concludes the "Nova Methodi" with a catalogue of desiderata, in imitation of Bacon, in the " De Augmentis Scientiarum." Some of these desiderata-still desiderata-are, theatrum legale, or the laws of all nations, places, and times, placed in parallel order; historia mutationum legis,—philologia juris,—philosophia juris, -institutiones juris universi,-juris naturalis elementa demonstrativè tradita,-bibliotheca juris, - vitæ jurisconsultorum, — repertorium juris,-pandecta juris novi. The rules given by Leibnitz are well adapted to remove confusion, and should be studied by those engaged in the Codification of Laws. He considers that all the books of Roman Law should be joined in one consonance of law, removing all distinction between Digest, Code, Novels, and Institutes; that a beginning should be made from generals; that then there should be a proceeding to subalternates and specials; that the order of the ancient law should be retained, where it can be retained; that the laws, or paragraphs referring to the same title, should be collected together, and these arranged according to the natural order of the circumstantia; that the law which can be referred to many titles, should be placed under that on which depends the reason of the decision of the same law. Leibnitz gives many other similar rules, which should be consulted and studied by all engaged in the labour of Codification. The letter of Leibnitz to a friend, "De Nævis et Emendatione Jurisprudentiæ Romanæ," may be considered as an appendix to the preceding work. In it he states the principal errors of the Roman jurisprudence; the chief abuses that under it might arise in the progress of a cause; finally, he proposes a plan of bringing under one tabular form all universal rules, from the combination of which all questions could be decided. The two Dissertations which Leibnitz prefixed to the "Diplomatic Code of International Law" met with a great success. Heineccius recommends their study after the great works of Grotius, Hobbes, and Puffendorf. In them Leibnitz shows how uncertain future history would be, if not based upon public documents; how useful it is to have before our eyes conventions and treaties; from which it is apparent what were the events of wars, and from which can be illustrated the political arts. Leibnitz touches on the authority of the Emperor over the Church and all Christians; the authority of the Pope over all churches, and which authority was the means of introducing amongst Christians many things pertaining to the Law of Nations. In the commentary on Puffendorf, Leibnitz has left a refutation of the principles of natural law as employed by that jurist. He says, that his principles labour under many defects. Something is still required which would exhibit lucid and fruitful decisions, which, from correct principles, would draw conclusions as by a thread, which might afford to the students of the science a certain means of supplying things omitted, and deciding questions in a determinate manner. These things might be expected from absolute science, duly treated :-" Optarem tamen exstare aliquid firmius et efficacius, quod lucidas fœcundasqué definitiones exhibeat; quod ex rectis principiis conclusiones veluti filo deducat; quod fundamenta actionum exceptionumque naturâ validarum omnium ordine constituat; quod denique scientiæ alumnis certam rationem præbeat prætermissa supplendi, oblatasque quæstiones per se decidendi, determinatâ quadam viâ. Hæc enim a scientiâ absolutâ et ritè traditâ expectari debent." Leibnitz proceeds to add, that something of this nature might have been expected from the judgment and learning of Grotius, or from the profound intellect of Hobbes; but many cares occupied the former, and the latter had set out from evil principles. Selden could have done more and better, if he would have spent his genius and learning with more zeal on such a work. Leibnitz has expressed a considerable portion of his legal system in the dissertations prefixed to the "Diplomatic Code of the Law of Nations." The first dissertation is entitled, "De Actorum publicorum Usu, atque de Principiis Juris Naturæ et Gentium, primæ Codicis Gentium Diplomatici Parti præfixa." In the Introduction, he alludes to the slight regard paid to treaties. 1 Monita quædam ad S. Puffendorfii Principia, sec. 1, Works, vol. iv. p. 276. 