a senate.” A council is necessary in a monarchy; for much knowledge is generally mischievous in a king. It is rarely united with a good disposition, and with a moral discipline of mind. None of the emperors were so illiterate as Trajan, none more learned than Nero. The counsellors should not be too numerous, and he advises that they should retain their offices for life. It would be dangerous as well as ridiculous, to choose young men for such a post, even if they could have wisdom and experience, since neither older persons, nor those of their own age, would place confidence in them. He then expatiates, in his usual manner, upon all the councils that have existed in ancient or modern states.[1103]

[1102] Ego statum semper aristocraticum esse, judico, si minor pars civium cæteris imperat. c. 1.

[1103] c. 1.

|Duties of magistrates.|

54. A magistrate is an officer of the sovereign, possessing public authority.[1104] Bodin censures the usual definitions of magistracy, distinguishing from magistrates both those officers who possess no right of command, and such commissioners as have only a temporary delegation. In treating of the duty of magistrates towards the sovereign, he praises the rule of the law of France, that the judge is not to regard private letters of the king against the justice of a civil suit.[1105] But after stating the doubt, whether this applies to matters affecting the public, he concludes that the judge must obey any direction he receives, unless contrary to the law of nature, in which case he is bound not to forfeit his integrity. It is however better, as far as we can, to obey all the commands of the sovereign, than to set a bad example of resistance to the people. This has probably a regard to the frequent opposition of the Parliament of Paris, to what it deemed the unjust or illegal ordinances of the court. Several questions, discussed in these chapters on magistracy, are rather subtle and verbal; and, in general, the argumentative part of Bodin is almost drowned in his erudition.

[1104] c. 3.

[1105] c. 4.

|Corporations.|

55. A state cannot subsist without colleges and corporations, for mutual affection and friendship is the necessary bond of human life. It is true that mischiefs have sprung from these institutions, and they are to be regulated by good laws; but as a family is a community natural, so a college is a community civil, and a commonwealth is but a community governed by a sovereign power; and thus the word community is common unto all three.[1106] In this chapter we have a full discussion of the subject; and, adverting to the Spanish Cortes and English Commons as a sort of colleges in the state, he praises them as useful institutions, observing, with somewhat more boldness than is ordinary to him, that in several provinces in France there had been assemblies of the states, which had been abolished by those who feared to see their own crimes and peculations brought to light.

[1106] c. 7.

|Slaves, part of the state.|

56. In the last chapter of the third book, on the degrees and orders of citizens, Bodin seems to think that slaves, being subjects, ought to be reckoned parts of the state.[1107] This is, as has been intimated, in conformity with his monarchical notions. He then enters upon the different modes of acquiring nobility, and inveighs against making wealth a passport to it; discussing also the derogation to nobility by plebeian occupation. The division into three orders is useful in every form of government.

[1107] Si mihi tabellæ ac jura suffragiorum in hac disputatione tribuantur, servos æque ac liberos homines civitate donari cupiam. By this he may only mean that he would desire to emancipate them.

|Rise and fall of states.|

57. Perhaps the best chapter in the Republic of Bodin is the first in the fourth book, on the rise, progress, stationary condition, revolutions, decline, and fall of states. A commonwealth is said to be changed when its form of polity is altered; for its identity is not to be determined by the long standing of the city walls; but when popular government becomes monarchy, or aristocracy is turned to democracy, the commonwealth is at an end. He thus uses the word respublica in the sense of polity or constitution, which is not, I think, correct, though sanctioned by some degree of usage, and leaves his proposition a tautological truism. The extinction of states may be natural or violent, but in one way or the other it must happen, since there is a determinate period to all things, and a natural season in which it seems desirable that they should come to an end. The best revolution is that which takes place by a voluntary cession of power.

|Causes of revolutions.|

58. As the forms of government are three, it follows that the possible revolutions from one to another are six. For anarchy is the extinction of a government, not a revolution in it. He proceeds to develop the causes of revolutions with great extent of historical learning and with judgment, if not with so much acuteness or so much vigour of style as Machiavel. Great misfortunes in war, he observes, have a tendency to change popular rule to aristocracy, and success has an opposite effect; the same seems applicable to all public adversity and prosperity. Democracy, however, more commonly ends in monarchy, as monarchy does in democracy, especially when it has become tyrannical; and such changes are usually accompanied by civil war or tumult. Nor can aristocracy, he thinks, be changed into democracy without violence, though the converse revolution sometimes happens quietly, as when the labouring classes and traders give up public affairs to look after their own; in this manner Venice, Lucca, Ragusa, and other cities have become aristocracies. The great danger for an aristocracy is, that some ambitious person, either of their own body or of the people, may arm the latter against them: and this is most likely to occur, when honours and magistracy are conferred on unworthy men, which affords the best topic to demagogues, especially where the plebeians are wholly excluded: which, though always grievous to them, is yet tolerable so long as power is intrusted to deserving persons; but when bad men are promoted, it becomes easy to excite the minds of the people against the nobility, above all, if there are already factions among the latter, a condition dangerous to all states, but mostly to an aristocracy. Revolutions are more frequent in small states, because a small number of citizens is easily split into parties; hence we shall find in one age more revolutions among the cities of Greece or Italy than have taken place during many in the kingdoms of France or Spain. He thinks the ostracism of dangerous citizens itself dangerous, and recommends rather to put them to death, or to render them friends. Monarchy, he observes, has this peculiar to it, that if the king be a prisoner, the constitution is not lost; whereas, if the seat of government in a republic be taken, it is at an end, the subordinate cities never making resistance. It is evident that this can only be applicable to the case, hitherto the more common one, of a republic, in which the capital city entirely predominates. “There is no kingdom which shall not, in continuance of time, be changed, and at length also be overthrown. But it is best for them who least feel their changes by little and little made, whether from evil to good, or from good to evil.”

