{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_29372/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_29372","id":"gutenberg_29372","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/29372","summary":null,"tags":["Category: Law & Criminology","Category: Philosophy & Ethics","International law","Natural law"],"text":"Produced by Bryan Ness, Val Wooff and the Online Distributed\nProofreading Team at https://www.pgdp.net (This book was\nproduced from scanned images of public domain material\nfrom the Google Print project.)\n\n\n\n\n\n\n\nTranscriber's Note\n\nSpelling and punctuation have been preserved as faithfully as possible.\nOnly obvious typographical errors have been corrected.\n\nFor ease of reading, the footnotes have been moved to the end of the\nbook.\n\n\n\n\n\n\n\n\n                       A DISCOURSE\n\n                            ON\n\n                         THE STUDY\n\n                          OF THE\n\n                 LAW OF NATURE AND NATIONS.\n\n                            BY\n\n                 SIR JAMES MACKINTOSH, M.P.\n\n                     _SECOND EDITION._\n\n                          LONDON:\n                     HENRY GOODE AND CO.\n\n            QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW.\n\n   SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW.\n\n                       M.DCCC.XXVIII.\n\n\n\n\n\n                        A DISCOURSE,\n\n                            ETC.\n\n\n                  *     *     *     *     *\n\nBefore I begin a course of lectures on a science of great extent and\nimportance, I think it my duty to lay before the public the reasons\nwhich have induced me to undertake such a labour, as well as a short\naccount of the nature and objects of the course which I propose to\ndeliver. I have always been unwilling to waste in unprofitable\ninactivity that leisure which the first years of my profession usually\nallow, and which diligent men, even with moderate talents, might often\nemploy in a manner neither discreditable to themselves, nor wholly\nuseless to others. Desirous that my own leisure should not be consumed\nin sloth, I anxiously looked about for some way of filling it up, which\nmight enable me, according to the measure of my humble abilities, to\ncontribute somewhat to the stock of general usefulness. I had long been\nconvinced that public lectures, which have been used in most ages and\ncountries to teach the elements of almost every part of learning, were\nthe most convenient mode in which these elements could be taught; that\nthey were the best adapted for the important purposes of awakening the\nattention of the student, of abridging his labours, of guiding his\ninquiries, of relieving the tediousness of private study, and of\nimpressing on his recollection the principles of science. I saw no\nreason why the Law of England should be less adapted to this mode of\ninstruction, or less likely to benefit by it, than any other part of\nknowledge. A learned gentleman, however, had already occupied that\nground,[1] and will, I doubt not, persevere in the useful labour which\nhe has undertaken. On his province it was far from my wish to intrude.\nIt appeared to me that a course of lectures on another science closely\nconnected with all liberal professional studies, and which had long been\nthe subject of my own reading and reflection, might not only prove a\nmost useful introduction to the law of England, but might also become an\ninteresting part of general study, and an important branch of the\neducation of those who were not destined for the profession of the law.\nI was confirmed in my opinion by the assent and approbation of men,\nwhose names, if it were becoming to mention them on so slight an\noccasion, would add authority to truth, and furnish some excuse even for\nerror. Encouraged by their approbation, I resolved without delay to\ncommence the undertaking, of which I shall now proceed to give some\naccount; without interrupting the progress of my discourse by\nanticipating or answering the remarks of those who may, perhaps, sneer\nat me for a departure from the usual course of my profession; because I\nam desirous of employing in a rational and useful pursuit that leisure,\nof which the same men would have required no account, if it had been\nwasted on trifles, or even abused in dissipation.\n\nThe science which teaches the rights and duties of men and of states,\nhas, in modern times, been called the Law of Nature and Nations. Under\nthis comprehensive title are included the rules of morality, as they\nprescribe the conduct of private men towards each other in all the\nvarious relations of human life; as they regulate both the obedience of\ncitizens to the laws, and the authority of the magistrate in framing\nlaws and administering government; as they modify the intercourse of\nindependent commonwealths in peace, and prescribe limits to their\nhostility in war. This important science comprehends only that part of\n_private ethics_ which is capable of being reduced to fixed and general\nrules. It considers only those general principles of _jurisprudence_ and\n_politics_ which the wisdom of the lawgiver adapts to the peculiar\nsituation of his own country, and which the skill of the statesman\napplies to the more fluctuating and infinitely varying circumstances\nwhich affect its immediate welfare and safety. \"For there are in nature\ncertain fountains of justice whence all civil laws are derived, but as\nstreams; and like as waters do take tinctures and tastes from the soils\nthrough which they run, so do civil laws vary according to the regions\nand governments where they are planted, though they proceed from the\nsame fountains.\"[2]--_Bacon's Dig. and Adv. of Learn._ Works, vol. i. p.\n101.\n\nOn the great questions of morality, of politics, and of municipal law,\nit is the object of this science to deliver only those fundamental\ntruths of which the particular application is as extensive as the whole\nprivate and public conduct of men; to discover those \"fountains of\njustice,\" without pursuing the \"streams\" through the endless variety of\ntheir course. But another part of the subject is treated with greater\nfulness and minuteness of application; namely, that important branch of\nit which professes to regulate the relations and intercourse of states,\nand more especially, both on account of their greater perfection and\ntheir more immediate reference to use, the regulations of that\nintercourse as they are modified by the usages of the civilised nations\nof Christendom. Here this science no longer rests in general principles.\nThat province of it which we now call the law of nations, has, in many\nof its parts, acquired among our European nations much of the precision\nand certainty of positive law, and the particulars of that law are\nchiefly to be found in the works of those writers who have treated the\nscience of which I now speak. It is because they have classed (in a\nmanner which seems peculiar to modern times) the duties of individuals\nwith those of nations, and established their obligation on similar\ngrounds, that the whole science has been called, \"The Law of Nature and\nNations.\"\n\nWhether this appellation be the happiest that could have been chosen\nfor the science, and by what steps it came to be adopted among our\nmodern moralists and lawyers,[3] are inquiries, perhaps, of more\ncuriosity than use, and which, if they deserve any where to be deeply\npursued, will be pursued with more propriety in a full examination of\nthe subject than within the short limits of an introductory discourse.\nNames are, however, in a great measure arbitrary; but the distribution\nof knowledge into its parts, though it may often perhaps be varied with\nlittle disadvantage, yet certainly depends upon some fixed principles.\nThe modern method of considering individual and national morality as the\nsubjects of the same science, seems to me as convenient and reasonable\nan arrangement as can be adopted. The same rules of morality which hold\ntogether men in families, and which form families into commonwealths,\nalso link together these commonwealths as members of the great society\nof mankind. Commonwealths, as well as private men, are liable to injury,\nand capable of benefit, from each other; it is, therefore, their\ninterest as well as their duty to reverence, to practise, and to\nenforce those rules of justice which control and restrain injury, which\nregulate and augment benefit, which, even in their present imperfect\nobservance, preserve civilised states in a tolerable condition of\nsecurity from wrong, and which, if they could be generally obeyed, would\nestablish, and permanently maintain, the well-being of the universal\ncommonwealth of the human race. It is therefore with justice that one\npart of this science has been called \"_the natural law of individuals_,\"\nand the other \"_the natural law of states_;\" and it is too obvious to\nrequire observation,[4] that the application of both these laws, of the\nformer as much as of the latter, is modified and varied by customs,\nconventions, character, and situation. With a view to these principles,\nthe writers on general jurisprudence have considered states as moral\npersons; a mode of expression which has been called a fiction of law,\nbut which may be regarded with more propriety as a bold metaphor, used\nto convey the important truth, that nations, though they acknowledge no\ncommon superior, and neither can nor ought to be subjected to human\npunishment, are yet under the same obligations mutually to practise\nhonesty and humanity, which would have bound individuals, even if they\ncould be conceived ever to have subsisted without the protecting\nrestraints of government; if they were not compelled to the discharge of\ntheir duty by the just authority of magistrates, and by the wholesome\nterrors of the laws. With the same views this law has been styled, and\n(notwithstanding the objections of some writers to the vagueness of the\nlanguage) appears to have been styled with great propriety, \"the law of\nnature.\" It may with sufficient correctness, or at least by an easy\nmetaphor, be called a \"_law_,\" inasmuch as it is a supreme, invariable,\nand uncontrollable rule of conduct to all men, of which the violation is\navenged by natural punishments, which necessarily flow from the\nconstitution of things, and are as fixed and inevitable as the order of\nnature. It is the \"_law of nature_,\" because its general precepts are\nessentially adapted to promote the happiness of man, as long as he\nremains a being of the same nature with which he is at present endowed,\nor, in other words, as long as he continues to be man, in all the\nvariety of times, places, and circumstances, in which he has been known,\nor can be imagined to exist; because it is discoverable by natural\nreason, and suitable to our natural constitution; because its fitness\nand wisdom are founded on the general nature of human beings, and not on\nany of those temporary and accidental situations in which they may be\nplaced. It is with still more propriety, and indeed with the highest\nstrictness, and the most perfect accuracy, considered as a law, when,\naccording to those just and magnificent views which philosophy and\nreligion open to us of the government of the world, it is received and\nreverenced as the sacred code, promulgated by the great Legislator of\nthe Universe for the guidance of his creatures to happiness, guarded and\nenforced, as our own experience may inform us, by the penal sanctions\nof shame, of remorse, of infamy, and of misery; and still farther\nenforced by the reasonable expectation of yet more awful penalties in a\nfuture and more permanent state of existence. It is the contemplation of\nthe law of nature under this full, mature, and perfect idea of its high\norigin and transcendent dignity, that called forth the enthusiasm of the\ngreatest men, and the greatest writers of ancient and modern times, in\nthose sublime descriptions, where they have exhausted all the powers of\nlanguage, and surpassed all the other exertions, even of their own\neloquence, in the display of the beauty and majesty of this sovereign\nand immutable law. It is of this law that Cicero has spoken in so many\nparts of his writings, not only with all the splendour and copiousness\nof eloquence, but with the sensibility of a man of virtue; and with the\ngravity and comprehension of a philosopher.