Hugo Grotius (1583–1645). The Rights of War and Peace. 1901.
IntroductionThe Work and Influence of Hugo Grotius
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If it is not literature in the technical sense, the masterpiece of Grotius is something higher and nobler,—a triumph of intelligence over irrational impulses and barbarous propensities. Its publication marks an era in the history of nations, for out of the chaos of lawless and unreasoning strife it created a system of illuminating principles to light the way of sovereigns and peoples in the paths of peace and general concord.
Among the Greek city-states, a few temporary leagues and federations were attempted, but so feeble were the bonds of peace, so explosive were the passions which led to war, that even among the highly civilized Hellenic peoples, community of race, language, and religion was powerless to create a Greek nation. It was reserved for the military genius of Alexander the Great, at last, by irresistible conquest, to bring the Greek Empire into being, to be destroyed in turn by superior force.
The Roman Empire almost achieved the complete political unity of Europe, and bound parts of three continents under one rule, but the corruption of the military power which held it together led to its inevitable dismemberment.
After the conflicts of the barbaric kingdoms which followed the dissolution of the Western Empire were ended by the predominance of the Frankish monarchy, the world believed that the Pax Romana was to be restored in Europe by the hand of Charles the Great; but the disruptive forces were destined to prevail once more, and the Holy Roman Empire never succeeded in reviving the power of ancient Rome. And thus the dream of a universal monarchy, of a central authority able to preside over kings and princes, adjusting their difficulties, and preserving the peace between them, was at last proved futile.
In each of the great national monarchies that had already risen or were still rising on the ruins of imperial dominion, particularly in France, England, Holland, and the States of Germany, a continuous internal conflict over questions of religion complicated the bitterness and destructiveness of foreign wars until Europe was reorganized by the Peace of Westphalia, in 1648.
It was in the midst of these wars that Grotius was born. He saw his own country rising from a baptism of blood and all Europe rent and torn by the awful struggle of the Thirty Years’ War, in the midst of which his great work was written and to whose conclusion it served as a guide and inspiration. The Empire, dismembered, had been reduced to almost complete impotence, the Church had been disrupted, and no international authority was anywhere visible. Amid the general wreck of institutions Grotius sought for light and guidance in great principles. Looking about him at the general havoc which war had made, the nations hostile, the faith of ages shattered, the passions of men destroying the commonwealths which nourished them, he saw that Europe possessed but one common bond, one vestige of its former unity,—the human mind. To this he made appeal and upon its deepest convictions he sought to plant the Law of Nations.
The earliest attempt to formulate recognized international customs was the formation of the early maritime codes, rendered necessary by the expansion of mediæval commerce from the end of the eleventh to the end of the sixteenth century, such as the “Jugemens d’ Oléron,” adopted by the merchants of France, England, and Spain, and reissued under other names for the merchants of The Netherlands and the Baltic. “The Consolato del Mare,” a more elaborate compilation, was made, apparently at Barcelona, about the middle of the fourteenth century, and accepted generally by the traders of the chief maritime powers. It was in the cradle of commerce, therefore, that international law awoke to consciousness.
As the Church was often intrusted with the task of pacification, it is but natural to look among her representatives for the earliest writers on the laws of international relations. It is, in fact, among the theological moralists that we find the first students of this subject. As early as 1564, a Spanish theologian, Vasquez, conceived of a group of free states with reciprocal rights regulated by jus naturale et gentium, without regard to a world-power, either imperial or ecclesiastical. In 1612, Saurez pointed out that a kind of customary law had arisen from the usages of nations, and distinctly described a society of interdependent states bound by fundamental principles of justice.
At the close of the fifteenth and the beginning of the sixteenth centuries, a series of circumstances arose necessitating the extension of jurisprudence beyond its ancient boundaries, and thus tending to produce a group of international jurists. Among the juristic writers of this time are Balthazar Ayala, a Spanish jurisconsult, who died in 1584, having written in a historico-judicial spirit on the subject of war in his “De Jure et Officiis Belli”; Conrad Brunus, a German Jurist, who wrote of the rights and duties of ambassadors in his “De Legationibus,” published in 1548; and pre-eminent above all, Albericus Gentilis, an Italian professor of jurisprudence and lecturer at Oxford, a writer of force and originality, who published his “De Legationibus” in 1583 and his “De Jure Belli” in 1589.
