[v]

EDITOR’S PREFACE.

“IT is acknowledged by every one,” says Mr Hallam, “that the publication of this treatise made an epoch in the philosophical, and we might almost say in the political history of Europe.” This opinion of the importance of Grotius’s work De Jure Belli et Pacis, prevailed from the time of its first appearance, and was exemplified by all the marks of honour with which such a book can be greeted. Numerous editions in various forms circulated rapidly: copious comments of several annotators, translations into several languages, speedily appeared; the work was published in the author’s life-time, cum notis variorum, a distinction hitherto reserved to the ancient classics: and it was put into the Index Expurgatorius at Rome. Gustavus Adolphus carried it about with him and kept it under his pillow: Oxenstiern appointed its author the ambassador of Sweden at Paris: the Elector Palatine Charles Louis established at Heidelberg a Professorship of the science thus created; and the science has been promoted by the like means in many other places up to the present time.

Nor has it, at this day, ceased to be a book of the first-rate importance in this science. It is spoken of with respect and admiration by the principal modern writers on International Law: a knowledge of it is taken for granted in the discussions of questions belonging to that subject; and it is quoted among the cardinal authorities on such questions. And treating, as it does, of the fundamental points of Philosophical Ethics, as well as of their applicavition in the Laws of Nations, it has, in that department also, been always regarded as a primary work. It soon gave rise to Puffendorf’s Treatise On the Laws of Nature and Nations, and to other books of the same kind; of which some, like our own Rutherforth’s Course of Lectures on Grotius, show the celebrity of the work, by taking from it nothing but the name. Mackintosh, in more than one place, gives to the work the highest terms of his eloquent praise; and how Mr Hallam speaks of it has been mentioned above.

Several objections have, however, been made to the work; and among them, one which I shall especially notice, since an attempt is made in the present edition to remedy the inconvenience thus complained of. It has been said that Grotius’s composition is so encumbered, in almost every page, with a multitude of quotations from ancient historians, orators, philosophers and poets, as to confuse the subject, obscure the reasoning, and weary the reader. I am not at all disposed to dissent from what several eminent men have said in answer to this; defending Grotius’s quotations, as evidences of men’s moral judgments, as appeals to general sympathy, and as graceful literary ornaments; but I am also ready to allow that these citations go to the extent of disturbing the didactic clearness and convenient brevity which we wish to find in a philosophical work. Hence, in the translation with which I have accompanied the text, I have omitted all the quotations except those which were necessary to carry on the argument. By this means, the bulk of the work has been reduced more than one half; while, the names of the authors quoted, being retained in the translation, the reader can, if he chooses, pass to the passages adduced, which he will find on the same page. The translation is thus rather a selective than an abridged translation; for the didactic and argumentative parts are, in general, so viifar from being here abridged, that explanatory expressions and clauses are introduced in a great number of passages where they seemed likely to make the meaning clearer.

It appears to me that the scheme and reasoning of Grotius’s work are well worthy of being thus carefully presented to the reader. I agree with a former editor, Barbeyrac, that Grotius’s learning, wonderful as it was, was far from being the greatest of his qualifications for the task which he undertook. His work is characterized throughout by solid philosophical principles consistently applied; by clear and orderly distinction of parts; by definite and exact notions, improved by the intellectual discipline of legal studies; by a pure and humane morality, always inclining to the higher side in disputed questions; and by a pervading though temperate spirit of religion. It may be doubted whether, even yet, we can place philosophical morality on any better basis than that which he lays down in his Prolegomena; namely, the social impulse by which man is actuated, in addition to the desire of his individual good. This social impulse is, he holds, the source of Jus, or Natural Law;—the basis of property and contract (Art. 8.) It is, he says, (Art. 16), too narrow a view to say that Utility is the Mother of Rights; the Mother of Rights is Human Nature, taken as a whole, with its impulses of kindness, pity, sociality, as well as its desire of individual pleasure and fear of pain. Human Nature is the Mother of Natural Law, and Natural Law is the Mother of Civil or Instituted Law.