[5] It is of this law that\nHooker speaks in so sublime a strain:--\"Of law, no less can be said,\nthan that her seat is the bosom of God, her voice the harmony of the\nworld; all things in heaven and earth do her homage, the very least as\nfeeling her care, the greatest as not exempted from her power; both\nangels and men, and creatures of what condition soever, though each in\ndifferent sort and manner, yet all with uniform consent admiring her as\nthe mother of their peace and joy.\"--_Eccles. Pol._ book i. in the\nconclusion.\n\nLet not those, who, to use the language of the same Hooker, \"talk of\ntruth,\" without \"ever sounding the depth from whence it springeth,\"\nhastily take it for granted, that these great masters of eloquence and\nreason were led astray by the specious delusions of mysticism, from the\nsober consideration of the true grounds of morality in the nature,\nnecessities, and interests of man. They studied and taught the\nprinciples of morals; but they thought it still more necessary, and more\nwise, a much nobler task, and more becoming a true philosopher, to\ninspire men with a love and reverence for virtue.[6] They were not\ncontented with elementary speculations. They examined the foundations of\nour duty, but they felt and cherished a most natural, a most seemly, a\nmost rational enthusiasm, when they contemplated the majestic edifice\nwhich is reared on these solid foundations. They devoted the highest\nexertions of their mind to spread that beneficent enthusiasm among men.\nThey consecrated as a homage to virtue the most perfect fruits of their\ngenius. If these grand sentiments of \"the good and fair\" have sometimes\nprevented them from delivering the principles of ethics with the\nnakedness and dryness of science, at least, we must own that they have\nchosen the better part; that they have preferred virtuous feeling to\nmoral theory; and practical benefit to speculative exactness. Perhaps\nthese wise men may have supposed that the minute dissection and anatomy\nof Virtue might, to the ill-judging eye, weaken the charm of her\nbeauty. It is not for me to attempt a theme which has perhaps been\nexhausted by these great writers. I am indeed much less called upon to\ndisplay the worth and usefulness of the law of nations, than to\nvindicate myself from presumption in attempting a subject which has been\nalready handled by so many masters. For the purpose of that vindication\nit will be necessary to sketch a very short and slight account (for such\nin this place it must unavoidably be) of the progress and present state\nof the science, and of that succession of able writers who have\ngradually brought it to its present perfection.\n\nWe have no Greek or Roman treatise remaining on the law of nations. From\nthe title of one of the lost works of Aristotle, it appears that he\ncomposed a treatise on the laws of war,[7] which, if we had the good\nfortune to possess it, would doubtless have amply satisfied our\ncuriosity, and would have taught us both the practice of the ancient\nnations and the opinions of their moralists, with that depth and\nprecision which distinguish the other works of that great philosopher.\nWe can now only imperfectly collect that practice and those opinions\nfrom various passages which are scattered over the writings of\nphilosophers, historians, poets, and orators. When the time shall arrive\nfor a more full consideration of the state of the government and manners\nof the ancient world, I shall be able, perhaps, to offer satisfactory\nreasons why these enlightened nations did not separate from the general\nprovince of ethics that part of morality which regulates the intercourse\nof states, and erect it into an independent science. It would require a\nlong discussion to unfold the various causes which united the modern\nnations of Europe into a closer society; which linked them together by\nthe firmest bands of mutual dependence, and which thus, in process of\ntime, gave to the law that regulated their intercourse greater\nimportance, higher improvement, and more binding force. Among these\ncauses we may enumerate a common extraction, a common religion, similar\nmanners, institutions, and languages; in earlier ages the authority of\nthe See of Rome, and the extravagant claims of the imperial crown; in\nlater times the connexions of trade, the jealousy of power, the\nrefinement of civilization, the cultivation of science, and, above all,\nthat general mildness of character and manners which arose from the\ncombined and progressive influence of chivalry, of commerce, of\nlearning, and of religion. Nor must we omit the similarity of those\npolitical institutions which, in every country that had been over-run by\nthe Gothic conquerors, bore discernible marks (which the revolutions of\nsucceeding ages had obscured, but not obliterated) of the rude but bold\nand noble outline of liberty that was originally sketched by the hand of\nthese generous barbarians. These and many other causes conspired to\nunite the nations of Europe in a more intimate connexion and a more\nconstant intercourse, and of consequence made the regulation of their\nintercourse more necessary, and the law that was to govern it more\nimportant. In proportion as they approached to the condition of\nprovinces of the same empire, it became almost as essential that Europe\nshould have a precise and comprehensive code of the law of nations, as\nthat each country should have a system of municipal law. The labours of\nthe learned accordingly began to be directed to this subject in the\nsixteenth century, soon after the revival of learning, and after that\nregular distribution of power and territory which has subsisted, with\nlittle variation, until our times. The critical examination of these\nearly writers would perhaps not be very interesting in an extensive\nwork, and it would be unpardonable in a short discourse. It is\nsufficient to observe that they were all more or less shackled by the\nbarbarous philosophy of the schools, and that they were impeded in their\nprogress by a timorous deference for the inferior and technical parts of\nthe Roman law, without raising their views to the comprehensive\nprinciples which will for ever inspire mankind with veneration for that\ngrand monument of human wisdom. It was only indeed in the sixteenth\ncentury that the Roman law was first studied and understood as a science\nconnected with Roman history and literature, and illustrated by men\nwhom Ulpian and Papinian would not have disdained to acknowledge as\ntheir successors.[8] Among the writers of that age we may perceive the\nineffectual attempts, the partial advances, the occasional streaks of\nlight which always precede great discoveries, and works that are to\ninstruct posterity.\n\nThe reduction of the law of nations to a system was reserved for\nGrotius. It was by the advice of Lord Bacon and Peiresc that he\nundertook this arduous task. He produced a work which we now indeed\njustly deem imperfect, but which is perhaps the most complete that the\nworld has yet owed, at so early a stage in the progress of any science,\nto the genius and learning of one man. So great is the uncertainty of\nposthumous reputation, and so liable is the fame even of the greatest\nmen to be obscured by those new fashions of thinking and writing which\nsucceed each other so rapidly among polished nations, that Grotius, who\nfilled so large a space in the eye of his contemporaries, is now perhaps\nknown to some of my readers only by name. Yet if we fairly estimate both\nhis endowments and his virtues, we may justly consider him as one of the\nmost memorable men who have done honour to modern times. He combined the\ndischarge of the most important duties of active and public life with\nthe attainment of that exact and various learning which is generally the\nportion only of the recluse student. He was distinguished as an advocate\nand a magistrate, and he composed the most valuable works on the law of\nhis own country; he was almost equally celebrated as an historian, a\nscholar, a poet, and a divine; a disinterested statesman, a\nphilosophical lawyer, a patriot who united moderation with firmness, and\na theologian who was taught candour by his learning. Unmerited exile did\nnot damp his patriotism; the bitterness of controversy did not\nextinguish his charity. The sagacity of his numerous and fierce\nadversaries could not discover a blot on his character; and in the midst\nof all the hard trials and galling provocations of a turbulent political\nlife, he never once deserted his friends when they were unfortunate, nor\ninsulted his enemies when they were weak. In times of the most furious\ncivil and religious faction he preserved his name unspotted, and he knew\nhow to reconcile fidelity to his own party, with moderation towards his\nopponents. Such was the man who was destined to give a new form to the\nlaw of nations, or rather to create a science, of which only rude\nsketches and indigested materials were scattered over the writings of\nthose who had gone before him. By tracing the laws of his country to\ntheir principles, he was led to the contemplation of the law of nature,\nwhich be justly considered as the parent of all municipal law.[9] Few\nworks were more celebrated than that of Grotius in his own days, and in\nthe age which succeeded. It has, however, been the fashion of the last\nhalf-century to depreciate his work as a shapeless compilation, in which\nreason lies buried under a mass of authorities and quotations. This\nfashion originated among French wits and declaimers, and it has been, I\nknow not for what reason, adopted, though with far greater moderation\nand decency, by some respectable writers among ourselves. As to those\nwho first used this language, the most candid supposition that we can\nmake with respect to them is, that they never read the work; for, if\nthey had not been deterred from the perusal of it by such a formidable\ndisplay of Greek characters, they must soon have discovered that Grotius\nnever quotes on any subject till he has first appealed to some\nprinciples, and often, in my humble opinion, though, not always, to the\nsoundest and most rational principles.\n\nBut another sort of answer is due to some of those[10] who have\ncriticised Grotius, and that answer might be given in the words of\nGrotius himself.[11] He was not of such a stupid and servile cast of\nmind, as to quote the opinions of poets or orators, of historians and\nphilosophers, as those of judges, from whose decision there was no\nappeal. He quotes them, as he tells us himself, as witnesses whose\nconspiring testimony, mightily strengthened and confirmed by their\ndiscordance on almost every other subject, is a conclusive proof of the\nunanimity of the whole human race on the great rules of duty and the\nfundamental principles of morals. On such matters, poets and orators are\nthe most unexceptionable of all witnesses; for they address themselves\nto the general feelings and sympathies of mankind; they are neither\nwarped by system, nor perverted by sophistry; they can attain none of\ntheir objects; they can neither please nor persuade if they dwell on\nmoral sentiments not in unison with those of their readers. No system of\nmoral philosophy can surely disregard the general feelings of human\nnature and the according judgment of all ages and nations. But where are\nthese feelings and that judgment recorded and preserved? In those very\nwritings which Grotius is gravely blamed for having quoted. The usages\nand laws of nations, the events of history, the opinions of\nphilosophers, the sentiments of orators and poets, as well as the\nobservation of common life, are, in truth, the materials out of which\nthe science of morality is formed; and those who neglect them are justly\nchargeable with a vain attempt to philosophise without regard to fact\nand experience, the sole foundation of all true philosophy.