In his earliest years the young Hugo gave evidence of marked and varied ability. At eight he wrote Latin verses which betrayed poetic talent; at twelve he entered the University where he became a pupil of that prince of scholars, Joseph Scaliger, who directed his studies; and at fifteen he defended “with the greatest applause” Latin theses in philosophy and jurisprudence. His fame as a prodigy of diversified learning spread far and wide, and great scholars declared they had never seen his equal.
Grotius had won celebrity even in foreign lands when, in 1600, at the age of seventeen, he was admitted to the bar. The youthful prodigy had already accompanied the Grand Pensionary, John of Oldenbarneveld on a special embassy to France, where he was presented to Henry IV., who bestowed upon him his portrait together with a gold chain, and graciously called him “The Miracle of Holland.” At Orleans he was made a Doctor of Laws.
Married in 1609 to Marie van Reigersberg, whose devotion was worthy of his deep affection, and loaded with public honors, having been named the official historian of the United Provinces and the advocate-general of two provinces, Holland and Zeeland, Grotius set his hand to a work entitled “Mare Librum,” in which he defended the freedom of the sea and the maritime rights of his country against the arrogant pretensions of the Portuguese in suppressing the commerce of other nations in Eastern waters,—a treatise destined to become still more celebrated in the history of international law by Selden’s reply, “Mare Clausum,” written in 1635. Next, turning his attention to the history of The Netherlands, he devoted himself for a time to his “Annals of the War of Independence.”
In 1613, Grotius added to his laurels as poet, jurist, and historian by entering the field of politics, and he was appointed Pensionary of Rotterdam upon the condition that he should continue in office during his own pleasure. It was during a visit to England upon a diplomatic mission in this same year that he met the great scholar Isaac Casaubon, who said in a letter to Daniel Heinsius: “I cannot say how happy I esteem myself in having seen so much of one so truly great as Grotius. A wonderful man! This I knew him to be before I had seen him; but the rare excellence of that divine genius no one can sufficiently feel who does not see his face and hear him speak. Probity is stamped on all his features.”
Closely related by personal friendship as well as by his official duties to the Grand Pensionary, John of Oldenbarneveld, Grotius was destined to share with that unfortunate patriot the proscription and punishment which Maurice of Orange visited upon the two confederates in the defense of religious tolerance. Risking all as the apostles of peace, they were soon condemned to be its martyrs. Oldenbarneveld, having incurred the bitter hatred of the Stadtholder, was condemned to death by decapitation on May 12th, 1619. Grotius, less offensive to Maurice on account of his youth and his gracious personality, was sentenced six days later to perpetual imprisonment. On the 6th of June, 1619, he was incarcerated in the fortress of Loevestein.
Rigorously treated at first, his docility and resignation soon won the respect and affection of his keepers. Writing materials and books were in time accorded him, and finally, on condition that she would continue to share his captivity, he was granted the presence of his wife. The studious prisoner and his devoted companion completely disarmed all suspicion of an intention to escape, and the ponderous chest in which books came and went continued to bring periodic consolation to the mind of the busy scholar. A treatise on the truth of the Christian religion, a catechism for the use of his children, a digest of Dutch law, and other compositions served to occupy and alleviate the weary months of confinement, until one day when the time seemed opportune Madame Grotius secretly inclosed her husband in the great chest and it was borne away by two soldiers. Descending the stone steps of the prison the bearers remarked that the trunk was heavy enough to contain an Arminian, but Madame Grotius’s jest on the heaviness of Arminian books smoothed over the suspicion, if one was really entertained, and the great jurist was sent in the chest safe to Gorcum, attended by a faithful domestic, where in the house of a friend the prisoner emerged without injury and in the guise of a stone mason hastened to Antwerp. From Antwerp he took refuge in France, where he arrived in April, 1621, and was joined by his faithful wife at Paris in the following October.
The bitterness of exile was now to be added to the miseries of imprisonment, for Grotius was not only excluded from The Netherlands, but in extreme poverty. His letters reveal his anguish of spirit at this period, but a generous Frenchman, Henri de Même, placed his country house at Balagni at his disposition, and there, supported by a small pension, which Louis XIII had graciously accorded him, though irregularly and tardily paid, Grotius commenced his great work, “De Jure Belli ac Pacis,” in the summer of 1623.