By thus founding Morality and Law upon the whole compass of man’s human and social, as well as animal and individual nature, Grotius, as I conceive, makes his system more true and philosophical than many of the more recent schemes of the philosophy of morals. He is thus favourably distinguished, not only from those who, like viiiHobbes, found law and morality on the mutual fear of men, and from those who proclaim utility as the basis of their system; but also from later and celebrated dissertators upon Natural Law, such as Kant and Fichte, and other German philosophers. A recent writer^* on this subject has justly remarked this distinction: that Grotius does not, as those philosophers do, seek the ground and basis of Rights in the insulated existence of the individual, but in the social relations of men. The critic remarks, also, that we do not find in him that strenuous attempt to separate jural from moral doctrines, which, in the Kantian period, was regarded as the essential condition for the proper development of jural philosophy: nor, again, do we meet in Grotius with that perpetual hammering upon the innate freedom of the Person as such; with the assumption that the Person, in virtue of his mere existence as a Person, is the bearer and possessor of an indefinite mass of Rights, all which may be asserted by force; while yet on the other hand, the Person may, in cases of necessity, have to acquiesce in the mere possibility of acquiring Right, as the sole result of his Personality. And hence, as the writer just quoted further remarks, we do not find in him the harsh and startling propositions which occur so frequently in the jural speculations of the Kantian period.

The speculations on the subject of Jus, the Doctrine of Rights and Obligations, both in the hands of the German writers whom I have mentioned, in those of Grotius^†, and in those of the Roman jurists from whom this strain of ixspeculation was originally derived, proceed upon the supposition that there is a body of Natural Law, Jus Naturæ, distinct from Instituted Law (Jus Gentium and Jus Civile), and belonging to man by his nature. I have elsewhere^* endeavoured to shew that though man nowhere exists, and by his nature cannot exist, without Laws, there is no special body of Laws which can distinctively be called Natural Law, Jus Naturæ. I have noted (Elements of Morality, 1052 ⟦1st ed.: 1140⟧) the inconsistencies into which Grotius, as well as others, is led, when he attempts to exemplify this distinction in particular cases. But I have also (1053, 1054 ⟦1st ed.: 1141, 1142⟧) pointed out the truths which were often expressed by means of this distinction; namely, that the actual Law of any community might be worse than it is; and that it may be better. The Jus Naturæ may be the mere rudiments out of which the Jus Gentium is to be fashioned; or it may be the lofty ideal which the Jus Gentium never reaches. Both these lines of speculation are very interesting and instructive; and we may readily concede to the philosophical jurists the use of the phraseology which they have been accustomed to employ on such questions; and which is often convenient and useful for these and other purposes.

Jus Gentium is a phrase which, about the time of Grotius, was passing from its ancient Roman meaning, the Law common to most Nations, to its modern meaning, the Law between Nations. The prolix and multifarious character of Grotius’s work arises, in a great measure, from his setting out from the first of these meanings, in order to discuss the second. He thus begins with the philosophy of ethics, and ends with exhortations to humanity, truth, and justice, even in the conduct of wars. The latter indeed, was more peculiarly his object than the former; for the narrow and xsavage view which derives law and justice from mutual fear, had not been prominently put forwards in that period, as it was soon afterwards by Hobbes; and Grotius, in debating the question, is driven to seek the opponents of his wider and humaner morality, in the ancient world, among the Grecian sophists. But the miseries arising from unregulated war pressed upon his thoughts with present and severe reality; for the Thirty Years’ War had long been ravaging Europe. To this spectacle he himself ascribes the origin of his work. He says (Proleg. Art. 28), “I saw prevailing throughout the Christian world a license in making war, of which even barbarous nations would have been ashamed; recourse was had to arms for slight reasons, or for no reason; and when arms were once taken up, all reverence for divine and human law was thrown away; just as if men were thenceforth authorized to commit all crimes without restraint.” The sight of these atrocities had led many men, he says, to hold all war to be unlawful to Christians; but he, more temperately, thought that the remedy was to bring it about that war itself should be subject to rules of humanity and decency. And he adds, that he conceived himself in some degree prepared for such a task by the practice of jurisprudence in his own country; and hoped, that, though unworthily ejected from that country, which had been honoured by so many of his works, he might still promote the science by the labours of his pen.