\n\nIf this were merely an objection of taste, I should be willing to allow\nthat Grotius has indeed poured forth his learning with a profusion that\nsometimes rather encumbers than adorns his work, and which is not always\nnecessary to the illustration of his subject. Yet, even in making that\nconcession, I should rather yield to the taste of others than speak from\nmy own feelings. I own that such richness and splendour of literature\nhave a powerful charm for me. They fill my mind with an endless variety\nof delightful recollections and associations. They relieve the\nunderstanding in its progress through a vast science, by calling up the\nmemory of great men and of interesting events. By this means we see the\ntruths of morality clothed with all the eloquence (not that could be\nproduced by the powers of one man, but) that could be bestowed on them\nby the collective genius of the world. Even Virtue and Wisdom themselves\nacquire new majesty in my eyes, when I thus see all the great masters of\nthinking and writing called together, as it were, from all times and\ncountries, to do them homage, and to appear in their train.\n\nBut this is no place for discussions of taste, and I am very ready to\nown that mine may be corrupted. The work of Grotius is liable to a more\nserious objection, though I do not recollect that it has ever been made.\nHis method is inconvenient and unscientific. He has inverted the natural\norder. That natural order undoubtedly dictates, that we should first\nsearch for the original principles of the science in human nature; then\napply them to the regulation of the conduct of individuals, and lastly,\nemploy them for the decision of those difficult and complicated\nquestions that arise with respect to the intercourse of nations. But\nGrotius has chosen the reverse of this method. He begins with the\nconsideration of the states of peace and war, and he examines original\nprinciples only occasionally and incidentally as they grow out of the\nquestions which he is called upon to decide. It is a necessary\nconsequence of this disorderly method, which exhibits the elements of\nthe science in the form of scattered digressions, that he seldom employs\nsufficient discussion on these fundamental truths, and never in the\nplace where such a discussion would be most instructive to the reader.\n\nThis defect in the plan of Grotius was perceived, and supplied, by\nPuffendorff, who restored natural law to that superiority which belonged\nto it, and with great propriety treated the law of nations as only one\nmain branch of the parent stock. Without the genius of his master, and\nwith very inferior learning, he has yet treated this subject with sound\nsense, with clear method, with extensive and accurate knowledge, and\nwith a copiousness of detail sometimes indeed tedious, but always\ninstructive and satisfactory. His work will be always studied by those\nwho spare no labour to acquire a deep knowledge of the subject; but it\nwill, in our times, I fear, be oftener found on the shelf than on the\ndesk of the general student. In the time of Mr. Locke it was considered\nas the manual of those who were intended for active life; but in the\npresent age I believe it will be found that men of business are too much\noccupied, men of letters are too fastidious, and men of the world too\nindolent, for the study or even the perusal of such works. Far be it\nfrom me to derogate from the real and great merit of so useful a writer\nas Puffendorff. His treatise is a mine in which all his successors must\ndig. I only presume to suggest, that a book so prolix, and so utterly\nvoid of all the attractions of composition, is likely to repel many\nreaders who are interested, and who might perhaps be disposed to\nacquire some knowledge of the principles of public law.\n\nMany other circumstances might be mentioned, which conspire to prove\nthat neither of the great works of which I have spoken, has superseded\nthe necessity of a new attempt to lay before the public a System of the\nLaw of Nations. The language of science is so completely changed since\nboth these works were written, that whoever was now to employ their\nterms in his moral reasonings would be almost unintelligible to some of\nhis hearers or readers; and to some among them too who are neither ill\nqualified nor ill disposed to study such subjects with considerable\nadvantage to themselves. The learned indeed well know how little novelty\nor variety is to be found in scientific disputes. The same truths and\nthe same errors have been repeated from age to age, with little\nvariation but in the language; and novelty of expression is often\nmistaken by the ignorant for substantial discovery. Perhaps too very\nnearly the same portion of genius and judgment has been exerted in most\nof the various forms under which science has been cultivated at\ndifferent periods of history. The superiority of those writers who\ncontinue to be read, perhaps often consists chiefly in taste, in\nprudence, in a happy choice of subject, in a favourable moment, in an\nagreeable style, in the good fortune of a prevalent language, or in\nother advantages which are either accidental, or are the result rather\nof the secondary than of the highest faculties of the mind.--But these\nreflections, while they moderate the pride of invention, and dispel the\nextravagant conceit of superior illumination, yet serve to prove the\nuse, and indeed the necessity, of composing, from time to time, new\nsystems of science adapted to the opinions and language of each\nsucceeding period. Every age must be taught in its own language. If a\nman were now to begin a discourse on ethics with an account of the\n\"_moral entities_\" of Puffendorff,[12] he would speak an unknown\ntongue.\n\nIt is not, however, alone as a mere translation of former writers into\nmodern language that a new system of public law seems likely to be\nuseful. The age in which we live possesses many advantages which are\npeculiarly favourable to such an undertaking. Since the composition of\nthe great works of Grotius and Puffendorff, a more modest, simple, and\nintelligible philosophy has been introduced into the schools; which has\nindeed been grossly abused by sophists, but which, from the time of\nLocke, has been cultivated and improved by a succession of disciples\nworthy of their illustrious master. We are thus enabled to discuss with\nprecision, and to explain with clearness, the principles of the science\nof human nature, which are in themselves on a level with the capacity of\nevery man of good sense, and which only appeared to be abstruse from\nthe unprofitable subtleties with which they were loaded, and the\nbarbarous jargon in which they were expressed. The deepest doctrines of\nmorality have since that time been treated in the perspicuous and\npopular style, and with some degree of the beauty and eloquence of the\nancient moralists. That philosophy on which are founded the principles\nof our duty, if it has not become more certain (for morality admits no\ndiscoveries), is at least less \"harsh and crabbed,\" less obscure and\nhaughty in its language, less forbidding and disgusting in its\nappearance, than in the days of our ancestors. If this progress of\nlearning towards popularity has engendered (as it must be owned that it\nhas) a multitude of superficial and most mischievous sciolists, the\nantidote must come from the same quarter with the disease. Popular\nreason can alone correct popular sophistry.\n\nNor is this the only advantage which a writer of the present age would\npossess over the celebrated jurists of the last century. Since that time\nvast additions have been made to the stock of our knowledge of human\nnature. Many dark periods of history have since been explored. Many\nhitherto unknown regions of the globe have been visited and described by\ntravellers and navigators not less intelligent than intrepid. We may be\nsaid to stand at the confluence of the greatest number of streams of\nknowledge flowing from the most distant sources that ever met at one\npoint. We are not confined, as the learned of the last age generally\nwere, to the history of those renowned nations who are our masters in\nliterature. We can bring before us man in a lower and more abject\ncondition than any in which he was ever before seen. The records have\nbeen partly opened to us of those mighty empires of Asia[13] where the\nbeginnings of civilization are lost in the darkness of an unfathomable\nantiquity. We can make human society pass in review before our mind,\nfrom the brutal and helpless barbarism of _Terra del Fuego_, and the\nmild and voluptuous savages of Otaheite, to the tame, but ancient and\nimmovable civilization of China, which bestows its own arts on every\nsuccessive race of conquerors; to the meek and servile natives of\nHindostan, who preserve their ingenuity, their skill, and their science,\nthrough a long series of ages, under the yoke of foreign tyrants; to the\ngross and incorrigible rudeness of the Ottomans, incapable of\nimprovement, and extinguishing the remains of civilization among their\nunhappy subjects, once the most ingenious nations of the earth. We can\nexamine almost every imaginable variety in the character, manners,\nopinions, feelings, prejudices, and institutions of mankind, into which\nthey can be thrown, either by the rudeness of barbarism, or by the\ncapricious corruptions of refinement, or by those innumerable\ncombinations of circumstances, which, both in these opposite conditions\nand in all the intermediate stages between them, influence or direct the\ncourse of human affairs. History, if I may be allowed the expression, is\nnow a vast museum, in which specimens of every variety of human nature\nmay be studied. From these great accessions to knowledge, law-givers and\nstatesmen, but, above all, moralists and political philosophers, may\nreap the most important instruction. They may plainly discover in all\nthe useful and beautiful variety of governments and institutions, and\nunder all the fantastic multitude of usages and rites which have\nprevailed among men, the same fundamental, comprehensive truths, the\nsacred master-principles which are the guardians of human society,\nrecognised and revered (with few and slight exceptions) by every nation\nupon earth, and uniformly taught (with still fewer exceptions) by a\nsuccession of wise men from the first dawn of speculation to the present\nmoment. The exceptions, few as they are, will, on more reflection, be\nfound rather apparent than real. If we could raise ourselves to that\nheight from which we ought to survey so vast a subject, these exceptions\nwould altogether vanish; the brutality of a handful of savages would\ndisappear in the immense prospect of human nature, and the murmurs of a\nfew licentious sophists would not ascend to break the general harmony.\nThis consent of mankind in first principles, and this endless variety in\ntheir application, which is one among many valuable truths which we may\ncollect from our present extensive acquaintance with the history of man,\nis itself of vast importance. Much of the majesty and authority of\nvirtue is derived from their consent, and almost the whole of practical\nwisdom is founded on their variety.\n\nWhat former age could have supplied facts for such a work as that of\nMontesquieu? He indeed has been, perhaps justly, charged with abusing\nthis advantage, by the undistinguishing adoption of the narratives of\ntravellers of very different degrees of accuracy and veracity. But if we\nreluctantly confess the justness of this objection; if we are compelled\nto own that he exaggerates the influence of climate, that he ascribes\ntoo much to the foresight and forming skill of legislators, and far too\nlittle to time and circumstances, in the growth of political\nconstitutions; that the substantial character and essential differences\nof governments are often lost and confounded in his technical language\nand arrangement; that he often bends the free and irregular outline of\nnature to the imposing but fallacious geometrical regularity of system;\nthat he has chosen a style of affected abruptness, sententiousness, and\nvivacity, ill suited to the gravity of his subject: after all these\nconcessions (for his fame is large enough to spare many concessions),\nthe Spirit of Laws will still remain not only one of the most solid and\ndurable monuments of the powers of the human mind, but a striking\nevidence of the inestimable advantages which political philosophy may\nreceive from a wide survey of all the various conditions of human\nsociety.\n\nIn the present century a slow and silent, but very substantial\nmitigation has taken place in the practice of war; and in proportion as\nthat mitigated practice has received the sanction of time, it is raised\nfrom the rank of mere usage, and becomes part of the law of nations.