Archive for the 'History of Germany' Category

19
May
10

– Article of Virty: История Нидерландской революции и основания Республики Соединенных провинций”, т.3, СПБ, 1871


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19
May
10

– Article of virty: “Исторiя государственныхъ учрежденiй Англiи (Englische Verfassungsgeschichte)” Pудольфа Гнейста. Переводъ съ немецкаго, под редакцiею С.А.Венгерова. Москва, 1885.


Rudolf von Gneist

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Heinrich Rudolf Hermann Friedrich von Gneist (13 August 1816 – 22 July 1895), German jurist and politician, was born at Berlin, the son of a judge attached to the Kammergericht (court of appeal) in that city.

After receiving his secondary education at the gymnasium at Eisleben in Prussian Saxony, Gneist entered the Friedrich Wilhelm University of Berlin in 1833 as a student of jurisprudence, and became a pupil of the famous Roman law teacher Savigny. Proceeding to the degree of doctor juris in 1838, young Gneist immediately established himself as a Privatdozent in the faculty of law. He had, however, already chosen the judicial branch of the legal profession as a career, and having while yet a student acted as Auscultator, was admitted Assessor in 1841.

He soon found leisure and opportunity to fulfill a much-cherished wish, and spent the next few years on an extended tour of Italy, France and England. He used his Wanderjahre for the purposes of comparative study, and on his return in 1844 was appointed extraordinary professor of Roman law in the University of Berlin, and thus began a professorial connection which ended only with his death. The first fruits of his activity as a teacher were seen in his brilliant work, Die formellen Verträge des heutigen römischen Obligationen-Rechtes (Berlin, 1845). Pari passu with his academic labors he continued his judicial career, and became in due course successively assistant judge of the superior court and of the supreme tribunal. But to a mind constituted such as his, the want of elasticity in the procedure of the courts was galling. In the preface to his Englische Verfassungsgeschichte, Gneist writes that he was brought up “in the laborious and rigid school of Prussian judges, at a time when the duty of formulating the matter in litigation was entailed upon the judge who personally conducted the pleadings, I became acquainted both with the advantages possessed by the Prussian bureau system as also with its weak points.” Feeling the necessity for fundamental reforms in legal procedure, he published, in 1849, his Trial by Jury, in which, after pointing out that the origin of that institution was common to both Germany and England, and showing in a masterly way the benefits which had accrued to the latter country through its more extended application, he pleaded for its freer admission in the tribunals of his own country.

The period of storm and stress in 1848 afforded Gneist an opportunity for which he had yearned, and he threw himself with ardor into the constitutional struggles of Prussia. Although his candidature for election to the National Assembly of that year was unsuccessful, he felt that the die was cast, and, deciding upon a political career, in 1850 retired from his judicial position. Entering the ranks of the National Liberal Party, he began both in writing and speeches actively to champion their cause, now busying himself pre-eminently with the study of constitutional law and history. In 1853 his Adel und Rittershaft was published in England, and in 1857 the Geschichte und heutige Gestalt der Ämter in England, a pamphlet primarily written to combat the Prussian abuses of government, but which the author also claimed had not been without its effect in modifying certain views that had until then ruled in England itself. In 1858 Gneist was appointed ordinary professor of Roman law.

Also in 1858, he commenced his parliamentary career by his election for Stettin to the Prussian House of Representatives, in which assembly he sat thenceforward uninterruptedly until 1893. Joining the Left, he at once became one of its leading spokesmen. His chief oratorical triumphs are associated with the early period of his membership of the House; two noteworthy occasions being his violent attack (September 1862) upon the government budget in connection with the reorganization of the Prussian army, and his defense (1864) of the Polish chiefs of the Province of Posen, who were accused of high treason.

He was a great admirer of the English constitution, and during 1857 to 1863 published Das heutige englische Verfassungs- und Verwaltungsrecht (Contemporary English constitutional law and administration). This work aimed at exercising political pressure upon the government of the day by contrasting English and German constitutional law and administration.