|Astrological fancies of Bodin.|

59. If this is the best, the next is the worst chapter in Bodin. It professes to inquire, whether the revolutions of states can be foreseen. Here he considers, whether the stars have such an influence on human affairs, that political changes can be foretold by their means, and declares entirely against it, with such expressions as would seem to indicate his disbelief in astrology. If it were true, he says, that the conditions of commonwealths depended on the heavenly bodies, there could be yet no certain prediction of them; since the astrologers lay down their observations with such inconsistency, that one will place the same star in direct course at the moment that another makes it retrograde. It is obvious that any one who could employ this argument, must have perceived that it destroys the whole science of astrology. But, after giving instances of the blunders and contradictions of these pretended philosophers, he so far gives way as to admit that, if all the events from the beginning of the world could be duly compared with the planetary motions, some inferences might be deduced from them; and thus giving up his better reason to the prejudices of his age, he acknowledges astrology as a theoretical truth. The hypothesis of Copernicus he mentions as too absurd to deserve refutation; since, being contrary to the tenets of all theologians and philosophers and to common sense, it subverts the foundations of every science. We now plunge deeper into nonsense; Bodin proceeding to a long arithmetical disquisition, founded on a passage in Plato, ascribing the fall of states to want of proportion.[1108]

[1108] c. 2.

|Danger of sudden changes.|

60. The next chapter, on the danger of sudden revolutions in the entire government, asserts that even the most determined astrologers agree in denying that a wise man is subjugated by the starry influences, though they may govern those who are led by passion like wild beasts. Therefore a wise ruler may foresee revolutions and provide remedies. It is doubtful whether an established law ought to be changed, though not good in itself, lest it should bring others into contempt, especially such as affect the form of polity. These, if possible, should be held immutable; yet it is to be remembered, that laws are only made for the sake of the community, and public safety is the supreme law of laws. There is therefore no law so sacred that it may not be changed through necessity. But, as a general rule, whatever change is to be made should be effected gradually.[1109]

[1109] c. 3.

|Judicial power of the sovereign.|

61. It is a disputed question whether magistrates should be temporary or perpetual. Bodin thinks it essential that the council of state should be permanent, but high civil commands ought to be temporary.[1110] It is in general important that magistrates shall accord in their opinions; yet there are circumstances in which their emulation or jealousy may be beneficial to a state.[1111] Whether the sovereign ought to exercise judicial functions may seem, he says, no difficult question to those who are agreed that kings were established for the sake of doing justice. This, however, is not his theory of the origin of government; and after giving all the reasons that can be urged in favour of a monarch-judge, including as usual all historical precedents, he decides that it is inexpedient for the ruler to pronounce the law himself. His reasons are sufficiently bold, and grounded on an intimate knowledge of the vices of courts, which he does not hesitate to pour out.[1112]

[1110] c. 4.

[1111] c. 5.

[1112] c. 6.

|Toleration of religions.|

62. In treating of the part to be taken by the prince, or by a good citizen, in civil factions, after a long detail from history of conspiracies and seditions, he comes to disputes about religion, and contends against the permission of reasonings on matters of faith. What can be more impious, he says, than to suffer the eternal laws of God, which ought to be implanted in men’s minds with the utmost certainty, to be called in question by probable reasonings? For there is nothing so demonstrable, which men will not undermine by argument. But the principles of religion do not depend on demonstrations and arguments, but on faith alone; and whoever attempts to prove them by a train of reasoning, tends to subvert the foundations of the whole fabric. Bodin in this sophistry was undoubtedly insincere. He goes on, however, having purposely sacrificed this cock to Æsculapius, to contend that, if several religions exist in a state, the prince should avoid violence and persecution; the natural tendency of man being to give his assent voluntarily, but never by force.[1113]

[1113] c. 7.

|Influence of climate on government.|

63. The first chapter of the fifth book, on the adaptation of government to the varieties of race and climate, has excited more attention than most others, from its being supposed to have given rise to a theory of Montesquieu. In fact, however, the general principle is more ancient; but no one had developed it so fully as Bodin. Of this he seems to be aware. No one, he says, has hitherto treated on this important subject, which should always be kept in mind, lest we establish institutions not suitable to the people, forgetting that the laws of nature will not bend to the fancy of man. He then investigates the peculiar characteristics of the northern, middle, and southern nations, as to physical and moral qualities. Some positions he has laid down erroneously; but, on the whole, he shows a penetrating judgment and comprehensive generalisation of views. He concludes that bodily strength prevails towards the poles, mental power towards the tropics; and that the nations lying between partake in a mixed ratio of both. This is not very just; but he argues from the great armies that have come from the north, while arts and sciences have been derived from the south. There is certainly a considerable resemblance to Montesquieu in this chapter; and like him, with better excuse, Bodin accumulates inaccurate stories. Force prevails most with the northerns, reason with the inhabitants of a temperate or middle climate, superstition with the southerns; thus astrology, magic, and all mysterious sciences have come from the Chaldeans and Egyptians. Mechanical arts and inventions, on the other hand, flourish best in northern countries, and the southerns hardly know how to imitate them, their genius being wholly speculative, nor have they so much industry, quickness in perceiving what is to be done, or worldly prudence. The stars appear to exert some influence over national peculiarities; but even in the same latitudes great variety of character is found, which arises from a mountainous or level soil, and from other physical circumstances. We learn by experience, that the inhabitants of hilly countries and the northern nations generally love freedom, but having less intellect than strength, submit readily to the wisest among them. Even winds are not without some effect on national character. But the barrenness or fertility of the soil is more important; the latter producing indolence and effeminacy, while one effect of a barren soil is to drive the people into cities, and to the exercise of handicrafts for the sake of commerce, as we see at Athens and Nuremburg, the former of which may be contrasted with Bœotia.

