but it is now forgotten. The following eulogium on Justice gives an idea of his style: "Illustrissima Justitiæ virtus, fidei nostræ legitima proles, spei robur, charitatis pedissequa, cæterarumque virtutum clarissimum jubar quamcum profana, tum cum primis Divina oracula super æthera tollunt: ut pote quæ homines, civile animal, in unum congregat, ab injuriis vindicat, amore conciliat, in pace retinet, virtutibus ornat, ad æternam denique felicitatem divino munere subvehit. "1 Amongst the Spanish Doctors of the sixteenth century, not the least was Franciscus Suarez.2 Grotius says of Suarez that he had hardly an equal, in point of acuteness, amongst philosophers and theologians; and Suarez has had the merit, even in that age, of having clearly observed the distinction between what is commonly called the Law of Nature and the conventional rules of intercourse observed between nations. He first saw, as Sir James Mackintosh has said, that International Law was composed, not only of the simple principles of justice applied to the intercourse between states, but also of those usages long observed in that intercourse by the European race, which have long since been more exactly distinguished as the Consuetudinary Law of the Christian Nations of Europe and America.3 The laborious treatise of Suarez, "De Legibus ac Deo Legislatore," is divided into ten books. It is a digest of all the discussions of the Christian Fathers on the subject of justice, interspersed with numerous illustrations from Plato, Cicero, and other pagan philosophers. In the preface he says the science of Civil Right,-Juris Civilis Prudentia, is nothing more than a certain application or extension of 1 Fratris Dominici Scti, Segoviensis, Theologi, ordinis prædicatorum, Cæsareæ Majestatis a sacris confessionibus Salmantini professoris De Justitiâ et Jure, Libri decem. Medina, 1580. 2 Born 1548, died 1617. Sir J. Mackintosh's Ethical Philosophy, sec. 3. 4" Francisci Suarez, Granatensis Doctoris Theologi et in Conimbricencis Academiâ Sacrarum literarum Primarii professoris, Tractatus De Legibus ac Deo Legislatore in decem libros distributus." London, 1579. moral philosophy to regulate and govern the political morals of the state. In the first book he discusses the nature of Law, and analyses the divisions and definitions of former authors. Plato, in the Timæus and Phædrus, divided Law into divine, celestial, natural, and human; of which terms the second is not admitted by theologians; either because it is superfluous, or contains an erroneous doctrine. For, by the celestial law, Plato understood Fate. Now, if he understood that this law was such as not to be subject to Divine Providence, or to all things, even to men, to the extent of imposing necessity upon the peculiar operations of the soul, the opinion was false, and contrary to the Divine Government and to Free Will. But if he understood by the celestial law only what Aristotle said, that this inferior world was united with the celestial spheres, and thence governed by natural influences and chances, which always depend from God, and change bodies, not souls, then it is not proper to make such a division; because in this sense it is comprehended under natural law. Omitting, therefore, the second term, -celestial,― the other three are in use amongst theologians, but in a sense somewhat different.1 The Divine Law, with Plato, is governing reason existing in the mind of the Universal Deity; which law theologians also acknowledge, but call it the Eternal Law. For the law may be called divine in two ways: in one, because it is in God himself; in the other, because it is promulgated immediately by God himself. Plato used the term Divine Law according to the former sense; but the theologians, with St. Augustine, call it Eternal, to distinguish it from that law which the Deity promulgates.2 The first division of Law is into temporal and eternal; the next is into natural and positive. This second division is recognised by theologians, and the phrases lex positiva and jus positivum occur frequently amongst the Fathers. The phrase Natural Law has been used in various ways by philosophers, theologians, and jurists. Plato uses the term Natu 1 Lib. i. cap. 3. sec. 5. VOL. XVII. 2 * Lib. i. cap. 3. sec. 7. K ral Law to include every natural inclination placed in things by their Creator, by means of which they are directed to their peculiar acts and ends. So, according to the Fathers, all things which are governed by Divine Providence participate in some eternal law; whilst, according to the Institutes, natural law is common, not only to men, but also to the other animals. But the proper natural law which pertains to moral philosophy and theology is that which is inherent in the human mind to distinguish the good from the base. "Lex ergo naturalis propria, quæ ad moralem doctrinam et theologiam pertinet, est illa quæ humanæ menti insidet ad discernendum honestum a turpi." 1 In such a definition of Natural Law Suarez plainly confounds Ethics with Jurisprudence. This definition of Natural Law implies simply the Moral Sense of right and wrong. He is not correct either in his definition of Positive Law, as being so called because added to Natural Law, and not necessarily flowing from it: "Inde enim positiva dicta est, non ex illâ necessario manans.” 