In 1868 Gneist became a member of the North German parliament, and acted as a member of the commission for organizing the federal army, and also of that for the settlement of controversial ecclesiastical questions. On the establishment of German unity his mandate was renewed for the Reichstag, and there he served as an active and prominent member of the National Liberal party, until 1884. In the Kulturkampf he sided with the government against the attacks of the Clericals, whom he bitterly denounced, and whose implacable enemy he ever showed himself. In 1879, together with his colleague, Hänel, he violently attacked the motion for the prosecution of certain socialist members, which as a result of the vigor of his opposition was almost unanimously rejected. He was parliamentary reporter for the committees on all great financial and administrative questions, and his profound acquaintance with constitutional law caused his advice to be frequently sought, not only in his own but also in other countries. In Prussia he greatly influenced legislation, the reform of the judicial and penal systems and the new constitution of the Evangelical Church being largely his work. In 1875 he was appointed a member of the supreme administrative court (Oberverwaltungsgericht) of Prussia, but only held office for two years.

He was also consulted by the Japanese government when a constitution was being introduced into that country. In 1882, Japanese Prime Minister of Japan Ito Hirobumi and a delegation from Japan visited Europe to study the government systems of various western nations. They met Gneist in Berlin, and he instructed them in constitutional law for a six month period. The Constutution of the Empire of Japan reflects Gneist’s conservatism in limiting the powers of the parliament, and strengthening those of the cabinet. His student, Albert Mosse, was later dispatched to Japan as a legal advisor to the Meiji government.

In 1882 was published his Englische Verfassungsgeschichte (trans. History of the English Constitution, London, 1886), which may perhaps be described as his magnum opus. It placed the author at once on the level of such writers on English constitutional history as Hallam and Stubbs, and supplied English jurisprudence with a text-book almost unrivalled in its of historical research. In 1888 one of the first acts of the ill-fated Friedrich III, German Emperor, who as crown prince had always shown great admiration for Gneist, was to ennoble him, and attach him as instructor in constitutional law to his son, Wilhelm II, German Emperor. The last years of his life were full of energy, and, in the possession of all his faculties, he continued his academic labors until a short time before his death.

Perhaps it should not be said that Gneist’s career as a politician was entirely successful. In a country where parliamentary institutions are the living exponents of the popular will he might have risen to a foremost position in the state; as it was, the party to which he allied himself could never hope to become more than what it remained, a parliamentary faction, and the influence it for a time wielded in the counsels of the state waned as soon as the Social-Democratic party grew to be a force to be reckoned with. It is as a writer and a teacher that Gneist is best known to posterity. He was a jurist of a special type: to him law was not mere theory, but a living force; and this conception of its power animates all his schemes of practical reform. As a teacher he exercised a magnetic influence, not only for the clearness and cogency of his exposition, but also because of the success with which he developed the talents and guided the aspirations of his pupils. He was a man of noble bearing, religious, and imbued with a stern sense of duty. He was proud of being a Junker, and throughout his writings, despite their liberal tendencies, may be perceived the loyalty and affection with which he clung to monarchical institutions.

 

“Исторiя государственныхъ учрежденiй Англiи (Englische Verfassungsgeschichte)” Pудольфа Гнейста. Переводъ съ немецкаго, под редакцiею С.А.Венгерова. Москва, 1885.

11
May
10

– Гуго Гроций. “О праве войны и мира”, три книги в которых объясняются естественное право и право народов, а также принципы публичного права (перевод с латинского А.Л.Саккетти), Москва 1956 г.


Hugo Grotius by Michiel Jansz van Mierevelt, 1...

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Hugo Grotius (10 April 1583 – 28 August 1645), also known as Huig de Groot or Hugo de Groot, worked as a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law. He was also a philosopher, theologian, Christian apologist, playwright, and poet.

