laws, and had occasionally treated of international controversies; the former with great freedom, the latter more modestly, but with sound judgment. But these writers who had especially treated certain parts of the laws of war were either theologians, such as Francis de Victoria, Henry of Gorcum, William Matthæus; or doctors of the civil law such as Lupus, Arius, John de Lignano, and Martinus Laudensis. None of these had exhausted the subjects embraced by their works, and the greater part had handled them in a very immethodical manner, blending together in inextricable confusion the conclusions of natural, civil, canonical, and international law. Grotius acknowledges his obligations to Balthazar Ayala and Albericus Gentilis as diligent collectors of precedents; but he leaves to others to discover their deficiencies in point of method, style, and want of acuteness in distinguishing different classes of questions and the laws applicable to each. "Albericus Gentilis," he says, "is wont in determining controverted questions, either to follow a few precedents not well vouched, or even the authority of modern lawyers in their opinions on particular cases, many of which are drawn up more with a regard to what the consulting parties desire than to what real justice and equity demand. But Ayala has not touched the grounds of justice and injustice in war : whilst Gentilis has treated some of them, according to his views, in a summary manner: but the greater part of these topics, and those of the most importance, and of the most frequent occurrence have been entirely omitted by both."z

› Mr. Hallam observes on this passage that "Grotius is surely mistaken in saying that Ayala has not touched on the grounds of justice and injustice in war. 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 subtilty or chicanery." Introduction to the Literature of Europe, vol. ii. p. 153.

De J. B. ac P. Proleg §§ 36, 37, 38.

Grotius has been ably defended against his modern detractors by Sir James Mackintosh in the following passage which we extract from his admirable discourse on the study of the law of nature and nations.

"Few works were more celebrated than that of Grotius in his own days, and in the age which succeeded. It has, however, been the fashion of the last half century to depreciate his work as a shapeless compilation, in which reason lies buried under a mass of authorities and quotations. This fashion originated among French wits and declaimers, and it has been, I know not for what reason, adopted, though with far greater moderation and decency, by some respectable writers among ourselves. As to those who first used this language, the most candid supposition we can make with respect to them is, that they never read the work; for, if they had not been deterred from the perusal of it by such a formidable display of Greek characters, they must soon have discovered that Grotius never quotes on any subject till he has first appealed to some principles, and often, in my humble opinion, though not always, to the soundest and most rational principles.

“But another sort of answer is due to some of those who have criticised Grotius, and that answer might be given in the words of Grotius himself. He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philosophers, as those of judges, from whose decision there was no appeal. He quotes them as he tells us himself, as witnesses whose conspiring testimony, mightily strengthened and confirmed.

a Paley, in remarking upon the profusion of classical quotations made by Grotius, says: "To any thing more than ornament they can make no claim. To propose them as serious arguments, gravely to attempt to establish or fortify a moral duty by the testimony of a Greek or Roman poet, is to trifle with the reader, or rather take off his attention from all just principles in morals. (Principles of Mor. & Polit. Philosophy, Pref. pp. xiv, xv.)

b De J. B. ac P. Proleg. § 40.

by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses; for they address themselves to the general feelings and sympathies of mankind; they are neither warped by system, nor perverted by sophistry; they can attain none of their objects, they can neither please nor persuade, if they dwell on moral sentiments not in union with those of their readers. No system of moral philosophy can surely disregard the general feelings of human nature and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life, are, in truth, the materials out of which the science of morality is formed; and those who neglect them are justly chargeable with a vain attempt to philosophize without regard to fact and experience, the sole foundation of all true philosophy.

"If this were merely an objection of taste, I should be willing to allow that Grotius has indeed poured forth his learning with a profusion that sometimes rather encumbers than adorns his work, and which is not always necessary to the illustration of his subject. Yet even in making that concession, I should rather yield to the taste of others than speak from my own feelings. I own that such richness and splendor of literature have a powerful charm for me. They fill my mind with an endless variety of delightful recollections and associations. They relieve the understanding in its progress through a vast science, by calling up the memory of great men and of interesting events. By this means we see the truths of morality clothed with all the eloquence (not that could be produced by the powers of one man, but) that could be bestowed on them by the

Consolato del Mare.

collective genius of the world. Even virtue and wisdom. themselves acquire new majesty in my eyes, when I thus see all the great masters of thinking and writing called together, as it were, from all times and countries, to do them homage and to appear in their train.

"But this is no place for the discussions of taste, and I am very ready to own that mine may be corrupted. The work of Grotius is liable to a more serious objection, though I do not recollect that it has ever been made. His method is inconvenient and unscientific. He has inverted the natural order. That natural order undoubtedly dictates, that we should first seek for the original principles of the science in human nature; then apply them to the regulation of the conduct of individuals, and lastly, employ them. for the decision of those difficult and complicated questions that arise with respect to the intercourse of nations. But Grotius has chosen the reverse of this method. He begins with the consideration of the states of peace and war, and he examines original principles only occasionally and incidentally as they grow out of the questions which he is called upon to decide. It is a necessary consequence of this disorderly method, which exhibits the elements of the science in the form of scattered digressions, and that he seldom employs sufficient discussion on these fundamental truths, and never in the place where such a discussion would be most instructive to the reader."c

Maritime war, during the middle age, was identified with piracy by the cruel and barbarous manner, in which it was carried on, without discrimination of friend or foe. The first attempt to give laws to the practice of warfare at sea may be traced in that curious and venerable monument of jurisprudence the Consolato del Mare. The learned researches of M. Pardessus have satisfactorily referred the compilation of this collection of maritime precedents, in

• Mackintosh's Discourse, &c. pp. 22, 27, Ed. 1828.

point of time to the latter part of the fourteenth century, and of locality to the flourishing city of Barcelona, where that dialect of the Roman tongue, in which the Consolato was originally written, was then, and still is the spoken language of the province of Catalonia. This compilation ought not, according to this writer, to be considered as a code of maritime laws promulgated by the legislative authority of one or of several nations, but as a record of the customs and usages received as law by the various commercial communities bordering on the Mediterranean sea. Whoever were the authors of the Consolato, whether it is. to be attributed to public or private authority, its compilation must doubtless be referred to the same causes which produced the publication of that collection of the maritime customs and usages of the nations bordering on the western seas, called the Jugemens or Rôles d'Oléron. It may even be said that circumstances were more favorable to the compilers of the Consolato, since Barcelona, Marseilles, Valencia, and other commercial cities of the Langue d'Oc already possessed in the fourteenth century a great body of maritime jurisprudence under the name of statutes or customs. These written codes contained, besides a great number of local ordinances embracing regulations of positive institution, many general rules and principles which time had gradually consecrated in the practice of Mediterranean These statutes were generally written in Latin, a language which though still familiar to jurists and other learned men, had already become a dead language to the great mass of society, and consequently to the active and industrious class of merchants and navigators. This class was therefore deeply interested in possessing a concise manual of maritime jurisprudence like the Consolato, written in the vulgar tongue and in a style of the most per

commerce.

Pardessus, Collection des Lois Maritimes antérieures aux XVIII Siècle, tom. II, chap. XII.