If IV. of natural it." "I have abstained," he adds afterwards, CHAP. "from all that belongs to a different subject, as what is expedient to be done; since this has its own science, that of politics, which Aristotle has rightly treated by not intermingling any thing extraneous to it, while Bodin has confounded that science with this which we are about to treat. we sometimes allude to utility, it is but in passing, and distinguishing it from the question of justice. 87. Grotius derives the origin of natural law Foundation from the sociable character of mankind. 66 Among law. things common to mankind is the desire of society, that is, not of every kind of society, but of one that is peaceable and ordered according to the capacities of his nature with others of his species. Even in children before all instruction a propensity to do good to others displays itself, just as pity in that age is a spontaneous affection." We perceive by this remark that Grotius looked beyond the merely rational basis of natural law to the moral constitution of human nature. The conservation of such a sociable life is the source of that law which is strictly called natural, which comprehends, in the first place, the abstaining from all that belongs to others, and the restitution of it if by any means in our possession, the fulfilment of promises, the reparation of injury, and the right of human punishment. In a secondary sense, natural law extends to prudence, temperance and fortitude, as being suitable to man's nature. And in a similar lax sense we have that kind * Prolegomena in librum: de Jure Belli. IV. CHAP. of justice itself called distributive, (diavention) which prefers a better man to a worse, a relation to a stranger, a poorer man to a richer, according to the circumstances of the party and the case. And this natural law is properly defined, "the dictate of right reason, pointing out a moral guilt or rectitude to be inherent in any action, on account of its agreement or disagreement with our rational and social nature; and consequently that such an action is either forbidden or enjoined by God the author of nature." It is so immutable, that God himself cannot alter it; a position which he afterwards limits by a restriction we have seen in Suarez; that if God command any one to be killed, or his goods to be taken, this would not render murder or theft lawful, but being commanded by the lord of life and all things, it would cease to be murder or theft. This seems little better than a sophism unworthy of Grotius; but he meant to distinguish between an abrogation of the law of nature, and a dispensation with it in a particular instance. The original position, in fact, is not stated with sufficient precision or on a right principle. Positive law. 88. Voluntary, or positive law is either human or revealed. The former is either that of civil communities, which are assemblages of freemen, living in society for the sake of laws and common utility, or that of nations, which derives its obli * Id. § 6-10. Jus naturale est dictatum rectæ rationis, indicans actui alicui, ex ejus convenientia aut disconvenientia cum ipsa natura rati onali ac sociali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturæ Deo talem actum aut vetari aut præcipi. L. i. c. 1. § 10. gation from the consent of all or many nations; a law which is to be proved, like all unwritten law, by continual usage and the testimony of the learned. The revealed law he divides in the usual manner, but holds that no part of the Mosaic, so far as it is strictly a law, is at present binding upon us. But much of it is confirmed by the Christian Scriptures, and much is also obligatory by the law of nature. This last law is to be applied, a priori, by the conformity of the act in question to the natural and social nature of man ; posteriori, by the consent of mankind; the latter argument, however, not being conclusive, but highly probable, when the agreement is found in all, or in all the more civilized nations.* The CHAP. IV. imperfect rights. 89. Perfect rights, after the manner of the Perfect and jurists, he distinguishes from imperfect. former are called sua, our own, properly speaking, the objects of what they styled commutative justice, the latter are denominated fitnesses, (aptitudines) such as equity, gratitude, or domestic affection prescribe, but which are only the objects of distributive or equitable justice. This distinction is of the highest importance in the immediate subject of the work of Grotius; since it is agreed on all hands, that no law gives a remedy for the denial of these, nor can we justly, in a state of nature, have recourse to arms in order to enforce them.t cases of 90. War, however, as he now proceeds to show, Lawful is not absolutely unlawful either by the law of war. nature or that of nations, or of revelation. The IV. CHAP. proof is, as usual with Grotius, very diffuse; his work being in fact a magazine of arguments and examples with rather a supererogatory profusion.* But the Anabaptist and Quaker superstition has prevailed enough to render some of his refutation not unnecessary. After dividing war into public and private, and showing that the establishment of civil justice does not universally put an end to the right of private war, since cases may arise, when the magistrate cannot be waited for, and others, where his interference cannot be obtained, he shows that public war may be either solemn and regular according to the law of nations, or less regular on a sudden emergency of self-defence; classing also under the latter any war, which magistrates not sovereign may in peculiar circumstances levy.t And this leads him to inquire what constitutes sovereignty; defining, after setting aside other descriptions, that power to be sovereign, whose acts cannot be invalidated at the pleasure of any other human authority, except one, which, as in the case of a successor, has exactly the same sovereignty as itself.‡ Resistance by subjects unlawful. 91. Grotius rejects the opinion of those who hold the people to be every where sovereign, so that they may restrain and punish kings for misgovernment; quoting many authorities for the irresponsibility of kings. Here he lays down the principles of non-resistance, which he more fully inculcates in the next chapter. But this is done * C. 2. Summa potestas illa dicitur, cujus actus alterius juri non sub jacet, ita ut alterius voluntatis humanæ arbitrio irriti possint reddi. $7. IV. with many distinctions as to the nature of the CHAP. principality, which may be held by very different conditions. He speaks of patrimonial kingdoms, which, as he supposes, may be alienated like an inheritance. But where the government can be traced to popular consent, he owns that this power of alienation should not be presumed to be comprized in the grant. Those, he says, are much deceived who think that in kingdoms where the consent of a senate or other body is required for new laws, the sovereignty itself is divided; for these restrictions must be understood to have been imposed by the prince on his own will, least he should be entrapped into something contrary to his deliberate intention.* Among other things in this chapter, he determines that neither an unequal alliance, that is, where one party retains great advantages, nor a feudal homage take away the character of sovereignty, so far at least as authority over subjects is concerned. 92. In the next chapter, Grotius dwells more at length on the alledged right of subjects to resist their governors, and altogether repels it, with the exception of strict self-defence, or the improbable case of a hostile spirit, on the prince's part, extending to the destruction of his people. Barclay, the opponent of Buchanan and the Jesuits, had admitted the right of resistance against enormous cruelty. If the king has abdicated the government, or manifestly relinquished it, he may, after a time, be considered merely a private person. But mere negligence in government is by no means to be |