Grotius’s influence on international law is paramount, and is acknowledged by, for instance, the American Society of International Law, which since 1999 holds an annual series of Grotius Lectures.

Born in Delft during the Dutch Revolt, Hugo was the first child of Jan de Groot and Alida van Overschie. His father was a man of learning, once having studied with the eminent Justus Lipsius at Leiden, as well as of political distinction, and he groomed his son from an early age in a traditional humanist and Aristotelian education. A prodigious learner, Hugo entered the University of Leiden when he was just eleven years old. There he studied with some of the most acclaimed intellectuals in northern Europe, including Franciscus Junius, Joseph Justus Scaliger, and Rudolph Snellius. At age sixteen he published his first book: a scholarly edition of the late antique author Martianus Capella‘s work on the seven liberal arts, Martiani Minei Felicis Capellæ Carthaginiensis viri proconsularis Satyricon, in quo De nuptiis Philologiæ & Mercurij libri duo, & De septem artibus liberalibus libri singulares. Omnes, & emendati, & Notis, siue Februis Hug. Grotii illustrati.

In Holland, Grotius earned an appointment as advocate to The Hague in 1599 and then as official historiographer for the States of Holland in 1601. His first occasion to write systematically on issues of international justice came in 1604, when he became involved in the legal proceedings following the seizure by Dutch merchants of a Portuguese carrack and its cargo in the Strait of Singapore.

The Dutch were at war with Spain and Portugal when the loaded merchant ship Santa Catarina, a Portuguese carrack, was captured by captain Jacob van Heemskerk in 1603. Heemskerk was employed with the United Amsterdam Company (part of the Dutch East India Company), and though he did not have authorization from the company or the government to initiate the use of force, many shareholders were eager to accept the riches that he brought back to them. Not only was the legality of keeping the prize questionable under Dutch statute, but a faction of shareholders (mostly Mennonite) in the Company also objected to the forceful seizure on moral grounds, and of course, the Portuguese demanded the return of their cargo. The scandal led to a public judicial hearing and a wider campaign to sway public (and international) opinion. It was in this wider contest that representatives of the Company called upon Grotius to draft a polemical defence of the seizure.

The result of Grotius’ efforts in 1604-1605 was a long, theory-laden treatise that he provisionally entitled De Indis (On the Indies). Grotius sought to ground his defense of the seizure in terms of the natural principles of justice. In this, he had cast a net much wider than the case at hand; his interest was in the source and ground of war’s lawfulness in general. The treatise was never published in full during Grotius’ lifetime, perhaps because the court ruling in favor of the Company preempted the need to garner public support. The manuscript was not made public until it was uncovered from Grotius’ estate in 1864 and published under the title, De Jure Praedae (On the Right of Capture). The principles that Grotius developed there, however, laid the basis for his mature work on international justice, De jure belli ac pacis, and in fact one chapter of the earlier work did make it to the press in the form of the influential pamphlet, Mare Liberum.

In The Free Sea (Mare Liberum, published 1609) Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. Grotius, by claiming ‘free seas’, provided suitable ideological justification for the Dutch breaking up of various trade monopolies through its formidable naval power (and then establishing its own monopoly).

England, competing fiercely with the Dutch for domination of world trade, opposed this idea and claimed That the Dominion of the British Sea, or That Which Incompasseth the Isle of Great Britain, is, and Ever Hath Been, a Part or Appendant of the Empire of that Island.  William Welwod, a Scottish jurist who was the first to formulate the laws of the sea in the English language, argued against Grotius’ Mare Liberum in An Abridgement of All Sea-Lawes (1613), eliciting a response from Grotius around 1615 under the title Defensio capitis quinti Maris Liberi oppugnati a Gulielmo Welwodo (“Defense of chapter five of the ‘Free Oceans,’ opposed by William Welwod”). In Mare clausum (1635) John Selden endeavoured to prove that the sea was in practice virtually as capable of appropriation as terrestrial territory.