64. Bodin concludes, after a profusion of evidence drawn from the whole world, that it is necessary not only to consider the general character of the climate as affecting an entire region, but even the peculiarities of single districts, and to inquire what effects may be wrought on the dispositions of the inhabitants by the air, the water, the mountains and valleys, or prevalent winds, as well as those which depend on their religion, their customs, their education, their form of government; for whoever should conclude alike as to all who live in the same climate would be frequently deceived; since, in the same parallel of latitude, we may find remarkable differences even of countenance and complexion. This chapter abounds with proofs of the comprehension as well as patient research which distinguishes Bodin from every political writer who had preceded him.

|Means of obviating inequality.|

65. In the second chapter, which inquires how we may avoid the revolutions which an excessive inequality of possessions tends to produce, he inveighs against a partition of property, as inconsistent with civil society, and against an abolition of debts, because there can be no justice where contracts are not held inviolable; and observes, that it is absurd to expect a division of all possessions to bring about tranquillity. He objects also to any endeavour to limit the number of the citizens, except by colonisation. In deference to the authority of the Mosaic law, he is friendly to a limited right of primogeniture, but disapproves the power of testamentary dispositions, as tending to inequality, and the admission of women to equal shares in the inheritance, lest the same consequence should come through marriage. Usury he would absolutely abolish, to save the poorer classes from ruin.

|Confiscations--rewards.|

66. Whether the property of condemned persons shall be confiscated is a problem, as to which, having given the arguments on both sides, he inclines to a middle course, that the criminal’s own acquisitions should be forfeited, but what has descended from his ancestors should pass to his posterity. He speaks with great freedom against unjust prosecutions, and points out the dangers of the law of forfeiture.[1114] In the next, being the fourth chapter of this book, he treats of rewards and punishments. All states depend on the due distribution of these; but, while many books are full of the latter, few have discussed the former, to which he here confines himself. Triumphs, statues, public thanks, offices of trust and command, are the most honourable; exemptions from service or tribute, privileges, and the like, the most beneficial. In a popular government, the former are more readily conceded than the latter; in a monarchy, the reverse. The Roman triumph gave a splendour to the republic itself. In modern times the sale of nobility, and of public offices, renders them no longer so honourable as they should be. He is here again very free-spoken as to the conduct of the French, and of other governments.[1115]

[1114] c. 3.

[1115] c. 4.

|Fortresses.|

67. The advantage of warlike habits to a nation, and the utility of fortresses, are then investigated. Some have objected to the latter, as injurious to the courage of the people, and of little service against an invader; and also, as furnishing opportunities to tyrants and usurpers, or occasionally to rebels. Bodin, however, inclines in their favour, especially as to those on the frontier, which may be granted as feudal benefices, but not in inheritance. The question of cultivating a military spirit in the people depends on the form of polity: in popular states it is necessary; in an aristocracy, unsafe. In monarchies, the position of the state with respect to its neighbours is to be considered. The capital city ought to be strong in a republic, because its occupation is apt to carry with it an entire change in the commonwealth. But a citadel is dangerous in such a state. It is better not to suffer castles, or strongholds of private men, as is the policy of England; unless when the custom is so established, that they cannot be dismantled without danger to the state.[1116]

[1116] c. 5.

|Necessity of good faith.|

68. Treaties of peace and alliance come next under review. He points out with his usual prolixity the difference between equal and unequal compacts of this kind. Bodin contends strongly for the rigorous maintenance of good faith, and reprobates the civilians and canonists who induced the council of Constance to break their promise towards John Huss. No one yet, he exclaims, has been so consummately impudent, as to assert the right of violating a fair promise; but one alleges the deceit of the enemy; another, his own mistake; a third, the change of circumstances, which has rendered it impossible to keep his word; a fourth, the ruin of the state which it would entail. But no excuse, according to Bodin, can be sufficient, save the unlawfulness of the promise, or the impossibility of fulfilling it. The most difficult terms to keep are between princes and their subjects, which generally require the guarantee of other states. Faith, however, ought to be kept in such cases; and he censures, though under an erroneous impression of the fact, as a breach of engagement, the execution of the Duke of York in the reign of Henry VI.; adding, that he prefers to select foreign instances, rather than those at home, which he would wish to be buried in everlasting oblivion. In this he probably alludes to the day of St. Bartholomew.[1117]

[117] c. 6. Externa libentius quam domestica recordor, quæ utinam sempiterna oblivione sepulta jacerent.

|Census of property.|

|Public revenues.|

69. The first chapter of the sixth book relates to a periodical census of property, which he recommends as too much neglected. The Roman censorship of manners he extols, and thinks it peculiarly required, when all domestic coercion is come to an end. But he would give no coercive jurisdiction to his censors, and plainly intimates his dislike to a similar authority in the church.[1118] A more important disquisition follows on public revenues. These may be derived from seven sources: namely, national domains; confiscation of enemies’ property; gifts of friendly powers; tributes from dependent allies; foreign trade carried on by the state; tolls and customs on exports and imports; or, lastly, taxes directly levied on the people. The first of these is the most secure and honourable; and here we have abundance of ancient and modern learning, while of course the French principle of inalienability is brought forward. The second source of revenue is justified by the rights of war and practice of nations; the third has sometimes occurred; and the fourth is very frequent. It is dishonourable for a prince to be a merchant, and thus gain a revenue in the fifth mode, yet the kings of Portugal do not disdain this; and the mischievous usage of selling offices in some other countries seems to fall under this head. The different taxes on merchandise, or, in our language, of customs and excise, come in the sixth place. Here Bodin advises to lower the import duties on articles with which the people cannot well dispense, but to lay them heavily on manufactured goods, that they may learn to practise these arts themselves.