\nWhoever will compare our present modes of warfare with the system of\nGrotius[14] will clearly discern the immense improvements which have\ntaken place in that respect since the publication of his work, during a\nperiod, perhaps in every point of view, the happiest to be found in the\nhistory of the world. In the same period many important points of public\nlaw have been the subject of contest both by argument and by arms, of\nwhich we find either no mention, or very obscure traces, in the history\nof preceding times.\n\nThere are other circumstances to which I allude with hesitation and\nreluctance, though it must be owned that they afford to a writer of this\nage some degree of unfortunate and deplorable advantage over his\npredecessors. Recent events have accumulated more terrible practical\ninstruction on every subject of politics than could have been in other\ntimes acquired by the experience of ages. Men's wit, sharpened by their\npassions, has penetrated to the bottom of almost all political\nquestions. Even the fundamental rules of morality themselves have, for\nthe first time, unfortunately for mankind, become the subject of doubt\nand discussion. I shall consider it as my duty to abstain from all\nmention of these awful events, and of these fatal controversies. But the\nmind of that man must indeed be incurious and indocile, who has either\noverlooked all these things; or reaped no instruction from the\ncontemplation of them.\n\nFrom these reflections it appears, that, since the composition of those\ntwo great works on the Law of Nature and Nations which continue to be\nthe classical and standard works on that subject, we have gained both\nmore convenient instruments of reasoning and more extensive materials\nfor science; that the code of war has been enlarged and improved; that\nnew questions have been practically decided; and that new controversies\nhave arisen regarding the intercourse of independent states, and the\nfirst principles of morality and civil government.\n\nSome readers may, however, think that in these observations which I\noffer, to excuse the presumption of my own attempt, I have omitted the\nmention of later writers, to whom some part of the remarks is not justly\napplicable. But, perhaps, further consideration will acquit me in the\njudgment of such readers. Writers on particular questions of public law\nare not within the scope of my observations. They have furnished the\nmost valuable materials; but I speak only of a system. To the large work\nof Wolffius, the observations which I have made on Puffendorff as a book\nfor general use, will surely apply with tenfold force. His abridger,\nVattel, deserves, indeed, considerable praise. He is a very ingenious,\nclear, elegant, and useful writer. But he only considers one part of\nthis extensive subject, namely, the law of nations strictly so called;\nand I cannot help thinking, that, even in this department of the\nscience, he has adopted some doubtful and dangerous principles, not to\nmention his constant deficiency in that fulness of example and\nillustration, which so much embellishes and strengthens reason. It is\nhardly necessary to take any notice of the text-book of Heineccius, the\nbest writer of elementary books with whom I am acquainted on any\nsubject. Burlamaqui is an author of superior merit; but he confines\nhimself too much to the general principles of morality and politics, to\nrequire much observation from me in this place. The same reason will\nexcuse me for passing over in silence the works of many philosophers and\nmoralists, to whom, in the course of my proposed lectures, I shall owe\nand confess the greatest obligations; and it might perhaps deliver me\nfrom the necessity of speaking of the work of Dr. Paley, if I were not\ndesirous of this public opportunity of professing my gratitude for the\ninstruction and pleasure which I have received from that excellent\nwriter, who possesses, in so eminent a degree, those invaluable\nqualities of a moralist, good sense, caution, sobriety, and perpetual\nreference to convenience and practice; and who certainly is thought less\noriginal than he really is, merely because his taste and modesty have\nled him to disdain the ostentation of novelty, and because he generally\nemploys more art to blend his own arguments with the body of received\nopinions, so as that they are scarce to be distinguished, than other\nmen, in the pursuit of a transient popularity, have exerted to disguise\nthe most miserable common-places in the shape of paradox.\n\nNo writer since the time of Grotius, of Puffendorff, and of Wolf, has\ncombined an investigation of the principles of natural and public law,\nwith a full application of these principles to particular cases; and in\nthese circumstances, I trust, it will not be deemed extravagant\npresumption in me to hope that I shall be able to exhibit a view of this\nscience, which shall, at least, be more intelligible and attractive to\nstudents, than the learned treatises of these celebrated men. I shall\nnow proceed to state the general plan and subjects of the lectures in\nwhich I am to make this attempt.\n\n\nI. The being whose actions the law of nature professes to regulate, is\nman. It is on the knowledge of his nature that the science of his duty\nmust be founded.[15] It is impossible to approach the threshold of moral\nphilosophy, without a previous examination of the faculties and habits\nof the human mind. Let no reader be repelled from this examination, by\nthe odious and terrible name of _metaphysics_; for it is, in truth,\nnothing more than the employment of good sense, in observing our own\nthoughts, feelings, and actions; and when the facts which are thus\nobserved, are expressed as they ought to be, in plain language, it is,\nperhaps, above all other sciences, most on a level with the capacity and\ninformation of the generality of thinking men. When it is thus\nexpressed, it requires no previous qualification, but a sound judgment,\nperfectly to comprehend it; and those who wrap it up in a technical and\nmysterious jargon, always give us strong reason to suspect that they are\nnot philosophers but impostors. Whoever thoroughly understands such a\nscience, must be able to teach it plainly to all men of common sense.\nThe proposed course will therefore open with a very short, and, I hope,\na very simple and intelligible account of the powers and operations of\nthe human mind. By this plain statement of facts, it will not be\ndifficult to decide many celebrated, though frivolous, and merely verbal\ncontroversies, which have long amused the leisure of the schools, and\nwhich owe both their fame and their existence to the ambiguous obscurity\nof scholastic language. It will, for example, only require an appeal to\nevery man's experience, to prove that we often act purely from a regard\nto the happiness of others, and are therefore social beings; and it is\nnot necessary to be a consummate judge of the deceptions of language,\nto despise the sophistical trifler, who tells us, that, because we\nexperience a gratification in our benevolent actions, we are therefore\nexclusively and uniformly selfish. A correct examination of facts will\nlead us to discover that quality which is common to all virtuous\nactions, and which distinguishes them from those which are vicious and\ncriminal. But we shall see that it is necessary for man to be governed\nnot by his own transient and hasty opinion upon the tendency of every\nparticular action, but by those fixed and unalterable rules, which are\nthe joint result of the impartial judgment, the natural feelings, and\nthe embodied experience of mankind. The authority of these rules is,\nindeed, founded only on their tendency to promote private and public\nwelfare; but the morality of actions will appear solely to consist in\ntheir correspondence with the rule. By the help of this obvious\ndistinction we shall vindicate a just theory, which, far from being\nmodern, is, in fact, as ancient as philosophy, both from plausible\nobjections, and from the odious imputation of supporting those absurd\nand monstrous systems which have been built upon it. Beneficial tendency\nis the foundation of rules, and the criterion by which habits and\nsentiments are to be tried. But it is neither the immediate standard,\nnor can it ever be the principal motive of action. An action, to be\ncompletely virtuous, must accord with moral rules, and must flow from\nour natural feelings and affections, moderated, matured, and improved\ninto steady habits of right conduct.[16] Without, however, dwelling\nlonger on subjects which cannot be clearly stated, unless they are fully\nunfolded, I content myself with observing, that it shall be my object,\nin this preliminary, but most important part of the course, to lay the\nfoundations of morality so deeply in human nature, as may satisfy the\ncoldest inquirer; and, at the same time, to vindicate the paramount\nauthority of the rules of our duty, at all times, and in all places,\nover all opinions of interest and speculations of benefit, so\nextensively, so universally, and so inviolably, as may well justify the\ngrandest and the most apparently extravagant effusions of moral\nenthusiasm. If, notwithstanding all my endeavours to deliver these\ndoctrines with the utmost simplicity, any of my auditors should still\nreproach me for introducing such abstruse matters, I must shelter myself\nbehind the authority of the wisest of men. \"If they (the ancient\nmoralists), before they had come to the popular and received notions of\nvirtue and vice, had staid a little longer upon the inquiry concerning\n_the roots of good and evil_, they had given, in my opinion, a great\nlight to that which followed; and specially if they had consulted with\nnature, they had made their doctrines less prolix, and more\nprofound.\"--_Bacon. Dign. and Adv. of Learn._ book ii. What Lord Bacon\ndesired for the mere gratification of scientific curiosity, the welfare\nof mankind now imperiously demands. Shallow systems of metaphysics have\ngiven birth to a brood of abominable and pestilential paradoxes, which\nnothing but a more profound philosophy can destroy. However we may,\nperhaps, lament the necessity of discussions which may shake the\nhabitual reverence of some men for those rules which it is the chief\ninterest of all men to practise, we have now no choice left. We must\neither dispute, or abandon the ground. Undistinguishing and unmerited\ninvectives against philosophy, will only harden sophists and their\ndisciples in the insolent conceit, that they are in possession of an\nundisputed superiority of reason; and that their antagonists have no\narms to employ against them, but those of popular declamation. Let us\nnot for a moment even appear to suppose, that philosophical truth and\nhuman happiness are so irreconcilably at variance. I cannot express my\nopinion on this subject so well as in the words of a most valuable,\nthough generally neglected writer: \"The science of abstruse learning,\nwhen completely attained, is like Achilles's spear, that healed the\nwounds it had made before; so this knowledge serves to repair the damage\nitself had occasioned, and this perhaps is all it is good for; it casts\nno additional light upon the paths of life, but disperses the clouds\nwith which it had overspread them before; it advances not the traveller\none step in his journey, but conducts him back again to the spot from\nwhence he wandered. Thus the land of Philosophy consists partly of an\nopen champaign country, passable by every common understanding, and\npartly of a range of woods, traversable only by the speculative, and\nwhere they too frequently delight to amuse themselves. Since then we\nshall be obliged to make incursions into this latter tract, and shall\nprobably find it a region of obscurity, danger, and difficulty, it\nbehoves us to use our utmost endeavours for enlightening and smoothing\nthe way before us.\"[17] We shall, however, remain in the forest only\nlong enough to visit the fountains of those streams which flow from it,\nand which water and fertilise the cultivated region of Morals, to become\nacquainted with the modes of warfare practised by its savage\ninhabitants, and to learn the means of guarding our fair and fruitful\nland against their desolating incursions. I shall hasten from\nspeculations, to which I am naturally, perhaps, but too prone, and\nproceed to the more profitable consideration of our practical duty.