He claims (Proleg. 30), to be the first who had reduced International Law to the form of an Art or Science. Nor do I conceive that this claim goes beyond his due: though I am aware that certain writers have been recently brought to light and pointed out as his “Precursors^*.” The Precursors thus newly brought into notice are Johannes Oldendorp, xiwhose Isagoge Junis Naturalis, Gentium, et Civilis, was published at Cologne in 1539; Nicolaus Hemming, who wrote De Lege Naturæ Methodus Apodictica; Benedict Winkler, whose Principiorum Juris libri quinque appeared in 1615, ten years before the publication of the work of Grotius. But I see no reason to think that these works did more to anticipate the work of Grotius than the works which he himself enumerates and criticizes, as bearing upon the subject; especially the work of the Oxford Professor of Law, Albericus Gentilis, De Jure Belli, Hanoviæ, 1598. In this work, as Mr Hallam has observed, the titles of the chapters run almost parallel to those of the first and third Books of Grotius; and Grotius himself mentions him (along with Balthasar Ayala), as a writer who had been of great use to him: “Cujus diligentia sicut alios adjuvari posse scio, et me adjutum profiteor,” (Prol. 38). The work of Ayala, De Jure et Officiis Bellicis, published in 1582, is conceived by Mr Hallam to have been the first “that systematically reduced the practice of nations in the conduct of war to legitimate rules.” But notwithstanding the labours of these authors, we may, I conceive, fully assent to Mr Hallam, when he says of Grotius’s work: “The book may be considered as nearly original, in its general platform, as any work of man in an advanced stage of civilization and learning can be. It is more so, perhaps, than those of Montesquieu and [Adam] Smith.”

Mr Dugald Stewart has, in his Dissertation on the Progress of Philosophy, spoken unfavourably, indeed contemptuously, of Grotius’s great work. I am happily relieved from any necessity of replying to this criticism, by the admirable manner in which the task has already been performed by Mr Hallam. That judicious and temperate writer finds himself compelled to refer to Mr Stewart’s attack in these terms: “That he should have spoken of a work so distinguished by fame, and so effective, as he xiihimself admits, over the public mind of Europe, in terms of unmingled depreciation, without having done more than glanced at some of its pages, is an extraordinary symptom of that tendency towards prejudices, hasty but inveterate, of which that eminent man seems to have been not a little susceptible. The attack made by Stewart on those who have taken the law of nature and nations for their theme, and especially on Grotius, who stands forwards in that list, is protracted for several pages, and it would be tedious to examine every sentence in succession. Were I to do so, it is not, in my opinion, an exaggeration to say that almost every successive sentence would lie open to criticism.” He then goes on to take the chief heads of accusation; and to his instructive discussion of them, I refer my reader^*.

Paley also, in the Preface to his Moral Philosophy, censures Grotius for the profusion of his classical quotations; an objection of which I have already spoken, and which I have here tried to remedy; and for the forensic cast of his writings. That in the work of Grotius we see everywhere traces of the juristical training of his mind, is not to be denied; but it may be much doubted whether this is a disadvantage;—whether this legal discipline of the intellect have not given a precision to his divisions and reasonings which they would not have had without the habits so formed. Certainly a jurist would find, in Paley himself, great reason to complain that questions of morality and of law are mingled together in a very confused and arbitrary manner.