Much speculation has been indulged in regarding the causes which led to the composition of this masterpiece, but a recent discovery has rendered all this superfluous, as well as the ascription of special merit to the Counselor Peyresc for suggesting the idea of the work. It is, indeed, to the pacific genius of Grotius more than to all other causes that the world owes the origin of his great work; for it sprang from his dominant thought, ever brooding on the horrors of war and the ways of peace, during more than twenty years, and never wholly satisfied till its full expression was completed.
In the winter of 1604, there had sprung out of his legal practice the idea of a treatise entitled “De Jure Praedae,” fully written out, but never printed by its author. The manuscript remained unknown by all his biographers until it was brought to light and printed under the auspices of Professor Fruin at The Hague in 1868. This interesting document proves that not only the general conception but the entire plan and even the arrangement of the “De Jure Belli ac Pacis” were in the mind of Grotius when he was only twenty-one years of age. The difference between the earlier work and the later is chiefly one of detail and amplification, the difference which twenty years of reading, experience, meditation and maturity of faculty would inevitably create.
The curious may find in his letters the almost daily chronicle of his progress with his book to the time of its publication after excessive labors lasting more than a year. In March, 1625, the printing of the first edition, which had occupied four months, was completed and copies were sent to the fair at Frankfort. His honorarium as author consisted of two hundred copies, many of which he presented to his friends. From the sale of the remainder at a crown each, he was not able to reimburse his outlay. In the following August he wrote to his father and brother that if he had their approbation and that of a few friends, he would have no cause for complaint but would be satisfied. Louis XIII, to whom the work was dedicated, accepted the homage of the author and a handsomely bound copy, but failed to exercise the grace customary with monarchs by according a gratification. At Rome, the treatise was proscribed in the index in 1627. Almost penniless and suffering from his protracted toil, Grotius seemed destined to neglect and oblivion, yet from his exile he wrote to his brother: “It is not necessary to ask anything for me. If my country can do without me, I can do without her. The world is large enough.…”
Invited to enter the service of France by Richelieu, Grotius would not accept the conditions which the Cardinal wished to impose,—such at least is the inevitable inference from his letters. His pension was not paid and his circumstances became so serious that one of his children had but a single coat. At length, pushed to the utmost extremity of want and instigated by his energetic wife, Grotius resolved to return to Holland. Driven from Rotterdam to Amsterdam, where he hoped to settle down as a lawyer, the States General twice ordered his arrest and named a price for his delivery to the authorities. The new Stadtholder, Frederick Henry, who, before succeeding his brother Maurice, had written kindly to Grotius after his escape from imprisonment, now approved his proscription. Abandoned by his prince as well as by his countrymen, Grotius once more turned his face toward exile and set out for Hamburg.
The inspiration of his “De Jure Belli ac Pacis” was the love of peace, yet he was far from being one of those visionaries who totally condemn the use of armed force and proscribe all war as wrong and unnecessary. On the contrary, he seeks to discover when, how, and by whom war may be justly conducted.
His plan of treatment is as follows:—
As this law of human nature is universally binding wherever men exist, it cannot be set aside by the mere circumstances of time and place, whence it results that there is a law of war as well as a law of peace. As this law applies to the commencement of armed conflicts, war is never to be undertaken except to assert rights, and when undertaken is never to be carried on except within the limits of rights. It is true that in the conflict of arms laws must be silent, but only
It is necessary, however to distinguish between Natural Law, that principle of justice which springs from man’s rational nature, and Conventional Law, which results from his agreements and compacts. Natural Law remains ever the same, but institutions change. While the study of abstract justice, apart from all that has its origin in the will or consent of men, would enable us to create a complete system of jurisprudence, there is another source which must not be neglected, since men have established the sanctity of certain rules of conduct by solemn convention.
The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon
It is evident that the mind of Grotius is continually struggling to establish a science upon this positive basis, and it is this which gives a distinctive character to his effort. The great writers of all ages are cited with a superfluous lavishness, not so much to support his claims by an aggregation of individual opinions—still less to display his erudition, as his critics have sometimes complained—as to give a historic catholicity to his doctrine by showing that the laws he is endeavoring to formulate have, in fact, been accepted in all times and by all men. For this purpose also, he makes abundant use of the great authorities on Roman Law, whose doctrines and formulas were certain to carry conviction to the minds of those whom he desired to convince.