\n\n\nII. The first and most simple part of ethics is that which regards the\nduties of private men towards each other, when they are considered apart\nfrom the sanction of positive laws. I say, _apart_ from that sanction,\nnot _antecedent_ to it; for though we _separate_ private from political\nduties for the sake of greater clearness and order in reasoning, yet we\nare not to be so deluded by this mere arrangement of convenience as to\nsuppose that human society ever has subsisted, or ever could subsist,\nwithout being protected by government and bound together by laws. All\nthese relative duties of private life have been so copiously and\nbeautifully treated by the moralists of antiquity, that few men will now\nchoose to follow them who are not actuated by the wild ambition of\nequalling Aristotle in precision, or rivalling Cicero in eloquence.\nThey have been also admirably treated by modern moralists, among whom it\nwould be gross injustice not to number many of the preachers of the\nChristian religion, whose peculiar character is that spirit of universal\ncharity, which is the living principle of all our social duties. For it\nwas long ago said, with great truth, by Lord Bacon, \"that there never\nwas any philosophy, religion, or other discipline, which did so plainly\nand highly exalt that good which is communicative, and depress the good\nwhich is private and particular, as the Christian faith.\"[18] The\nappropriate praise of this religion is not so much, that it has taught\nnew duties, as that it breathes a milder and more benevolent spirit over\nthe whole extent of morals.\n\nOn a subject which has been so exhausted, I should naturally have\ncontented myself with the most slight and general survey, if some\nfundamental principles had not of late been brought into question,\nwhich, in all former times, have been deemed too evident to require the\nsupport of argument, and almost too sacred to admit the liberty of\ndiscussion. I shall here endeavour to strengthen some parts of the\nfortifications of morality which have hitherto been neglected, because\nno man had ever been hardy enough to attack them. Almost all the\nrelative duties of human life will be found more immediately, or more\nremotely, to arise out of the two great institutions of property and\nmarriage. They constitute, preserve, and improve society. Upon their\ngradual improvement depends the progressive civilization of mankind; on\nthem rests the whole order of civil life. We are told by Horace, that\nthe first efforts of lawgivers to civilise men consisted in\nstrengthening and regulating these institutions, and fencing them round\nwith rigorous penal laws.\n\n    Oppida coeperunt munire et ponere leges\n    Neu quis fur esset, neu quis latro, neu quis adulter.\n\n                                        1 _Serm._ iii. 105.\n\nA celebrated ancient orator, of whose poems we have but a few fragments\nremaining, has well described the progressive order in which human\nsociety is gradually led to its highest improvements under the\nguardianship of those laws which secure property and regulate marriage.\n\n    Et leges sanctas docuit, et chara jugavit\n    Corpora conjugiis; et magnas condidit urbes.\n\n                                      _Frag. C. Licin. Calvi._\n\nThese two great institutions convert the selfish as well as the social\npassions of our nature into the firmest bands of a peaceable and orderly\nintercourse; they change the sources of discord into principles of\nquiet; they discipline the most ungovernable, they refine the grossest,\nand they exalt the most sordid propensities; so that they become the\nperpetual fountain of all that strengthens, and preserves, and adorns\nsociety; they sustain the individual, and they perpetuate the race.\nAround these institutions all our social duties will be found at various\ndistances to range themselves; some more near, obviously essential to\nthe good order of human life, others more remote, and of which the\nnecessity is not at first view so apparent; and some so distant, that\ntheir importance has been sometimes doubted, though upon more mature\nconsideration they will be found to be outposts and advanced guards of\nthese fundamental principles: that man should securely enjoy the fruits\nof his labour, and that the society of the sexes should be so wisely\nordered as to make it a school of the kind affections, and a fit nursery\nfor the commonwealth.\n\nThe subject of _property_ is of great extent. It will be necessary to\nestablish the foundation of the rights of acquisition, alienation, and\ntransmission, not in imaginary contracts or a pretended state of nature,\nbut in their subserviency to the subsistence and well-being of mankind.\nIt will not only be curious, but useful, to trace the history of\nproperty from the first loose and transient occupancy of the savage,\nthrough all the modifications which it has at different times received,\nto that comprehensive, subtle, and anxiously minute code of property\nwhich is the last result of the most refined civilization.\n\nI shall observe the same order in considering the society of the sexes\nas it is regulated by the institution of marriage.[19] I shall\nendeavour to lay open those unalterable principles of general interest\non which that institution rests: and if I entertain a hope that on this\nsubject I may be able to add something to what our masters in morality\nhave taught us, I trust, that the reader will bear in mind, as an excuse\nfor my presumption, that _they_ were not likely to employ much argument\nwhere they did not foresee the possibility of doubt. I shall also\nconsider the history[20] of marriage, and trace it through all the\nforms which it has assumed, to that decent and happy permanency of\nunion, which has, perhaps above all other causes, contributed to the\nquiet of society, and the refinement of manners in modern times. Among\nmany other inquiries which this subject will suggest, I shall be led\nmore particularly to examine the natural station and duties of the\nfemale sex, their condition among different nations, its improvement in\nEurope, and the bounds which Nature herself has prescribed to the\nprogress of that improvement; beyond which, every pretended advance will\nbe a real degradation.\n\n\nIII. Having established the principles of private duty, I shall proceed\nto consider man under the important relation of subject and sovereign,\nor, in other words, of citizen and magistrate. The duties which arise\nfrom this relation I shall endeavour to establish, not upon supposed\ncompacts, which are altogether chimerical, which must be admitted to be\nfalse in fact, which if they are to be considered as fictions, will be\nfound to serve no purpose of just reasoning, and to be equally the\nfoundation of a system of universal despotism in Hobbes, and of\nuniversal anarchy in Rousseau; but on the solid basis of general\nconvenience. Men cannot subsist without society and mutual aid; they can\nneither maintain social intercourse nor receive aid from each other\nwithout the protection of government; and they cannot enjoy that\nprotection without submitting to the restraints which a just government\nimposes. This plain argument establishes the duty of obedience on the\npart of citizens, and the duty of protection on that of magistrates, on\nthe same foundation with that of every other moral duty; and it shews,\nwith sufficient evidence, that these duties are reciprocal; the only\nrational end for which the fiction of a contract could have been\ninvented. I shall not encumber my reasoning by any speculations on the\norigin of government; a question on which so much reason has been wasted\nin modern times; but which the ancients[21] in a higher spirit of\nphilosophy have never once mooted. If our principles be just, the origin\nof government must have been coeval with that of mankind; and as no\ntribe has ever yet been discovered so brutish as to be without some\ngovernment, and yet so enlightened as to establish a government by\ncommon consent, it is surely unnecessary to employ any serious argument\nin the confutation of a doctrine that is inconsistent with reason, and\nunsupported by experience. But though all inquiries into the origin of\ngovernment be chimerical, yet the history of its progress is curious and\nuseful. The various stages through which it passed from savage\nindependence, which implies every man's power of injuring his neighbour,\nto legal liberty, which consists in every man's security against wrong;\nthe manner in which a family expands into a tribe, and tribes coalesce\ninto a nation; in which public justice is gradually engrafted on private\nrevenge, find temporary submission ripened into habitual obedience; form\na most important and extensive subject of inquiry, which comprehends all\nthe improvements of mankind in police, in judicature, and in\nlegislation.\n\nI have already given the reader to understand that the description of\nliberty which seems to me the most comprehensive, is that of _security\nagainst wrong_. Liberty is therefore the object of all government. Men\nare more free under every government, even the most imperfect, than they\nwould be if it were possible for them to exist without any government\nat all: they are more secure from wrong, _more undisturbed in the\nexercise of their natural powers, and therefore more free, even in the\nmost obvious and grossest sense of the word_, than if they were\naltogether unprotected against injury from each other. But as general\nsecurity is enjoyed in very different degrees under different\ngovernments, those which guard it most perfectly, are by way of eminence\ncalled _free_. Such governments attain most completely the end which is\ncommon to all government. A free constitution of government and a good\nconstitution of government are therefore different expressions for the\nsame idea.\n\nAnother material distinction, however, soon presents itself. In most\ncivilised states the subject is tolerably protected against gross\ninjustice from his fellows by impartial laws, which it is the manifest\ninterest of the sovereign to enforce. But some commonwealths are so\nhappy as to be founded on a principle of much more refined and provident\nwisdom. The subjects of such commonwealths are guarded not only against\nthe injustice of each other, but (as far as human prudence can\ncontrive) against oppression from the magistrate. Such states, like all\nother extraordinary examples of public or private excellence and\nhappiness, are thinly scattered over the different ages and countries of\nthe world. In them the will of the sovereign is limited with so exact a\nmeasure, that his protecting authority is not weakened. Such a\ncombination of skill and fortune is not often to be expected, and indeed\nnever can arise, but from the constant though gradual exertions of\nwisdom and virtue, to improve a long succession of most favourable\ncircumstances.\n\nThere is indeed scarce any society so wretched as to be destitute of\nsome sort of weak provision against the injustice of their governors.\nReligious institutions, favourite prejudices, national manners, have in\ndifferent countries, with unequal degrees of force, checked or mitigated\nthe exercise of supreme power. The privileges of a powerful nobility, of\nopulent mercantile communities, of great judicial corporations, have in\nsome monarchies approached more near to a control on the sovereign.