It was not the intention of Grotius to furnish a System of Ethics. But if we regard the work as to its bearing on ethical philosophy, it will, in many respects, sustain with advantage a comparison with the work of Paley. Grotius xiiishews, satisfactorily as I conceive, that utility is a very narrow and perverse expression for the foundation of morality (Proleg. 16). And the foundation which he himself lays, is far broader and more philosophical (Proleg. 6). Man, he says, is an excellent animal, differing from other animals, not in degree only but in nature; and among his peculiar excellencies is a desire for society, a desire for a life spent in community with his fellow-men; and not merely spent somehow, but spent tranquilly and as a reasonable being; communitatis non qualiscunque, sed tranquillæ, et pro sui intellectus modo ordinatæ. This desire, or impulse, the Stoics called οἰκείωσις, the Domestic Impulse. We might be tempted to call it the Domestic Instinct; but then, we should have to recollect, that precisely one of the peculiarities which we have here to take into account, is, that man is not governed by Instinct, but by Reason; that in virtue of his human nature, the impulses which belong to him, analogous to the instincts of animals, become conscious and intelligent purposes: and thus personal security, property, contracts and the like, the necessary conditions of a tranquil and reasonable community of life, are necessary results of man’s nature. And thus human nature is the source of Rights, as Grotius says, (Proleg. 16).

That man forms a judgment of actions, and tendencies to act, as being right or wrong; and that the adjective right has a wider range than the substantive Rights; are doctrines belonging to man’s moral nature; and these doctrines lead us to a scheme of morality which has its foundations, as a sound scheme of morality must have, at once in the external conditions of man’s being, and in the internal nature of his soul. The Rights which his outward circumstances necessarily establish, are recognized and made the cardinal points of Rightness, by his inward conxivvictions. Among the convictions which belong to man, as a moral creature, is this; that not only his outward actions, but his inward purposes, volitions, affections, desires and habits, ought to be right. This consideration, however, leads us into a region of morality with which Grotius is not much concerned in the present work.

Many of the questions of International Law which are discussed by Grotius, have been the subject of much subsequent discussion; and in several cases, the opinions now generally accepted are different from those which he asserts. To have attempted to notice such cases, would have been, not to edit Grotius, but to compile a Treatise on the present state and past history of International Law. The student of such subjects will necessarily have to read many books; of which, however, this of Grotius is certainly one of the most indispensable. What is requisite in order to correct him, must be obtained by studying the best of his successors.

I hope that the deep and earnest love of Peace which inspired the design of this book, and which breathes so ardently through so many of its pages, will obtain a favourable reception for the work, in these days when the same sentiment is so strongly felt and so widely spread, and has shewn itself in so many remarkable ways. The progress of the study of International Law, on such principles as those of Grotius, and the increase of a regard for the authority of such Law, are among the most hopeful avenues to that noble Ideal of the lovers of mankind, a Perpetual Peace:—the most hopeful, because along this avenue, we can already see a long historical progress, as well as a great moral aim. Grotius himself, as was natural with his views, indulged the hope of such a consummation; as appears for instance, Book ii. chap. xxiii. Sect. x. Art. 4, where he says: “It would be useful, and indeed it is almost xvnecessary, that certain Congresses of Christian Powers should be held, in which controversies which arise among some of them may be decided by others who are not interested; and in which measures may be taken to compel the parties to accept peace on equitable terms.” I trust that all Students and Professors of International Law will consider themselves as labouring upon a Problem which is still unsolved, while War exists; and in which all the approximate solutions must make wars more rare and more brief, as well as more orderly and more humane.