[1118] lib. vi. c. 1.

|Taxation.|

70. The last species of revenue, obtained from direct taxation, is never to be chosen but from necessity; and as taxes are apt to be kept up when the necessity is passed, it is better that the king should borrow money of subjects than impose taxes upon them. He then enters on the history of taxation in different countries, remarking it as peculiar to France, that the burthen is thrown on the people to the ease of the nobles and clergy, which is the case nowhere except with the French, among whom, as Cæsar truly wrote, nothing is more despised than the common people. Taxes on luxuries, which serve only to corrupt men, are the best of all; those also are good which are imposed on proceedings at law, so as to restrain unnecessary litigation. Borrowing at interest, or by way of annuity, as they do at Venice, is ruinous. It seems, therefore, that Bodin recommends loans without interest, which must be compulsory. In the remainder of this chapter he treats of the best mode of expending the public revenue, and advises that royal grants should be closely examined, and, if excessive, be rescinded, at least after the death of the reigning king.[1119]

[1119] c. 2.

|Adulteration of coin.|

71. Every adulteration of coin, to which Bodin proceeds, and every change in its value is dangerous, as it affects the certainty of contracts, and renders every man’s property insecure. The different modes of alloying coin are then explained according to practical metallurgy, and, assuming the constant ratio of gold to silver as twelve to one, he advises that coins of both metals should be of the same weight. The alloy should not be above one in twenty-four; and the same standard should be used for plate. Many curious facts in monetary history will be found collected in this chapter.[1120]

[1120] c. 3.

|Superiority of monarchy.|

72. Bodin next states fully and with apparent fairness, the advantages and disadvantages both of democracy and aristocracy, and, admitting that some evils belong to monarchy, contends that they are all much less than in the two other forms. It must be remembered, that he does not acknowledge the possibility of a mixed government; a singular error, which, of course, vitiates his reasonings in this chapter. But it contains many excellent observations on democratical violence and ignorance, which history had led him duly to appreciate.[1121] The best form of polity, he holds to be a monarchy by agnatic succession, such as, in contradiction to Hottoman, he maintained to have been always established in France, pointing out also the mischiefs that have ensued in other countries for want of a Salic law.[1122]

[1121] c. 4.

[1122] c. 5.

|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.|

|Cujacius.|

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. 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.

[1125] Heineccii Opera xiv. 203. He prefers the Observationes atque Emendationes of Cujacius to all his other works. These contain twenty-eight books, published, at intervals, from the year 1556. They were designed to extend to forty books.

[1126] Respublica Jurisconsultorum, p. 237. Intactum in jurisprudentia reliquit nihil, et quæ scribit, non tam ex aliis excerpta, quam a se inventa, sane fatentur omnes; ita omnia suo loco posita, non nimis protracta, quæ nauseam creant, non arcte ac jejune tractata, quæ explicationis paullo diffusioris pariunt desiderium. Candida perspicuitate brevis, elegans sub amabili simplicitate, caute eruditus, quantum patitur occasio, ubique docens, ne aliqua parte arguatur otiosus, tam nihil habet inane, nihil inconditum, nihil curtum, nihil claudicans, nihil redundans, amœnus in Observationibus, subtilis in Tractatibus, uber ac planus in Commentariis, generosus in refellendis objectis, accuratus in confingendis notis, in Paratitlis brevis ac succi plenus, rectus prudensque in Consultationibus.

[1127] Heinecc. xiv. 209. Gennari, p. 199.

|Cujacius, an interpreter of law rather than a lawyer.|

78. Such was the renown of Cujacius that, in the public schools of Germany, when his name was mentioned, every one took off his hat.[1128] The continual bickerings of his contemporaries, not only of the old Accursian school, among whom Albericus Gentilis was prominent in disparaging him, but of those who had been trained in the steps of Alciat like himself, did not affect this honest admiration of the general student.[1129] But we must not consider Cujacius exactly in the light of what we now call a great lawyer. He rejected all modern forensic experience with scorn, declaring that he had misspent his youth in such studies. We have, indeed, fifty of his consultations which appear to be actual cases. But, in general, it is observed by Gravina that both he and the greatest of his disciples “are but ministers of ancient jurisprudence, hardly deigning to notice the emergent questions of modern practice. Hence, while the elder jurists of the school of Bartolus, deficient as they are in expounding the Roman laws, yet apply them judiciously to new cases, these excellent interpreters hardly regard anything modern, and leave to the others the whole honour of advising and deciding rightly.” Therefore he recommends that the student who has imbibed the elements of Roman jurisprudence in all their purity from the school of Cujacius, should not neglect the interpretations of Accursius in obscure passages; and, above all, should have recourse to Bartolus and his disciples for the arguments, authorities, and illustrations which ordinary forensic questions will require.[1130]

[1128] Gennari, p. 246. Biogr. Univ.

[1129] Heineccius, ibid. Gennari, p. 242.