\nMeans have been devised with more or less wisdom to temper the despotism\nof an aristocracy over their subjects, and in democracies to protect the\nminority against the majority, and the whole people against the tyranny\nof demagogues. But in these unmixed forms of government, as the right of\nlegislation is vested in one individual or in one order, it is obvious\nthat the legislative power may shake off all the restraints which the\nlaws have imposed on it. All such governments, therefore, tend towards\ndespotism, and the securities which they admit against mis-government\nare extremely feeble and precarious. The best security which human\nwisdom can devise, seems to be the distribution of political authority\namong different individuals and bodies, with separate interests and\nseparate characters, corresponding to the variety of classes of which\ncivil society is composed, each interested to guard their own order from\noppression by the rest; each also interested to prevent any of the\nothers from seizing on exclusive, and therefore despotic power; and all\nhaving a common interest to co-operate in carrying on the ordinary and\nnecessary administration of government. If there were not an interest to\nresist each other in extraordinary cases, there would not be liberty. If\nthere were not an interest to co-operate in the ordinary course of\naffairs, there could be no government. The object of such wise\ninstitutions which make the selfishness of governors a security against\ntheir injustice, is to protect men against wrong both from their rulers\nand their fellows. Such governments are, with justice, peculiarly and\nemphatically called _free_; and in ascribing that liberty to the skilful\ncombination of mutual dependence and mutual check, I feel my own\nconviction greatly strengthened by calling to mind, that in this opinion\nI agree with all the wise men who have ever deeply considered the\nprinciples of politics; with Aristotle and Polybius, with Cicero and\nTacitus, with Bacon and Machiavel, with Montesquieu and Hume.[22] It is\nimpossible in such a cursory sketch as the present, even to allude to a\nvery small part of those philosophical principles, political reasonings,\nand historical facts, which are necessary for the illustration of this\nmomentous subject. In a full discussion of it I shall be obliged to\nexamine the general frame of the most celebrated governments of ancient\nand modern times, and especially of those which have been most renowned\nfor their freedom. The result of such an examination will be, that no\ninstitution so detestable as an absolutely unbalanced government,\nperhaps ever existed; that the simple governments are mere creatures of\nthe imagination of theorists, who have transformed names used for the\nconvenience of arrangement into real polities; that, as constitutions of\ngovernment approach more nearly to that unmixed and uncontrolled\nsimplicity they become despotic, and as they recede farther from that\nsimplicity they become free.\n\nBy the constitution of a state, I mean \"_the body of those written and\nunwritten fundamental laws which regulate the most important rights of\nthe higher magistrates, and the most essential privileges[23] of the\nsubjects._ \"Such a body of political laws must in all countries arise\nout of the character and situation of a people; they must grow with its\nprogress, be adapted to its peculiarities, change with its changes; and\nbe incorporated into its habits. Human wisdom cannot form such a\nconstitution by one act, for human wisdom cannot create the materials of\nwhich it is composed. The attempt, always ineffectual, to change by\nviolence the ancient habits of men, and the established order of\nsociety, so as to fit them for an absolutely new scheme of government,\nflows from the most presumptuous ignorance, requires the support of the\nmost ferocious tyranny, and leads to consequences which its authors can\nnever foresee; generally, indeed, to institutions the most opposite to\nthose of which they profess to seek the establishment.[24] But human\nwisdom indefatigably employed for remedying abuses, and in seizing\nfavourable opportunities of improving that order of society which arises\nfrom causes over which we have little control, after the reforms and\namendments of a series of ages, has sometimes, though very rarely,[25]\nshewn itself capable of building up a free constitution, which is \"the\ngrowth of time and nature, rather than the work of human invention.\"\nSuch a constitution can only be formed by the wise imitation of \"_the\ngreat innovator_ TIME, which, indeed, innovateth greatly, but quietly,\nand by degrees scarce to be perceived.\"[26] Without descending to the\npuerile ostentation of panegyric, on that of which all mankind confess\nthe excellence, I may observe, with truth and soberness, that a free\ngovernment not only establishes an universal security against wrong, but\nthat it also cherishes all the noblest powers of the human mind; that it\ntends to banish both the mean and the ferocious vices; that it improves\nthe national character to which it is adapted, and out of which it\ngrows; that its whole administration is a practical school of honesty\nand humanity; and that there the social affections, expanded into public\nspirit, gain a wider sphere, and a more active spring.\n\nI shall conclude what I have to offer on government, by an account of\nthe constitution of England. I shall endeavour to trace the progress of\nthat constitution by the light of history, of laws, and of records, from\nthe earliest times to the present age; and to shew how the general\nprinciples of liberty, originally common to it, with the other Gothic\nmonarchies of Europe, but in other countries lost or obscured, were in\nthis more fortunate island preserved, matured, and adapted to the\nprogress of civilization. I shall attempt to exhibit this most\ncomplicated machine, as our history and our laws shew it in action; and\nnot as some celebrated writers have most imperfectly represented it, who\nhave torn out a few of its more simple springs, and, putting them\ntogether, miscall them the British constitution. So prevalent, indeed,\nhave these imperfect representations hitherto been, that I will venture\nto affirm, there is scarcely any subject which has been less treated as\nit deserved than the government of England. Philosophers of great and\nmerited reputation[27] have told us that it consisted of certain\nportions of monarchy, aristocracy, and democracy; names which are, in\ntruth, very little applicable, and which, if they were, would as little\ngive an idea of this government, as an account of the weight of bone, of\nflesh, and of blood in a human body, would be a picture of a living man.\nNothing but a patient and minute investigation of the practice of the\ngovernment in all its parts, and through its whole history, can give us\njust notions on this important subject. If a lawyer, without a\nphilosophical spirit, be unequal to the examination of this great work\nof liberty and wisdom, still more unequal is a philosopher without\npractical, legal, and historical knowledge; for the first may want\nskill, but the second wants materials. The observations of Lord Bacon on\npolitical writers, in general, are most applicable to those who have\ngiven us systematic descriptions of the English constitution. \"All\nthose who have written of governments have written as philosophers, or\nas lawyers, _and none as statesmen_. As for the philosophers, they make\nimaginary laws for imaginary commonwealths, and their discourses are as\nthe stars, which give little light because they are so high.\"--\"_Haec\ncognitio ad viros civiles proprie pertinet_,\" as he tells us in another\npart of his writings; but unfortunately no experienced philosophical\nBritish statesman has yet devoted his leisure to a delineation of the\nconstitution, which such a statesman alone can practically and perfectly\nknow.\n\nIn the discussion of this great subject, and in all reasonings on the\nprinciples of politics, I shall labour, above all things, to avoid that\nwhich appears to me to have been the constant source of political error:\nI mean the attempt to give an air of system, of simplicity, and of\nrigorous demonstration, to subjects which do not admit it. The only\nmeans by which this could be done, was by referring to a few simple\ncauses, what, in truth, arose from immense and intricate combinations,\nand successions of causes. The consequence was very obvious. The system\nof the theorist, disencumbered from all regard to the real nature of\nthings, easily assumed an air of speciousness. It required little\ndexterity to make his argument appear conclusive. But all men agreed\nthat it was utterly inapplicable to human affairs. The theorist railed\nat the folly of the world, instead of confessing his own; and the men of\npractice unjustly blamed philosophy, instead of condemning the sophist.\nThe causes which the politician has to consider are, above all others,\nmultiplied, mutable, minute, subtile, and, if I may so speak,\nevanescent; perpetually changing their form, and varying their\ncombinations; losing their nature, while they keep their name;\nexhibiting the most different consequences in the endless variety of men\nand nations on whom they operate; in one degree of strength producing\nthe most signal benefit; and, under a slight variation of circumstances,\nthe most tremendous mischiefs. They admit indeed of being reduced to\ntheory; but to a theory formed on the most extensive views, of the most\ncomprehensive and flexible principles, to embrace all their varieties,\nand to fit all their rapid transmigrations; a theory, of which the most\nfundamental maxim is, distrust in itself, and deference for practical\nprudence. Only two writers of former times have, as far as I know,\nobserved this general defect of political reasoners; but these two are\nthe greatest philosophers who have ever appeared in the world. The first\nof them is Aristotle, who, in a passage of his Politics, to which I\ncannot at this moment turn, plainly condemns the pursuit of a delusive\ngeometrical accuracy in moral reasonings as the constant source of the\ngrossest error. The second is Lord Bacon, who tells us, with that\nauthority of conscious wisdom which belongs to him, and with that power\nof richly adorning truth from the wardrobe of genius which he possessed\nabove almost all men, \"Civil knowledge is conversant about a subject\nwhich, above all others, is most immersed in matter, and hardliest\nreduced to axiom.\"[28]\n\n\nIV. I shall next endeavour to lay open the general principles of civil\nand criminal laws. On this subject I may with some confidence hope that\nI shall be enabled to philosophise with better materials by my\nacquaintance with the law of my own country, which it is the business of\nmy life to practise, and of which the study has by habit become my\nfavourite pursuit.\n\nThe first principles of jurisprudence are simple maxims of reason, of\nwhich the observance is immediately discovered by experience to be\nessential to the security of men's rights, and which pervade the laws of\nall countries. An account of the gradual application of these original\nprinciples, first, to more simple, and afterwards to more complicated\ncases, forms both the history and the theory of law. Such an historical\naccount of the progress of men, in reducing justice to an applicable and\npractical system, will enable us to trace that chain, in which so many\nbreaks and interruptions are perceived by superficial observers, but\nwhich in truth inseparably, though with many dark and hidden windings,\nlinks together the security of life and property with the most minute\nand apparently frivolous formalities of legal proceeding. We shall\nperceive that no human foresight is sufficient to establish such a\nsystem at once, and that, if it were so established, the occurrence of\nunforeseen cases would shortly altogether change it; that there is but\none way of forming a civil code, either consistent with common sense, or\nthat has ever been practised in any country, namely, that of gradually\nbuilding up the law in proportion as the facts arise which it is to\nregulate. We shall learn to appreciate the merit of vulgar objections\nagainst the subtlety and complexity of laws. We shall estimate the good\nsense and the gratitude of those who reproach lawyers for employing all\nthe powers of their mind to discover subtle distinctions for the\nprevention of injustice;[29] and we shall at once perceive that laws\nought to be neither more _simple_ nor more _complex_ than the state of\nsociety which they are to govern, but that they ought exactly to\ncorrespond to it. Of the two faults, however, the excess of simplicity\nwould certainly be the greatest; for laws, more complex than are\nnecessary, would only produce embarrassment; whereas laws more simple\nthan the affairs which they regulate would occasion a defect of justice.