Heineccius.

Furstenerius makes it probable that the result of his studies would have been very valuable. The Treatise referred to was occasioned by the refusal of some of the ambassadors at the treaty of Nimeguen, in 1678, to allow the same ceremonies to the plenipotentiaries of the princes of the empire, not being electors, as was allowed to the representatives of such Italian princes as the Dukes of Mantua and Modena. It is curious to find such a mind as that of Leibnitz applied to the discussion of a debated point of etiquette, which seems more fit for the doubts of a master of the ceremonies, than for the deliberations of a philosopher. But Leibnitz gives nearly two hundred quarto pages of Latin to the subject, and really invests it with a sort of dignity from the skill and learning which he brings to his task. He exhibits great research into historical precedents, of which he makes a happy application, insisting with great force on the analogies which he brings forward; but the most remarkable characteristic of the work is the number of valuable opinions, and finely expressed sentiments, which are found intermixed with most curious facts, scattered about the treatise. Some of these will be subsequently quoted. The work of Leibnitz strikes the reader as the production of a rich and well-stored mind, that excited interest, and conveyed information, even by the incidental objects of its pursuit.

In 1721 Heineccius wrote his treatise De Navibus ob vecturam vetitarum Mercium commissis. It was the most valuable treatise on the Law of Nations, as respecting maritime captures, that had then been published. Heineccius treats his subject with a constant reference to the principles of abstract right, at the same time that he considers the details of practice; and the decisions which he has pronounced regarding questions of prize, have obtained a deserved weight as legal

authority. He was a philosophical lawyer, whose acquaintance with business made him always think of principles with a reference to their application in practice, while his studies on the foundations of right gave him comprehensive views in his reasonings on international equity. His Elementa Juris Naturalis was translated into English, in 1763, by Dr. Turnbull, who has contributed some valuable notes. It is an excellent work, and is as superior to its predecessors in the same course as the work first mentioned is to the previous treatises on prize law. It is curious to remark how near Heineccius was to using the principle of utility as a test of moral action. He says that the law of nature is identical with the will of God; that to ascertain the former we must explore the latter; and that the will of God is, that all men should be happy. (1) Thus he has actually stated the basis of the principle of utility as the index to the law of nature; but he does not keep this principle in sight, and arrives at his conclusions by a circuitous route, after he had actually discovered a readier method. Still his works are worth consulting at the present day; especially the treatise De Navibus, &c., which should form part of the course of every student of the law of nations.

Contemporary with Heineccius was Bynkershoek, Bynkershoek. whose writings on international law were rather posterior to those of the former author, the Quæstiones Juris Publici having been published in 1737: the treatise De foro Legatorum had been published previously, I believe in 1721. Bynkershoek, like Heineccius, was a jurist of the greatest eminence, and his writings on the law of nations are some of the most valuable that have appeared. He is one of the most convincing reasoners that have ever written on this subject; his writings are profound, and his arguments

(1) Lib. I. c. II. ss. 77, 78, 79.

serried; but he is always clear, from the mastery which he appears to have of his subject: everything is straightforward, with a complete absence of any artificial mysticism, and his works have the delightful attribute of seeming to be written from a love of the subject, and not with a reference to their author. His command of legal and historical illustration is very great, but his illustrations are always in point, and he does not fall into the error, which we have to lament in previous writers, of burdening his pages with superfluous quotations. Strong sense, and a healthiness of mind and feeling, are the characteristics of Bynkershoek: he keeps equally aloof from visionary theories and from subserviency to precedent, and constantly appeals to juris gentium magistra, ratio, testing the practice of States by the reasonableness of their decisions. He has a vein of dry humour occasionally introduced, which, however, relieves without interfering with the gravity of his matter; as, where he speaks of the controversy regarding tobacco being contraband of war, which he says "went off in smoke," in fumum abierat. His Quæstiones Juris Publici had been written, although not published, before he had seen the treatise of Heineccius, as Bynkershoek expressly informs us; and the decisions of these two writers receive a mutual support from their unconscious agreement. Bynkershoek enters into the details of practice more than his contemporary: his discussions on questions of prize are always satisfactory, and his decisions seem usually to be final, from the clearness with which he perceives the various bearings of his subject. It is with reason that his opinion is always regarded as a most weighty authority upon the law of nations. It might be inaccurate to say that he made law; but, like Mansfield and Stowell, his perception of right enabled him to discern what should be law, and the clearness with which he established his decisions gave a fixed settlement to principles that had before been but half ascer

tained. This characteristic of Bynkershoek places him' in the same class with the great lawyers whom I have named, with whom I think it no diminution of their fame to rank Bynkershoek, though his mental character was inferior in some respects, especially in refinement, to that of the great British authorities whom I have mentioned.*

Christian Wolf, who occupied so large a share of the Vattel. attention of his contemporaries, is now seldom heard of, nor have I ventured to attack the eight quarto Latin volumes which he published on the Law of Nations. Wolf is now principally known through the means of his disciple and abridger, Vattel, whose work on the Law of Nature as applied to nations, is of acknowledged value. The treatise is not so much characterised by profound research, though his reading is extensive; nor by novelty of design, although in this he is superior to his predecessors; as by the high tone of feeling and high standard of morality of its author, who appears constantly impressed with the responsibility of his undertaking, and with the desire of doing good by his writing; or, as he himself expresses it, of being the “friend of nations." It is this which makes Vattel so valuable an authority: he writes with the free spirit of his native Switzerland: his mind seems above the influence of debasing impressions, and he is always an unbending standard of right, never flinching from the conclusions which he believes that justice dictates. At the same time he is no visionary, who, with a standard of unattainable perfection, like Volney, wishes mankind to conform to a fanciful theory. He is equally distinct from that class of writers on morality who delight in metaphysical abstractions, whose chain of argument is

[ For an account and estimate of Hübner, and of his work on the seizure of neutral vessels, published in 1759, see post, in the chapter on Belligerent Goods in Neutral Ships.]

Scope of the plan of Vattel

so subtle that the connecting links are indistinct to common vision, who seem happiest when in a mental labyrinth, and whose works are much more ingenious than useful. Vattel, on the contrary, treats of natural law as a science that requires, both in the professor and in the student, a sound understanding and a healthy state of moral feeling, rather than an aptitude for subtle refinements. And in this I think him right; for the science of morality, public as well as private, is such that a clear explanation may expose all its positions in a state fit for the judgment of men of the common sense order of capacity. Vattel has done for the morality of nations what Paley did for the morality of individuals: both wrote, not so much for professed scholars, as to inform and enlighten the mass of mankind. They are by no means proof against criticism, which may detect inaccuracies in their definitions, and occasionally fallacies in their arguments; and both are thus obvious to that unfair criticism which insists on the defects of authors, while taking no notice of their merits, and thus produces a false impression, while truth is verbally adhered to. Both Paley and Vattel are remarkable for their love of considering those questions in their science which relate to the actual concerns of men, rather than those doubtful points which are of less probable occurrence, but which afford greater scope for subtle argument: both are happy in the masculine character of their minds, their vigorous style of reasoning, and the straightforward manner in which they state their questions: both are remarkable for their clear and nervous language, and the appositeness of their illustrations; and, I believe, both acted under that highest of impulses, the desire of benefiting their fellow men.

It has been already remarked, that Vattel occupies much of his treatise with considerations which do not require discussion at the present day, as the right of a