[1130] Gravina, p. 222, 230.

|French lawyers below Cujacius; Govea and others.|

79. At some distance below Cujacius, but in places of honour, we find among the great French interpreters of the civil law in this age, Duaren, as devoted to ancient learning as Cujacius, but differing from him by inculcating the necessity of forensic practice to form a perfect lawyer;[1131] Govea, who, though a Portuguese, was always resident in France, whom some have set even above Cujacius for ability, and of whom it has been said that he is the only jurist who ought to have written more;[1132] Brisson, a man of various learning, who became in the seditions of Paris an unfortunate victim of his own weak ambition; Balduin, a strenuous advocate for uniting the study of ancient history with that of law; Godefroi, whose Corpus Juris Civilis makes an epoch in jurisprudence, being the text-book universally received; and Connan, who is at least much quoted by the principal writers on the law of nature and nations. The boast of Germany was Gifanius.

[1131] Duarenus ... sine forensis exercitationis præsidio nec satis percipi, nec recte commodeque doceri jus civile existimate. Gennari, p. 179.

[1132] Goveanus ... vir, de quo uno desideretur, plura scripsisse, de cæteris vero, pauciora.... quia felix ingenio, naturæ viribus tantum confideret, ut diligentiæ laudem sibi non necessariam, minus etiam honorificam putare videatur. Gennari, p. 281.

|Opponents of the Roman law.|

80. These “ministers of ancient jurisprudence” seemed to have no other office than to display the excellences of the old masters in their original purity. Ulpian and Papinian were to them what Aristotle and Aquinas were to another class of worshippers. But the jurists of the age of Severus have come down to us through a compilation in that of Justinian; and Alciat himself had begun to discover the interpolations of Tribonian, and the corruption which, through ignorance or design, had penetrated the vast reservoir of the Pandects. Augustinus, Cujacius, and other French lawyers of the school of Bourges followed in this track, and endeavoured not only to restore the text from errors introduced by the carelessness of transcribers, a necessary and arduous labour, but from those springing out of the presumptuousness of the lawgiver himself, or of those whom he had employed. This excited a vehement opposition, led by some of the chief lawyers of France, jealous of the fame of Cujacius. But while they pretended to rescue the orthodox vulgate from the innovations of its great interpreter, another sect rose up, far bolder than either, which assailed the law itself. Of these the most determined were Faber and Hottoman.

|Faber of Savoy.|

81. Antony Faber, or Fabre, a lawyer of Savoy, who became president of the court of Chamberi in 1610, acquired his reputation in the sixteenth century. He waged war against the whole body of commentators, and even treated the civil law itself as so mutilated and corrupt, so inapplicable to modern times, that it would be better to lay it altogether aside. Gennari says, that he would have been the greatest of lawyers, if he had not been too desirous to appear such;[1133] his temerity and self-confidence diminished the effect of his ability. His mind was ardent and unappalled by difficulties; no one had more enlarged views of jurisprudence, but in his interpretations he was prone to make the laws rather what they ought to have been than what they were. His love of paradox is hardly a greater fault than the perpetual carping at his own master Cujacius, as if he thought the reform of jurisprudence should have been reserved for himself.[1134]

[1133] P. 97.

[1134] Heineccius, p. 236. Fabre, says Ferriere, as quoted by Terrasson, Hist. de la Jurisprudence, est celui des jurisconsultes modernes qui a porté le plus loin les idées sur le droit. C’etoit un esprit vaste que ne se rebutoit par de plus grandes difficultés. Mais on l’accuse avec raison d’Avoir decidé un peu trop hardiment contre les opinions communes, et de s’être donné souvent trop de liberté de retrancher ou d’Ajouter dans les loix. See too the article Favre, in Biographie Universelle.

|Anti-Tribonianus of Hottoman.|

82. But the most celebrated production of this party is the Anti-Tribonianus of Hottoman. This was written in 1567, and though not published in French till 1609, nor in the original till 1647, seems properly to belong to the sixteenth century. He begins by acknowledging the merit of the Romans in jurisprudence, but denies that the compilation of Justinian is to be confounded with the Roman law. He divides his inquiry into two questions: first, whether the study of these laws is useful in France; and secondly, what are their deficiencies. These laws, he observes by the way, contain very little instruction about Roman history or antiquities, so that in books on those subjects we rarely find them cited. He then adverts to particular branches of the civil law, and shows that numberless doctrines are now obsolete, such as the state of servitude, the right of arrogation, the ceremonies of marriage, the peculiar law of guardianship, while for matters of daily occurrence they give us no assistance. He points out the useless distinctions between things mancipi and non mancipi, between the dominium quiritarium and bonitarium; the modes of acquiring property by mancipation, cessio in jure, usucapio, and the like, the unprofitable doctrines about fidei commissa and the jus accrescendi. He dwells on the folly of keeping up the old forms of stipulation in contracts, and those of legal process, from which no one can depart a syllable without losing his suit. And on the whole he concludes, that not a twentieth part of the Roman law survives, and of that not one tenth can be of any utility. In the second part, Hottoman attacks Tribonian himself, for suppressing the genuine works of great lawyers, for barbarous language, for perpetually mutilating, transposing and interpolating the passages which he inserts, so that no cohesion or consistency is to be found in these fragments of materials, nor is it possible to restore them. The evil has been increased by the herd of commentators and interpreters since the twelfth century; those who have lately appeared and applied more erudition rarely agreeing in their conjectural emendations of the text, which yet frequently varies in different manuscripts, so as to give rise to endless disputes. He ends by recommending that some jurisconsults and advocates should be called together, in order to compile a good code of laws; taking whatever is valuable in the Roman system, and adding whatever from other sources may seem worthy of reception, drawing them up in plain language, without too much subtlety, and attending chiefly to the principles of equity. He thinks that a year or two would suffice for the instruction of students in such a code of laws, which would be completed afterwards, as was the case at Rome, by forensic practice.

