§ i.
national rights — natural rights — public rights.
i know no better way of commencing this subject than with the verses of ariosto, in the second stanza of the 44th canto of the “orlando furioso,” which observes that kings, emperors, and popes, sign fine treaties one day which they break the next, and that, whatever piety they may affect, the only god to whom they really appeal, is their interest:
fan lega oggi re, papi et imperatori
doman saran nimici capitali:
perche, qual l’apparenze esteriori,
non hanno i cor, non han gli animi tali,
che non mirando al torto piu che al dritto.
attendon solamente al lor profitto.
if there were only two men on earth, how would they live together? they would assist each other; they would annoy each other; they would court each other; they would speak ill of each other; fight with each other; be reconciled to each other; and be neither able to live with nor without each other. in short, they would do as people at present do, who possess the gift of reason certainly, but the gift of instinct also; and will feel, reason, and act forever as nature has destined.
no god has descended upon our globe, assembled the human race, and said to them, “i ordain that the negroes and kaffirs go stark naked and feed upon insects.
“i order the samoyeds to clothe themselves with the skins of reindeer, and to feed upon their flesh, insipid as it is, and eat dry and half putrescent fish without salt. it is my will that the tartars of thibet all believe what their dalai-lama shall say; and that the japanese pay the same attention to their dairo.
“the arabs are not to eat swine, and the westphalians nothing else but swine.
“i have drawn a line from mount caucasus to egypt, and from egypt to mount atlas. all who inhabit the east of that line may espouse as many women as they please; those to the west of it must be satisfied with one.
“if, towards the adriatic gulf, or the marshes of the rhine and the meuse, or in the neighborhood of mount jura, or the isle of albion, any one shall wish to make another despotic, or aspire to be so himself, let his head be cut off, on a full conviction that destiny and myself are opposed to his intentions.
“should any one be so insolent as to attempt to establish an assembly of free men on the banks of the manzanares, or on the shores of the propontis, let him be empaled alive or drawn asunder by four horses.
“whoever shall make up his accounts according to a certain rule of arithmetic at constantinople, at grand cairo, at tafilet, at delhi, or at adrianople, let him be empaled alive on the spot, without form of law; and whoever shall dare to account by any other rule at lisbon, madrid, in champagne, in picardy, and towards the danube, from ulm unto belgrade, let him be devoutly burned amidst chantings of the ‘miserere.’
“that which is just along the shores of the loire is otherwise on the banks of the thames; for my laws are universal,” etc.
it must be confessed that we have no very clear proof, even in the “journal chrétien,” nor in “the key to the cabinet of princes,” that a god has descended in order to promulgate such a public law. it exists, notwithstanding, and is literally practised according to the preceding announcement; and there have been compiled, compiled, and compiled, upon these national rights, very admirable commentaries, which have never produced a sou to the great numbers who have been ruined by war, by edicts, and by tax-gatherers.
these compilations closely resemble the case of conscience of pontas. it is forbidden to kill; therefore all murderers are punished who kill not in large companies, and to the sound of trumpets; it is the rule.
at the time when anthropophagi still existed in the forest of ardennes, an old villager met with a man-eater, who had carried away an infant to devour it. moved with pity, the villager killed the devourer of children and released the little boy, who quickly fled away. two passengers, who witnessed the transaction at a distance, accused the good man with having committed a murder on the king’s highway. the person of the offender being produced before the judge, the two witnesses — after they had paid the latter a hundred crowns for the exercise of his functions — deposed to the particulars, and the law being precise, the villager was hanged upon the spot for doing that which had so much exalted hercules, theseus, orlando, and amadis the gaul. ought the judge to be hanged himself, who executed this law to the letter? how ought the point to be decided upon a general principle? to resolve a thousand questions of this kind, a thousand volumes have been written.
puffendorff first established moral existences: “there are,” said he, “certain modes which intelligent beings attach to things natural, or to physical operations, with the view of directing or restraining the voluntary actions of mankind, in order to infuse order, convenience, and felicity into human existence.”
thus, to give correct ideas to the swedes and the germans of the just and the unjust, he remarks that “there are two kinds of place, in regard to one of which, it is said, that things are for example, here or there; and in respect to the other, that they have existed, do, or will exist at a certain time, as for example, yesterday, to-day, or to-morrow. in the same manner we conceive two sorts of moral existence, the one of which denotes a moral state, that has some conformity with place, simply considered; the other a certain time, when a moral effect will be produced,” etc.
this is not all; puffendorff curiously distinguishes the simple moral from the modes of opinion, and the formal from the operative qualities. the formal qualities are simple attributes, but the operative are to be carefully divided into original and derivated.
in the meantime, barbeyrac has commented on these fine things, and they are taught in the universities, and opinion is divided between grotius and puffendorff in regard to questions of similar importance. take my recommendation; read tully’s “offices.”