\nMore understanding[30] has perhaps been in this manner exerted to fix\nthe rules of life than in any other science; and it is certainly the\nmost honourable occupation of the understanding, because it is the most\nimmediately subservient to general safety and comfort. There is not, in\nmy opinion, in the whole compass of human affairs, so noble a spectacle\nas that which is displayed in the progress of jurisprudence; where we\nmay contemplate the cautious and unwearied exertions of a succession of\nwise men through a long course of ages; withdrawing every case as it\narises from the dangerous power of discretion, and subjecting it to\ninflexible rules; extending the dominion of justice and reason, and\ngradually contracting, within the narrowest possible limits, the domain\nof brutal force and of arbitrary will. This subject has been treated\nwith such dignity by a writer who is admired by all mankind for his\neloquence, but who is, if possible, still more admired by all competent\njudges for his philosophy; a writer, of whom I may justly say, that he\nwas \"_gravissimus et dicendi et intelligendi auctor et magister_;\" that\nI cannot refuse myself the gratification of quoting his words:--\"The\nscience of jurisprudence, the pride of the human intellect, which, with\nall its defects, redundancies, and errors, is the collected reason of\nages combining the principles of original justice with the infinite\nvariety of human concerns.\"[31]\n\nI shall exemplify the progress of law, and illustrate those principles\nof universal justice on which it is founded, by a comparative review of\nthe two greatest civil codes that have been hitherto formed--those of\nRome and of England;[32] of their agreements and disagreements, both in\ngeneral provisions, and in some of the most important parts of their\nminute practice. In this part of the course, which I mean to pursue with\nsuch detail as to give a view of both codes, that may perhaps be\nsufficient for the purposes of the general student, I hope to convince\nhim that the laws of civilised nations, particularly those of his own,\nare a subject most worthy of scientific curiosity; that principle and\nsystem run through them even to the minutest particular, as really,\nthough not so apparently, as in other sciences, and applied to purposes\nmore important than in any other science. Will it be presumptuous to\nexpress a hope, that such an inquiry may not be altogether an useless\nintroduction to that larger and more detailed study of the law of\nEngland, which is the duty of those who are to profess and practise that\nlaw.\n\nIn considering the important subject of criminal law it will be my duty\nto found, on a regard to the general safety, the right of the magistrate\nto inflict punishments, even the most severe, if that safety cannot be\neffectually protected by the example of inferior punishments. It will be\na more agreeable part of my office to explain the temperaments which\nWisdom, as well as Humanity, prescribes in the exercise of that harsh\nright, unfortunately so essential to the preservation of human society.\nI shall collate the penal codes of different nations, and gather\ntogether the most accurate statement of the result of experience with\nrespect to the efficacy of lenient and severe punishments; and I shall\nendeavour to ascertain the principles on which must be founded both the\nproportion and the appropriation of penalties to crimes.\n\nAs to the _law of criminal proceeding_, my labour will be very easy; for\non that subject an English lawyer, if he were to delineate the model of\nperfection, would find that, with few exceptions, he had transcribed the\ninstitutions of his own country. The whole subject of my lectures, of\nwhich I have now given the outline, may be summed up in, the words of\nCicero:--\"Natura enim juris explicanda est nobis, eaque ab hominis\nrepetenda natura; considerandae leges quibus civitates regi debeant; tum\nhaec tractanda, quae composita sunt et descripta, jura et jussa populorum;\nin quibus.\"--_Cic. de Leg._ lib. i. c. 5.\n\n\nV. The next great division of the subject is the law of nations,\nstrictly and properly so called. I have already hinted at the general\nprinciples on which this law is founded. They, like all the principles\nof natural jurisprudence, have been more happily cultivated, and more\ngenerally obeyed, in some ages and countries than in others; and, like\nthem, are susceptible of great variety in their application, from the\ncharacter and usages of nations. I shall consider these principles in\nthe gradation of those which are necessary to any tolerable intercourse\nbetween nations; those which are essential to all well-regulated and\nmutually advantageous intercourse; and those which are highly conducive\nto the preservation of a mild and friendly intercourse between\ncivilised states. Of the first class, every understanding acknowledges\nthe necessity, and some traces of a faint reverence for them are\ndiscovered even among the most barbarous tribes; of the second, every\nwell-informed man perceives the important use, and they have generally\nbeen respected by all polished nations; of the third, the great benefit\nmay be read in the history of modern Europe, where alone they have been\ncarried to their full perfection. In unfolding the first and second\nclass of principles, I shall naturally be led to give an account of that\nlaw of nations, which, in greater or less perfection, regulated the\nintercourse of savages, of the Asiatic empires, and of the ancient\nrepublics. The third brings me to the consideration of the law of\nnations, as it is now acknowledged in Christendom. From the great extent\nof the subject, and the particularity to which, for reasons already\ngiven, I must here descend, it is impossible for me, within any moderate\ncompass, to give even an outline of this part of the course. It\ncomprehends, as every reader will perceive, the principles of national\nindependence, the intercourse of nations in peace, the privileges of\nembassadors and inferior ministers, the commerce of private subjects,\nthe grounds of just war, the mutual duties of belligerent and neutral\npowers, the limits of lawful hostility, the rights of conquest, the\nfaith to be observed in warfare, the force of an armistice, of safe\nconducts and passports, the nature and obligation of alliances, the\nmeans of negotiation, and the authority and interpretation of treaties\nof peace. All these, and many other most important and complicated\nsubjects, with all the variety of moral reasoning, and historical\nexamples, which is necessary to illustrate them, must be fully examined\nin this part of the lectures, in which I shall endeavour to put together\na tolerably complete practical system of the law of nations, as it has\nfor the last two centuries been recognised in Europe.\n\n\"_Le droit des gens_ est naturellement fonde sur ce principe, que les\ndiverses nations doivent se faire, dans la paix, le plus de bien, et\ndans la guerre le moins de mal, qu'il est possible, sans nuire a leurs\nveritables interets.\"\n\n\"L'objet de la guerre c'est la victoire; celui de la victoire la\nconquete; celui de la conquete la conservation. De ce principe et du\nprecedent, doivent deriver toutes les loix qui forment _le droit des\ngens_.\"\n\n\"Toutes les nations ont un droit des gens; les _Iroquois_ meme qui\nmangent leurs prisonniers en ont un. Ils envoient et recoivent des\nembassades; ils connoissent les droits de la guerre et de la paix: le\nmal est que ce droit des gens n'est pas fonde sur les vrais principes.\"\n_De l'Esprit des Loix_, liv. i. c. 3.\n\n\nVI. As an important supplement to the practical system of our modern law\nof nations, or rather as a necessary part of it, I shall conclude with a\nsurvey of the _diplomatic and conventional law of Europe_; of the\ntreaties which have materially affected the distribution of power and\nterritory among the European states; the circumstances which gave rise\nto them, the changes which they effected, and the principles which they\nintroduced into the public code of the Christian commonwealth. In\nancient times the knowledge of this conventional law was thought one of\nthe greatest praises that could be bestowed on a name loaded with all\nthe honours that eminence in the arts of peace and of war can confer:\n\n\"Equidem existimo, judices, cum in omni genere ac varietate artium,\netiam illarum, quae sine summo otio non facile discuntur, Cn. Pompeius\nexcellat, singularem quandam laudem ejus et praestabilem esse scientiam,\n_in faederibus, pactionibus, conditionibus, populorum, regum, exterarum\nnationum_: in universo denique bellijure ac pacis.\"--_Cic. Orat. pro L.\nCorn. Balbo_, c. 6.\n\nInformation on this subject is scattered over an immense variety of\nvoluminous compilations; not accessible to every one, and of which the\nperusal can be agreeable only to very few. Yet so much of these treaties\nhas been embodied into the general law of Europe, that no man can be\nmaster of it who is not acquainted with them. The knowledge of them is\nnecessary to negotiators and statesmen; it may sometimes be important\nto private men in various situations in which they may be placed; it is\nuseful to all men who wish either to be acquainted with modern history,\nor to form a sound judgment on political measures. I shall endeavour to\ngive such an abstract of it as may be sufficient for some, and a\nconvenient guide for others in the farther progress of their studies.\nThe treaties, which I shall more particularly consider, will be those of\nWestphalia, of Oliva, of the Pyrenees, of Breda, of Nimeguen, of\nRyswick, of Utrecht, of Aix-la-Chapelle, of Paris (1763), and of\nVersailles (1783). I shall shortly explain the other treaties, of which\nthe stipulations are either alluded to, confirmed, or abrogated in those\nwhich I consider at length. I shall subjoin an account of the diplomatic\nintercourse of the European powers with the Ottoman Porte, and with\nother princes and states who are without the pale of our ordinary\nfederal law; together with a view of the most important treaties of\ncommerce, their principles, and their consequences.\n\nAs an useful appendix to a practical treatise on the law of nations,\nsome account will be given of those tribunals which in different\ncountries of Europe decide controversies arising out of that law; of\ntheir constitution, of the extent of their authority, and of their modes\nof proceeding; more especially of those courts which are peculiarly\nappointed for that purpose by the laws of Great Britain.\n\nThough the course, of which I have sketched the outline, may seem to\ncomprehend so great a variety of miscellaneous subjects, yet they are\nall in truth closely and inseparably interwoven. The duties of men, of\nsubjects, of princes, of law-givers, of magistrates, and of states, are\nall parts of one consistent system of universal morality. Between the\nmost abstract and elementary maxim of moral philosophy, and the most\ncomplicated controversies of civil or public law, there subsists a\nconnexion which it will be the main object of these lectures to trace.\nThe principle of justice, deeply rooted in the nature and interest of\nman, pervades the whole system, and is discoverable in every part of it,\neven to its minutest ramification in a legal formality, or in the\nconstruction of an article in a treaty.\n\nI know not whether a philosopher ought to confess, that in his inquiries\nafter truth he is biased by any consideration; even by the love of\nvirtue. But I, who conceive that a real philosopher ought to regard\ntruth itself chiefly on account of its subserviency to the happiness of\nmankind, am not ashamed to confess, that I shall feel a great\nconsolation at the conclusion of these lectures, if, by a wide survey\nand an exact examination of the conditions and relations of human\nnature, I shall have confirmed but one individual in the conviction,\nthat justice is the permanent interest of all men, and of all\ncommonwealths. To discover one new link of that eternal chain by which\nthe Author of the universe has bound together the happiness and the duty\nof his creatures, and indissolubly fastened their interests to each\nother, would fill my heart with more pleasure than all the fame with\nwhich the most ingenious paradox ever crowned the most eloquent sophist.\n\nI shall conclude this Discourse in the noble language of two great\norators and philosophers, who have, in a few words, stated the\nsubstance, the object, and the result of all morality, and politics, and\nlaw.