|Civil law not countenanced in France.|

83. These opinions of Hottoman, so reasonable in themselves, as to the inapplicability of much of the Roman law to the actual state of society, were congenial to the prejudices of many lawyers in France. That law had in fact to struggle against a system already received, the feudal customs which had governed the greater part of the kingdom. And this party so much prevailed, that by the ordinance of Blois, in 1579, the university of Paris was forbidden to give lectures or degrees in civil law. This was not wholly regarded; but it was not till a century afterwards, that public lectures in that science were re-established in the university, on account of the uncertainty, which the neglect of the civil law was alleged to have produced.

|Turamini.|

84. France now stood far pre-eminent in her lawyers. But Italy was not wanting in men once conspicuous, whom we cannot afford time to mention. One of them, Turamini, professor at Ferrara, though his name is not found in Tiraboschi, or even in Gravina, seems to have had a more luminous conception of the relation which should subsist between positive laws and those of nature, as well as of their distinctive provinces, than was common in the great jurists of that generation. His commentary on the title De Legibus, in the first book of the Pandects, gave him an opportunity for philosophical illustration. An account of his writings will be found in Corniani.[1135]

[1135] Vol. vi. p. 197.

|Canon law.|

85. The canon law, though by no means a province sterile in the quantity of its produce, has not deserved to arrest our attention. It was studied conjointly with that of Rome, from which it borrows many of its principles and rules of proceeding, though not servilely, nor without such variations as the independence of its tribunals and the different nature of its authorities might be expected to produce. Covarruvias and other Spaniards were the most eminent canonists; Spain was distinguished in this line of jurisprudence.

|Law of nations. Its early state.|

86. But it is of more importance to observe, that in this period we find a foundation laid for the great science of international law, the determining authority in questions of right between independent states. Whatever had been delivered in books on this subject, had rested too much on theological casuistry, or on the analogies of positive and local law, or on the loose practice of nations, and precedents rather of arms than of reason. The fecial law, or rights of ambassadors, was that which had been most respected. The customary code of Europe, in military and maritime questions, as well as in some others, to which no state could apply its particular jurisprudence with any hope of reciprocity, grew up by degrees to be administered, if not upon solid principles, yet with some uniformity. The civil jurists, as being conversant with a system more widely diffused, and of which the equity was more generally recognised than any other, took into their hands the adjudication of all these cases. In the fifteenth and sixteenth centuries, the progress of international relations, and, we may add, the frequency of wars, though it did not at once create a common standard, showed how much it was required. War itself, it was perceived, even for the advantage of the belligerents, had its rules; an enemy had his rights; the study of ancient history furnished precedents of magnanimity and justice, which put the more recent examples of Christendom to shame; the spirit of the gospel could not be wholly suppressed, at least in theory; the strictness of casuistry was applied to the duties of sovereigns; and perhaps the scandal given by the writings of Machiavel was not without its influence in dictating a nobler tone to the morality of international law.

|Francis a Victoria.|

87. Before we come to works strictly belonging to this land of jurisprudence, one may be mentioned which connects it with theological casuistry. The Relectiones Theologicæ of Francis a Victoria, a professor in Salamanca, and one on whom Nicolas Antonio and many other Spanish writers bestow the highest eulogy, as the restorer of theological studies in their country, is a book of remarkable scarcity, though it has been published at least in four editions. Grotius has been supposed to have made use of it in his own great work; but some of those who since his time have mentioned Victoria’s writings on this subject, lament that they are not to be met with. Dupin, however, has given a short account of the Relectiones; and there are at least two copies in England--one in the Bodleian Library, and another in that of Dr. Williams in Redcross Street. The edition I have used is of Venice, 1626, being probably the latest; it was published first at Lyons in 1557, at Salamanca in 1565, and again at Lyons in 1587; but had become scarce before its republication at Venice.[1136] It consists of thirteen relections, as Victoria calls them, or dissertations on different subjects, related in some measure to theology, at least by the mode in which he treats them. The fifth, entitled De Indis, and the sixth, De Jure Belli, are the most important.

[1136] This is said on the authority of the Venetian edition. But Nicolas Antonio mentions an edition at Ingoldstadt in 1580, and another at Antwerp in 1604. He is silent about those of 1587 and 1626. He also says that the Relectiones are twelve in number. Perhaps he had never seen the book, but he does not advert to its scarcity. Morhof, who calls it Prælectiones names the two editions of Lyons, and those of Ingoldstadt and Antwerp. Brunet, Watts, and the Biographie Universelle do not mention Victoria at all.

|His opinions on public law.|

88. The third is entitled, De Potestate Civili. In this he derives government and monarchy from divine institution, and holds that, as the majority of a state may choose a king whom the minority are bound to obey, so the majority of Christians may bind the minority by the choice of an universal monarch. In the chapter concerning the Indians, he strongly asserts the natural right of those nations to dominion over their own property and to sovereignty, denying the allegations founded on their infidelity or vices. He treats this question methodically, in a scholastic manner, giving the arguments on both sides. He denies that the emperor, or the pope, is lord of the whole world, or that the pope has any power over the barbarian Indians or other infidels. The right of sovereignty in the king of Spain over these people he rests on such grounds as he can find; namely, the refusal of permission to trade, which he holds to be a just cause of war, and the cessions made to him by allies among the native powers. In the sixth relection, on the right of war, he goes over most of the leading questions, discussed afterwards by Albericus Gentilis and Grotius. His dissertation is exceedingly condensed, comprising sixty sections in twenty-eight pages; wherein he treats of the general right of war, the difference between public war and reprisal, the just and unjust causes of war, its proper ends, the right of subjects to examine its grounds, and many more of a similar kind. He determines that a war cannot be just on both sides, except through ignorance; and also that subjects ought not to serve their prince in a war which they reckon unjust. Grotius has adopted both these tenets. The whole relection, as well as that on the Indians, displays an intrepid spirit of justice and humanity, which seems to have been rather a general characteristic of the Spanish theologians. Dominic Soto, always inflexibly on the side of right, had already sustained by his authority the noble enthusiasm of Las Casas.