Notwithstanding the love of peace and the spirit of humanity which thus runs through the work of Grotius, it has been blamed by some, as sanctioning, by its doctrines, many of the most savage usages of war. But this objection can be made, I think, only by those who have not read the book with due attention. It is true, that in certain parts of the Third Book, he states the customary Rules, according to which wars have always been carried on; which Rules allow killing men, taking prisoners, capturing property, laying waste a country, and the like. And these he calls the Rights of War; and gives interpretations of the rules which may seem very severe. But this, he himself notes: and when he has performed this part of his task, he forthwith (in Chap. x.) proceeds to say, “I am now going to take from belligerents what I have seemed to grant to them, but have not really granted:” and then he goes on with a series of Chapters, which he calls Temperamenta, Restraints as to the exercise of these Rights of War, derived from considerations of humanity, justice, expedience and piety: and by these “temperaments,” he divests war of all the cruelty and hardship which are separable from it. Still, some persons appear to be offended at violent and oppressive practices being called Rights in any sense. Upon this, I would xviremark, that there would be little use in a writer on this subject stating, as the Rights of War, Rules which never have been observed nor acknowledged in any actual war up to the present time. Killing, taking prisoners and making captures, besieging towns, and the like, are of the essence of war: and these are inevitably violent and painful inflictions. If at any time, the rules of such practices have been harsher than they now are, we may say that such Rules were the Rights of war in barbarous and ferocious times: but even in such times, those Rights imposed a certain restraint upon the victor; as for instance, the Right of making the conquered slaves, prevented his taking their lives. That such Rights are often morally wrong, Grotius himself repeatedly urges. The term Rights, like the term Natural Law, of which I have just spoken, may mean, either that which is secured to men by existing Rules, in every society, however rude; or that which it ought to be the aim of the most humane and pious men to secure by Rule, as the best condition of society. But this latter is not an ordinary nor convenient sense of the substantive Rights. If we were to adopt it, we should have a difficulty in establishing the Right of killing men at all for no crime; and therefore, there could be no Rights of War.

The translation may perhaps be welcome, even to the classical scholar, for Grotius’s style is not only very concise and pregnant, but also full of expressions borrowed from the jurists and the schoolmen. But as the text will sufficiently explain these, I have not thought it necessary to translate the Notes, which besides, for the most part, refer to the quotations only.

There have already been published at least three translations of Grotius’s work in English, besides a small and worthless abridgement, published in 1654 by C. B. (i. e. xviiClement Barksdale, according to Watts). William Evats published a translation (in folio) in 1682, in which an attempt was made (not very happily,) to improve the work, by introducing Grotius’s Notes, and other matter, into the text. And in 1738, a translation (also in folio), was published of the text of the work, and of the Notes of Barbeyrac; not only the smaller critical Notes which accompany the present edition, but also of the larger Notes, generally of a juristical and historical kind, which Barbeyrac has appended to his French translation. This edition is anonymous, but bears traces of having been executed by a writer familiar with the literature of jurisprudence. Besides these, there is, I believe, a more modern translation, which I have not seen.

I had no opportunity of consulting the translations of 1682 and 1738, till my own translation was completed; and if this had been otherwise, the scheme of my translation is so different, that I should have had no temptation to borrow from them. I have however taken a few Notes from the edition of 1738.

Barbeyrac’s critical notes, given in the present edition, are excellent. They are mainly employed in verifying Grotius’s quotations: quotations, often, it would seem, made by drawing upon a memory which appears to have contained in its stores the whole mass of ancient literature. Quotations so collected are often confused and imperfect, as well as difficult to trace. The learning, acuteness, vigilance and felicity, with which Barbeyrac has detected, traced to their origin, and rectified, such mistakes as Grotius has committed, are such as may constantly excite the admiration of the reader. Still, it would not have been proper to publish a new edition of the work without again verifying the references; and especially, enabling the reader to refer to modern editions, instead of those which Barxviiibeyrac employs. This task has been executed by the Rev. H. A. Holden, Fellow of Trinity College, who had before performed the same valuable service for the recent edition of Sanderson De Obligatione Conscientiæ.

The Notes of Gronovius, which occupy a considerable portion of the page of the most common editions of Grotius, are in reality of very little value. It is doubted by Tydman, a more recent editor, (Utrecht, 1773) whether they were intended for publication; and they may in general be omitted without loss. A few notices taken from them have been retained.

As further illustrating Barbeyrac’s labours on this work, I have inserted his Preface, including the passage in which he expresses an unfavourable judgment of the value of the Notes of Gronovius. In this preface, the references to Barbeyrac’s own Notes are here made according to the mode adopted in the present edition; namely, by means of the Arabic numerals from 1 to 9; the Notes of Grotius being marked by the letters of the alphabet, as in the earlier editions.

Trinity Lodge, Cambridge,
August 23, 1853.