\n\n\"Nihil est quod adhuc de republica putem dictum, et quo possim longius\nprogredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria\nnon posse, sed hoc verissimum, sine summa justitia rempublicam regi non\nposse.\"--_Cic. Frag._ lib. ii. _de Repub._\n\n\"Justice is itself the great standing policy of civil society, and any\neminent departure from it, under any circumstances, lies under the\nsuspicion of being no policy at all.\"--_Burke's Works_, vol. iii. p.\n207.\n\n\n\n\nFOOTNOTES\n\n[1] See \"A Syllabus of Lectures on the Law of England, to be delivered\nin Lincoln's-Inn Hall by M. Nolan, Esq.\" London, 1796.\n\n[2] I have not been deterred by some petty incongruity of metaphor from\nquoting this noble sentence. Mr. Hume had, perhaps, this sentence in his\nrecollection, when he wrote a remarkable passage of his works. See\nHume's Essays, vol. ii. p. 352. ed. Lond. 1788.\n\n[3] The learned reader is aware that the \"jus naturae\" and \"jus gentium\"\nof the Roman lawyers are phrases of very different import from the\nmodern phrases, \"law of nature\" and \"law of nations.\" \"Jus naturale,\"\nsays Ulpian, \"est quod natura omnia animalia docuit.\" D. I. I. I. 3.\n\"Quod naturalis ratio inter omnes homines constituit, id que apud omnes\nperaeque custoditur vocaturque jus gentium.\" D. I. I. 9. But they\nsometimes neglect this subtle distinction--\"Jure naturali quod\nappellatur jus gentium.\" I. 2. I. II. _Jus feciale_ was the Roman term\nfor our law of nations. \"Belli quidem aequitas sanctissime populi Rom.\nfeciali jure perscripta est.\" Off. I. II. Our learned civilian Zouch has\naccordingly entitled his work, \"De Jure Feciali, sive de _Jure inter\nGentes_.\" The Chancellor D'Aguesseau, probably without knowing the work\nof Zouch, suggested that this law should be called, \"_Droit entre les\nGens_,\" (Oeuvres, tom. ii. p. 337.) in which he has been followed by a\nlate ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 324.\nPerhaps these learned writers do employ a phrase which expresses the\nsubject of this law with more accuracy than our common language; but I\ndoubt whether innovations in the terms of science always repay us by\ntheir superior precision for the uncertainty and confusion which the\nchange occasions.\n\n[4] This remark is suggested by an objection of _Vattel_, which is more\nspecious than solid. See his Prelim. Sec. 6.\n\n[5] \"Est quidem vera lex, recta ratio, _naturae congruens_, diffusa in\nomnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a\nfraude deterreat, quae tamen neque probos frustra jubet aut vetat, neque\nimprobos jubendo aut vetando movet. Huic legi neque obrogari fas est,\nneque derogari ex hac aliquid licet, neque tota abrogari potest. Nec\nvero aut per senatum aut per populum solvi hac lege possumus. Neque est\nquaerendus explanator aut interpres ejus alius. Nec erit alia lex Romae,\nalia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni\ntempore una lex et sempiterna, et immortalis continebit, unusque erit\ncommunis quasi magister et imperator omnium Deus. Ille legis hujus\ninventor, disceptator, lator, cui qui non parebit _ipse se fugiet et\nnaturam hominis aspernabitur_, atque hoc ipso luet maximas poenas\netiamsi caetera supplicia quae putantur effugerit.\"--_Fragm._ lib. iii.\n_Cicer. de Republ. apud Lactant_.\n\nIt is impossible to read such precious fragments without deploring the\nloss of a work which, for the benefit of all generations, _should_ have\nbeen immortal.\n\n[6] \"Age vero urbibus constitutis ut fidem colere et justitiam retinere\ndiscerent et aliis parere sua voluntate consuescerent, ac non modo\nlabores excipiendos communis commodi causa sed etiam vitam amittendam\nexistimarent; qui tandem fieri potuit nisi homines ea quae ratione\ninvenissent eloquentia persuadere potuissent.\"--_Cic. de Inv. Rhet._\nlib. i. in proem.\n\n[7] [Greek: Dichaiomata tot polimot.]\n\n[8] Cujacius, Brissonius, Hottomannus, &c. &c.--Vide _Gravina Orig. Jur.\nCivil._ pp. 132-38. edit. Lips. 1737.\n\nLeibnitz; a great mathematician as well as philosopher, declares that he\nknows nothing which approaches so near to the method and precision of\ngeometry as the Roman law.--_Op._ tom. iv. p. 254.\n\n[9] Proavia juris civilis.--_De Jur. Bell. ac Pac. Proleg._ Sec. 16.\n\n[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.\n\n[11] Grot. Jur. Bell. et Pac. Proleg. Sec. 40.\n\n[12] I do not mean to impeach the soundness of any part of Puffendorff's\nreasoning founded on moral entities. It may be explained in a manner\nconsistent with the most just philosophy. He used, as every writer must\ndo, the scientific language of his own time. I only assert that, to\nthose who are unacquainted with ancient systems, his philosophical\nvocabulary is obsolete and unintelligible.\n\n[13] I cannot prevail on myself to pass over this subject without paying\nmy humble tribute to the memory of Sir W. Jones, who has laboured so\nsuccessfully in Oriental literature, whose fine genius, pure taste,\nunwearied industry, unrivalled and almost prodigious variety of\nacquirements, not to speak of his amiable manners and spotless\nintegrity, must fill every one who cultivates or admires letters with\nreverence, tinged with a melancholy which the recollection of his recent\ndeath is so well adapted to inspire. I hope I shall be pardoned if I add\nmy applause to the genius and learning of Mr. Maurice, who treads in the\nsteps of his illustrious friend, and who has bewailed his death in a\nstrain of genuine and beautiful poetry, not unworthy of happier periods\nof our English literature.\n\n[14] Especially those chapters of the third book, entitled,\n_Temperamentum circa Captivos_, &c. &c.\n\n[15] Natura enim juris explicanda est nobis, _eaque ab hominis repetenda\nnatura_.--_Cic. de Leg._ lib i. c. 5.\n\n[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum\nperducta natura.--_Cic. de Leg._ lib. i. c. 8.\n\n[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p.\nxxxiii.\n\n[18] Bacon, Dign. and Adv. of Learn. book ii.\n\n[19] See on this subject an incomparable fragment of the first book of\nCicero's Economics, which is too long for insertion here, but which, if\nit be closely examined, may perhaps dispel the illusion of those\ngentlemen, who have so strangely taken it for granted, that Cicero was\nincapable of exact reasoning.\n\n[20] This progress is traced with great accuracy in some beautiful lines\nof Lucretius:\n\n     ---- Mulier conjuncta viro concessit in unum,\n     castaque privatae veneris connubia laeta\n     cognita sunt, prolemque ex se videre coortam:\n     TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT.\n     ---- puerisque parentum\n     Blanditiis facile ingenium fregere superbum.\n     _Tunc et amicitiam coeperunt jungere_ habentes\n     Finitima inter se, nec laedere nec violare.\n     Et pueros commendarunt muliebreque seclum\n     Vocibus et gestu cum balbe significarent\n     IMBECILLORUM ESSE AEQUUM MISERIER OMNIUM.\n\n                                         _Lucret._ lib. v. 1. 1010-22.\n\n[21] The introduction to the first book of Aristotle's Politics is the\nbest demonstration of the necessity of political society to the\nwell-being, and indeed to the very being, of man, with which I am\nacquainted. Having shewn the circumstances which render man necessarily\na social being, he justly concludes, \"[Greek: Kai oti anthropos physei\npolitikon zoon.]\"--_Arist. de Rep._ lib. i.\n\nThe same scheme of philosophy is admirably pursued in the short, but\ninvaluable fragment of the sixth book of Polybius, which describes the\nhistory and revolutions of government.\n\n[22] To the weight of these great names let me add the opinion of two\nillustrious men of the present age, as both their opinions are combined\nby one of them in the following passage: \"He (Mr. Fox) always thought\nany of the simple unbalanced governments bad; simple monarchy, simple\naristocracy, simple democracy; he held them all imperfect or vicious,\nall were bad by themselves; the composition alone was good. These had\nbeen always his principles, in which he agreed with his friend, Mr.\nBurke.\"--_Mr. Fox on the Army Estimates_, 9th Feb. 1790.\n\nIn speaking of both these illustrious men, whose names I here join, as\nthey will be joined in fame by posterity, which will forget their\ntemporary differences in the recollection of their genius and their\nfriendship, I do not entertain the vain imagination that I can add to\ntheir glory by any thing that I can say. But it is a gratification to me\nto give utterance to my feelings; to express the profound veneration\nwith which I am filled for the memory of the one, and the warm affection\nwhich I cherish for the other, whom no one ever heard in public without\nadmiration, or knew in private life without loving.\n\n[23] _Privilege_, in Roman jurisprudence, means the _exemption_ of one\nindividual from the operation of a law. Political privileges, in the\nsense in which I employ the terms, mean those rights of the subjects of\na free state, which are deemed so essential to the well-being of the\ncommonwealth, that they are _excepted_ from the ordinary discretion of\nthe magistrate, and guarded by the same fundamental laws which secure\nhis authority.\n\n[24] See an admirable passage on this subject in Dr. Smith's Theory of\nMoral Sentiments, vol. ii. pp. 101-112, in which the true doctrine of\nreformation is laid down with singular ability by that eloquent and\nphilosophical writer.--See also Mr. Burke's Speech on Economical Reform;\nand Sir M. Hale on the Amendment of Laws, in the collection of my\nlearned and most excellent friend, Mr. Hargrave, p. 248.\n\n[25] Pour former un gouvernement modere, il faut combiner les\npuissances, les regler, les temperer, les faire agir, donner pour ainsi\ndire un lest a l'une pour la mettre en etat de resister a une autre,\nc'est un chef-d'oeuvre de legislation que le hasard fait rarement, et\nque rarement on laisse faire a la prudence. Un gouvernement despotique\nau contraire saute pour ainsi dire aux yeux; il est uniforme partout:\ncomme il ne faut que des passions pour l'etablir tout le monde est bon\npour cela.--_Montesquieu, de l'Esprit des Loix_, liv. v. c. 14.\n\n[26] Lord Bacon, Essay xxiv. Of Innovations.\n\n[27] The reader will perceive that I allude to MONTESQUIEU, whom I never\nname without reverence, though I shall presume, with humility, to\ncriticise his account of a government which he only saw at a distance.\n\n[28] This principle is expressed by a writer of a very different\ncharacter from these two great philosophers; a writer, \"_qu'on\nn'appellera plus philosophe, mais qu'on appellera le plus eloquent des\nsophistes_,\" with great force, and, as his manner is, with some\nexaggeration.\n\nIl n'y a point de principes abstraits dans la politique. C'est une\nscience des calculs, des combinaisons, et des exceptions, selon les\nlieux, les tems, et les circonstances.--_Lettre de Rousseau au Marquis\nde Mirabeau_.\n\nThe second proposition is true; but the first is not a just inference\nfrom it.\n\n[29] The casuistical subtleties are not perhaps greater than the\nsubtleties of lawyers;_ but the latter are innocent, and even\nnecessary_.--HUME's _Essays_, vol. ii. p. 558.\n\n[30] \"Law,\" said Dr. Johnson, \"is the science in which the greatest\npowers of understanding are applied to the greatest number of facts.\"\nNobody, who is acquainted with the variety and multiplicity of the\nsubjects of jurisprudence, and with the prodigious powers of\ndiscrimination employed upon them, can doubt the truth of this\nobservation.\n\n[31] Burke's Works, vol. iii. p. 134.\n\n[32] On the intimate connexion of these two codes, let us hear the words\nof Lord Holt, whose name never can be pronounced without veneration, as\nlong as wisdom and integrity are revered among men:--\"Inasmuch _as the\nlaws of all nations are doubtless raised out of the ruins of the civil\nlaw_, as all governments are sprung out of the ruins of the Roman\nempire, it must be owned _that the principles of our law are borrowed\nfrom the civil law_, therefore grounded upon the same reason in many\nthings.\"--12 _Mod._ 482.\n\n\n\n                         FINIS.\n\n            J. MOYES, TOOK'S COURT, CHANCERY LANE.","title":"A Discourse on the Study of the Law of Nature and Nations","tradition":"philosophy-ethics","translated_text":null,"word_count":16137}