As conflicting claims grew out of the controversy, maritime states came to moderate their demands and base their maritime claims on the principle that it extended seawards from land. A workable formula was found by Cornelius Bynkershoek in his De dominio maris (1702), restricting maritime dominion to the actual distance within which cannon range could effectively protect it. This became universally adopted and developed into the three-mile limit.

The dispute would eventually have important economic implications. The Dutch Republic supported the idea of free trade (even though it imposed a special trade monopoly on nutmeg and cloves in the Moluccas). England adopted the Act of Navigation (1651), forbidding any goods from entering England except on English ships. The Act subsequently led to the First Anglo-Dutch War (1652–1654).

Aided by his continued association with van Oldenbarnevelt, Grotius made considerable advances in his political career, being retained as Oldenbarnevelt’s resident advisor in 1605, Advocate General of the Fisc of Holland, Zeeland and Friesland in 1607, and then as Pensionary of Rotterdam (the equivalent of a mayoral office) in 1613.  In 1608 he married Maria van Reigersbergen, with whom he would have eight children (four surviving beyond youth) and who would be invaluable in helping him and the family to weather the storm to come.

In these years a great theological controversy broke out between the followers of Jacobus Arminius, chair of theology at Leiden, and the strongly Calvinist theologian, Franciscus Gomarus. In 1610, several months after the death of their leader, those who followed Arminius issued a ‘Remonstrance‘ declaring their doctrinal differences with the mainstream Reformed doctrines of salvation, most often associated with the Protestant Reformer John Calvin, but also held by most Reformed pastors and theologians throughout Europe. They had particular problems with the Belgic Confession, art. 16, on eternal election and reprobation. The Remonstrants did not reject the doctrines of election or predestination, as is often assumed, but rather redefined them so that the decisive factor in a person’s salvation is not God’s inscrutable decree, but the individual’s faith, which is eternally foreknown by God. According to Arminius and the Remonstrants, God decrees to elect all who meet the condition of faith. Led by Oldenbarnevelt, the States of Holland took an official position of religious toleration towards the disputants, and Grotius was eventually asked to draft an edict to express this policy.  The edict of 1613 put into practice a view that Grotius had been developing in his writings on church and state (see Erastianism): that only the basic tenets necessary for undergirding civil order (e.g., the existence of God and His providence) ought to be enforced while differences on obscure theological doctrines should be left to private conscience.

The edict did not have the intended effect, and hostilities flared throughout the republic. To maintain civil order, Oldenbarnevelt eventually proposed that local authorities be given the power to raise troops (the Sharp Resolution). Such a measure putatively undermined the authority of the stadtholder of the republic, Maurice of Nassau, Prince of Orange. Maurice seized the opportunity to solidify the preeminence of the Gomarists, whom he had supported, and to eliminate the nuisance he perceived in Oldenbarnevelt (the latter had previously brokered the Twelve Years’ Truce with Spain in 1609 against Maurice’s wishes). He had Oldenbarnevelt and Grotius arrested on 29 August 1618. Ultimately, Oldenbarnevelt was executed, and Grotius was sentenced to life imprisonment in Loevestein castle.

In 1621, with the help of his wife and maidservant, Grotius managed to escape the castle in a book chest and fled to Paris. In the Netherlands today, he is mainly famous for this daring escape. Both the Rijksmuseum in Amsterdam and the museum Het Prinsenhof in Delft claim to have the original book chest in their collection.

Grotius was well received in Paris by his former acquaintances and was granted a royal pension under Louis XIII. It was here in France that Grotius completed his most famous philosophical works.

While in Paris, Grotius set about rendering into Latin prose a work which he had compiled in prison, providing rudimentary yet systematic arguments for the truth of Christianity. (Showcasing Grotius’ skill as a poet, the earlier Dutch version of the work, Bewijs van den waren Godsdienst (pub. 1622), was written entirely in didactic verse.) The Latin work was first published in 1627 as De veritate religionis Christianae.

