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.