2 Natural Law is now understood to be the theory of that part of our duties which is capable of being enforced; whilst Positive Law, so called as existing by position, has been shown by Savigny to arise naturally and necessarily from the internal nature of man, and the external circumstances in which he is placed. In the seventh chapter of the first book it is maintained, and illustrated with numerous authorities, that it is the essence of a law that it be passed for the public good. The second book is entitled "De Lege Æternâ Naturali, ac Jure Gentium." After illustrating further the doctrine that natural law is natural reason, he distinguishes it from conscience. For the law lays down a general rule about actions, but conscience gives a practical dictation in a particular case; whence, rather, it is, as it were, the application of the law to a particular occurrence.3 According to the Civil Jurists, Jus Naturale is distin 1 Lib. i. cap. 3. sec. 8, 9. 2 Lib. i. cap. 3. sec. 13. guished from the Jus Gentium, inasmuch as the former is common to man with the brutes, but the latter peculiar to man alone, After discussing the various nice distinctions of the theologians, Suarez finally adopts the definition of the Institutes as to the Jus Gentium; and lays down that the Jus Gentium differs in its precepts from the Jus Civile: because it is established not in what is written, but in custom; and not merely that of one state, but of many.1 He then, in the following noble language, explains the reason for the Law of Nations: "The reason of this law is, that the human race, although divided into various nations and kingdoms, always has some unity, not only specific, but also political and moral, indicated by the natural precept of natural love and charity, which is extended to all, even strangers, of whatsoever nation they may be. Wherefore, although every state, republic, or kingdom, be in itself perfect, nevertheless, each of them is also a member of the universal human race. For these communities are never so self-consistent in themselves as not to stand in need of mutual aid, and alliance, and communication; sometimes for their amelioration and greater advantage, sometimes by moral necessity. Wherefore, they need in some manner to be rightly directed in this species of communication and alliance. And although, in a great measure, this may be done by natural reason, still not sufficiently and immediately for all: and hence special laws have been introduced by the practice of the nations themselves." 2 The remaining books are, III. De Lege Positivâ Humanâ; IV. De Lege Positivâ Canonicâ; V. De Varietate Legum Humanarum; VI. De Interpretatione, Mutatione, et Cessatione Legum Humanarum; VII. De Lege non scriptâ, quæ Consuetudo appellatur; VIII. De Lege Humanâ favorabili, seu Privilegio; IX. De Lege Divinâ Positivâ veteri; X. De Lege novâ Divinâ. The Jesuit Mariana published the treatise De Rege et Regis Institutione at Toledo, in 1599. In it he discusses politics with considerable boldness; and especially in the 1 Lib. ii. cap. 18. 2 Lib. ii. cap. 19. sec. 9. sixth chapter argues in favour of tyrannicide. This closes the series of the Spanish Jurists of the sixteenth century. Michel de Montaigne in his admirable essays, develops many correct juridical principles. Thus he denounces the French method of administering justce. "What can be more outrageous than to see a nation where by lawful custom the office of a Judge is to be bought and sold, where judgments are paid for with ready money, and where justice may be legally denied to him that has not wherewithal to pay?2 What can be more strange than to see a people obliged to obey and pay a reverence to laws they never heard of, and to be bound in all their affairs, both public and private, as marriages, donations, wills, sales, and purchases, to rules they cannot possibly know; being neither writ nor published in their own language, and of which they have of necessity to purchase both the interpretation and the use. "3 However, he adopted the sceptical arguments against the intrinsic natural distinctions between right and wrong, and argues against the theory of Natural Law. But they are pleasant when, to give some certainty to the laws, they say that there are some given perpetual and immovable, which they call natural, that are imprinted in human kind by the condition of their own proper being, and of these some reckon three, some four, some more, some less. Now the only likely sign by which they can argue or infer some natural law, is the universality of approbation; yet, we should without doubt, follow with a common consent that which nature has truly ordained us. Not only every nation, but every private man would resist the force and violence that any one should do him who would tempt him to anything contrary to this law.4 At this time, from various reasons, the different monarchies of Europe had gradually verged towards despotism. In consequence a series of political writers appears. 1 Born 1533, died 1592. 2 This custom was introduced by the Chancellor Du Prat, under Francis I. Montaigne's Essays, book i. cap. 22. 3 Ibid. 4 Hazlitt's edition, p. 271. |