2 Works, vol. iv. p. 287. Lysander used formerly to say, that boys played with nuts, old men with oaths. And an elegant trifler in Batavia hung up a picture of a graveyard as a symbol of perpetual peace. Qui pacem quæris libertatemque, viator, Aut nusquam aut isto sub tumulo invenies." Truly it seemed to be the condition of Europe, in the time of Leibnitz, for the sovereigns always to make war, and always treat of peace.1 History is twofold,-Public and Private. And the laws of History are two;-both of which cannot be equally observed in each species of History: for the principle of Public History is to say nothing untrue-nihil falsi dicere; of Secret History, to omit nothing true-nihil non veri dicere.? Leibnitz then proceeds to give a series of definitions of Justice according to the Platonic theory, making it to embrace the whole sphere of human duty. The doctrine of Right has been included by nature within narrow limits, but extended by the human mind to a gigantic space. The ideas of Right (Jus) and of Justice, even after so many illustrious writers, are very imperfect. Right-Jus-is a moral power, and obligation a moral necessity. Moral is defined by Leibnitz as that which with a good man is equal to Natural; for, as the Roman jurisconsult said, quæ contra bonos mores sunt, ea nec facere nos posse credendum est. But the good man is he who loves all so far as reason permits. And justice in this sense is equivalent to the virtue which the Greeks call piλav0ρwπía.3 Justice is the φιλανθρωπία. virtue that governs this affection. Charity is universal benevolence; but since wisdom ought to direct charity, a definition of this too is required. Wisdom is the science of happiness.* From this fountain flows the Jus Nature; of which there are three grades,—jus strictum, in commutative justice; equity, or, in the narrower sense of the word, charity, in distributive justice; finally, piety or probity, in universal justice: whence arise the general precepts of justice,-to injure no man, to give each man his own, and to live honestly. The precept of strict law is that 1 Prima Dissertatio, sec. 1. 3 Dissertatio I. Prima Codicis Gentium Diplomatici Works, vol. iv. p. 294. 2 Sec. 2. 4 Parti præfixa, sec. no one is to be injured, lest, in the state, a legal redress should be given, or, without the state, the right of war arise. Hence springs that justice which the philosophers call Commutative, and the Right-Jus-which Grotius terms Faculty. Leibnitz terms the superior grade of justice, Equity, or Charity; the meaning of which he extends beyond the rigour of strict law to those obligations from which no legal action accrues to those who are concerned; for example, Gratitude, or Almsgiving, -and to which the term Aptitude-Aptitudo, not FacultyFacultas, is applied by Grotius. And as it is in the lowest rank of justice to injure no one, so it is in the middle rank of justice to benefit all, but as far as is suitable to each one, or as far as each one deserves; since we cannot favour all. Therefore the justice of this second rank is distributive; and the precept of Right is that which orders his own to be given to each. And to this are referred, in a government, the political laws which procure the happiness of subjects, and everywhere accomplish, that those who possess the aptitude should acquire the faculty,—that is, that they may be able to seek what it is right for others to afford them. And since in the lowest grade of justice, the distinctions of men are not regarded, in this superior grade merits are weighed; whence privileges, rewards, punishments, have a place.1 Leibnitz has termed the highest grade of justice by the word Probity or Piety. Pure or strict justice arises from the principle of preserving peace; equity or charity strives for something more. In a word, strict law avoids unhappiness; the superior law tends to happiness, but such as befalls this mortal life.3 Piety or probity is the highest grade of Law; for strict Law arises only from the principle of keeping the peace; equity aspires to something higher. But that we should disregard, in comparison with the great good of others, even life itself, and all that makes life desirable, is rather enjoined in fair language by philosophers than solidly demonstrated. For it is plain that honour and glory, and the sense of the mind exulting in its own rectitude, are good in the estimation of the mind,-great good indeed, but 1 Sec. 12, vol. iv. p. 297. 2 Sec. 13, p. 297. 3 Sec. 13. not to all,-especially not to those whom neither a liberal education nor an ingenuous habit of life has accustomed to the regard for honour. But, that it should be established by universal demonstration that everything honourable is useful, and everything disgraceful injurious, the immortality of the soul must be assumed, and God the ruler of the world.1 The Second Dissertation does not call particularly for our notice. The remainder of the dissertations prefixed to the "Diplomatic Code of the Law of Nations" is chiefly concerned with the details of diplomacy of the age. Leibnitz never had the leisure to carry out his plans on the subject of Jurisprudence. Writing to Magliabechi in 1697, he says:-"Multi anni sunt, quod promisi illustrare jurisprudentiam, et amplissimum juris oceanum ad paucos revocare fontes limpidos rectæ rationis, ut appareat tum quid pronuntiandum esset si nullas leges haberemus, tum quibus modis, recepto jure, a simplicibus naturæ placitis sit recessum, aut cur oportuerit aliquid illis addi. Nam multi quidem tractavere Jus Naturæ, sed pauci eorum simul ab interiore philosophiâ et a Juris Romani cognitione fuere admodum instructi."2 1 Dissertatio I. Prima Codicis Gentium Diplomatici Parti præfixa, sec. 13, Works, vol. iv. 2 Epist. xxviii. Works, vol. v. p. 118. |