§ ii.
nothing possibly can tend more to render a mind false, obscure, and uncertain than the perusal of grotius, puffendorff, and almost all the writers on the “jus gentium.”
we must not do evil that good may come of it, says the writer to whom nobody hearkens. it is permitted to make war on a power, lest it should become too strong, says the “spirit of laws.”
when rights are to be established by prescription, the publicists call to their aid divine right and human right; and the theologians take their part in the dispute. “abraham and his seed,” say they, “had a right to the land of canaan, because he had travelled there; and god had given it to him in a vision.” but according to the vulgate sage teachers, five hundred and forty-seven years elapsed between the time when abraham purchased a sepulchre in the country and joshua took possession of a small part of it. no matter, his right was clear and correct. and then prescription? away with prescription! ought that which once took place in palestine to serve as a rule for germany and italy? yes, for he said so. be it so, gentlemen; god preserve me from disputing with you!
the descendants of attila, it is said, established themselves in hungary. till what time must the ancient inhabitants hold themselves bound in conscience to remain serfs to the descendants of attila?
our doctors, who have written on peace and war, are very profound; if we attend to them, everything belongs of right to the sovereign for whom they write; he, in fact, has never been able to alienate his domains. the emperor of right ought to possess rome, italy, and france; such was the opinion of bartholus; first, because the emperor was entitled king of the romans; and, secondly, because the archbishop of cologne is chancellor of italy, and the archbishop of trier chancellor of gaul. moreover, the emperor of germany carries a gilded ball at his coronation, which of course proves that he is the rightful master of the whole globe.
at rome there is not a single priest who has not learned, in his course of theology, that the pope ought to be master of this earth, seeing it is written that it was said to simon, the son of jonas: “thou art peter, and upon this rock i will build my church.” it was well said to gregory vii. that this treated only of souls, and of the celestial kingdom. damnable observation! he replied; and would have hanged the observer had he been able.
spirits, still more profound, establish this reasoning by an argument to which there is no reply. he to whom the bishop of rome calls himself vicar has declared that his dominion is not of this world; can this world then belong to the vicar, when his master has renounced it? which ought to prevail, human nature or the decretals? the decretals, indisputably.
if it be asked whether the massacre of ten or twelve millions of unarmed men in america was defensible, it is replied that nothing can be more just and holy, since they were not catholic, apostolic and roman.
there is not an age in which the declarations of war of christian princes have not authorized the attack and pillage of all the subjects of the prince, to whom war has been announced by a herald, in a coat of mail and hanging sleeves. thus, when this signification has been made, should a native of auvergne meet a german, he is bound to kill, and entitled to rob him either before or after the murder.
the following has been a very thorny question for the schools: the ban, and the arrière-ban, having been ordered out in order to kill and be killed on the frontiers, ought the suabians, being satisfied that the war is atrociously unjust, to march? some doctors say yes; others, more just, pronounce no. what say the politicians?
when we have fully discussed these great preliminary questions, with which no sovereign embarrasses himself, or is embarrassed, we must proceed to discuss the right of fifty or sixty families upon the county of alost; the town of orchies; the duchy of berg and of juliers; upon the countries of tournay and nice; and, above all, on the frontiers of all the provinces, where the weakest always loses his cause.
it was disputed for a hundred years whether the dukes of orleans, louis xii., and francis i., had a claim on the duchy of milan, by virtue of a contract of marriage with valentina de milan, granddaughter of the bastard of a brave peasant, named jacob muzio. judgment was given in this process at the battle of pavia.
the dukes of savoy, of lorraine, and of tuscany still pretend to the milanese; but it is believed that a family of poor gentlemen exist in friuli, the posterity in a right line from albion, king of the lombards, who possess an anterior claim.
the publicists have written great books upon the rights of the kingdom of jerusalem. the turks have written none, and jerusalem belongs to them; at least at this present writing; nor is jerusalem a kingdom.