|Ayala, on the rights of war.|

89. But the first book, so far as I am aware, that systematically reduced the practice of nations in the conduct of war to legitimate rules, is a treatise by Balthazar Ayala, judge-advocate (as we use the word), to the Spanish army in the Netherlands, under the Prince of Parma, to whom it is dedicated. The dedication bears date 1581, and the first edition is said to have appeared the next year. I have only seen that of 1597, and I apprehend every edition to be very scarce. For this reason, and because it is the opening of a great subject, I shall give the titles of his chapters in a note.[1137] It will appear, that the second book of Ayala relates more to politics and to strategy than to international jurisprudence; and that in the third he treats entirely of what we call martial law. But in the first he aspires to lay down great principles of public ethics; and Grotius, who refers to Ayala with commendation, is surely mistaken in saying that he has not touched the grounds of justice and injustice in war.[1138] His second chapter is on this subject, in thirty-four pages; and though he neither sifts the matter so exactly, nor limits the right of hostility so much as Grotius, he deserves the praise of laying down the general principle without subtlety or chicanery. Ayala positively denies, with Victoria, the right of levying war against infidels, even by authority of the pope, on the mere ground of their religion; for their infidelity does not deprive them of right of dominion; nor was that sovereignty over the earth given originally to the faithful alone, but to every reasonable creature. And this, he says, has been shown by Covarruvias to be the sentiment of the majority of doctors.[1139] Ayala deals abundantly in examples from ancient history, and in authorities from the jurists.

[1137] Balth. Ayalæ, J. C. et exercitus regii apud Belgas supremi juridici, de jure et officiis bellicis et disciplina militari, libri tres. Antw. 1597. 12mo. pp. 405.

Lib. i. c. 1. De Ratione Belli Indicendi, Aliisque Cæremoniis Bellicis. 2. De Bello Justo. 3. De Duello, sive Singulari Certamine. 4. De Pignerationibus, quas vulgo Represalias vocant. 5. De Bello Captis et Jure Postliminii. 6. De Fide Hosti Servanda. 7. De Fœderibus et Induciis. 8. De Insidiis et Fraude Hostili. 9. De Jure Legatorum.

Lib. ii. c. 1. De Officiis Bellicis. 2. De Imperatore vel Duce Exercitus. 3. Unum non Plures Exercitui Præfici debere. 4. Utrum Lenitate et Benevolentia, an Severitate et Sævitia plus proficiet Imperator. 5. Temporum Rationem præcipue in Bello Habendam. 6. Contentiosas et Lentas de Rebus Bellicis Deliberationes admodum Noxias esse. 7. Dum Res sunt Integræ ne minimum quidem Regi vel Reipublicæ de Majestate sua Concedendum esse; et errare eos qui Arrogantiam Hostium Modestia et Patientia vinci posse existimant. 8. An præstet Bellum Domi excipere, an vero in Hostilem Agrum inferre. 9. An præstet Initio Prœlii Magno Clamore et Concitato Cursu in Hostes pergere, an vero Loco manere. 10. Non esse Consilii invicem Infensos Civilibus Dissensionibus Hostes Sola Discordia Fretum invadere. 11. Necessitatem Pugnandi Magno Studio Imponendam esse Militibus et Hostibus Remittendam. 12. In Victoria potissimum de Pace Cogitandum. 13. Devictis Hostibus qua potissimum Ratione Perpetua Pace Quieti obtineri possint [sic].

Lib. iii. c. 1. De Disciplina Militari. 2. De Officio Legati et Aliorum qui Militibus præsunt. 3. De Metatoribus sive Mensoribus. 4. De Militibus, et qui Militare possunt. 5. De Sacramento Militari. 6. De Missione. 7. De Privilegiis Militum. 8. De Judiciis Militaribus. 9. De Pœnis Militum. 10. De Contumacibus et Ducum Dicto non Parentibus. 11. De Emansoribus. 12. De Desertoribus. 13. De Transfugis et Proditoribus. 14. De Seditiosis. 15. De Iis qui in Acie Loco cedunt aut Victi Se dedunt. 16. De Iis qui Arma alienant vel amittunt. 17. De Iis qui Excubias deserunt vel minus recte agunt. 18. De Eo qui Arcem vel Oppidum cujus Præsidio impositus est, amittit vel Hostibus dedit. 19. De Furtis et Aliis Delictis Militaribus. 20. De Præmiis Militum.

[1138] Causas unde bellum justum aut injustum dicitur Ayala non tetigit. De Jure B. and P. Prolegom. § 38.

[1139] Bellum adversus infideles ex eo solum quod infideles sunt, ne quidem auctoritate imperatoris vel summi pontificis indici potest; infidelitas enim non privat infideles dominio quod habent jure gentium; nam non fidelibus tantum rerum dominia, sed omni rationabili creaturæ data sunt.... Et hæc sententia plerisque probatur, ut ostendit Covarruvias.

|Albericus Gentilis, on Embassies.|

90. We find next in order of chronology a treatise by Albericus Gentilis De Legationibus, published in 1583. Gentilis was an Italian Protestant who, through the Earl of Leicester, obtained the chair of civil law at Oxford in 1582. His writings on Roman jurisprudence are numerous, but not very highly esteemed. This work, on the law of Embassy, is dedicated to Sir Philip Sydney, the patron of so many distinguished strangers. The first book contains an explanation of the different kinds of embassies, and of the ceremonies anciently connected with them. His aim, as he professes, is to elevate the importance and sanctity of ambassadors, by showing the practice of former times. In the second book he enters more on their peculiar rights. The envoys of rebels and pirates are not protected. But difference of religion does not take away the right of sending ambassadors. He thinks that civil suits against public ministers may be brought before the ordinary tribunals. On the delicate problem as to the criminal jurisdiction of these tribunals over ambassadors conspiring against the life of the sovereign, Gentilis holds, that they can only be sent out of the country, as the Spanish ambassador was by Elizabeth. The civil law, he maintains, is no conclusive authority in the case of ambassadors, who depend on that of nations, which in many respects is different from the other. This second book is the most interesting, for the third chiefly relates to the qualifications required in a good ambassador. His instances are more frequently taken from ancient than modern history.

|His treatise on the Rights of War.|

91. A more remarkable work by Albericus Gentilis is his treatise, De Jure Belli, first published at Lyons, 1589. Grotius acknowledges his obligations to Gentilis, as well as to Ayala, but in a greater degree to the former. And that this comparatively obscure writer was of some use to the eminent founder, as he has been deemed, of international jurisprudence, were it only for mapping his subject, will be evident from the titles of his chapters, which run almost parallel to those of the first and third books of Grotius.[1140] They embrace, as the reader will perceive, the whole field of public faith, and of the rights both of war and victory. But I doubt whether the obligation has been so extensive as has sometimes been insinuated. Grotius does not, as far as I have compared them, borrow many quotations from Gentilis, though he cannot but sometimes allege the same historical examples. It will also be found in almost every chapter, that he goes deeper into the subject, reasons much more from ethical principles, relies less on the authority of precedent, and is in fact a philosopher where the other is a compiler.

[1140] Lib. i. c. 1. De Jure Gentium Bellico. 2. Belli Definitio. 3. Principes Bellum gerunt. 4. Latrones Bellum non gerunt. 5. Bella juste geruntur. 6. Bellum juste geri utrinque. 7. De Caussis Bellorum. 8. De Caussis Divinis Belli Faciendi. 9. An Bellum Justum sit pro Religione. 10. Si Princeps Religionem Bello apud suos juste tuetur. 11. An Subditi bellent contra Principem ex Caussa Religionis. 12. Utrum sint Caussæ Naturales Belli Faciendi. 13. De Necessaria Defensione. 14. De Utili Defensione. 15. De Honesta Defensione. 16. De Subditis Alienis contra Dominum Defendendis. 17. Qui Bellum necessarie inferunt. 18. Qui utiliter Bellum inferunt. 19. De Naturalibus Caussis Belli inferendi. 20. De Humanis Caussis Belli inferendi. 21. De Malefactis Privatorum. 22. De Vetustis Caussis non Excitandis. 23. De Regnorum Eversionibus. 24. Si in Posteros movetur Bellum. 25. De Honesta Caussa Belli inferendi.

Lib. ii. c. 1. De Bello Indicendo. 2. Si quando Bellum non indicitur. 3. De Dolo et Stratagematis. 4. De Dolo Verborum. 5. De Mendaciis. 6. De Veneficiis. 7. De Armis et Mentitis Armis. 8. De Scævola, Juditha, et Similibus. 9. De Zopiro et Aliis Transfugis. 10. De Pactis Ducum. 11. De Pactis Militum. 12. De Induciis. 13. Quando contra Inducias fiat. 14. De Salvo Conductu. 15. De Permutationibus et Liberationibus. 16. De Captivis, et non necandis. 17. De His qui se Hosti tradunt. 18. In Deditos, et Captos sæviri. 19. De Obsidibus. 20. De Supplicibus. 21. De Pueris et Fœminis. 22. De Agricolis, Mercatoribus, Peregrinis, Aliis Similibus. 23. De Vastitate et Incendiis. 24. De Cæsis sepeliendis.

Lib. iii. c. 1. De Belli Fine et Pace. 2. De Ultione Victoris. 3. De Sumptibus et Damnis Belli. 4. Tributis et Agris multari Victos. 5. Victoris Acquisitio Universalis. 6. Victos Ornamentis Spoliari. 7. Urbes diripi, dirui. 8. De Ducibus Hostium Captis. 9. De Servis. 10. De Statu Mutando. 11. De Religionis Aliarumque Rerum Mutatione. 12. Si Utile cum Honesto Pugnet. 13. De Pace Futura Constituenda. 14. De Jure Conveniendi. 15. De Quibus cavetur in Fœderibus et in Duello. 16. De Legibus et Libertate. 17. De Agris et Postliminio. 18. De Amicitia et Societate. 19. Si Fœdus recte contrahitur cum Diversæ Religionis Hominibus. 20. De Armis et Classibus. 21. De Arcibus et Præsidiis. 22. Si Successores Fœderatorum tenentur. 23. De Ratihabitione, Privatis, Piratis, Exulibus, Adhærentibus. 24. Quando Fœdus violatur.

92. Much that bears on the subject of international law may probably be latent in the writings of the jurists, Baldus, Covarruvias, Vasquez, especially the two latter, who seem to have combined the science of casuistry with that of the civil law. Gentilis, and even Grotius, refer much to them; and the former, who is no great philosopher, appears to have borrowed from that source some of his general principles. It is honourable to these men, as we have already seen in Soto, Victoria, and Ayala, that they strenuously defended the maxims of political justice.

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