It is needless, perhaps, to point out that the work of Grotius is not and could not be a work of permanent authority as a digest of international law. His own wise appreciation of the positive and historical element—the authority derived from custom—should exempt him from the pretense of absolute finality. It is the Book of Genesis only that he has given us, but it is his indefeasible distinction to have recorded the creation of order out of chaos in the great sphere of international relationship, justly entitling him to the honor accorded to him by the spontaneous consent of future times as the Father of International Jurisprudence.
It is not difficult after more than three centuries of thought and experience to point out the defects in his doctrine. If he justifies slavery, it is not without ingenuity; for, he argues, if a man may sell his labor, why not his liberty? and if the conqueror may impose his will upon the property of the vanquished, why not also upon his person? If he identifies sovereignty with supreme power without any adequate conception of its ethical basis, he is at least as advanced in his thinking as the conceptions of his time, which had not yet grasped the idea of the state as a moral organism. If he has no adequate notion of neutrality, believing it to be the duty of a nation to enlist its energies for what it deems the right side, rather than to disavow all responsibility for actions foreign to its own interests, he is at least supported in this by the opinion of the multitude even at the present time; and even among jurists the modern conception of neutrality is hardly a century old. If the new schools of jurisprudence make light of Natural Law as a foundation of public and private rights, it is not certain that Grotius may not yet be vindicated as representing a doctrine at least as clear as any other which has been substituted for it. But, finally, to all these criticisms it may be answered, that no great thinker can be justly estimated except in relation to his predecessors and contemporaries. Measured by these, Grotius stands alone among the jurists of his century for originality of thought and power of exposition.
Gustavus Adolphus, the king of Sweden, before his death on the battlefield of Lützen, had commended Grotius to his great Chancellor, Oxenstiern. By the death of Gustavus the Chancellor had, in 1633, recently come into the regency of the kingdom at a critical moment when a retreat from the bitter contest with the Empire seemed to be foredoomed unless prevented by the support and friendship of France. Recalling the commendation of the late king, Oxenstiern sought and found in Grotius an ambassador of Sweden to negotiate a new Franco-Swedish alliance. Accepting this appointment in 1634, Grotius arrived at Paris on his diplomatic mission on March 2d, 1635.
Richelieu, having failed to draw the great jurist into the orbit of his influence as a satellite, resented his appearance in a character so influential and honorable as that of ambassador of Sweden, and Grotius made little progress in his negotiation. Preoccupied with literature, he took more interest in the composition of a sacred tragedy on “The Flight into Egypt” than in reminding France of the existing treaty of Heilbronn or consolidating the new Franco-Swedish alliance. Where Grotius the theorist failed, Oxenstiern, the practical statesman, by a few dexterous strokes of diplomacy during a brief visit to Paris, easily succeeded; and the ambassador’s mission was simplified to the rôle of a mere observer and reporter of occurrences.
By taste, nature, and training, Grotius was a jurist and not a diplomatist, and he soon realized that the two vocations, if not diametrically opposed, are at least separated from each other by a vast interval. His diplomatic correspondence betrays the keen observer and the conscientious moralist rather than the accomplished negotiator. Among the observations recorded in his dispatches, one may be quoted as an example of his penetration and his humor. Speaking of the Dauphin, the future Louis XIV, he says: “His frightful and precocious avidity is a bad omen for neighboring peoples; for he is at present on his ninth nurse, whom he is rending and murdering as he has the others!”
It is painful to behold the great father of international jurisprudence descending in his dispatches to petty details of precedence and alienating from himself the sympathies of his colleagues by ridiculous ceremonial pathies of his colleagues by ridiculous ceremonial pretensions. He would no longer visit Mazarin, because the Cardinal insisted on calling him E
His quarrels concerning precedence, which rendered him an object of ridicule at the French Court, were not the only griefs of the ambassador of Sweden. Inadequately recompensed, he was obliged to wait two years for his salary and finally, being reduced to a condition in which he could no longer maintain existence otherwise, he was compelled to demand of the royal treasury of France a part of the subsidies promised to the army of his adopted country. Weary of his importunities, the France government repeatedly requested his recall. Disgusted with his mission, Grotius at last abandoned the duties of his office to the intriguing adventurer, Cerisante, who was sent to aid him, and buried himself in his books until his return to Sweden at his own request in 1645.
