$4 Rise of Modern Inter government, but is a strenuous advocate of Monarchy, and believes war national Law. to be the natural state of man, and that all obligation is the mere creaBARBEYRAQ tion of civil authority. Barbeyrac says, "he passed for an atheist; and Preface to Pu-. fendorf, p. 80. perhaps they were not very much out in their judgments who thought him so; for he admitted none but corporeal substances." Harrington, Cumberland, The Laws of James Harrington published his Oceana, in 1646, advocating Republicanism, and dedicating it to Cromwell, though opposed to his usurpations. He also published other works favorable to popular rights, that will be quoted herein. In 1672, the valuable work of that eminent scholar and Christian, Nature, 1672. Richard Cumberland, Bishop of Peterborough, appeared, entitled, The Laws of Nature. I pretend not to have mastered this mass of profundity, which is nearly as hard to read as Butler's Analogy, but have studied it sufficiently to see that the argument is irresistible. By what logicians style the analytic mode-that from cause to effect, the opposite of that of Grotius and Pufendorf-the same conclusions are reached. Pufendorf highly estimated Bishop Cumberland's writings, and quotes him several times in the last edition of his great work. The original was in Latin, and is translated by Dr. Towers, who has added interesting notes and an appendix. To give a little insight into his method and style, a few sections are here presented from his prolegomena : CUMBERLAND, The Laws of Nature are the only solid Foundations of all Morality and Civil ture the foun- Polity; which we fully demonstrate in the following pages. dation of mo- These Laws (like most other conclusions discoverable by the light of Nature,) are rality and investigated, traced out, and demonstrated, by the one or the other of these two ways, either, civil polity. Mode of Demonstration. 1. Causes by their effects. First, By such manifest effects as follow from these Laws themselves, which, in other words, is the demonstration of causes by their effects. Or, Secondly, By those 2. Effects from evident causes from whence these Laws themselves originally take their source and rise; and this is no other than demonstrating effects from their causes. causes. The second method is Cumberland's, -the first is Grotius'. TOWERS. Two methods of reasoning: 1. Synthetic. 2. Analytic. Dr. CLARK. According to the first method, the Laws of Nature are considered as causes necessarily producing effects. According to the second method, the Laws of Nature are looked upon as necessary effects resulting from such and such natural causes. * * There are two general methods of reasoning: 1st, the Synthetic, and 2d, the Analytic. The Synthetic method is called the argumentum a priori. The Analytic method is called the argumentum a posteriori. The Synthetic method, or the argumentum a priori, lays down some evident principles, and then deduces the several consequences necessarily resulting from them. + 2. The Analytic method, or the argumentum a posteriori, begins with the phenomena themselves, and traces them up to their original; and, from the known properties of these phenomena, arrives at the nature of their cause. Now, the former of these two methods is evidently preferable, where it can be had (and I think it may be had almost everywhere but in the First Cause), since the latter must depend upon a large induction of particulars, any of which, when failing, invalidates the whole argument, and quite spoils a demonstration. "It is very true," says Doctor John Clarke, on natural evil, "that this is not a strict demonstration of the general conclusion; because that can be had no other way than by trying all the experiments that can possibly be made everywhere, which is infinite and endless; but it is the best that the nature of the thing is capable of." (Law's preface to Archbishop King's Essay on the Origin of Evil, page 5.) The proofs drawn from analogy cannot be called either the Synthetic or the Analytic method Analogy differs both from of reasoning; it is rather arguing by illustration, from similitude or comparison, than from the synthetic and direct principles of reason strictly so called; it neither proves the cause from the effect, nor the analytic meth- effect from the cause. ods. It is comparing together things which we are certainly sure have already a determined existence, and carry certain habitudes to each other, either of fitness or unfitness, but it never proves, neither is it brought to prove, the existence of the things themselves which are compared. The foundation of our enquiry is laid in the second method of reasoning. $4. Rise of Modern Inter The reality and force of these Laws themselves; the demonstration of them accord- national Law. ing to the first method of reasoning; their actual existence, and the binding obligation of them, are points well pursued and handled by Hugh Grotius, and by his brother, William Grotius, in that posthumous treatise of his, intitled, De Principiis Juris Naturalis Enchiridion, as also by our countryman, Dr. Robert Sharrock, in his Sharrock, Book of Trobeσts Hoikn, in his Book of Offices, who all prove these Laws from the confirmed Offices. and well-established opinions of several authors in different ages and countries: As also by the corresponding testimony and concurring agreement of all nations, especially Selden, those of the more polished and civilized, in their customs and laws. The same Natural Law method is likewise pursued by John Selden, Esq., in that learned work of his De according to Jure Naturali Gentium juxta Disciplinam Ebræorum. of Nations the Hebrew code. Grotius com And, indeed, in my opinion, all these authors have deserved very well from mankind, but in an especial degree that work of Hugh Grotius, De Jure Belli et Pacis, mended. dc.: A work the first in its kind: A work truly worthy of its author, and as truly worthy of immortality. Some few errors (but such they are, wherein the customs of his native country have headlong carried away this great man) will easily obtain pardon from a good-natured reader. § 2. There is not, indeed, so much weight in those objections which are generally The synthetic method appliproduced against this method of demonstrating the Laws of Nature, as to prove it either cable to the sophistical or trifling; and yet I must frankly own, that these objections have carried Laws of Nature. so much force over some ingenious minds, as to represent them very useful, and to be the securest way of searching after a more pregnant proof from an investigation of these causes, by whose operation a knowledge of the Laws of Nature might spring up in the human mind: but this will appear more evident, if we briefly state those objections, and produce likewise the sum and substance briefly of arguments in answer to them. No one can It is objected, first, that such reasoning is weak, whose conclusions are drawn from 1st Objection: the sentiments and customs of either a few men, or of small numbers of civil societies know all laws concerning the universal opinion and judgment of all mankind, since there is not any aud customsone man who perfectly understands the laws and customs even of that civil government under which he lives, to say nothing of all societies and governments; much less can —or individuhe understand the inward sentiments of all individuals, so as that he can form fair comparisons and judgments, and to collect all those points wherein all agree. al sentiments. cordant senti rules. To which I answer, that the judgments, opinions, sentiments and [these two words Answer-Conare probably transposed] of different nations, concerning any one point which is ob- ments among vious from daily experience (such as religion, or the worship of a Deity, in some mode men, establish or other, as generally understood; an humanity of some sort or other, sufficient to prohibit murder, theft, and adultery) may be easily formed by every man, every where, without such a knowledge of Law as is acquired by long study and application; because such sentiments sufficiently declare their universal agreement in these points, even from the very Laws of Nature themselves; which consent, we find, is acknowledged by many nations as a natural good; from whence we may presume that the same consent is also acknowledged by all other nations, from that similitude and likeness, and which universally holds in all human nature, especially since our adversaries cannot produce any instance confirmed by full experience which evinces that any nation entertains a contrary sentiment. Those relations seem to me very doubtful, Exceptions. nay, very little to be credited, which are told of some barbarous Americans and Hottentots, as paying no manner of worship to a deity, for such negative assertions can scarcely admit of any proof. For this reason, Acosta and some other authors seem to pass a very rash judgment on those people whose language, custom, and sentiments they could not possibly understand to any degree of perfection in so short a time, since their stay amongst those nations was so very transitory. Nay, we read, indeed, that even the Jews and Christians, whose religious discipline was much more holy than the religion of any other nations, were (notwithstanding the Divinity of their worship and discipline at some certain times) falsely accused of the highest impieties. § 4. Rise of Modern Inter national Law. Entire necessary. Let this matter stand as it will, manifest it is, that these truths are clearly enough discovered to all mankind, which have been without difficulty acknowledged by all, although that these very same truths have been either overlooked by some or opposed unanimity not by others. For it will appear, in the consequence, a matter most significant and of the highest moment (since this argument is evident from other proofs, as well as from such testimony and customs) that those propositions (in which the Laws of Nature are Laws of Na- contained) lay down the true means for attaining the best end, and that all mankind ture oblige all. are indispensably obliged, by the help of these very means, to pursue that very end, i. e., the best end. 2d ObjectionAn authority to enforce, requisite to a law § 3. Secondly, it is objected, That although, as well by the force of our own understandings, as from the behaviour of many other persons quite separate and distinct from us, some certain dictates of reason may be allowed; yet that the authority of some public lawgiver, established by civil authority, is wanting, to enforce the universal obligation of these Laws; for otherwise (say these objectors) it is lawful for any one man that pleases to disobey them; i. e., he may, by the same parity of reason, reject the judgment of all others, by which all others may, both in word and deed, reject the judgment of any one man. Not only the ancients, but also our own by Hobbes and countrymen, at this very day, Mr. Hobbes and John Selden, Esq., put their objection in this light, but yet with a quite different view. -supported Selden. Hobbes de gation antecedent to civil Society For Mr. Hobbes's objection is framed with this sinister view, that no one should stroys all obli- think himself obliged, as to any acts of outward behaviour, by the dictates of reason, antecedent to the instituted authority of a civil magistrate, because that all the institutions of such a magistrate must be construed so many dictates of right reason, indispensably binding and obligatory, as we set forth in the following discourse. -makes Nat obligatory. And to this proposition of his must be referred what he says in his book De Cive, ural Law not chap. 14, sect. 15, "That Natural Laws, although set forth in the writings of philosophers, cannot, for that reason, be deemed written Laws, the supreme authority of the civil magistrate being wanting." Hobbes disagrees with himself. Selden's object of human au It was not, to be sure, in Mr. Hobbes's intention to take away from the Laws of Nature the title of Laws; because he has vouchsafed to honour these Laws with that title (altho' in a very improper acceptation of the word Laws, as he elsewhere acknowledges ;) but he gives us to understand, that these Laws are not published by a sufficient authority; notwithstanding that the Philosophers have learned them from the Nature of Things, and which, from the Nature of Things, they have transcribed into their own writings. Manifest, however, it is, that these Laws of Nature, if they once become genuine, true Laws, as established upon the authority of Nature, don't require any new Authority, when they are copied and transcribed into Books, and become written Laws. Selden, then, for the same reason, supposes so mighty a defect of authority in the +impotency Laws of human reason, in themselves considered, abstracted from all other considerathority. tions of authority, as to judge it necessary for us to have immediate recourse to the God's authori- legislative power of Almighty God, and to tell us, that their dictates from thence only ty necessary take their essential virtue, as the whole knowledge of them is communicated by Al-gives virtue mighty God to mankind, who, at the same time that he communicates these Laws, in to Natural Law. reality promulgates them to us; and this truly (if I be not out in my judgment,) Selden with a very prudent caution hinted to the Moral Philosophers, who, generally speaking, consider the dictates of Reason itself as so many laws, passing over, at the same time, every argument which proves the essential reality of such laws, without considering that these Laws are established by Almighty God himself. Selden propos But here our author, since he finds the Dispensation must be shewn by the which es two meth- God reveals these moral dictates to be his Laws, he proposes two methods of Divine ods of Divine dispensation: Dispensation: 1. By revelation to Adam and Noah. 2. By creating a human fac 1. That God revealed them to Adam and Noah by his own most holy voice; whence, by tradition only, the precepts of the Noachida (i. e. Noah's posterity) were delivered down to future generations. 2. That God endowed human nature with such a clear faculty, which faculty (by ulty to judge. the help of that agent's understanding who explains those precepts or Laws) might open and reveal these precepts or Laws to us, so as to distinguish them, when opened and § 4. Rise of explained, from every positive law whatsoever. This second method he delivers under such loose and general terms only, that, in my opinion, it stands in need of much explication and proof. Modern International Law. Selden's method examined. in first The whole strength of Mr. Selden's reasoning depends upon the first method; and The strength (according to the tradition of some Jewish doctors) he labours to prove, that God gave method. seven precepts to the sons of Noah, under which precepts, if obeyed, the whole Law of Justice is comprehended. all nations of the Beyond all dispute, what Mr. Selden has said, in that treatise of his, entitled, De Jews imagined Jure Gentium, &c., fully proves that the Jews imagined all nations over the whole face bound to obof the earth, altho' they should not receive the Laws of Moses, tied down to the obser- serve the laws vance of some certain Laws of God; the principal heads of which Divine Laws they Noachida. imagined to be contained in the Laws of the Noachida.* What he has now said, at least Man obliged serves to prove thus much, and upon the testimony of a nation neither insignificant nor by law, not inunlearned, that the whole race of mankind are obliged by Laws which are not instituted stituted by civil authority. by civil authority. tian theology. It must, moreover, be confessed that this truly learned man had one chief design in Use of Selden's view, which he executed to very good purpose, and the knowledge of this matter has views in Chrisseveral excellent uses in the Christian theology. At the same time, however, Selden has not been so fortunate as to solve that objection, which we have now raised against his opinion; for, notwithstanding that he himself was perfectly well acquainted with these Jewish traditions, and perhaps heartily believed them all, yet they are not equally to traditions. clear and evident to all mankind. Objection as Nay, that even several of these very traditions, which contain the highest and most Some tradisolemn mysteries of their religion, are held by many in contempt and ridicule; nay, it tions despised. appears to me a point even self-evident, that an oral tradition of the learned men in one nation is not so sufficient a publication of a natural Law, as to oblige and bind all mankind. Cumberland for the Laws § 4. That therefore some authority, and that a Divine one too, may more evidently to seek a Diappear (and by which authority these moral dictates become Laws), we resolve to make vine authority a philosophical enquiry into their causes, both internal and external, near and remote. of NatureFor, by such a series of reasoning, we shall at length be led to the First Author, or by a philoefficient Cause, of them, from whose inherent perfections, and their inseparable sancsophical inquiry into their tions of rewards and punishments, we demonstrate the authority of these Laws to arise. causes. Almost all other writers content themselves with general terms, that these dictates, Other writers or the actions conformable to them, are taught by nature. But, to me, it seems neces- nature dicsary (especially considering the age in which we live) more distinctly and minutely to investigate after what manner the energy and power of such things, as both are and are not within our own influence, may contribute to impress and enforce the sanctions nature and of these Laws. Something of this kind my Lord Verulam, our countryman, told us was wanting, De Augm. Scientiarum, lib. 8, cap. 3. content that tates -must know more of their power. Bacon thought instruct con -also afford a test of laws. If so solid a foundation as this were laid, it would, upon this very account, be the Success would most useful; because, from hence we might trace, both in what manner the human cerning lawsunderstanding might be instructed naturally in the knowledge of the Divine Will, or Laws; and also, according to what rule the instituted Laws of every civil society are to be tried and proved, whether they be just and right, or even whether they are capable of correction and amendment, by the supreme, civil authority; supposing that they have at any time deviated from the best and noblest end. Further, Upon this foundation can also be demonstrated, that there is something in the nature demonstrate of God, and of mankind, distinct from ourselves; as also, that there is something with- that duties of morality are in our own power which, upon an upright behaviour, administers immediate comfort not an imposition. * The seven precepts given to the sons of Noah were as follows, viz.: 1. To abstain from idola- TOWER, Laws try. 2. To bless the name of God; or (as others express it), to abstain from malediction of the of the Divine name. 3. To abstain from murther. 4. To abstain from adultery, or from the pollution of Noachido. Impure mixtures. 5. To abstain from theft. 6. To appoint judges to be guardians of these precepts; or, in general, to preserve public justice. 7. To abstain from the limb of a living creature. § 4. Rise of and joy, as also substantial presages of future rewards; and, on the other hand, that Modern International Law. there are natural causes of the bitterest anguish and apprehension, upon gross misbehaviour, from whence the decisions of conscience, which is armed (if we may so express it) with whips and scorpions against iniquity, may appear; and from hence clearly conclude, that mankind, in the duties of morality, are not imposed upon by cunning ecclesiastics or designing politicians. Milton. Pufendorf, Law of Nature and Nations, 1672. The whole of this deeply interesting introduction should be given, but space cannot be taken. With the power of a giant, and with almost superhuman skill, is his great plan accomplished. The great poet, John Milton, was far more famous during his life for his political, than for his poetic writings. He can hardly be classed among the founders of International Law, though he has uttered many important truths in a very forcible manner. He was a true-hearted Republican, alike opposed to Monarchy and to Cromwell's usurpation, and his opponents are hacked, hewed, and pounded into mince-meat. Samuel Pufendorf was born in 1632, near Chemnitz, in Saxony. He died in 1689. The first edition of his Law of Nature and Nations appeared in 1672, and Barbeyrac says, "in 1684 he reprinted it at Frankfort-on-the-Main, augmented above a fourth part." Though adopting the same mode of argument with Grotius, his improvement is immense. Beginning with man as a sentient, moral being, he discusses the elements of his character and obligations, and traces out the various relahis great work. tions of life. Summary of Filmer, Patri archa, 1680. Locke, Two Treatises on 1690. In Book I, he discusses man's faculties, and the elements of right and wrong; in Book II, "that it is not agreeable to the nature of man to live without laws," and his duties to himself; in Book III, that he owes duties to his fellows; in Book IV, that rights of property, or dominion, may be acquired; in Book V, the mode of transferring these rights; in Book VI, that family relations are instituted; in Book VII, that man could not maintain his rights individually, and therefore created States, each of which is possessed of absolute Sovereignty; and he concludes, in Book VIII, with the rights, duties, and obligations of Sovereigns, which in free States apply to the Sovereign Peoples. So finished and complete is this great work, that no similar attempt has been made by later writers, that has come under my observation. Sir Robert Filmer, in 1680, published his Patriarcha, a work more ultra than Hobbes', in defence of the divine right of kings, which is completely overthrown by Locke and Sidney. John Locke published his Two Treatises on Government in 1690. It Government, has been one of the most influential works upon International Law, and though, upon many important points, coincident with Grotius, Pufendorf, &c., he endeavors to establish two " supremes"—the "legislative" and the "people." Quotations will be found in our third chapter. courses on Sidney, DisNo work has been read with more interest than Algernon Sidney's; Government, Discourses on Government; not only because of the excellence of the views and argument, but as having been the ostensible cause of his condemnation and death in 1683 by the minions of Charles II, a part of the 1683-1698. t |