It was the first Protestant textbook in Christian apologetics, and was divided into six books. Part of the text dealt with the emerging questions of historical consciousness concerning the authorship and content of the canonical gospels. Other sections of the work addressed pagan religion, Judaism and Islam. What also distinguished this work in the history of Christian apologetics is its precursor role in anticipating the problems expressed in Eighteenth century Deism, and that Grotius represents the first of the practitioners of legal or juridical apologetics in the defence of Christian belief. Hugely popular, the book was translated from Latin into English, Arabic, Persian and Chinese by Edward Pococke for use in missionary work in the East and remained in print until the end of the nineteenth century.

Grotius also developed a particular view of the atonement of Christ known as the “Governmental” or “Moral government” theory. He theorized that Jesus’ sacrificial death occurred in order for the Father to forgive while still maintaining his just rule over the universe. This idea, further developed by theologians such as John Miley, became one of the prominent views of the atonement in Methodist Arminianism.

Living in the times of the Eighty Years’ War between Spain and the Netherlands and the Thirty Years’ War between Catholic and Protestant European nations, it is not surprising that Grotius was deeply concerned with matters of conflicts between nations and religions. His most lasting work, begun in prison and published during his exile in Paris, was a monumental effort to restrain such conflicts on the basis of a broad moral consensus. Grotius wrote:

Fully convinced…that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon the subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.

De jure belli ac pacis libri tres (On the Law of War and Peace: Three books) was first published in 1625, dedicated to Grotius’ current patron, Louis XIII. The treatise advances a system of principles of natural law, which are held to be binding on all people and nations regardless of local custom. The work is divided into three books:

  • Book I advances his conception of war and of natural justice, arguing that there are some circumstances in which war is justifiable.
  • Book II identifies three ‘just causes’ for war: self-defense, reparation of injury, and punishment; Grotius considers a wide variety of circumstances under which these rights of war attach and when they do not.
  • Book III takes up the question of what rules govern the conduct of war once it has begun; influentially, Grotius argued that all parties to war are bound by such rules, whether their cause is just or not.

The arguments of this work constitute a theory of just war. Roughly, the second book takes up questions of jus ad bellum (justice in the resort to war) and the third, questions of jus in bello (justice in the conduct of war). The way that Grotius conceived of these matters had, together with Francisco de Vitoria’s De potestate civili, a profound influence on the tradition after him and on the later formulation of international law.

Many exiled Remonstrants began to return to the Netherlands after the death of Prince Maurice in 1625, but Grotius, who refused to ask for pardon since it would imply an admission of guilt, was denied repatriation despite his repeated requests. Driven out once again after attempting to return to Rotterdam in October of 1631, Grotius fled to Hamburg. In 1634 he met the opportunity to serve as Sweden‘s ambassador to France. The recently deceased Swedish king, Gustavus Adolphus had been an admirer of Grotius (he was said to have carried a copy of De jure belli ac pacis always in his saddle when leading his troops), and his successor’s regent, Axel Oxenstierna, was keen to have Grotius in his employ. Grotius accepted the offer and took up diplomatic residence at Paris, which remained his home until he was released from his post in 1645. While departing from his last visit to Sweden, Grotius was shipwrecked on his voyage. He washed up on the shore of Rostock, ill and weather-beaten, and on August 28, 1645 he died; his body at last returned to the country of its youth, being laid to rest in the Nieuwe Kerk in Delft.

Grotius’ personal motto was Ruit hora (“Time is running away”); his last words were “By understanding many things, I have accomplished nothing.” Significant friends and acquaintances of his included the theologian Franciscus Junius, the poet Daniel Heinsius, the philologist Gerhard Johann Vossius, the historian Johannes Meursius, the engineer Simon Stevin, the historian Jacques Auguste de Thou, and the Arabic scholar Erpinius. He was also friend with the Flemish Jesuit Andreas Schottus




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