Queen Christina of Sweden, a patroness of scholars, desirous of aiding Grotius and of retaining him in the service of her kingdom, made many offers and promises, but their execution being deferred, he became impatient of his lot, refused a position as counselor of state, and resolved to leave the country. His plan to abandon Stockholm secretly was prevented by a messenger of the queen who followed him to the port where he intended to embark and induced him to return for a farewell audience. With a handsome present of money and silver plate he took passage on a vessel placed at his disposition to convey him to Lübeck. Off the coast near Dantzic a violent tempest arose. On the 17th of August, 1645, the vessel was driven ashore and Grotius, overcome by his trying experiences, was taken ill at Rostock, where a few days later he passed away.
The later years of his life had been chiefly devoted to plans for the establishment of peace in the religious world, whose dissensions gave him great distress of mind.
The country of his birth, which had so long denied him citizenship, received him at last to the silent hospitality of the tomb. His body was taken to Delft, his native town, where his name is now held in grateful reverence.
At the time when Grotius left Stockholm, the last of the plenipotentiaries had arrived at Münster and Osnabrück to attend the great European congress convoked to terminate the hostilities of the Thirty Years’ War. It is a tradition, but incapable of satisfactory proof, that it was with the purpose of being present at the councils of this congress that the author of “De Jure Belli ac Pacis” left Sweden for Germany. However this may be, it is certain that the mediation of the king of Denmark at Osnabrück and of the papal legate at Münster, though unsuccessful, was in accordance with the idea of Grotius expressed in the words: “It would be useful, and indeed it is almost necessary, that certain congresses of Christian powers should be held, in which controversies that have arisen among some of them may be decided by others who are not interested.” The immediate establishment of an international tribunal, evidently contemplated in this suggestion, was not in harmony with the temper of those times; but it cannot be doubted that the Peace of Westphalia, whose treaties were to form a code of public law for Europe, was to a great degree an embodiment of the principles which Grotius was the first to enunciate.
His “De Jure Belli ac Pacis” had already become a classic even before the author’s death, and special professorships were soon founded in the universities to expound its principles. It would be tedious to name the numerous editions, translations, and commentaries which have given it an exceptional place in the literature of Europe. This task has been in part performed, however, by Dr. Rogge in his “Bibliotheca Grotiana,” published at The Hague in 1883, and intended to be a full bibliography of Grotius’s works. The whole number of titles included is 462, but they do not comprise the writings of the generations of jurists who have been inspired by the great master or of the critics and biographers who have discussed his life and work.
Tardily, but with full contrition for the bitter wrong done to one of her greatest and noblest sons, the memory of Grotius has received from his native land abundant recognition and commemoration. The appropriate tomb that marks his resting place in the Nieuwe Kerk at Delft, symbolical of his learning, genius, and renown, was erected in 1781. On the 17th of September, 1886, a noble statue of the great jurist was unveiled in the public square of his native town in front of the church which contains his tomb. Thus, more than a century after his death, and again still another century later, Holland has paid her tribute of respect to her illustrious citizen.
The later years have also brought new honors to Grotius’s feet. At the recent Peace Conference at The Hague was completed the great structure of international comity whose corner stone was laid by him in 1625. It was most fitting that an international congress called in the interest of peace should blend with the negotiation of conventions for the pacific settlement of disputes between nations by a permanent tribunal, and for the amelioration of the laws of war, a celebration of the distinguished writer whose great thought had at last borne such precious fruits. In pursuance of instructions received from the Secretary of State, the United States Commission invited their colleagues in the congress, the heads of the Dutch universities, and the high civic authorities to join with them in observing the 4th of July by celebrating the memory of the great jurist. With appropriate exercises in the apse of the old church, near the monument of Grotius and mausoleum of William the Silent, the representatives of twenty-six nations gathered to do him honor. A beautiful commemorative wreath of silver was laid upon Grotius’s tomb bearing the inscription: