Front Page Titles (by Subject) SECTION VI: Speculations on the probable Consequences of the French Revolution in Europe. - Vindiciae Gallicae and Other Writings on the French Revolution
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SECTION VI: Speculations on the probable Consequences of the French Revolution in Europe. - Sir James Mackintosh, Vindiciae Gallicae and Other Writings on the French Revolution 
Vindiciae Gallicae and Other Writings on the French Revolution, edited and with an Introduction by Donald Winch (Indianapolis: Liberty Fund, 2006).
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Speculations on the probable Consequences of the French Revolution in Europe.
There is perhaps only one opinion about the French Revolution in which its friends and its enemies agree. They both conceive that its influence will not be confined to France; they both predict that it will produce important changes in the general state of Europe. This is the theme of the exultation of its admirers, this is the source of the alarms of its detractors. It were indeed difficult to suppose that a Revolution so unparalelled should take place in the most renowned of the European nations, without spreading its influence throughout the Christian Commonwealth;<357> connected as it is by the multiplied relations of politics, by the common interest of commerce, by the wide intercourse of curiosity and of literature, by similar arts and by congenial manners. The channels by which the prevailing sentiments of France may enter into the other nations of Europe, are so obvious and so numerous, that it were unnecessary and tedious to detail them, but I may remark as among the most conspicuous, a central situation, a predominating language, an authority almost legislative in the ceremonial of the private intercourse of life. These and many other causes must facilitate the diffusion of French politics among the neighbouring nations, but it will be justly remarked, that their effect must in a great measure depend on the stability of the Revolution. The suppression of an honourable revolt would strengthen all the governments of Europe; the view of a splendid Revolution would be the signal of insurrection to their subjects. Any reasonings on the influ-<358>ence of the French Revolution may therefore be supposed to be premature until its permanence be ascertained. Of that permanence my conviction is firm, but I am sensible that in the field of political prediction, where veteran sagacity* has so often been deceived; it becomes me to harbour with distrust, and to propose with diffidence a conviction influenced by partial enthusiasm, and perhaps produced by the inexperienced ardour of youth. The moment at which I write is peculiarly critical (August 25th 1791). The invasion of France is now spoken of as immediate by the exiles and their partizans; and the confederacy of<359> despots† is announced with new confidence; but notwithstanding these threats, I retain my doubts whether the jarring interests of the European courts will permit this alliance to have much energy or cordiality; and whether the cautious prudence of despots will send their military slaves to a school of freedom in France; but if there be doubts about the likelihood of the enterprize being undertaken, there can be few about the probability of its event. History celebrates many conquests of obscure tribes whose valour was animated by enthusiasm, but she records no example where<360> foreign force has subjugated a powerful and gallant people, governed by the most imperious passion‡ that can sway the human breast. Whatever wonders fanaticism has performed, may be again effected by a passion as ardent, though not so transitory, because it is sanctioned by virtue and reason. To animate<361> patriotism, to silence tumult, to banish division, would be the only effects of an invasion in the present state of France. A people abandoned to its own inconstancy, have often courted the yoke which they had thrown off; but to oppose foreign hostility to the enthusiasm of a nation, can only have the effect of adding to it ardour, and constancy, and force. These and similar views must offer themselves to the European cabinets, but perhaps they perceive themselves to be placed in so peculiar a situation, that exertion and inactivity are equally perilous. If they fail in the attempt to crush the infant liberty of France, the ineffectual effort will recoil on their own Governments, and hasten their destruction. If they tamely suffer a school* of<362> freedom to be founded in the centre of Europe, they must foresee the hosts of disciples that are to issue from it for the subversion of their despotism.
They cannot be blind to a species of danger which the history of Europe reveals to them in legible characters. They see, indeed, that the negociations, the wars, and the revolutions of vulgar policy, pass away without leaving behind them any vestige of their tran-<363>sitory and ignominious operation. But they must remark, that besides this monotonous villainy, there are cases in which Europe, actuated by a common passion, has appeared as one nation. When a society of nations are so closely united as to resemble the union of the provinces of a State, the propagation of sentiment is indeed inevitable, and the European annals already afford sufficient evidence of its effect. The religious passion animated and guided the spirit of chivalry—Hence arose the Crusades. “A nerve was touched of exquisite feeling, and the sensation vibrated to the heart of Europe.”* In the same manner the Reformation gave rise to religious wars, the duration of which exceeded a century and a half. Both examples prove the existence of that sympathy, by the means of which a great passion, taking its rise in any considerable State of Europe, must circulate through the whole<364> Christian Commonwealth. Illusion is, however, transient, and truth is immortal. The epidemical fanaticism of former times was short-lived, for it could only flourish in the eclipse of reason. But the virtuous enthusiasm of liberty, though it be like that fanaticism contagious, it is not like it transitory.
But besides the facility with which we have seen a common passion to be diffused in Europe, there are other circumstances which entitle us to expect, that the example of France will have a mighty influence on the subjects of despotic Governments. The Gothic Governments of Europe have lived their time. Man, and for ever! is the sage exclamation of Mr. Hume.106 Limits are no less rigorously prescribed by Nature to the age of Governments than to that of individuals. Whether it be owing to our fickleness or our wisdom, to the inflexibility or the imperfection of our institutions, or to the combined operation of these<365> various causes, certain it is, that the wide survey of history discovers with as much clearness, the growth, the decay, and the dissolution of Governments, as the narrow view of personal experience can remark the progress and the death of individual man. The heroic Governments of Greece yielded to a body of legislative republics. They were in their turn swallowed up by the conquests of Rome. That great empire itself, under the same forms, passed through various modes of Government. The first usurpers concealed it under a republican disguise; their successors threw off the mask, and avowed a military despotism. The empire expired in the ostentatious feebleness of an Asiatic monarchy.* <366> It was overthrown by savages, whose rude institutions and barbarous manners have, until our days, influenced Europe with a permanence refused to wiser and milder laws. But, unless historical analogy be altogether delusive, the decease of the Gothic Governments cannot be distant. Their maturity is long past, and symptoms of their decrepitude are rapidly accumulating. Whether they are to be succeeded by more beneficial or more injurious Governments may be doubted, but that they are about to perish, we are authorized to suppose, from the usual age to which the Governments recorded in history have arrived.
There are also other presumptions furnished by historical analogy, which favour the supposition that legislative Governments are about to succeed the rude usurpations of Gothic Europe. The commonwealths which in the sixth and seventh centuries before the Christian aera were erected on the ruins of the he-<367>roic monarchies of Greece, are perhaps the only genuine example of Governments truly legislative recorded in history. A close inspection will, perhaps, discover some coincidence between the circumstances which formed these Governments and those which now influence the state of Europe. The Phenecian and Egyptian colonies were not like our colonies in America, numerous enough to subdue or extirpate the native savages of Greece. They were, however, sufficiently numerous to instruct and civilize them. From that alone could their power be derived. To that therefore were their efforts directed. Imparting the arts and the knowledge of polished nations to rude tribes, they attracted, by avowed superiority of knowledge, a submission necessary to the effect of their legislation; a submission which impostors acquire from superstition, and conquerors derive from force. An age of legislation supposes a great inequality of knowledge between the legislators and those who<368> receive their institutions. The Asiatic Colonists, who first scattered the seeds of refinement, possessed this superiority over the Pelasgic hordes, and the legislators who in subsequent periods organized the Grecian commonwealths, acquired from their travels in the polished States of the East, that reputation of superior knowledge, which enabled them to dictate laws to their fellow-citizens. Let us then compare Egypt and Phenicia with the enlightened part of Europe, separated as widely from the general mass by the moral difference of instruction, as these countries are from Greece by the physical obstacles which impeded a rude navigation. We must discern, that when philosophers become legislators, they are colonists from an enlightened country reforming the institutions of rude tribes. The present moment indeed resembles with wonderful exactness the legislative age of Greece. The multitude have attained sufficient knowledge to value the superiority of<369> enlightened men, and they retain a sufficient consciousness of ignorance to preclude rebellion against their dictates. This is the precise state in which the human mind is equally by discernment and deference prepared for legislation. This is the present condition of Europe. Philosophers have long remained a distinct nation in the midst of an unenlightened multitude. It is only now that the conquests of the press are enlarging the dominion of reason, as the vessels of Cadmus and Cecrops spread the arts and the wisdom of the East among the Pelasgic barbarians.* <370>
These general causes, the unity of the European Commonwealth, the decrepitude on which its fortuitous governments are verging, and the similarity between our age and the only recorded period when the ascendant of philosophy dictated laws, entitle us to hope that freedom and reason will be rapidly propagated from their source in France. But there are not wanting symptoms of their probable progress, which justify the speculalation. The first symptoms which indicate the approach of a contagious disease are the precautions adopted against it. The first marks of the probable progress of French principles are the alarms betrayed by despots. The Courts of Europe seem to look on France, and to exclaim in their despair—
The Courts of Europe have in various modes paid the homage of their fears to the French Revolution. The King of Spain already seems to tremble for his throne, though it be erected on so firm a basis of general ignorance and triumphant priestcraft. By the expulsion of foreigners, and by subjecting the entrance of travellers to such multiplied restraints, he seeks the preservation of his despotism in a vain attempt to convert his kingdom into a Bastile, and to banish his subjects from the European Commonwealth. The Chinese Government has indeed thus maintained its permanency, but it is insulated by nature more effectually than by policy. Let the Court of Madrid recall her Ambassadors, shut up her ports, abandon her commerce, sever every tie that unites her to Europe; the effect of such shallow policy must be that of all ineffectual rigors (and all rigors short of extirpation are here ineffectual) to awaken reflexion, to stimulate enquiry, to aggravate<372> discontent, and to provoke convulsion.—There are no longer Pyrenees, said Louis XIV. on the accession of his grandson to the Spanish throne. There are no longer Pyrenees, exclaim the alarmed statesmen of Aranjuez, to protect our despotism from being consumed by the Sun of Liberty.
The alarms of the Pope for the little remnant of his authority naturally increase with the probability of the diffusion of French principles. Even the mild and temperate Aristocracies of Switzerland seem to apprehend the arrival of that period, when men will not be content to owe the benefits of Government to the fortuitous character of their Governors, but to the intrinsic excellence of its constitution. Even the unsuccessful struggle of Liege, and the Theocratic insurrection of Brabant, have left behind them traces of a patriotic party, whom a more favourable moment may call into more successful action. The despotic<373> Court of the Hague are betraying alarms that the Dutch Republic may yet revive. The Stadtholderian Government, supported only by the terror of foreign arms, naturally dreads the destruction of a Government odious and intolerable to an immense majority of the people.
Every where then are those alarms discernible, which are the most evident symptoms of the approaching downfall of the European despotisms. But the impression produced by the French Revolution in England, in an enlightened country, which had long boasted of its freedom, merits more particular remark. Before the publication of Mr. Burke, the public were not recovered from that astonishment into which they are plunged by unexampled events, and the general opinion could not have been collected with precision. But that performance divided the nation into marked parties. It produced a controversy,<374> which may be regarded as the trial of the French Revolution before the enlightened and independent tribunal of the English public.—What its decision* has been, I shall not presume to decide; for it does not become an advocate to announce the decision of the Judge. But this I may be permitted to remark, that the conduct of our enemies has not resembled the usual triumph of those who<375> have been victorious in the war of reason. Instead of the triumphant calmness that is ever inspired by conscious superiority, they have betrayed the bitterness of defeat, and the ferocity of resentment, which is peculiar to the black revenge of detected imposture. Priestcraft and Toryism were supported only by literary advocates of the most miserable description.* But they were abundantly supported by auxiliaries of another kind. Of the two great classes of enemies to political reform—the interested and the prejudiced—the activity of the first usually supplies what may be wanting in the talents of the<376> last.† Judges forgot the dignity of their function, Priests the mildness of their religion; the Bench, which should have spoken with the serene temper of justice; the Pulpit, whence only should have issued the healing sounds of charity, were prostituted to party purposes, and polluted with invective against<377> freedom. The churches resounded with language at which Laud would have shuddered, and Sacheverell would have blushed; the most profane comparisons between the duty to the Divinity and to Kings, were unblushingly pronounced; flattery to Ministers was mixed with the solemnities of religion, by the servants, and in the temple of God. These profligate proceedings were not limited to a single spot. They were general over England. In many churches the French Revolution was expressly named! In a majority it was the constant theme of invective for many weeks before its intended celebration. Yet these are the peaceful pastors who so sincerely and meekly deprecate political sermons!* <378>
Nor was this sufficient. The grossness of the popular mind, on which political invective made but a faint impression, was to be roused into action by religious fanaticism, the most intractable and domineering of all destructive passions. A clamour which had for half a century lain dormant was revived. TheChurchwas in danger! The spirit of persecution against an unpopular sect was artfully excited, and the friends of freedom, whom it might be odious and dangerous professedly to attack, were to be overwhelmed as Dissenters. That the majority of the advocates for the French Revolution were not so, was, indeed, sufficiently known to their enemies. They were well known to be philosophers and friends of humanity, who were superior to the creed of any sect, and indifferent to the dogmas of any popular faith. But it suited the purpose of their profligate adversaries to confound them with Dissenters, and to animate against them<379> the fury of prejudices which they themselves despised.
The diffusion of these invectives produced those obvious and inevitable effects, which it may require something more than candour to suppose not foreseen and desired. A banditti, who had been previously stimulated, as they have since been excused and panegyrized by incendiary libellists, wreaked their vengeance on a Philosopher, illustrious by his talents and his writings, venerable for the spotless purity of his life, and amiable for the unoffending simplicity of his manners.108 The excesses of this mob of churchmen and loyalists are to be poorly expiated by the few misguided victims who are sacrificed to the vengeance of the law.
We are, however, only concerned in these facts, as they are evidence from our enemies of<380> the probable progress of freedom. The probability of that progress they all conspire to prove. The briefs of the Pope, and the pamphlets of Mr. Burke,* the edicts of the<381> Spanish Court, and the mandates of the Spanish inquisition, the Birmingham rioters, and the Oxford graduates, equally render to Liberty the involuntary homage of their alarms.
the right honourable
from the cause of
to which is subjoined
on that subject.
Audax venali comitatur curio linguâ
Vox quondam Populi libertatemque tueri
Lucan Pharsalia,Lib. i. l. 269–71.1
printed by T. Gillet, (19) bartholomew-close,
and sold by
H. D. Symonds, paternoster-row.
Publications on fugitive topics, though from their nature sometimes less dubiously useful to mankind than more permanent works, are so little a source of reputation, that their Authors have commonly thought it prudent to withhold their names. If an Author be obscure, such publications will not exalt him—if he be eminent, they may be supposed to derogate from the gravity of more serious occupations, or from the dignity of a more solid fame.
These common reasons may be sufficient for anonymous publication, especially in a case like the present, which consists either of argument, which a name can neither strengthen nor impair; or of facts, which are so acknowledged as to need no testimony for their support.
The Author may be supposed by some to owe an apology for the severity of the language which he has sometimes used.—The only language, however, which he could have used, on such an occasion, was that of indignant honesty. He could neither palliate truth, nor compromise virtue; nor does he profess to emulate those Courtly Writers, the gentleness of whose censures almost mitigates guilt into innocence.
A Letter to the Right Honourable William Pitt, &c. &c.<1>
History records too many examples of political apostacy to make any case of that sort new or singular. Yet with all your knowledge in that branch of history, to which congenial sentiments must have naturally pointed your studies, I doubt whether you can produce many instances in which the political apostate,<2> instead of the language which becomes his wretched situation, dares to assume the tone of parade and of triumph; and with the most eccentric originality of insolence labours to convert his own desertion of principle into an argument against these principles themselves, instead of feeling the principles as a stigma on his desertion. We do not find that Curio was shameless enough, when he deserted the cause of his country, to urge against it the boldness of his own apostacy with the same confidence that Cato would have used in its support the authority of his virtue. The annals of ancient or modern apostacy contain nothing so flagrant. It was reserved for our days to add this variety to the various combinations of fraud and insolence, which have in former ages duped and oppressed mankind; and it was peculiarly reserved for a Statesman, whose character reconciles the most repugnant extremes of political depravity, the pliancy of the most abject intrigue, with the vaunting of the most lofty hypocrisy. It was re-<3>served for him, not alone silently to abandon, not alone even publicly to abjure the doctrines of his former life; not alone to oppose, with ardour, with vehemence, with virulence, those propositions from others, by which he himself had earned unmerited popularity, and climbed to unexampled power; but by a refinement of insolent apostacy, to convert into a source of obloquy against other men, a measure which had been the basis of his own reputation and importance. It was reserved for such a man to repeat those very common-place objections to the measure, and those very common-place slanders against its movers which had been urged against himself, and which he himself had justly despised, or victoriously refuted.* It was reserved for him, unblushingly<4> to renew all the clamour against novelty, and all those affectionate alarms for the British Constitution, which patriotic borough-mongers had so successfully employed against himself. Yes, Sir, it was reserved for the son of Chatham thus to stigmatize the “dying legacy” of his father, and thus to brand his own “virgin effort.”
You will have already perceived, that it is on your late conduct in the case of Parliamentary Reform, that I am about to animadvert. Though I feel a dislike not unmixed with contempt for politics purely personal, and though I should be the last man to betray and degrade the great cause of Reform, by mingling it with the petty squabbles of party, yet when I see the authority of an apostate character opposed with impudent absurdity to the cause from which he apostatized,<5> I think it at least fit that that obstacle should be removed, and that the vapouring language of such a delinquent should be counteracted by the merited brand of his crimes.
The cause of Reform demands that the nature of your present opposition to it should be understood by the people. The interest of the people demands that they should well understand the character of him who may yet be likely, in some possible combination of events, to offer himself to them as the champion of Reform, and perhaps ultimately to prove the leader in more extensive and dangerous measures. And it is generally fit that no signal example of triumphant apostacy should pass with impunity.
These are the public reasons, Sir, which lead me to call public attention to your conduct; reasons which have influenced one who has no respect for your principles, and no exaggerated opinion of your abilities, which he has some-<6>times admired without idolatry, and often opposed without fear. That I am in no abject or devoted sense a partizan; I trust even my present sentiments will prove. I am only, therefore, your enemy so far as I believe you to be the enemy of my country; and I am not unwilling to adopt for the creed of my personal politics the dying prayer of a great man, “Ut ita cuique eveniat ut quisque de Republica mereatur?”2
The three general grounds then on which I shall proceed to examine your conduct are, your apostacy—your present pretexts for opposing reform—and the probability of such a future conduct in you as may render it extremely important that the people should justly appreciate your character.
Your entrance into public life was marked by circumstances more favourable than any English Statesman has ever experienced. With all the<7> vigor of your own talents, with all the reflected lustre of your Father’s character, you appeared at a moment when the ungracious toil of opposition was almost past, when little remained but to profit by the effect of other men’s efforts, and to urge the fall of a tottering Ministry, whose misconduct had already been fatally proved by national misfortune. The current of popularity had already set strongly against the Minister. The illusions of American conquest and American revenue were dispelled. The eyes of the people were opened to the folly of the Cabinet. You had only to declaim against it. The attention of the people was called to those defects in their Constitution, which permitted such a Cabinet so long to betray the public interest, and to brave the public opinion. You had only to put yourself at the head of the people, to declare yourself the Leader of Reform. In this character you had recourse to the same means, and you were assailed by the same objections, with every past and every future Leader of Reform. De-<8>spairing that a corrupt body should spontaneously reform itself, you invited the interposition of the people. You knew that dispersed effort must be unavailing. You therefore encouraged them to associate. You were not deterred from appealing to the people by such miserable common places of reproach as those of advertising for grievances, diffusing discontents, and provoking sedition. You well knew that in the vocabulary of corrupt power enquiry is sedition, and tranquillity is synonimous with blind and abject obedience. You were not deterred from joining with the associations of the people by being told they were to overawe Parliament. You knew the value of a jargon that does not deserve to be dignified by so high a name as Sophistry. You felt for it that contempt which every man of sense always feels, and which every man of sincerity will always express.
As you were regardless of the clamour against the necessary means for the accomplishment of<9> your object—as you knew that whoever would substantially serve the people in such a cause, must appeal to the people, and associate with the people; so you must have had a just and a supreme contempt for the sophistry which was opposed to the measure of reforming the Representation itself. You were told (every Reformer has been told, and every Reformer will be told) that of innovations there is no end, that to adopt one is to invite a succession; and that though you knew the limits of your own Reforms, you could not prescribe bounds to the views which their success might awaken in the minds of others. To so battered a generality it was easy to oppose another common-place. It was easy to urge that as no Government could be secure if it were to be perpetually changed; so no abuse could be reformed if institutions are to be inflexibly maintained. If they call the courage of a Reformer temerity, he is equally entitled to represent their caution as cowardice. If they speak from conjecture of his future interest in<10> confusion, he may from knowledge speak of their actual interest in corruption.
They told you that extravagant speculations were abroad;* that it was no moment to hope for the accomplishment of a temperate Reform, when there were so many men of mischievous and visionary principles, whom your attempts would embolden; and whom your Reforms would not content. You replied, that the redress of real grievances was the surest remedy against imaginary alarms; that the existence of acknowledged corruptions is the only circumstance that renders incendiaries formidable; and that to correct these corruptions is to wrest from them their most powerful weapon.
By a conduct thus natural you pursued your measure. Of that conduct indeed I should not now have reminded you, had it not been for the<11> sake of contrasting it with some recent transactions. It is almost unnecessary to add that you found it easy to practise on the generous credulity of the English people, and that for the first time in the present reign, the King’s advisers thought fit to chuse their minister from the knowledge of his being popular, actuated by the double policy of debauching a popular leader, and of surrounding with the splendour of popularity, the apostate agent of their will. But with the other parts of your public life I have nothing to do, nor will I trace minutely the progress of your pretended efforts for Parliamentary Reform.
The curtain was dropped in 1785. The farce then closed. Other cares then began to occupy your mind. To dupe the enthusiasts of Reform ceased to be of any further moment, and the question itself slept, until it was revived by Mr. Flood in 1790.<12>
There was little danger of the success of his motion, maintained by himself with little pertinacity, and seconded neither by any Parliamentary connexion, nor by any decisive popular opinion. To it therefore you thought a languid opposition from you sufficient. You reserved more active opposition for more formidable dangers, and you abandoned the motion of Mr. Flood to the declamation of Mr. Grenville, the logic of Mr. Windham, and the invective of Mr. Burke.3
That more formidable danger at length arrived. A Reform in the Representation was brought forward by a gentleman of the most powerful abilities, of high consideration in the country, and of a character the most happily untainted by any of those dubious transactions of which political parties are rarely able, for any long period to escape at least the imputation. Such a character was odious to apostacy. Such an enemy was formidable to corruption.<13>
The debate on the notice of Mr. Grey illustrated the fears of corrupt men, and the malignity of apostates.4 It was then that alarms which had slumbered so long over incendiary writings were suddenly called forth by the dreadful suggestion of a moderate, and therefore, of a practicable Reform.
Nor is the reason of this difficult to discover. These incendiary publications might render signal service to a corrupt government, by making the cause of freedom odious, and perhaps by provoking immatured and ill-concerted tumults, the suppression of which might increase the strength, and justify the violence of Government. No such happy effects were to be hoped from the proposition of Mr. Grey. Impracticable schemes are never terrible, but that fatal proposition threatened the overthrow of corruption itself. Then your exertions were indeed demanded: Then your pious zeal for the constitution was called forth.<14>
Theoretical admirers of the Constitution had indeed supposed its excellence to consist in that trial by jury which you had narrowed by excise; and its salvation to depend on that liberty of the press which you had scared by prosecution. Such might have been the idle ravings of Locke or Montesquieu. But you well knew its practical excellence to depend on very different things.
Already, in your imagination, that citadel of the Constitution Queenborough, that sanctuary of freedom Midhurst, tottered to their foundations. Already, even Cornwall itself, the holy land of freedom, was pierced by the impious din of Reform. Actuated by alarms so honest and so wise, for such sacred bulwarks of the Constitution, no wonder that you magnanimously sacrificed your own character. No wonder that you stooped to rake together every clumsy sophism, and every malignant slander that the most frontless corruption had ever circulated, or the most stupid credulity believed. Nor was it<15> even wonderful, when we consider it in this view, that you should have pronounced an elaborate, a solemn, a malignant invective, against the principles which you yourself had professed, the precise measures which you had promoted, and the very means which you had chosen for their accomplishment. There is something in such a parade of apostacy, which, in the minds of certain persons, may efface those vestiges of distrust and repugnance, that the recollection of a popular conduct in early life must have imprinted.
The disgraceful triumph of that night will indeed long be remembered by those who were indignant spectators of it. A Minister reprobating associations, and condemning any mode of collecting the opinion of the people for the purpose of influencing the House of Commons.—He who commenced his career by being an Associator, and who avowedly placed all his hopes of success in the authority which general<16> opinion was to have over the House of Commons. He who continued a Minister in defiance of the House of Commons, because he supposed himself to possess the confidence of the people. He who gave the first example of legitimating and embodying the opinion of the people against the voice of their representatives.*He was the Minister who adopted this language. It was not, Sir, on that night to the splendor of your words, nor the music of your periods, that you owed the plaudits of the borough-mongers of Wiltshire or of Cornwall. They take no cognizance of any dexterities of sophistry or felicities of declamation; the pompous nothingness of Abercorn, and the sordid barbarity of Rolle, are more on a level with their under-<17>standing and more in unison with their taste. They applauded you for virtues like their own, for impudence in asserting falsehood, for audacity in defending corruption. Their assent was condemnation—their applause was ignominy—Their disgraceful hear hims ought to have called to your recollection the depth of infamy into which you had at length plunged. They were the very usurpers whom you pledged yourself to your country to attack; and at the only time of your life when your conduct had the semblance of virtue, these are the men in whose enmity you would have justly gloried. At that time your claim on the confidence of the people would have been almost solely founded on the virulence of hostility, and the vehemence of clamor which such men would employ against you. And these therefore are the men whose applause now justly seals the sentence of your apostacy.
Nor, Sir, is this brief history of that apostacy more flagrant than the plain statement of<18> your pretexts will appear absurd. The frank and good-natured prostitution of Dundas, which assumes no disguise, and affects no principle, almost disarms censure, and relaxes us into a sort of contemptuous indulgence for one whom we can neither hate nor respect.5 The unblushing steadiness of avowed Toryism, whether it frowns in Thurlow, or sneaks in Hawkesbury, we can neither blame as inconsistent, nor dread as contagious. Many men may be intimidated by their power, and many seduced by their corruption, but no man is deceived by their professions. It is not therefore to such men that the Friend of the People desires to point their jealousy and their resentment. Against such men it is not necessary to guard them. But it will, indeed, be his duty to detect the pretexts by which the specious and successful hypocrite not only disguises his own character, but triumphantly deludes the people.<19>
It is now then fit to examine those pretexts by which you would evade the ignominy of having deserted your cause. Such a discussion is not only necessary to convict you, but to the defence of those whom you have attacked. For unless the fallacy of these pretexts be exposed, the Friends of Reform may be branded as the thoughtless or malignant disturbers of their country, while the apostate from Reform may be regarded as the provident and honest preserver of its quiet. It is only by the exposure of his pretexts that this apostate can be shown in his genuine character, sacrificing for the preservation of corrupt power, not only the present liberty, but the future probable peace of his country.
Let us then, Sir, consider what those pretexts are, by which you labour to ascribe to insanity or profligacy in 1792, that attempt to reform, which in 1782 was the purest exertion of the most heroic patriotism. By what sort of chronological morality virtue could so shortly<20> have been transmuted into vice, may be in itself a curious enquiry. Has the generous enthusiasm of your youth been corrected by the juster views of experience? Has it been repressed by the selfish coldness of advancing years? Or has it been laid asleep by the genial indulgences, and the seductive blandishments of power? Such are the questions which a discussion of your pretexts must resolve.
You are in the first place pleased to inform us, that those grievances which once so clamorously pleaded for a Reform of Parliament, have, under your wise and virtuous Administration, ceased to exist. The reasons, if we may believe the Duke of Richmond and yourself, which then justified Reform, no longer operate. The nation is prosperous. The people are contented. The statement of facts is as incontestibly true, as the inference from it is impudently false. It is because the nation is prosperous, it is because the people are tranquil, that this is an auspicious moment<21> for averting from our country calamities which a corrupt House of Commons (by your confession) did once produce; and which therefore an unreformed House of Commons may again equally occasion.
The logic of apostacy is happily on a level with its morals. In 1782, when general discontent might indeed have furnished some colour for an alarm that Reform would degenerate into convulsion, then you and that noble Duke placed yourselves at the head of different bodies of Reformers. You suppose, it seems, that change is only to be attempted with safety, and bounded by moderation, when the temper of the people is inflamed, and exasperated by a succession of public calamities.
Such is the reasoning, such the politics of these honest Patriots, and accomplished Legislators! Other men might have supposed, that a state of convulsion and irritation was not the temper in<22> which moderate Reforms were likely to be adopted by the people; and that to defer all proposition of Reform until grievances should produce again such a fatal state, was to delay them to a moment when there would infallibly be no choice, but to take refuge in despotism, or to plunge into civil war. The very circumstance of the content of the people is that which gives us a perfect security, that Reforms will not be hurried away into violence. It is therefore that which most powerfully invites all men to exertion, who desire a wise and measured improvement of the Constitution.
Granting even that no actual or urgent evil arises from the corrupt state of the pretended Representation of the People—Granting that it has not within the last eight years cost us thirteen Colonies, a hundred thousand lives, and the accumulation of a hundred and fifty millions of debt—Making all these concessions, what argument do they furnish to you? Are the necessary<23> tendencies of an institution no reason for reforming it? Is it because these tendencies are suspended by some accidental circumstance, that we are to tolerate them until they are again called forth into destructive energy? Had you been a Senator under Titus, if any man had proposed controls on the despotic authority of the Emperor, and if he had justified his proposition by reminding the Senate of the ferocity of Nero, or the brutality of Vitellius, you must, on such a principle, have opposed to his arguments the happiness derived from the existing Government, till your sophistry was confuted, and your servility rewarded by Domitian.
It is thus easy to expose your pretexts, even without disputing your assumptions. But it is time to retract concessions which truth does not permit, and to prove that the absurdity of your conclusions is equalled by the falsehood of those premises on which they are established.<24>
The question, whether those grievances now exist, which in your opinion once justified a Parliamentary Reform, will be best decided by considering the nature of such grievances, and the tendency of such a Reform to redress them. The grievance is, the perpetual acquiescence of the House of Commons in the dictates of the Ministers of the Crown. The source of this grievance is the enormous influence of the Crown in the House of Commons. The remedy is, to render that House, by changing the modes of its election, and shortening the duration of its trust, dependent upon the people, instead of being dependent upon the Crown.
Such is the brief state of the subject. Can you then have the insolence to assert, that the influence has decreased in your time, or that it has produced a less abject acquiescence? That influence and that acquiescence are the grievances which are to be reformed; and as no impudence can deny that they exist in their full force, so no<25> sophistry can escape the inference, that the necessity for reforming them remains undiminished. Have majorities in your time been less devoted? Have the measures of the Court been less indiscriminately adopted? Has the voice of the people been less neglected? Has the voice of the Minister been less obeyed? Not one of these things are true; not one, therefore, of the reasons for Reform have ceased to operate.
But to argue the question in this manner is to do injustice to its strength. It is not only true that the acquiescence of Parliament has not been less indiscriminate; it is not only true that the House of Commons have betrayed no symptoms of such ungovernable independence and impracticable virtue, as might seem to render its Reform less necessary or less urgent; but it is uncontrovertibly true, that your recent experience furnishes a more fantastic example of that ignominious servitude, from which Reform can only rescue the Commons, than any other that is to be found in<26> our history. I allude to your Russian armament, which I do not bring forward that I may speak of its absurdity, because I will not stoop to wound a prostrate enemy, nor to insult a convicted criminal.6 I allude to it only as an example of the parade with which the dependence of the House of Commons on the Minister was exhibited to an indignant country. On former occasions it had been equally corrupt; on former occasions it had been equally absurd; but on no former occasion had it displayed such ostentatious and versatile dependence. The Minister in one session determines on his armament. His obsequious majority register the edict; but the absurdity, the odium, and the unpopularity of the measure, shake the resolution of the Cabinet. The voice of the people, despised by their pretended representatives, is listened to by the Minister. The House of Commons are at his nod ready to plunge their country into the most ruinous and unjust war; but the body of the people declare their sentiments, and the Minister recedes. He<27> commands his majority to retrace their steps, to condemn their former proceedings, and thus to declare most emphatically, that their interest is not the interest, that their voice is not the voice of the people. The obsequious majority obey without a murmur. “Tibi summum rerum judicium dii dedere—nobis obsequii gloria relicta est.”7
Nothing could more forcibly illustrate the mockery and nullity of what is strangely called the Representation of the People, than this splendid victory of public opinion. The Minister yielded to that natural authority of public opinion, which is independent of forms of Government, and which would have produced the same effect in most of the simple monarchies of civilized Europe. The Cabinet of Versailles would have been compelled to exhibit a similar deference to the general sentiment before the fall of their despotism; and the people of England experienced no more aid from their supposed Representatives, than if the House of Commons had<28> been in form and avowal, what it is in truth and substance, a chamber for registering ministerial edicts.
Thus wretched are the pretexts to which you have been driven. It is not only easy to expose the emptiness and futility of these pretexts, but to establish with all the evidence of which any topic of civil prudence is susceptible, that the circumstances of the times, instead of rendering it dangerous to attempt a Reform in our Constitution, make it infinitely dangerous to delay such a Reform.
On the French Revolution, it is not my intention to offer any observations. It has no natural nor direct relation to my subject, and were I disposed to treat it, it would be my aim to attempt what has not hitherto been attempted, and what perhaps it may yet be too early to execute with success, an impartial and philosophical estimate of the most unexampled event in history. But<29> on its intrinsic merits it is not now my province to observe. I have only to consider it as marking the present time, either as auspicious or inauspicious to attempts to reform our Constitution. These attempts to obtain Reform disclaim all alliance with the magnificent principles, or the perilous speculations, by which men, according to their various prepossessions, will suppose our neighbours to have been nobly animated or fatally deluded.
Whether the boldness of these principles, and the wideness of these speculations, be as reconcileable with the order of freedom as they were instrumental in the destruction of tyranny, is a question on which wise men will not be prone to anticipate the decision of experience. But the schemes of Reform which we have now in view, the only Reforms which, under the circumstances I could approve, are founded on other principles, on sentiments long naturalized among us, on notions of liberty purely English.<30>
Not engaged either in the discussion or defence of the French Revolution, we then have only to contemplate it as it is supposed to render the present moment favourable or unfavourable to mediated Reforms in England. In this view it will be easy to prove, that the probable future influence of that Revolution, whatever be its issue, on the general sentiments of Europe, marks the present moment as that in which a Reform of the English Constitution is not only safe and prudent, but urgent and indispensible. Nothing indeed can be more evident, than that a mighty change in the direction of the public sentiments of Europe is likely to arise from that Revolution, whether it be successful or unsuccessful. If it be successful, the spirit of extreme Democracy is likely to spread over all Europe, and to swallow up in a volcanic eruption every remnant of Monarchy and of Nobility in the civilized world. The probability of such effects is so strongly believed by the enemies of that Revolution, that it is the ground of their alarm, the subject of their<31> invective, and the pretext of their hostilities. It was to prevent such consequences, that Mr. Burke so benevolently counselled the Princes of Europe to undertake that crusade in which they are now so piously engaged.
If, on the other hand, the efforts of France be unsuccessful; if her liberties be destroyed, there can be little doubt that such a shock will most powerfully impel the current of opinion to the side of Monarchy; a direction in which it will be likely for several ages to continue. The example of the destruction of the great French republic would diffuse dismay and submission among a multitude, who only judge by events; and the bloody scenes which must attend such a destruction, would indeed be sufficient to appall the sternest and most ardent champions of Liberty. The spirit of Europe would crouch under the dark shade of Despotism, in dead repose and fearful obedience. The Royal confederacy which had effected this subversion, would doubt-<32>less continue its concert and its efforts. The principle of maintaining the internal independence of nations, being destroyed by the example of France, no barrier would any longer be opposed to the arbitrary will of Kings. The internal laws of all the European States would be dictated by a Counsel of Despots, and thus the influence of moral causes on public opinion, co-operating with the combined strength and policy of Princes, “every faint vestige and loose remnant” of free government will be swept from the face of the earth.
In either alternative England cannot be exempt from the general spirit. If the phrenzy of Democracy be excited by the success of France; if the spirit of abject submission and of triumphant Despotism be produced by her failure, in the first event the peace, in the second the liberty of England is endangered. In the first event a furious Republicanism, in the second a desperate Toryism is likely to pervade the country. Against<33> the prevalence of both extremes there only exists one remedy. It is to invigorate the democratic part of the Constitution; it is to render the House of Commons so honestly and substantially the representative of the people, that Republicans may no longer have topics of invective, nor Ministers the means of corruption. If the one spirit prevail, it is necessary to reform the House of Commons, that the discontents of the people may be prevented. If the other spirit prevails, the same Reform is necessary, that it may be strong enough to resist the encroachments of the Crown. In the one case, to prevent our Government from being changed into a pure Democracy; in the other, to prevent it from being changed into a simple Monarchy. In either event the same precaution is necessary. The same Reform will preserve the English Constitution from the sap of Royal influence, and from the storm of tumultuous Democracy. A Constitution which provided a pure representative of the people, and which included only enough of Monarchy for vigor, and only<34> enough of Aristocracy for deliberation, would bid a just defiance to the most magnificent and seductive visions of democratic enthusiasm. A people who felt that they possessed a vigorous popular control on their Government, could see little obnoxious, and nothing formidable in the powers of the Peerage and the Crown, and would feel none of that discontent which alone could make them accessible to the arts of Republican missionaries. The success of the French, the fascinating example of their superb Democracy will have no dangerous effects on the minds of contentedEnglishmen. But what wisdom can avert the effects which must arise from such a model of representation, and such a spirit as the success of France will produce in Europe, if that spirit is to operate on a dissatisfied people, and that model be perpetually compared with the ruins of a free Government. In the alternative then of the success of the French Revolution, nothing surely can be so indispensible as a speedy Reform in the Representation of the People.<35>
That to infuse a new portion of popular vigor into the House of Commons is the only remedy that can be opposed to the triumphant Toryism which the subversion of the French Republic must produce, is a proposition so evident, as neither to demand proof nor to admit illustration. We have seen the influence of an odious and unpopular Court victorious during a long reign, in hostility to the prejudice, and in defiance of the jealousy of the people. What then are we to expect from that increased and increasing influence, conducted perhaps with more dexterity in the Cabinet, seconded with equal devotion in the House of Commons, and aided by the blind enthusiasm of a people, who are intoxicated by commercial prosperity, and infatuated by all the prejudices of the most frantic Toryism? Under such a state of things, what can prevent the formation of an uncontroled Monarchy, and the absorption of every power by a Court, from which Englishmen are to learn what remnant of personal security it will vouchsafe to spare, what<36> formality of public freedom it will deign to endure, with what image of the Constitution it will indulge and amuse an infatuated rabble.
Such are the effects which the success or the subversion of French Democracy seem calculated to produce on the temper and sentiments of the European nations. This therefore is the moment to repair and to strengthen the English Constitution. The fate of France hangs in suspense. Her success is yet too dubious, widely or dangerously to diffuse a spirit of imitation; and the contest between her and the Despotic League is still too equal to plunge the people of Europe into the lethargy of servility or despair. This then is that pause of tranquillity, during which we have to prepare against the hurricane with which we are menaced. This therefore is the moment when what was before expedient is become necessary; when that Reform is now safe, which in future may be impracticable or dangerous. Reform was before useful to im-<37>prove; it is now necessary (and perhaps the period of its efficacy is shorter than we may imagine) to preserve the Government. Menaced by the predominance of a Democratical or a Monarchical spirit, give the people their rights, and they will not be provoked to demand more; create an independent House of Commons, and the power of the Crown will be checked; Despotism and tumult will be equally averted; the peace of the country will be preserved; the liberty of the country will be immortalized.
Such a moment must have been chosen by a Statesman, who to an enlightened love for public tranquillity united an honest zeal for political Reform. Such a moment therefore was not chosen by You. The opportunities which it furnished, and the public duties which it imposed, you neither felt nor regarded. But it afforded an opportunity of another kind, which you did not neglect, and of which, I must confess, you have availed yourself with no mean dexterity.<38>
The discussions produced by the French Revolution had given birth to exaggerated ideas of liberty on one hand, and had furnished a ground to some men, and a pretext to more, for exaggerated fears of anarchy on the other. No such ferment of the human mind had ever arisen without producing many extravagant opinions. Every passion and every frailty, in the ardor of dispute, seduced men into extremes. Many honest men were driven into Toryism by their fears. Many sober men were betrayed into Republicanism by their enthusiasm. Such a division of sentiment was precisely that which a good Minister would labor to heal; but which a crafty Minister would inflame into faction, that he might use it to strengthen and extend his power. You had to chuse under which of these characters you were to pass to posterity, and you have made your election. It was in your choice to mitigate extremes, to conciliate differences, to extend the impartial beneficence of Government to all parties and sects of citizens. But you chose to take the<39> most effectual means to exaggerate extremes, to inflame differences, to give the sanction and countenance of power to one party, to put the Government of the country at the head of a triumphant faction. You disseminated alarms of designs to subvert the Constitution so widely and so successfully, that you have created in this country a spirit of Toryism more indiscriminate, more abject, and more rancorous than has existed in England since the accession of the House of Hanover. Bigotry animates servility, servility mingles with the fear of confusion; the honest fear of confusion becomes the dupe of the corrupt monopolists of power; and from the fermentation of these various passions practised on by your emissaries, there has arisen a pusillanimous and merciless Toryism, which is ready to support the most corrupt Minister, and to proscribe the most temperate advocates of freedom. No spirit could be so valuable to a Minister; nothing could ensure him such cheap and indiscriminate support. You could not fail<40> to recollect the happy use which the dread of Jacobitism was of to Sir Robert Walpole, and you easily saw that the dread of Republicanism might be an equally successful engine in your hands. The reformers of abuse are in such cases called enemies to establishment—The enemies of the Government are to be called enemies of the Constitution. To have proposed the retrenchment of a Tellership of the Exchequer from a Walpole, was once to aim at the introduction of the Pretender; to doubt the consistency of William Pitt, or to impeach the purity of George Rose! is now to meditate the establishment of a democracy.8
The progress of such a valuable spirit you saw with a joy which your hirelings boasted, which your higher dependents but ill dissembled, and which was even clumsily concealed by the plausible and pompous hypocrisy of your own character. What wonder that you should see with rapture and triumph the likelihood of even honest<41> men gratuitously enrolling themselves among your Janissaries—What did it import to you, that in the mean while the phrenzy of Republicanism was likely to gain ground among a populace, provoked into wild extremes by the wild extremes of their superiors? What signified the dangers that might in time arise from the awakening understanding of Scotland, from the honest indignation of Ireland? What were these dangers to you! The Toryism of the higher classes would last your time, and any collision between the opposite orders in society, which the diffusion of extreme opinions among them might produce, was viewed without terror by him whose heart had no virtuous interest in the future fate of his country.
It had not however appeared necessary to declare by any overt act the alliance of Government with the favored faction, till an attempt was made to mediate between parties, and to avert the evils which impended over the country.<42>
An association of gentlemen was formed for these purposes. They erected the standard of the British Constitution. They were likely, by the liberality of their principles, to reclaim every thinking man who had been seduced into Republicanism, and by the moderation of their views, to attract every honest man who had for a moment been driven into Toryism. They had already almost effected an union of the friends of liberty and order, and reduced to a miserable handful the two extreme factions; the dread of one of which, and the fury of the other, were to be the instruments of your power.
Such a danger demanded an extreme remedy. No man has more studied or more experienced the gullibility of mankind than yourself. You knew that the popular grossness would not distinguish between what it was your policy to confound. You therefore issued a Proclamation, which by directing a vague and indiscriminate odium against all political change, confounded<43> in the same storm of unpopularity the wildest projects of subversion, and the most measured plans of Reform.
A Statesman, emboldened by success, and instructed by experience in all the arts of popular delusion, easily perceived the assailable position of every mediatorial party, the various enemies they provoke, the opposite imputations they incur. In their labors to avert that fatal collision of the opposite orders of society, which the diffusion of extreme principles threatened, you saw that they would be charged by the corrupt with violence, and accused by the violent of insincerity. It was easy you knew to paint moderation as the virtue of cowards, and compromise as the policy of knaves, to the stormy and intolerant enthusiasm of faction; and the malignant alarms of the corrupt would, it is obvious, be forward to brand every moderate sentiment and every mediatorial effort as symptoms of collusion with the violent, and of treachery to the cause of public<44> order. It scarcely required the incentive and the sanction of a solemn public measure from the Government to let loose so many corrupt interests and malignant passions on the natural object of their enmity. But such a sanction and incentive might certainly add something to the activity of these interests, and to the virulence of these passions. Such a sanction and incentive you therefore gave in your Proclamation.9 To brand mediation as treachery, and neutrality as disguised hostility; to provoke the violent into new indiscretions, and to make those indiscretions the means of aggravating the Toryism of the timid by awakening their alarms; to bury under one black and indiscriminate obloquy of licentiousness the memory of every principle of freedom; to rally round the banners of religious perfection, and of political corruption, every man in the kingdom who dreads anarchy, and who deprecates confusion; to establish on the broadest foundation oppression and servility for the present, and to heap up in store all the causes of anarchy and civil commotion for<45> future times; such is the malignant policy, such are the mischievous tendencies, such are the experienced effects of that Proclamation. It is sufficient that, for the present, it converts the kingdom into a camp of janissaries, enlisted by their alarms to defend your power. It is indeed well adapted to produce other remoter and collateral effects, which the far-sighted politics of the Addressers have not discerned. It is certainly well calculated to blow into a flame that spark of Republicanism which moderation must have extinguished, but which may, in future conceivable circumstances, produce effects, at the suggestion of which good men will shudder, and on which wise men will rather meditate than descant. It is certain that in this view your Proclamation is as effectual in irritating some men into Republicanism, as Mr. Paine’s pamphlets have been in frightening others into Toryism.10
Perhaps, however, the events which such a spirit might produce, are contingencies that enter<46> into the calculations of certain Statesmen. Perhaps they anticipate the moment when the Republican mob of the lower orders may be as valuable to them as the Tory vulgar of the higher are now. Perhaps they may deem it a master stroke of Machiavelian policy to foment the animosity of two factions, one of whom maintains the present Dictator, and the other of whom may aggrandize the future Demagogue.
Such a policy is not altogether improbable; and if the eternal alliance of wisdom with virtue could be broken, might not be thought altogether unwise. The man who was capable of it would not be deceived by the present appearance of prosperity and content. He would easily see, how rapidly public calamity, acting upon Republican theories, might change the scene; far less would be hindered by the present appearances of furious loyalty among some of the lower classes of society. He would perceive this state of sentiment to be the forced produce of artificial causes, and he<47> could anticipate the violence with which they would rebound to an opposite extreme, more natural to their situation, more congenial to their feelings, and more gratifying to their pride.
The success of such a policy would certainly demand in the Statesman who adopted it an union of talents and dispositions which are not often combined. Cold, stern, crafty, and ambiguous, he must be, without those entanglements of friendship and those restraints of feeling, by which tender natures are held back from desperate enterprizes. No ingenuousness must betray a glimpse of his designs; no compunction must suspend the stroke of his ambition. He must never be seduced into any honest profession of precise public principle, which might afterwards arise against him as the record of his apostacy; he must be prepared for acting every inconsistency, by perpetually veiling his political professions in the nomeaning of lofty generalities. The absence of gracious and popular manners, which can find no<48> place in such a character will be well compensated by the austere and ostentatious virtues of insensibility. He must possess the parade without the restraints of morals. He must unite the most profound dissimulation with all the ardor of enterprize; he must be prepared by one part of his character for the violence of a multitude, and by another for the duplicity of a Court. If such a man arose at any critical moment in the fortune of a State; if he were unfettered by any great political connexion; if his interest were not linked to the stability of public order by any ample property; if he could carry with him to any enterprize no little authority and splendor of character; he indeed would be an object of more rational dread than a thousand Republican pamphleteers.
Against such a man it would be fit to warn the people whom he might delude, and the opulent whom he might destroy. Whether such be the character of any living Statesman, it belongs to History to determine.<49>
I shall dwell no longer on portraits that may be imaginary, and speculations which may be illusive. The dangers which have haunted my imagination may be unreal; but if ever such dangers should be realized in a moment of public calamity, and if public confidence should then be triumphantly seized by a convicted delinquent, like the present Minister of England; if the people should then forget the blackest treachery to their cause, and the meanest malignity against their friends; then indeed the parade of your confidence in popular folly will be justified; and a contempt for the understanding of the people will be proved to be the best requisite for ruling them absolutely, as well as the best proof of having estimated them correctly.
If such be the state of the People of England, no human power can save them; they must be abandoned to their misfortunes and to your delusions. In the confidence that they are more generous, and more wise, I have now arraigned<50> you before their tribunal. Events will decide whether my respect or your contempt be best founded, and the decision involves the fate of liberty and of our country.
I will not conclude this letter with expressions of respect which I do not entertain, but I will close it with confidently asserting, that every line of it contains the unbiassed sentiments of
AN HONEST MAN.
Appendix to “A Letter to the Right Honourable William Pitt”<1>
Opinion of Mr. Locke on Representation.
“Things of this world are in so constant a flux, that nothing remains long in the same state. Thus people, riches, trade, power, change their stations, flourishing mighty cities come to ruin, and prove in time neglected desolate corners, whilst other unfrequented places grow into populous countries, filled with wealth and inhabitants. But things not always changing equally, and private interest often keeping up customs and privileges, when the reasons of them are ceased, it often comes to pass, that in governments, where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established upon. To what gross absurdities the following of custom, when reason has left it, may lead, we may be satisfied, when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheep-cot, or more inhabitants than a shepherd is to be found, sends as many Representatives to the grand Assembly of Law makers, as a whole county, numerous<2> in people, and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy. For it being the interest, as well as the intention of the people to have a fair and equal Representative; whoever brings it nearest to that, is an undoubted friend to, and establisher of the government, and cannot miss the consent and approbation of the community. ’Tis not a change from the present state, which perhaps corruption or decay has introduced, that makes an inroad upon the Government, but the tendency of it to injure or oppress the people, and to set up one part, or party, with a distinction from, and an unequal subjection of the rest.”
Locke on Civil Government, Book II.
Chap. 13. Sect. 157, 158.1
Opinion of Mr. Justice Blackstone.
This is the spirit of our Constitution: not that I assert it is in fact quite so perfect as I have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of Parliaments, it should be in favour of a more compleat representation of the people.
Blackstone’s Commentaries, Vol. 1. Page 171, 172.2
Such is the confession extorted by the force of truth from our cautious and courtly commentator.<3>
Extracts from a letter written by the Duke of Richmond to Lieutenant Colonel Sharman, Chairman of the Committee of Correspondence at Belfast, dated August 15th, 1783.3
“I have no hesitation in saying, that from every consideration which I have been able to give to this great question, that for many years has occupied my mind; and from every day’s experience to the present hour I am more and more convinced, that the restoring the right of voting universally to every man not incapacitated by nature for want of reason, or by law for the commission of crimes, together with annual elections, is the only reform that can be effectual and permanent. I am further convinced, that it is the only reform that is practicable. […] The lesser reform (alluding to Mr. Pitt’s motion in the House of Commons) has been attempted with every possible advantage in its favor; not only from the zealous support of the advocates for a more effectual one, but from the assistance of men of great weight both in and out of power. But with all those temperaments and helps it has failed; not one proselyte has been gained from corruption; nor has the least ray of hope been held out from any quarter, that the House of Commons was inclined to adopt any other mode of reform. The weight of corruption has crushed this more gentle, as it would have defeated any more efficacious plan in the same circumstances. From that quarter, therefore, I have nothing to hope. It is from the people<4> at large that I expect any good, and I am convinced that the only way to make them feel that they are really concerned in the business, is to contend for their full, clear, and indisputable rights of universal representation. But in the more liberal and great plan of universal representation a clear and distinct principle at once appears, that cannot lead us wrong. Not conveniency, but right. If it is not a maxim of our Constitution, that a British subject is to be governed only by laws to which he has consented by himself or his representative, we should instantly abandon the error; but if it is the essential of Freedom, founded on the eternal principles of justice and wisdom, and our unalienable birth-right, we should not hesitate in asserting it. Let us then but determine to act upon this broad principle of giving to every man his own, and we shall immediately get rid of all the perplexities to which the narrow notions of partiality and exclusion must ever be subject.”
Opinion of the City of London.4
Guildhall, Tuesday, April 11, 1782.
“At a meeting of the Livery of London, appointed to correspond with the Committees of the several counties, cities, &c. of the kingdom,”
Mr. Alderman Crosby in the Chair,
“That in the judgment of this Committee, unless a melioration of Parliament can be obtained, the best official<5> regulations may soon be set aside, the wisest and most virtuous ministers may soon be displaced; by the prevalence of that corrupt influence now subsisting in the House of Commons, which its defective frame naturally generates, and which has already so nearly effected the ruin of this unhappy country.”
Opinion of Associated English Counties.5
Extracts from the proceedings of a Meeting of Deputies appointed by the several petitioning or associated bodies hereinafter mentioned.
The counties of York, Surry, Hertford, Huntingdon, Middlesex, Essex, Kent, Devon, and Nottingham, and the city of Westminster, held on the 3rd day of March, and by different adjournments on the 10th, 17th, 19th, 24th, and 31st days of March, and 21st day of April, 1781,
“That the parliamentary representation of this kingdom is extremely inadequate.”
“That the extensive public evils have been produced by the gross inadequacy of the representation of the people in parliaments.”<6>
Thatched House Tavern, May 16, 1782.6
At a numerous and respectable meeting of members of parliament friendly to a Constitutional Reformation, and of members of several committees of counties and cities,
“That the motion of the Hon. William Pitt, on the 7th inst. for the appointment of a Committee of the House of Commons to enquire into the State of the Representation of the People of Great Britain, and to report the same to the House, and also what steps it might be necessary to take, having been defeated by a motion for the order of the day, it is become indispensibly necessary that application should be made to Parliament by petitions from the collective body of the people, in their respective districts, requesting a substantial Reformation of the Commons House of Parliament.<7>
“That this meeting, considering that a general application by the collective body of the people to the House of Commons cannot be made before the close of the present session, is of opinion that the sense of the people should be taken at such times as may be convenient during this summer, in order to lay their several petitions before parliament early in the next session, when their proposals for a parliamentary reformation (without which neither the liberty of the nation can be preserved, nor the permanence of a wise and virtuous administration can be secure) may receive that ample and mature discussion, which so momentous a question demands.”
Until the report of the Committee of the Friends of the People on the present state of the Representation shall appear, the following may serve as a specimen of the wretched tenure by which the privileges and liberties of the People of England are now held.
“If we take the places where the majority of the electors comes below 20, it is shameful what a proportion of the 513 (members for England and Wales) is sent into the House by a handful, and that handful mostly people in low circumstances, and therefore obnoxious to bribery, or under the power of their superiors.<8>
<9> “Here we see 56 members (about a ninth-part of the whole for England) are sent into the House of Commons by 364 votes, which number ought not to send in one member. For no member ought to be elected by fewer than the majority of 800, upon the most moderate calculation, in order to give 410,000 voters their due and equally distributed share of legislative power, without which equal distribution the majority of the men of property are enslaved to the handful of beggars, who, by electing the majority of the House of Commons, have so great an overbalance of power over them, as to be able to carry every point in direct opposition to their opinion and to their interest.”
Burgh’s Political Disquisitions, vol. I. page 47–8.7
Sentiments delivered by Mr. Pitt on Parliamentary Reform, in his speech in the House of Commons, on Monday the 19th of April, 1785.8
“He said he was sensible of the difficulty which there was now, and ever must be in proposing a plan of reform. The number of gentlemen who were hostile to reform, were a phalanx which ought to give alarm to any individual upon rising to suggest such a measure. Those who, with a sort of superstitious awe, reverence the constitution so much as to be fearful of touching even its defects, had always reprobated every attempt to purify the representation. They acknowledged its inequality and corruption, but in their enthusiasm for the grand fabric, they would<10> not suffer a reformer with unhallowed hands to repair the injuries which it suffered from time. Others, who perceiving the deficiencies that had arisen from circumstances, were solicitous of their amendment, yet resisted the attempt, under the argument, that when once we had presumed to touch the Constitution in one point, the awe which had heretofore kept us back from the daring enterprize of innovation, might abate, and there was no foreseeing to what alarming lengths we might progressively go under the mask of Reformation. Others there were, but for these he confessed he had not the same respect, who considered the present state of representation as pure and adequate to all its purposes, and perfectly consistent with the first principles of representation. The fabric of the House of Commons was an ancient pile, on which they had been all taught to look with reverence and awe: from their cradles they had been accustomed to view it as a pattern of perfection; their ancestors had enjoyed freedom and prosperity under it; and therefore an attempt to make any alterations in it, would be deemed by some enthusiastic admirers of antiquity, as impious and sacrilegious. No one reverenced the venerable fabric more than he did; but all mankind knew, that the best institutions, like human bodies, carried in themselves the seeds of decay and corruption; and therefore he thought himself justifiable in proposing remedies against this corruption, which the frame of the constitution must necessarily experience in the lapse of years, if not prevented by wise and judicious regulations. […]
“The argument of withstanding all reformation, from the fear of the ill consequences that might ensue, made<11> gentlemen come to a sort of compromise with themselves. We are sensible of certain defects; we feel certain inconveniences in the present state of representation; but fearing that we may make it worse by alteration, we will be content with it as it is.” This was a sort of argument to which he could not give his countenance. If gentlemen had at all times been content with this sort of average, the nation would have lost much of that excellence of which our Constitution now had to boast. […]
“If there always had been a House of Commons who were the faithful stewards of the interests of their country, the diligent checks on the administration of the finances, the constitutional advisers of the executive branch of the Legislature, the steady and uninfluenced friends of the People, he asked, if the burdens which the constituents of that house were now doomed to endure, would have been incurred? Would the People of England have suffered the calamities to which they had lately been made subject? […]
“He needed not, he believed, to enumerate the arguments that presented themselves to his mind in favor of a reform. Every gentleman who had taken pains to investigate the subject, must see that it was most materially wanted. To conquer the corruption that existed in those decayed boroughs, he believed that gentlemen would acknowledge to be impossible. The temptation were too great for poverty to resist, and the consequence of this corruption was so visible, that some plan of reforming the boroughs had clearly become absolutely necessary. In times<12> of calamity and distress, how truly important was it to the people of this country that the House of Commons should sympathize with themselves, and that their interests should be indissoluble? It was most material that the People should have confidence in their own branch of the Legislature; the force of the Constitution, as well as its beauty, depended on that confidence, and on the union and sympathy which existed between the constituent and representative. The source of our glory and the muscles of our strength were the pure character of freedom which our Constitution bore. To lessen that character, to taint it, was to take from our vitals a part of their vigor, and to lessen not only our importance but our energy with our neighbours. […]
“The purity of representation was the only true and permanent source of such confidence; for though occasionally bright characters had arisen, who, in spite of the general corruption and depravity of the day in which they lived, had manifested the superior influence of integrity and virtue, and had forced both Parliament and People to countenance their Administration; yet it would be unwise for the People of England to leave their fate to the chance of such characters often arising, when prudence must dictate that the certain way of securing their properties and freedom was to purify the sources of representation, and to establish that strict relation between themselves and the House of Commons which it was the original idea of the Constitution to create. He hoped that the plan which he had mentioned was likely to re-establish such a relation; and he recommended to gentlemen not to suffer their minds to be alarmed by unnecessary<13> fears. Nothing was so hurtful to improvement as the fear of being carried farther than the principle on which a person set out.
“It was common for gentlemen to reason with themselves, and to say that they would have no objection to go so far, and no farther, if they were sure, that in countenancing the first step, they might not either be led themselves, or lead others farther than they intended to go. So much they were apt to say was right—so far they would go—of such a scheme they approved—but fearing that it might be carried too far, they desisted from doing even what they conceived to be proper. He deprecated this conduct, and hoped that gentlemen would come to the consideration of this business, without fearing that it would lead to consequences that would either ruin or alarm us.”
Debrett’s Parliamentary Register for 1785, p. 43, et seq.
Extracts from the speech of Mr. Thomas Pitt, Proprietor of Old Sarum, on the 7th of May 1783.9
“That his honorable friend had truly stated that the principal objection that had been urged to what he then proposed, the going into<14> a committee to examine into the state of the representation, was that no specific remedy was then submitted to the House; and that at a time when wild and impracticable ideas of reform, and visionary speculations of imagined rights were floating on the public, such a committee would tend to alarm the minds of sober men, to inflame the madness of theorists, and to hold out expectations that neither could, nor ought, nor were intended to be satisfied. […]
“That it was true that the temper of the times, was a very great additional ground to the opposition which he gave to the former motion; and that he certainly could have wished, that whatever alterations were to take place could have been brought on at a time, when men’s minds were less heated by speculative opinions; that however he<15> could not but congratulate that House, and the country in general, that these dangerous doctrines were disavowed by a person of the weight of the right honorable mover of these resolutions, as well in what he had so ably stated in his opening, as in the propositions themselves; which if adopted by the House, would stand as the strongest protest against these wild speculations. That an honorable friend of his (Mr. Powys) had read such extracts from some of these incendiaries, as could not fail to make known the tendency of their tenets; that he had never thought, with all the industry that had been used, that such opinions had extended very far in the body of the people; and that he was convinced, that even by the interval of a few months<16> they had already visibly subsided amongst many of the most zealous. […]
“That he could not, at the same time that he approved of such an experiment, even in the present moment deny the weight of such arguments as were founded upon the unreasonable spirit of innovation, which certainly his honorable friend could not suppose it was in his power to satisfy by such concessions as these, or indeed by any practicable reform whatever. The clamor would not be appeased by it among those who are the loudest in their calls for alterations; he wished therefore sincerely, that some such plan had already taken place in times of more calm and sober judgment.”<17>
Extracts from the speech of the Right Hon. William Pitt, Chancellor of the Exchequer, on the 30th of April, 1792.10
“It was obvious,” Mr. Pitt said, “to every rational and reflecting man, that two objects present themselves for their consideration; the first, the probability of carrying a Reform in Parliament at all; and the other, whether or not that Reform, if carried, would not be attended with a risk that would outweigh the advantages that might accrue from it. To the first, he declared, he did not think that Gentlemen would readily be persuaded to believe by what they had seen, and by what they knew, that there existed any alteration in the minds of the people tending to shew that a change in their Representation would be agreeable to their wishes; there was infinitely greater reason to believe that an attempt to carry any scheme into effect would produce consequences to which no man can look without horror and apprehension.
“That there were out of that House men who were anxious to destroy the Constitution he was perfectly ready to admit: that their numbers were great, or their power vigorous he was happy enough to doubt; their force, he was persuaded, if it should come to be opposed to the sound part of the Constitution and its defenders, would be found to be weak and trivial. He did not, Mr. Pitt declared, deem the conduct of those Members of Parliament to be the most meritorious, who agitated the propriety of a Reform in the shape of an Advertisement in the newspaper,* rather than by discussions in that House; he would not, however, enter on that point, as he was willing to impute the best motives to every man. As far, Mr. Pitt said, as he had had opportunities of learning the opinions of the people, and of observing their condition, he had reason to think them perfectly tranquil and happy: the principles, however, that some men had adopted, tended, he feared, to overturn that tranquillity, and destroy that happiness. In regard to that matter, however, he had a stronger reason for his conduct; he was firmly convinced that the allies to whom the Hon. Gentleman was to look for support, were not those whose object was to repair the Constitution, but to sap the foundation, and destroy the edifice; they were persons who had condemned hereditary monarchy, abused aristocracy, and decried all proper and regulated Government whatever; men, who while they for one minute talked of a Parliamentary Reform, libelled the Revolution itself the other, who ridiculed the idea of rank and subordination, and endeavoured to impress upon the mind of the public, a desire to substitute for the happy constitution they at present enjoy, a plan founded on what was absurdly termed the Rights of Man; a plan which never existed in any part of the habitable globe, and which, if it should exist in the morning, must perish ere sunset; as must be the inevitable fate of the government of any kingdom which should be formed on that absurd and impracticable system. To the last hour of his life, Mr. Pitt declared, he was determined to maintain and defend the Constitution of his country, for he was convinced that it was the best that ever was formed for the happiness of men; and he was convinced that there existed no chance of success from the proceedings of the Hon. Gentleman, and from any frauds which might be practised, but that they tended to risk<18> the incurring consequences the most dreadful. Were he put to the disagreeable alternative of giving his vote for ever to forego reform, or to risk the inevitable and dreadful consequences which would arise from the attempts, if permitted, of the new reformers, he declared upon his honour, as an Englishman, and as a friend to the Constitution, that he should have no doubt of voting the former. Thus much, Mr. Pitt said, he had offered as to the time of bringing forward the business, which, when coupled with the mode, rendered it still more dangerous. The minds of men were led to no plan, nor had they any grievance stated to them. Their opinions were set afloat,* and their understandings were endeavoured to be poisoned by<19> the general assertion of the existence of grievances, and the inadequacy of the Representation in Parliament they had that held out to them as innocent and harmless, which was destructive and iniquitous.”
A Discourse on the Law of Nature and Nations<341>
Before I begin a course of lectures on a science of great extent and importance, I think it my duty to lay before the public the reasons which have induced me to undertake such a labour, as well as a short account of the nature and objects of the course which I propose to deliver. I have always been unwilling to waste in unprofitable inactivity that leisure which the first years of my profession usually allow, and which diligent men, even with moderate talents, might often employ in a manner neither discreditable to themselves, nor wholly useless to others. Desirous that my own leisure should not be consumed in sloth, I anxiously looked about for some way of filling it up, which might enable me, according to the measure of my humble abilities, to contribute somewhat to the stock of general usefulness. I had long been convinced that public lectures, which have been used in most<342> ages and countries to teach the elements of almost every part of learning, were the most convenient mode in which these elements could be taught;—that they were the best adapted for the important purposes of awakening the attention of the student, of abridging his labours, of guiding his inquiries, of relieving the tediousness of private study, and of impressing on his recollection the principles of a science. I saw no reason why the law of England should be less adapted to this mode of instruction, or less likely to benefit by it, than any other part of knowledge. A learned gentleman, however, had already occupied that ground,* and will, I doubt not, persevere in the useful labour which he has undertaken. On his province it was far from my wish to intrude. It appeared to me that a course of lectures on another science closely connected with all liberal professional studies, and which had long been the subject of my own reading and reflection, might not only prove a most useful introduction to the law of England, but might also become an interesting part of general study, and an important branch of the education of those who were not destined for the profession of the law. I was confirmed in my opinion by the assent and approbation of men, whose names, if it were becoming to mention them on so slight an occasion, would add authority to truth, and furnish some excuse even for error. Encouraged by their approbation, I resolved without delay to commence the undertaking, of which I shall now proceed to give some account; without interrupting the progress of my discourse by anticipating or answering the remarks of those who may, perhaps, sneer at me for a departure from the usual course of my profession, because I am desirous of employing in a rational and useful pursuit that leisure, of which the same men would have required no account, if it had been wasted on trifles, or even abused in dissipation.<343>
The science which teaches the rights and duties of men and of states, has, in modern times, been called “the law of nature and nations.” Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws, and the authority of the magistrate in framing laws, and administering government; and as they modify the intercourse of independent commonwealths in peace, and prescribe limits to their hostility in war. This important science comprehends only that part of private ethics which is capable of being reduced to fixed and general rules. It considers only those general principles of jurisprudence and politics which the wisdom of the lawgiver adapts to the peculiar situation of his own country, and which the skill of the statesman applies to the more fluctuating and infinitely varying circumstances which affect its immediate welfare and safety. “For there are in nature certain fountains of justice whence all civil laws are derived, but as streams; and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains.”*
On the great questions of morality, of politics, and of municipal law, it is the object of this science to deliver only those fundamental truths of which the particular application is as extensive as the whole private and public conduct of men;—to discover those “fountains of justice,” without pursuing the “streams” through the endless variety of their course. But another part of the subject is to be treated with greater<344> fulness and minuteness of application; namely, that important branch of it which professes to regulate the relations and intercourse of states, and more especially, (both on account of their greater perfection and their more immediate reference to use), the regulations of that intercourse as they are modified by the usages of the civilized nations of Christendom. Here this science no longer rests on general principles. That province of it which we now call the “law of nations,” has, in many of its parts, acquired among European ones much of the precision and certainty of positive law; and the particulars of that law are chiefly to be found in the works of those writers who have treated the science of which I now speak. It is because they have classed (in a manner which seems peculiar to modern times) the duties of individuals with those of nations, and established their obligation on similar grounds, that the whole science has been called, the “law of nature and nations.”
Whether this appellation be the happiest that could have been chosen for the science, and by what steps it came to be adopted among our modern moralists and lawyers,† are inquiries, perhaps, of more curiosity<345> than use, and ones which, if they deserve any where to be deeply pursued, will be pursued with more propriety in a full examination of the subject than within the short limits of an introductory discourse. Names are, however, in a great measure arbitrary; but the distribution of knowledge into its parts, though it may often perhaps be varied with little disadvantage, yet certainly depends upon some fixed principles. The modern method of considering individual and national morality as the subjects of the same science, seems to me as convenient and reasonable an arrangement as can be adopted. The same rules of morality which hold together men in families, and which form families into commonwealths, also link together these commonwealths as members of the great society of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit, from each other; it is, therefore, their interest, as well as their duty, to reverence, to practise, and to enforce those rules of justice which control and restrain injury,—which regulate and augment benefit,—which, even in their present imperfect observance, preserve civilized states in a tolerable condition of security from wrong, and which, if they could be generally obeyed, would establish, and permanently maintain, the well-being of the universal commonwealth of the human race. It is therefore with justice, that one part of this science has been called “the natural law of individuals,” and the other “the natural law of states”; and it is too obvious to require observation,* that the application of both these laws, of the former as much as of the latter, is modified and varied by customs, conventions, character, and situation. With a view to these principles, the writers on general jurisprudence have considered states as moral persons; a mode of expression which has been called a fiction of law, but which may be regarded with more propriety as a bold metaphor, used to convey the important truth, that nations, though they acknowledge no<346> common superior, and neither can, nor ought, to be subjected to human punishment, are yet under the same obligations mutually to practise honesty and humanity, which would have bound individuals,—if the latter could be conceived ever to have subsisted without the protecting restraints of government, and if they were not compelled to the discharge of their duty by the just authority of magistrates, and by the wholesome terrors of the laws. With the same views this law has been styled, and (notwithstanding the objections of some writers to the vagueness of the language) appears to have been styled with great propriety, “the law of nature.” It may with sufficient correctness, or at least by an easy metaphor, be called a “law,” inasmuch as it is a supreme, invariable, and uncontrollable rule of conduct to all men, the violation of which is avenged by natural punishments, necessarily flowing from the constitution of things, and as fixed and inevitable as the order of nature. It is “the law of nature,” because its general precepts are essentially adapted to promote the happiness of man, as long as he remains a being of the same nature with which he is at present endowed, or, in other words, as long as he continues to be man, in all the variety of times, places, and circumstances, in which he has been known, or can be imagined to exist; because it is discoverable by natural reason, and suitable to our natural constitution; and because its fitness and wisdom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in which they may be placed. It is with still more propriety, and indeed with the highest strictness, and the most perfect accuracy, considered as a law, when, according to those just and magnificent views which philosophy and religion open to us of the government of the world, it is received and reverenced as the sacred code, promulgated by the great Legislator of the Universe for the guidance of His creatures to happiness;—guarded and enforced, as our own experience may inform us, by<347> the penal sanctions of shame, of remorse, of infamy, and of misery; and still farther enforced by the reasonable expectation of yet more awful penalties in a future and more permanent state of existence. It is the contemplation of the law of nature under this full, mature, and perfect idea of its high origin and transcendent dignity, that called forth the enthusiasm of the greatest men, and the greatest writers of ancient and modern times, in those sublime descriptions, in which they have exhausted all the powers of language, and surpassed all the other exertions, even of their own eloquence, in the display of its beauty and majesty. It is of this law that Cicero has spoken in so many parts of his writings, not only with all the splendour and copiousness of eloquence, but with the sensibility of a man of virtue, and with the gravity and comprehension of a philosopher.* It is of this law that Hooker speaks in so sublime a strain:—“Of Law, no less can be said, than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent admiring her as the mother of their peace and joy.”* <348>
Let not those who, to use the language of the same Hooker, “talk of truth,” without “ever sounding the depth from whence it springeth,”1 hastily take it for granted, that these great masters of eloquence and reason were led astray by the specious delusions of mysticism, from the sober consideration of the true grounds of morality in the nature, necessities, and interests of man. They studied and taught the principles of morals; but they thought it still more necessary, and more wise,—a much nobler task, and more becoming a true philosopher, to inspire men with a love and reverence for virtue.* They were not contented with elementary speculations: they examined the foundations of our duty; but they felt and cherished a most natural, a most seemly, a most rational enthusiasm, when they contemplated the majestic edifice which is reared on these solid foundations. They devoted the highest exertions of their minds to spread that beneficent enthusiasm among men. They consecrated as a homage to Virtue the most perfect fruits of their genius. If these grand sentiments of “the good and fair” have sometimes prevented them from delivering the principles of ethics with the nakedness and dryness of science, at least we must own that they have chosen the better part,—that they have preferred virtuous feeling to moral theory, and practical benefit to speculative exactness. Perhaps these wise men may have supposed that the minute dissection and anatomy of Virtue might, to the ill-judging eye, weaken the charm of her beauty.
It is not for me to attempt a theme which has perhaps been exhausted by these great writers. I am indeed much less called upon to display the worth<349> and usefulness of the law of nations, than to vindicate myself from presumption in attempting a subject which has been already handled by so many masters. For the purpose of that vindication it will be necessary to sketch a very short and slight account (for such in this place it must unavoidably be) of the progress and present state of the science, and of that succession of able writers who have gradually brought it to its present perfection.
We have no Greek or Roman treatise remaining on the law of nations. From the title of one of the lost works of Aristotle, it appears that he composed a treatise on the laws of war,* which, if we had the good fortune to possess it, would doubtless have amply satisfied our curiosity, and would have taught us both the practice of the ancient nations and the opinions of their moralists, with that depth and precision which distinguish the other works of that great philosopher. We can now only imperfectly collect that practice and those opinions from various passages which are scattered over the writings of philosophers, historians, poets, and orators. When the time shall arrive for a more full consideration of the state of the government and manners of the ancient world, I shall be able, perhaps, to offer satisfactory reasons why these enlightened nations did not separate from the general province of ethics that part of morality which regulates the intercourse of states, and erect it into an independent science. It would require a long discussion to unfold the various causes which united the modern nations of Europe into a closer society,—which linked them together by the firmest bands of mutual dependence, and which thus, in process of time, gave to the law that regulated their intercourse, greater importance, higher improvement, and more binding force. Among these causes, we may enumerate a common extraction, a common religion, similar manners, institutions, and languages;<350> in earlier ages the authority of the See of Rome, and the extravagant claims of the imperial crown; in later times the connexions of trade, the jealousy of power, the refinement of civilization, the cultivation of science, and, above all, that general mildness of character and manners which arose from the combined and progressive influence of chivalry, of commerce, of learning, and of religion. Nor must we omit the similarity of those political institutions which, in every country that had been over-run by the Gothic conquerors, bore discernible marks (which the revolutions of succeeding ages had obscured, but not obliterated) of the rude but bold and noble outline of liberty that was originally sketched by the hand of these generous barbarians. These and many other causes conspired to unite the nations of Europe in a more intimate connexion and a more constant intercourse, and, of consequence, made the regulation of their intercourse more necessary, and the law that was to govern it more important. In proportion as they approached to the condition of provinces of the same empire, it became almost as essential that Europe should have a precise and comprehensive code of the law of nations, as that each country should have a system of municipal law. The labours of the learned, accordingly, began to be directed to this subject in the sixteenth century, soon after the revival of learning, and after that regular distribution of power and territory which has subsisted, with little variation, until our times. The critical examination of these early writers would perhaps not be very interesting in an extensive work, and it would be unpardonable in a short discourse. It is sufficient to observe that they were all more or less shackled by the barbarous philosophy of the schools, and that they were impeded in their progress by a timorous deference for the inferior and technical parts of the Roman law, without raising their views to the comprehensive principles which will for ever inspire mankind with veneration for that grand monument of human wisdom.<351> It was only, indeed, in the sixteenth century that the Roman law was first studied and understood as a science connected with Roman history and literature, and illustrated by men whom Ulpian and Papinian would not have disdained to acknowledge as their successors.* Among the writers of that age we may perceive the ineffectual attempts, the partial advances, the occasional streaks of light which always precede great discoveries, and works that are to instruct posterity.
The reduction of the law of nations to a system was reserved for Grotius. It was by the advice of Lord Bacon2 and Peiresc that he undertook this arduous task. He produced a work which we now, indeed, justly deem imperfect, but which is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the genius and learning of one man. So great is the uncertainty of posthumous reputation, and so liable is the fame even of the greatest men to be obscured by those new fashions of thinking and writing which succeed each other so rapidly among polished nations, that Grotius, who filled so large a space in the eye of his contemporaries, is now perhaps known to some of my readers only by name. Yet if we fairly estimate both his endowments and his virtues, we may justly consider him as one of the most memorable men who have done honour to modern times. He combined the discharge of the most important duties of active and public life with the attainment of that exact and various learning which is generally the portion only of the recluse student. He was distinguished as an advocate and a magistrate, and he composed the most valuable works on the law of his own country; he was almost equally celebrated as an historian, a scholar, a poet, and a divine;—a disinterested<352> statesman, a philosophical lawyer, a patriot who united moderation with firmness, and a theologian who was taught candour by his learning. Unmerited exile did not damp his patriotism; the bitterness of controversy did not extinguish his charity. The sagacity of his numerous and fierce adversaries could not discover a blot on his character; and in the midst of all the hard trials and galling provocations of a turbulent political life, he never once deserted his friends when they were unfortunate, nor insulted his enemies when they were weak. In times of the most furious civil and religious faction he preserved his name unspotted, and he knew how to reconcile fidelity to his own party, with moderation towards his opponents.
Such was the man who was destined to give a new form to the law of nations, or rather to create a science, of which only rude sketches and undigested materials were scattered over the writings of those who had gone before him. By tracing the laws of his country to their principles, he was led to the contemplation of the law of nature, which he justly considered as the parent of all municipal law.* Few works were more celebrated than that of Grotius in his own days, and in the age which succeeded. It has, however, been the fashion of the last half-century to depreciate his work as a shapeless compilation, in which reason lies buried under a mass of authorities and quotations. This fashion originated among French wits and declaimers, and it has been, I know not for what reason, adopted, though with far greater moderation and decency, by some respectable writers among ourselves. As to those who first used this language, the most candid supposition that we can make with respect to them is, that they never read the work; for, if they had not been deterred from the perusal of it by such a formidable display of Greek characters, they must soon have discovered that Grotius<353> never quotes on any subject till he has first appealed to some principles, and often, in my humble opinion, though not always, to the soundest and most rational principles.
But another sort of answer is due to some of those† who have criticised Grotius, and that answer might be given in the words of Grotius himself.‡ He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philosophers, as those of judges, from whose decision there was no appeal. He quotes them, as he tells us himself, as witnesses whose conspiring testimony, mightily strengthened and confirmed by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses; for they address themselves to the general feelings and sympathies of mankind; they are neither warped by system, nor perverted by sophistry; they can attain none of their objects, they can neither please nor persuade, if they dwell on moral sentiments not in unison with those of their readers. No system of moral philosophy can surely disregard the general feelings of human nature and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life, are, in truth, the materials out of which the science of morality is formed; and those who neglect them are justly chargeable with a vain attempt to philosophise<354> without regard to fact and experience,—the sole foundation of all true philosophy.
If this were merely an objection of taste, I should be willing to allow that Grotius has indeed poured forth his learning with a profusion that sometimes rather encumbers than adorns his work, and which is not always necessary to the illustration of his subject. Yet, even in making that concession, I should rather yield to the taste of others than speak from my own feelings. I own that such richness and splendour of literature have a powerful charm for me. They fill my mind with an endless variety of delightful recollections and associations. They relieve the understanding in its progress through a vast science, by calling up the memory of great men and of interesting events. By this means we see the truths of morality clothed with all the eloquence,—not that could be produced by the powers of one man,—but that could be bestowed on them by the collective genius of the world. Even Virtue and Wisdom themselves acquire new majesty in my eyes, when I thus see all the great masters of thinking and writing called together, as it were, from all times and countries, to do them homage, and to appear in their train.
But this is no place for discussions of taste, and I am very ready to own that mine may be corrupted. The work of Grotius is liable to a more serious objection, though I do not recollect that it has ever been made.3 His method is inconvenient and unscientific: he has inverted the natural order. That natural order undoubtedly dictates, that we should first search for the original principles of the science in human nature; then apply them to the regulation of the conduct of individuals; and lastly employ them for the decision of those difficult and complicated questions that arise with respect to the intercourse of nations. But Grotius has chosen the reverse of this method. He begins with the consideration of the states of peace and war, and he examines original principles only occasionally and incidentally as they grow out of the questions<355> which he is called upon to decide. It is a necessary consequence of this disorderly method,—which exhibits the elements of the science in the form of scattered digressions, that he seldom employs sufficient discussion on these fundamental truths, and never in the place where such a discussion would be most instructive to the reader.
This defect in the plan of Grotius was perceived, and supplied, by Puffendorff, who restored natural law to that superiority which belonged to it, and, with great propriety, treated the law of nations as only one main branch of the parent stock. Without the genius of his master, and with very inferior learning, he has yet treated this subject with sound sense, with clear method, with extensive and accurate knowledge, and with a copiousness of detail sometimes indeed tedious, but always instructive and satisfactory.4 His work will be always studied by those who spare no labour to acquire a deep knowledge of the subject; but it will, in our times, I fear, be oftener found on the shelf than on the desk of the general student. In the time of Mr. Locke it was considered as the manual of those who were intended for active life; but in the present age, I believe it will be found that men of business are too much occupied,—men of letters are too fastidious,—and men of the world too indolent, for the study or even the perusal of such works. Far be it from me to derogate from the real and great merit of so useful a writer as Puffendorff. His treatise is a mine in which all his successors must dig. I only presume to suggest, that a book so prolix, and so utterly void of all the attractions of composition, is likely to repel many readers who are interested in its subject, and who might perhaps be disposed to acquire some knowledge of the principles of public law.
Many other circumstances might be mentioned, which conspire to prove that neither of the great works of which I have spoken, has superseded the necessity of a new attempt to lay before the public a system of the law of nations. The language of<356> Science is so completely changed since both these works were written, that whoever was now to employ their terms in his moral reasonings would be almost unintelligible to some of his hearers or readers,—and to some among them too who are neither ill qualified, nor ill disposed, to study such subjects with considerable advantage to themselves. The learned, indeed, well know how little novelty or variety is to be found in scientific disputes. The same truths and the same errors have been repeated from age to age, with little variation but in the language; and novelty of expression is often mistaken by the ignorant for substantial discovery. Perhaps, too, very nearly the same portion of genius and judgment has been exerted in most of the various forms under which science has been cultivated at different periods of history. The superiority of those writers who continue to be read, perhaps often consists chiefly in taste, in prudence, in a happy choice of subject, in a favourable moment, in an agreeable style, in the good fortune of a prevalent language, or in other advantages which are either accidental, or are the result rather of the secondary, than of the highest, faculties of the mind. But these reflections, while they moderate the pride of invention, and dispel the extravagant conceit of superior illumination, yet serve to prove the use, and indeed the necessity, of composing, from time to time, new systems of science adapted to the opinions and language of each succeeding period. Every age must be taught in its own language. If a man were now to begin a discourse on ethics with an account of the “moral entities” of Puffendorff,* he would speak an unknown tongue.
It is not, however, alone as a mere translation of<357> former writers into modern language that a new system of public law seems likely to be useful. The age in which we live possesses many advantages which are peculiarly favourable to such an undertaking. Since the composition of the great works of Grotius and Puffendorff, a more modest, simple, and intelligible philosophy has been introduced into the schools; which has indeed been grossly abused by sophists, but which, from the time of Locke, has been cultivated and improved by a succession of disciples worthy of their illustrious master. We are thus enabled to discuss with precision, and to explain with clearness, the principles of the science of human nature, which are in themselves on a level with the capacity of every man of good sense, and which only appeared to be abstruse from the unprofitable subtleties with which they were loaded, and the barbarous jargon in which they were expressed. The deepest doctrines of morality have since that time been treated in the perspicuous and popular style, and with some degree of the beauty and eloquence of the ancient moralists. That philosophy on which are founded the principles of our duty, if it has not become more certain (for morality admits no discoveries), is at least less “harsh and crabbed,”5 less obscure and haughty in its language, and less forbidding and disgusting in its appearance, than in the days of our ancestors. If this progress of leaning towards popularity has engendered (as it must be owned that it has) a multitude of superficial and most mischievous sciolists,6 the antidote must come from the same quarter with the disease: popular reason can alone correct popular sophistry.
Nor is this the only advantage which a writer of the present age would possess over the celebrated jurists of the last century. Since that time vast additions have been made to the stock of our knowledge of human nature. Many dark periods of history have since been explored: many hitherto unknown regions of the globe have been visited and described by<358> travellers and navigators not less intelligent than intrepid. We may be said to stand at the confluence of the greatest number of streams of knowledge flowing from the most distant sources that ever met at one point. We are not confined, as the learned of the last age generally were, to the history of those renowned nations who are our masters in literature. We can bring before us man in a lower and more abject condition than any in which he was ever before seen. The records have been partly opened to us of those mighty empires of Asia* where the beginnings of civilization are lost in the darkness of an unfathomable antiquity. We can make human society pass in review before our mind, from the brutal and helpless barbarism of Terra del Fuego, and the mild7 and voluptuous savages of Otaheite, to the tame, but ancient and immoveable civilization of China, which bestows its own arts on every successive race of conquerors,—to the meek and servile natives of Hindostan, who preserve their ingenuity, their skill, and their science, through a long series of ages, under the yoke of foreign tyrants,— and to the gross and incorrigible rudeness of the Ottomans, incapable of improvement, and extinguishing the remains of civilization among their unhappy subjects, once the most ingenious nations of the earth. We can examine almost every imaginable variety in the character, manners, opinions, feelings, prejudices, and institutions of mankind, into<359> which they can be thrown, either by the rudeness of barbarism, or by the capricious corruptions of refinement, or by those innumerable combinations of circumstances, which, both in these opposite conditions, and in all the intermediate stages between them, influence or direct the course of human affairs. History, if I may be allowed the expression, is now a vast museum, in which specimens of every variety of human nature may be studied. From these great accessions to knowledge, lawgivers and statesmen, but, above all, moralists and political philosophers, may reap the most important instruction. They may plainly discover in all the useful and beautiful variety of governments and institutions, and under all the fantastic multitude of usages and rites which have prevailed among men, the same fundamental, comprehensive truths, the sacred master-principles which are the guardians of human society, recognised and revered (with few and slight exceptions) by every nation upon earth, and uniformly taught (with still fewer exceptions) by a succession of wise men from the first dawn of speculation to the present moment. The exceptions, few as they are, will, on more reflection, be found rather apparent than real. If we could raise ourselves to that height from which we ought to survey so vast a subject, these exceptions would altogether vanish; the brutality of a handful of savages would disappear in the immense prospect of human nature, and the murmurs of a few licentious sophists8 would not ascend to break the general harmony. This consent of mankind in first principles, and this endless variety in their application, which is one among many valuable truths which we may collect from our present extensive acquaintance with the history of man, is itself of vast importance. Much of the majesty and authority of virtue is derived from their consent, and almost the whole of practical wisdom is founded on their variety.
What former age could have supplied facts for such a work as that of Montesquieu? He indeed<360> has been, perhaps justly, charged with abusing this advantage, by the undistinguishing adoption of the narratives of travellers of very different degrees of accuracy and veracity. But if we reluctantly confess the justness of this objection; if we are compelled to own that he exaggerates the influence of climate,—that he ascribes too much to the foresight and forming skill of legislators, and far too little to time and circumstances, in the growth of political constitutions,—that the substantial character and essential differences of governments are often lost and confounded in his technical language and arrangement,—that he often bends the free and irregular outline of nature to the imposing but fallacious geometrical regularity of system,—that he has chosen a style of affected abruptness, sententiousness, and vivacity, ill suited to the gravity of his subject;—after all these concessions (for his fame is large enough to spare many concessions), the Spirit of Laws will still remain not only one of the most solid and durable monuments of the powers of the human mind, but a striking evidence of the inestimable advantages which political philosophy may receive from a wide survey of all the various conditions of human society.
In the present century a slow and silent, but very substantial, mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations. Whoever will compare our present modes of warfare with the system of Grotius* will clearly discern the immense improvements which have taken place in that respect since the publication of his work, during a period, perhaps in every point of view the happiest to be found in the history of the world. In the same period many important points of public law have been the subject of contest both by argument<361> and by arms, of which we find either no mention, or very obscure traces, in the history of preceding times.
There are other circumstances to which I allude with hesitation and reluctance, though it must be owned that they afford to a writer of this age some degree of unfortunate and deplorable advantage over his predecessors. Recent events have accumulated more terrible practical instruction on every subject of politics than could have been in other times acquired by the experience of ages. Men’s wit sharpened by their passions has penetrated to the bottom of almost all political questions. Even the fundamental rules of morality themselves have, for the first time, unfortunately for mankind, become the subject of doubt and discussion.9 I shall consider it as my duty to abstain from all mention of these awful events, and of these fatal controversies. But the mind of that man must indeed be incurious and indocile, who has either overlooked all these things, or reaped no instruction from the contemplation of them.
From these reflections it appears, that, since the composition of those two great works on the law of nature and nations which continue to be the classical and standard works on that subject, we have gained both more convenient instruments of reasoning and more extensive materials for science,—that the code of war has been enlarged and improved,—that new questions have been practically decided,—and that new controversies have arisen regarding the intercourse of independent states, and the first principles of morality and civil government.
Some readers may, however, think that in these observations which I offer, to excuse the presumption of my own attempt, I have omitted the mention of later writers, to whom some part of the remarks is not justly applicable. But, perhaps, further consideration will acquit me in the judgment of such readers. Writers on particular questions of public law are not within the scope of my observations.<362> They have furnished the most valuable materials; but I speak only of a system. To the large work of Wolffius, the observations which I have made on Puffendorff as a book for general use, will surely apply with tenfold force. His abridger, Vattel, deserves, indeed, considerable praise: he is a very ingenious, clear, elegant, and useful writer. But he only considers one part of this extensive subject,—namely, the law of nations, strictly so called; and I cannot help thinking, that, even in this department of the science, he has adopted some doubtful and dangerous principles,10 —not to mention his constant deficiency in that fulness of example and illustration, which so much embellishes and strengthens reason. It is hardly necessary to take any notice of the textbook of Heineccius, the best writer of elementary books with whom I am acquainted on any subject. Burlamaqui is an author of superior merit; but he confines himself too much to the general principles of morality and politics, to require much observation from me in this place. The same reason will excuse me for passing over in silence the works of many philosophers and moralists, to whom, in the course of my proposed lectures, I shall owe and confess the greatest obligations; and it might perhaps deliver me from the necessity of speaking of the work of Dr. Paley, if I were not desirous of this public opportunity of professing my gratitude for the instruction and pleasure which I have received from that excellent writer, who possesses, in so eminent a degree, those invaluable qualities of a moralist,—good sense, caution, sobriety, and perpetual reference to convenience and practice; and who certainly is thought less original than he really is, merely because his taste and modesty have led him to disdain the ostentation of novelty, and because he generally employs more art to blend his own arguments with the body of received opinions (so as that they are scarce to be distinguished), than other men, in the pursuit of a<363> transient popularity, have exerted to disguise the most miserable common-places in the shape of paradox.11
No writer since the time of Grotius, of Puffendorff, and of Wolf, has combined an investigation of the principles of natural and public law, with a full application of these principles to particular cases; and in these circumstances, I trust, it will not be deemed extravagant presumption in me to hope that I shall be able to exhibit a view of this science, which shall, at least, be more intelligible and attractive to students, than the learned trea-tises of these celebrated men. I shall now proceed to state the general plan and subjects of the lectures in which I am to make this attempt.
I. The being whose actions the law of nature professes to regulate, is man. It is on the knowledge of his nature that the science of his duty must be founded.* It is impossible to approach the threshold of moral philosophy without a previous examination of the faculties and habits of the human mind. Let no reader be repelled from this examination by the odious and terrible name of “metaphysics”; for it is, in truth, nothing more than the employment of good sense, in observing our own thoughts, feelings, and actions; and when the facts which are thus observed are expressed, as they ought to be, in plain language, it is, perhaps, above all other sciences, most on a level with the capacity and information of the generality of thinking men. When it is thus expressed, it requires no previous qualification, but a sound judgment perfectly to comprehend it; and those who wrap it up in a technical and mysterious jargon, always give us strong reason to suspect that they are not philosophers, but impostors. Whoever thoroughly understands such a science, must be able to teach it plainly to all men of common sense. The proposed course will therefore open with a very short,<364> and, I hope, a very simple and intelligible account of the powers and operations of the human mind. By this plain statement of facts, it will not be difficult to decide many celebrated, though frivolous and merely verbal, controversies, which have long amused the leisure of the schools, and which owe both their fame and their existence to the ambiguous obscurity of scholastic language. It will, for example, only require an appeal to every man’s experience, to prove that we often act purely from a regard to the happiness of others, and are therefore social beings; and it is not necessary to be a consummate judge of the deceptions of language, to despise the sophistical trifler, who tells us, that, because we experience a gratification in our benevolent actions, we are therefore exclusively and uniformly selfish. A correct examination of facts will lead us to discover that quality which is common to all virtuous actions, and which distinguishes them from those which are vicious and criminal. But we shall see that it is necessary for man to be governed, not by his own transient and hasty opinion upon the tendency of every particular action, but by those fixed and unalterable rules, which are the joint result of the impartial judgment, the natural feelings, and the embodied experience of mankind. The authority of these rules is, indeed, founded only on their tendency to promote private and public welfare; but the morality of actions will appear solely to consist in their correspondence with the rule. By the help of this obvious distinction we shall vindicate a just theory, which, far from being modern, is, in fact, as ancient as philosophy, both from plausible objections, and from the odious imputation12 of supporting those absurd and monstrous systems which have been built upon it. Beneficial tendency is the foundation of rules, and the criterion by which habits and sentiments are to be tried: but it is neither the immediate standard, nor can it ever be the principal motive of action.13 An action to be completely virtuous, must accord with moral rules, and must flow<365> from our natural feelings and affections, moderated, matured, and improved into steady habits of right conduct.* Without, however, dwelling longer on subjects which cannot be clearly stated, unless they are fully unfolded, I content myself with observing, that it shall be my object, in this preliminary, but most important, part of the course, to lay the foundations of morality so deeply in human nature, as to satisfy the coldest inquirer; and, at the same time, to vindicate the paramount authority of the rules of our duty, at all times, and in all places, over all opinions of interest and speculations of benefit, so extensively, so universally, and so inviolably, as may well justify the grandest and the most apparently extravagant effusions of moral enthusiasm. If, notwithstanding all my endeavours to deliver these doctrines with the utmost simplicity, any of my auditors should still reproach me for introducing such abstruse matters, I must shelter myself behind the authority of the wisest of men. “If they (the ancient moralists,) before they had come to the popular and received notions of virtue and vice, had staid a little longer upon the inquiry concerning the roots of good and evil, they had given, in my opinion, a great light to that which followed; and especially if they had consulted with nature, they had made their doctrines less prolix, and more profound.”† What Lord Bacon desired for the mere gratification of scientific curiosity, the welfare of mankind now imperiously demands. Shallow systems of metaphysics have given birth to a brood of abominable and pestilential paradoxes, which nothing but a more profound philosophy can destroy.14 However we may, perhaps, lament the necessity of discussions which may shake the habitual reverence of some men for those rules which it is the chief interest of all men to practise, we have now no choice left. We<366> must either dispute, or abandon the ground. Undistinguishing and unmerited invectives against philosophy will only harden sophists and their disciples in the insolent conceit, that they are in possession of an undisputed superiority of reason; and that their antagonists have no arms to employ against them, but those of popular declamation. Let us not for a moment even appear to suppose, that philosophical truth and human happiness are so irreconcilably at variance. I cannot express my opinion on this subject so well as in the words of a most valuable, though generally neglected writer: “The science of abstruse learning, when completely attained, is like Achilles’s spear, that healed the wounds it had made before; so this knowledge serves to repair the damage itself had occasioned, and this perhaps is all it is good for; it casts no additional light upon the paths of life, but disperses the clouds with which it had overspread them before; it advances not the traveller one step in his journey, but conducts him back again to the spot from whence he wandered. Thus the land of philosophy consists partly of an open champaign country, passable by every common understanding, and partly of a range of woods, traversable only by the speculative, and where they too frequently delight to amuse themselves. Since then we shall be obliged to make incursions into this latter track, and shall probably find it a region of obscurity, danger, and difficulty, it behoves us to use our utmost endeavours for enlightening and smoothing the way before us.”* We shall, however, remain in the forest only long enough to visit the fountains of those streams which flow from it, and which water and fertilise the cultivated region of morals, to become acquainted with the modes of warfare practised by its savage inhabitants, and to learn the means of guarding our fair and fruitful land against their desolating incursions. I shall hasten from speculations, to which I am naturally,<367> perhaps, but too prone, and proceed to the more profitable consideration of our practical duty.
The first and most simple part of ethics is that which regards the duties of private men towards each other, when they are considered apart from the sanction of positive laws. I say apart from that sanction, not antecedent to it; for though we separate private from political duties for the sake of greater clearness and order in reasoning, yet we are not to be so deluded by this mere arrangement of convenience as to suppose that human society ever has subsisted, or ever could subsist, without being protected by government, and bound together by laws. All these relative duties of private life have been so copiously and beautifully treated by the moralists of antiquity, that few men will now choose to follow them, who are not actuated by the wild ambition of equalling Aristotle in precision, or rivalling Cicero in eloquence. They have been also admirably treated by modern moralists, among whom it would be gross injustice not to number many of the preachers of the Christian religion, whose peculiar character is that spirit of universal charity, which is the living principle of all our social duties. For it was long ago said, with great truth, by Lord Bacon, “that there never was any philosophy, religion, or other discipline, which did so plainly and highly exalt that good which is communicative, and depress the good which is private and particular, as the Christian faith.”* The appropriate praise of this religion is not so much that it has taught new duties, as that it breathes a milder and more benevolent spirit over the whole extent of morals.
On a subject which has been so exhausted, I should naturally have contented myself with the most slight and general survey, if some fundamental principles had not of late been brought into question, which, in all former times, have been deemed too evident to require the<368> support of argument, and almost too sacred to admit the liberty of discussion. I shall here endeavour to strengthen some parts of the fortifications of morality which have hitherto been neglected, because no man had ever been hardy enough to attack them. Almost all the relative duties of human life will be found more immediately, or more remotely, to arise out of the two great institutions of property and marriage. They constitute, preserve, and improve society. Upon their gradual improvement depends the progressive civilization of mankind; on them rests the whole order of civil life. We are told by Horace, that the first efforts of lawgivers to civilize men consisted in strengthening and regulating these institutions, and fencing them round with rigorous penal laws.
A celebrated ancient orator, of whose poems we have but a few fragments remaining, has well described the progressive order in which human society is gradually led to its highest improvements under the guardianship of those laws which secure property and regulate marriage.
These two great institutions convert the selfish as well as the social passions of our nature into the firmest bands of a peaceable and orderly intercourse; they change the sources of discord into principles of quiet; they discipline the most ungovernable, they refine the grossest, and they exalt the most sordid propensities; so that they become the perpetual fountain of all that strengthens, and preserves, and adorns society: they sustain the individual, and they perpetuate the race. Around these institutions all our social duties will be found at various distances to range themselves;<369> some more near, obviously essential to the good order of human life; others more remote, and of which the necessity is not at first view so apparent; and some so distant, that their importance has been sometimes doubted, though upon more mature consideration they will be found to be outposts and advanced guards of these fundamental principles,—that man should securely enjoy the fruits of his labour, and that the society of the sexes should be so wisely ordered, as to make it a school of the kind affections, and a fit nursery for the commonwealth.
The subject of property is of great extent. It will be necessary to establish the foundation of the rights of acquisition, alienation, and transmission, not in imaginary contracts or a pretended state of nature, but in their subserviency to the subsistence and well-being of mankind. It will not only be curious, but useful, to trace the history of property from the first loose and transient occupancy of the savage, through all the modifications which it has at different times received, to that comprehensive, subtle, and anxiously minute code of property which is the last result of the most refined civilization.
I shall observe the same order in considering the society of the sexes, as it is regulated by the institution of marriage.* I shall endeavour to lay open those unalterable principles of general interest on which that institution rests;16 and if I entertain a hope that on this subject I may be able to add something to what our masters in morality have taught us, I trust, that the reader will bear in mind, as an excuse for my presumption, that they were not likely to employ much argument where they did not foresee the possibility of doubt. I shall also consider the<370> history* of marriage, and trace it through all the forms which it has assumed, to that descent and happy permanency of union, which has, perhaps above all other causes, contributed to the quiet of society, and the refinement of manners in modern times. Among many other inquiries which this subject will suggest, I shall be led more particularly to examine the natural station and duties of the female sex, their condition among different nations, its improvement in Europe, and the bounds which Nature herself has prescribed to the progress of that improvement; beyond which every pretended advance will be a real degradation.
Having established the principles of private duty, I shall proceed to consider man under the important relation of subject and sovereign, or, in other words, of citizen and magistrate. The duties which arise from this relation I shall endeavour to establish, not upon supposed compacts, which are altogether chimerical, which must be admitted to be false in fact, and which, if they are to be considered as fictions, will be found to serve no purpose of just reasoning, and to be equally the foundation of a system of universal despotism in Hobbes, and of universal anarchy in Rousseau; but on the solid basis of general convenience. Men cannot subsist without society and mutual aid; they can neither maintain social intercourse<371> nor receive aid from each other without the protection of government; and they cannot enjoy that protection without submitting to the restraints which a just government imposes. This plain argument establishes the duty of obedience on the part of the citizens, and the duty of protection on that of magistrates, on the same foundation with that of every other moral duty; and it shows, with sufficient evidence, that these duties are reciprocal;—the only rational end for which the fiction of a contract should have been invented. I shall not encumber my reasoning by any speculations on the origin of government,—a question on which so much reason has been wasted in modern times; but which the ancients* in a higher spirit of philosophy have never once mooted. If our principles be just, our origin of government must have been coeval with that of mankind; and as no tribe has ever been discovered so brutish as to be without some government, and yet so enlightened as to establish a government by common consent, it is surely unnecessary to employ any serious argument in the confutation of the doctrine that is inconsistent with reason, and unsupported by experience. But though all inquiries into the origin of government be chimerical, yet the history of its progress is curious and useful. The various stages through which it passed from savage independence, which implies every man’s power of injuring his neighbour, to legal liberty, which consists in every man’s security against wrong; the manner in which a family expands into a tribe, and tribes coalesce into a nation,—in which public justice is gradually engrafted on private revenge,<372> and temporary submission ripened into habitual obedience; form a most important and extensive subject of inquiry, which comprehends all the improvements of mankind in police, in judicature, and in legislation.
I have already given the reader to understand that the description of liberty which seems to me the most comprehensive, is that of security against wrong. Liberty is therefore the object of all government. Men are more free under every government, even the most imperfect, than they would be if it were possible for them to exist without any government at all: they are more secure from wrong, more undisturbed in the exercise of their natural powers, and therefore more free, even in the most obvious and grossest sense of the word, than if they were altogether unprotected against injury from each other.17 But as general security is enjoyed in very different degrees under different governments, those which guard it most perfectly, are by the way of eminence called “free.” Such governments attain most completely the end which is common to all government. A free constitution of government and a good constitution of government are therefore different expressions for the same idea.
Another material distinction, however, soon presents itself. In most civilised states the subject is tolerably protected against gross injustice from his fellows by impartial laws, which it is the manifest interest of the sovereign to enforce: but some commonwealths are so happy as to be founded on a principle of much more refined and provident wisdom. The subjects of such commonwealths are guarded not only against the injustice of each other, but (as far as human prudence can contrive) against oppression from the magistrate. Such states, like all other extraordinary examples of public or private excellence and happiness, are thinly scattered over the different ages and countries of the world. In them the will of the sovereign is limited with so exact a measure, that<373> his protecting authority is not weakened. Such a combination of skill and fortune is not often to be expected, and indeed never can arise, but from the constant though gradual exertions of wisdom and virtue, to improve a long succession of most favourable circumstances. There is, indeed, scarce any society so wretched as to be destitute of some sort of weak provision against the injustice of their governors. Religious institutions, favourite prejudices, national manners, have in different countries, with unequal degrees of force, checked or mitigated the exercise of supreme power. The privileges of a powerful nobility, of opulent mercantile communities, of great judicial corporations, have in some monarchies approached more near to a control on the sovereign. Means have been devised with more or less wisdom to temper the despotism of an aristocracy over their subjects, and in democracies to protect the minority against the majority, and the whole people against the tyranny of demagogues. But in these unmixed forms of government, as the right of legislation is vested in one individual or in one order, it is obvious that the legislative power may shake off all the restraints which the laws have imposed on it. All such governments, therefore, tend towards despotism, and the securities which they admit against misgovernment are extremely feeble and precarious. The best security which human wisdom can devise, seems to be the distribution of political authority among different individuals and bodies, with separate interests, and separate characters, corresponding to the variety of classes of which civil society is composed,—each interested to guard their own order from oppression by the rest,—each also interested to prevent any of the others from seizing on exclusive, and therefore despotic power; and all having a common interest to co-operate in carrying on the ordinary and necessary administration of government. If there were not an interest to resist each other in extraordinary cases, there would not be liberty: if there were not an interest to co-operate<374> in the ordinary course of affairs, there could be no government. The object of such wise institutions, which make selfishness of governors a security against their injustice, is to protect men against wrong both from their rulers and their fellows. Such governments are, with justice, peculiarly and emphatically called “free” and in ascribing that liberty to the skilful combination of mutual dependence and mutual check, I feel my own conviction greatly strengthened by calling to mind, that in this opinion I agree with all the wise men who have ever deeply considered the principles of politics;—with Aristotle and Polybius, with Cicero and Tacitus, with Bacon and Machiavel, with Montesquieu and Hume.* It is impossible in such a cursory sketch as the present, even to allude to a very small part of those philosophical principles, political reasonings, and historical facts, which are necessary for the illustration of this momentous subject. In a full discussion of it I shall be obliged to examine the general frame of the most celebrated governments of ancient and modern times, and especially of those which have been most renowned for their freedom. The result of such an examination will be, that no institution so detestable as an absolutely<375> unbalanced government, perhaps ever existed; that the simple governments are mere creatures of the imagination of theorists, who have transformed names used for convenience of arrangement into real politics; that, as constitutions of government approach more nearly to that unmixed and uncontrolled simplicity they become despotic, and as they recede farther from that simplicity they become free.
By the constitution of a state, I mean “the body of those written and unwritten18 fundamental laws which regulate the most important rights of the higher magistrates, and the most essential privileges* of the subjects.” Such a body of political laws must in all countries arise out of the character and situation of a people; they must grow with its progress, be adapted to its peculiarities, change with its changes, and be incorporated with its habits. Human wisdom cannot form such a constitution by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineffectual, to change by violence the ancient habits of men, and the established order of society, so as to fit them for an absolutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee,—generally, indeed, to institutions the most opposite to those of which they profess to seek the establishment.† But human wisdom<376> indefatigably employed in remedying abuses, and in seizing favourable opportunities of improving that order of society which arises from causes over which we have little control, after the reforms and amendments of a series of ages, has sometimes, though very rarely, shown itself capable of building up a free constitution, which is “the growth of time and nature, rather than the work of human invention.”19* Such a constitution can only be formed by the wise imitation of “the great innovator Time, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived.”† Without descending to the puerile ostentation of panegyric, on that of which all mankind confess the excellence, I may observe, with truth and soberness, that a free government not only establishes a universal security against wrong, but that it also cherishes all the noblest powers of the human mind; that it tends to banish both the mean and the ferocious vices; that it improves the national character to which it is adapted, and out of which it grows; that its whole administration is a practical school of honesty and humanity; and that there the social affections, expanded into public spirit, gain a wider sphere, and a more active spring.
I shall conclude what I have to offer on government, by an account of the constitution of England. I shall endeavour to trace the progress of that constitution by the light of history, of laws, and of records, from the earliest times to the present age; and to show how the general principles of liberty, originally common to it with the other Gothic monarchies of<377> Europe, but in other countries lost or obscured, were in this more fortunate island preserved, matured, and adapted to the progress of civilization. I shall attempt to exhibit this most complicated machine, as our history and our laws show it in action; and not as some celebrated writers have most imperfectly represented it, who have torn out a few of its more simple springs, and putting them together, miscal them the British constitution. So prevalent, indeed, have these imperfect representations hitherto been, that I will venture to affirm, there is scarcely any subject which has been less treated as it deserved than the government of England. Philosophers of great and merited reputation* have told us that it consisted of certain portions of monarchy, aristocracy, and democracy,—names which are, in truth, very little applicable, and which, if they were, would as little give an idea of this government, as an account of the weight of bone, of flesh, and of blood in a human body, would be a picture of a living man. Nothing but a patient and minute investigation of the practice of the government in all its parts, and through its whole history, can give us just notions on this important subject. If a lawyer, without a philosophical spirit, be unequal to the examination of this great work of liberty and wisdom, still more unequal is a philosopher without practical, legal, and historical knowledge; for the first may want skill, but the second wants materials. The observations of Lord Bacon on political writers, in general, are most applicable to those who have given us systematic descriptions of the English constitution. “All those who have written of governments have written as philosophers, or as lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars, which give little light<378> because they are so high.”20 —“Haec cognitio ad viros civiles propriè pertinet,”21 as he tells us in another part of his writings; but unfortunately no experienced philosophical British statesman has yet devoted his leisure to a delineation of the constitution, which such a statesman alone can practically and perfectly know.
In the discussion of this great subject, and in all reasonings on the principles of politics, I shall labour, above all things, to avoid that which appears to me to have been the constant source of political error:—I mean the attempt to give an air of system, of simplicity, and of rigorous demonstration, to subjects which do not admit it. The only means by which this could be done, was by referring to a few simple causes, what, in truth, arose from immense and intricate combinations, and successions of causes. The consequence was very obvious. The system of the theorist, disencumbered from all regard to the real nature of things, easily assumed an air of speciousness: it required little dexterity, to make his arguments appear conclusive. But all men agreed that it was utterly inapplicable to human affairs. The theorist railed at the folly of the world, instead of confessing his own; and the man of practice unjustly blamed Philosophy, instead of condemning the sophist.22 The causes which the politician has to consider are, above all others, multiplied, mutable, minute, subtile, and, if I may so speak, evanescent,—perpetually changing their form, and varying their combinations,—losing their nature, while they keep their name,—exhibiting the most different consequences in the endless variety of men and nations on whom they operate,—in one degree of strength producing the most signal benefit, and, under a slight variation of circumstances, the most tremendous mischiefs. They admit indeed of being reduced to theory; but to a theory formed on the most extensive views, of the most comprehensive and flexible principles, to embrace all their varieties, and to fit all their rapid transmigrations,—a theory, of which the<379> most fundamental maxim is, distrust in itself, and deference for practical prudence. Only two writers of former times have, as far as I know, observed this general defect of political reasoners; but these two are the greatest philosophers who have ever appeared in the world. The first of them is Aristotle, who, in a passage of his Politics,23 to which I cannot at this moment turn, plainly condemns the pursuit of a delusive geometrical accuracy in moral reasonings as the constant source of the grossest error. The second is Lord Bacon, who tells us, with that authority of conscious wisdom which belongs to him, and with that power of richly adorning Truth from the wardrobe of Genius which he possessed above almost all men, “Civil knowledge is conversant about a subject which, above all others, is most immersed in matter, and hardliest reduced to axiom.”*24
I shall next endeavour to lay open the general principles of civil and criminal laws. On this subject I may with some confidence hope that I shall be enabled to philosophise with better materials by my acquaintance with the laws of my own country, which it is the business of my life to practise, and of which the study has by habit become my favourite pursuit.
The first principles of jurisprudence are simple maxims of Reason, of which the observance is immediately discovered by experience to be essential to the security of men’s rights, and which pervade the laws of all countries. An account of the gradual application of these original principles, first to more simple, and afterwards to more complicated cases,<380> forms both the history and the theory of law. Such an historical account of the progress of men, in reducing justice to an applicable and practical system, will enable us to trace that chain, in which so many breaks and interruptions are perceived by superficial observers, but which in truth inseparably, though with many dark and hidden windings, links together the security of life and property with the most minute and apparently frivolous formalities of legal proceeding. We shall perceive that no human foresight is sufficient to establish such a system at once, and that, if it were so established, the occurrence of unforeseen cases would shortly altogether change it; that there is but one way of forming a civil code, either consistent with common sense, or that has ever been practised in any country,—namely, that of gradually building up the law in proportion as the facts arise which it is to regulate. We shall learn to appreciate the merit of vulgar objections against the subtilty and complexity of laws. We shall estimate the good sense and the gratitude of those who reproach lawyers for employing all the powers of their mind to discover subtle distinctions for the prevention of injustice;* and we shall at once perceive that laws ought to be neither more simple nor more complex than the state of society which they are to govern, but that they ought exactly to correspond to it. Of the two faults, however, the excess of simplicity would certainly be the greatest; for laws, more complex than are necessary, would only produce embarrassment; whereas laws more simple than the affairs which they regulate would occasion a defeat of Justice. More understanding has perhaps been in this manner exerted to fix the rules of life than in any other science;† and it is<381> certainly the most honourable occupation of the understanding, because it is the most immediately subservient to general safety and comfort. There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautious and unwearied exertions of a succession of wise men, through a long course of ages, withdrawing every case as it arises from the dangerous power of discretion, and subjecting it to inflexible rules,—extending the dominion of justice and reason, and gradually contracting, within the narrowest possible limits, the domain of brutal force and of arbitrary will. This subject has been treated with such dignity by a writer who is admired by all mankind for his eloquence, but who is, if possible, still more admired by all competent judges for his philosophy,—a writer, of whom I may justly say, that he was “gravissimus et dicendi et intelligendi auctor et magister,”25 —that I cannot refuse myself the gratification of quoting his words:—“The science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages combining the principles of original justice with the infinite variety of human concerns.”*
I shall exemplify the progress of law, and illustrate those principles of Universal Justice on which it is founded, by a comparative review of the two greatest civil codes that have been hitherto formed,—those of Rome26 and of England,* —of their agreements<382> and disagreements, both in general provisions, and in some of the most important parts of their minute practice. In this part of the course, which I mean to pursue with such detail as to give a view of both codes, that may perhaps be sufficient for the purposes of the general student,27 I hope to convince him that the laws of civilized nations, particularly those of his own, are a subject most worthy of scientific curiosity; that principle and system run through them even to the minutest particular, as really, though not so apparently, as in other sciences, and applied to purposes more important than those of any other science. Will it be presumptuous to express a hope, that such an inquiry may not be altogether a useless introduction to that larger and more detailed study of the law of England, which is the duty of those who are to profess and practise that law?
In considering the important subject of criminal law it will be my duty to found, on a regard to the general safety, the right of the magistrate to inflict punishments, even the most severe, if that safety cannot be effectually protected by the example of inferior punishments. It will be a more agreeable part of my office to explain the temperaments which Wisdom, as well as Humanity, prescribes in the exercise of that harsh right, unfortunately so essential to the preservation of human society. I shall collate the penal codes of different nations, and gather together the most accurate statement of the result of experience with respect to the efficacy of lenient and severe punishments; and I shall endeavour to ascertain the principles on which must be founded both the proportion and the appropriation of penalties to crimes. As to the law of criminal proceeding,28 my labour will be very easy; for on that subject an English lawyer, if he were to delineate the model of perfection, would find that, with few exceptions, he had transcribed the institutions of his own country.
The next great division of the subject is the “law of nations,” strictly and properly so called. I have<383> already hinted at the general principles on which this law is founded. They, like all the principles of natural jurisprudence, have been more happily cultivated, and more generally obeyed, in some ages and countries than in others; and, like them, are susceptible of great variety in their application, from the character and usage of nations. I shall consider these principles in the gradation of those which are necessary to any tolerable intercourse between nations, of those which are essential to all well-regulated and mutually advantageous intercourse, and of those which are highly conducive to the preservation of a mild and friendly intercourse between civilized states. Of the first class, every understanding acknowledges the necessity, and some traces of a faint reverence for them are discovered even among the most barbarous tribes; of the second, every well-informed man perceives the important use, and they have generally been respected by all polished nations; of the third, the great benefit may be read in the history of modern Europe, where alone they have been carried to their full perfection. In unfolding the first and second class of principles, I shall naturally be led to give an account of that law of nations, which, in greater or less perfection, regulated the intercourse of savages, of the Asiatic empires, and of the ancient republics. The third brings me to the consideration of the law of nations, as it is now acknowledged in Christendom. From the great extent of the subject, and the particularity to which, for reasons already given, I must here descend, it is impossible for me, within my moderate compass, to give even an outline of this part of the course. It comprehends, as every reader will perceive, the principles of national independence, the intercourse of nations in peace, the privileges of ambassadors and inferior ministers, the commerce of private subjects, the grounds of just war, the mutual duties of belligerent and neutral powers, the limits of lawful hostility, the rights of conquest, the faith to be observed in warfare, the force of an armistice,—of safe conducts and passports,<384> the nature and obligation of alliances, the means of negotiation, and the authority and interpretation of treaties of peace. All these, and many other most important and complicated subjects, with all the variety of moral reasoning, and historical examples which is necessary to illustrate them, must be fully examined in that part of the lectures, in which I shall endeavour to put together a tolerably complete practical system of the law of nations, as it has for the last two centuries been recognised in Europe.
“Le droit des gens est naturellement fondé sur ce principe, que les diverses nations doivent se faire, dans la paix le plus de bien, et dans la guerre le moins de mal, qu’il est possible, sans nuire à leurs véritables intérêts. L’objet de la guerre c’est la victoire; celui de la victoire la conquête; celui de la conquête la conservation. De ce principe et du précédent, doivent dériver toutes les loix qui forment le droit des gens. Toutes les nations ont un droit des gens; et les Iroquois même, qui mangent leurs prisonniers, en ont un. Ils envoient et reçoivent des embassades; ils connoissent les droits de la guerre et de la paix: le mal est que ce droit des gens n’est pas fondé sur les vrais principes.”*
As an important supplement to the practical system of our modern law of nations, or rather as a necessary part of it, I shall conclude with a survey of the diplomatic and conventional law of Europe, and of the treaties which have materially affected the distribution of power and territory among the European states,—the circumstances which gave rise to them, the changes which they effected, and the principles which they introduced into the public code of the Christian commonwealth. In ancient times the knowledge of this conventional law was thought one of the greatest praises that could be bestowed on a name loaded with all the honours that eminence in the arts of peace and war can confer: “Equidem existimo, judices,<385> cùm in omni genere ac varietate artium, etiam illarum, quae sine summo otio non facilè discuntur, Cn. Pompeius excellat, singularem quandam laudem ejus et praestabilem esse scientiam, in foederibus, pactionibus, conditionibus, populorum, regum, exterarum nationum: in universo denique belli jure ac pacis.”* Information on this subject is scattered over an immense variety of voluminous compilations, not accessible to every one, and of which the perusal can be agreeable only to a very few. Yet so much of these treaties has been embodied into the general law of Europe, that no man can be master of it who is not acquainted with them. The knowledge of them is necessary to negotiators and statesmen; it may sometimes be important to private men in various situations in which they may be placed; it is useful to all men who wish either to be acquainted with modern history, or to form a sound judgment on political measures. I shall endeavour to give such an abstract of it as may be sufficient for some, and a convenient guide for others in the farther progress of their studies. The treaties which I shall more particularly consider, will be those of Westphalia, of Oliva, of the Pyrenees, of Breda, of Nimeguen, of Ryswick, of Utrecht, of Aix-la-Chapelle, of Paris (1763), and of Versailles (1783). I shall shortly explain the other treaties, of which the stipulations are either alluded to, confirmed, or abrogated in those which I consider at length. I shall subjoin an account of the diplomatic intercourse of the European powers with the Ottoman Porte, and with other princes and states who are without the pale of our ordinary federal law; together with a view of the most important treaties of commerce, their principles, and their consequences.
As an useful appendix to a practical treatise on the law of nations, some account will be given of those tribunals which in different countries of Europe decide controversies arising out of that law; of their<386> constitution, of the extent of their authority, and of their modes of proceeding; more especially of those courts which are peculiarly appointed for that purpose by the laws of Great Britain.
Though the course, of which I have sketched the outline, may seem to comprehend so great a variety of miscellaneous subjects, yet they are all in truth closely and inseparably interwoven. The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most abstract and elementary maxim of moral philosophy, and the most complicated controversies of civil or public law, there subsists a connection which it will be the main object of these lectures to trace. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty.
I know not whether a philosopher ought to confess, that in his inquiries after truth he is biassed by any consideration,—even by the love of virtue. But I, who conceive that a real philosopher ought to regard truth itself chiefly on account of its subserviency to the happiness of mankind, am not ashamed to confess, that I shall feel a great consolation at the conclusion of these lectures, if, by a wide survey and an exact examination of the conditions and relations of human nature, I shall have confirmed but one individual in the conviction, that justice is the permanent interest of all men, and of all commonwealths. To discover one new link of that eternal chain by which the Author of the universe has bound together the happiness and the duty of His creatures, and indissolubly fastened their interests to each other, would fill my heart with more pleasure than all the fame with which the most ingenious paradox ever crowned the most eloquent sophist. I shall conclude this Discourse in the noble language of two great orators and<387> philosophers, who have, in a few words, stated the substance, the object, and the result of all morality, and politics, and law. “Nihil est quod adhuc de republicâ putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuriâ non posse, sed hoc verissimum, sine summâ justitiâ rempublicam geri nullo modo posse.”* “Justice is itself the great standing policy of civil society, and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all.”†
[* ]Witness the memorable example of Harrington, who published a demonstration of the impossibility of reestablishing monarchy in England six months before the restoration of Charles II. [Probably a reference to James Harrington, Valerius and Publicola (London, 1659). For a recent edition see The Political Works of James Harrington, ed. J. G. A. Pocock (Cambridge: Cambridge University Press, 1977), 781–806.] Religious prophecies have usually the inestimable convenience of relating to a distant futurity.
[† ]The malignant hostility displayed against French freedom by a perfidious Prince, who occupies and dishonours the throne of Gustavus Vasa, cannot excite our wonder, though it may provoke our indignation. The Pensioner of French despotism could not rejoice in its destruction, nor could a monarch, whose boasted talents have hitherto been confined to perjury and usurpation, fail to be wounded by the establishment of freedom; for freedom demands genius, not intrigue; wisdom, not cunning.
[‡ ]May I be permitted to state how the ancestors of a nation now stigmatized for servility, felt this powerful sentiment. The Scottish nobles contending for their liberty under Robert Bruce, thus spoke to the Pope, “Non pugnamus propter divitias honores, aut dignitates sed propterLibertatemtantummodo quam nemo bonus nisi simul cum vita amittit!”—Nor was this sentiment confined to the Magnates, for the same letter declares the assent of the Commons: “Totaque Communitas Regni Scotiae!”—[“It is in truth not for glory, nor riches, nor honors that we are fighting, but for freedom—for that alone, which no honest man gives up but with life itself”; and “the whole community of the realm of Scotland.” Declaration of Abroath, 1320.] Reflecting on the various fortunes of my country, I cannot exclude from my mind the comparison between its present reputation and our ancient character—“terrarum et libertatis extremos” [“Here at the world’s end, on its last inch of liberty.” Tacitus, Agricola, in Dialogus, Agricola, Germania, trans. W. Peterson (London and New York: Heinemann and G. P. Putnam’s Sons, 1920), 220–21 (§30).]—nor can I forget the honourable reproach against the Scottish name in the character of Buchanan by Thuanus, who remarks of that illustrious scholar “Libertategenti innatain regium fastigium accibior.” [“Harsher against the royal dignity by the sense of freedom innate in his people.” Thuanus (Jacques-Auguste de Thou), Historiae suorum temporum (Geneva, 1626), 3:582 (bk. 76).] This melancholy retrospect is however relieved by the hope that a gallant and enlightened people will not be slow in renewing the aera of such reproaches.
[* ]The most important materials for the philosophy of history are collected from remarks on the coincidence of the situations and sentiments of distant periods, and it may be curious as well as instructive, to present to the Reader the topics by which the Calonnes of Charles I. were instructed, to awaken the jealousy and solicit the aid of the European Courts. “A dangerous combination of his Majesty’s subjects have laid a design to dissolve the Monarchy and frame of Government—becoming a dangerous precedent to all the Monarchies of Christendom, if attended with success in their design.”
[* ]Gibbon. [Edward Gibbon, The Decline and Fall of the Roman Empire, ed. D. Womersley, 3 vols. (London: Allen Lane, 1994), 3:554 (vol. 5, chap. 57).]
[106. ]Hume, “Idea of a Perfect Commonwealth,” in Essays Moral, Political, and Literary (Indianapolis: Liberty Fund, 1985), 528.
[* ]See this progress stated by the concise philosophy of Montesquieu, and illustrated by the copious eloquence of Gibbon. [Montesquieu, Considérations sur les causes de la grandeur des Romains (Amsterdam: Mortier, 1734) and Gibbon, The Decline and Fall of the Roman Empire.] The republican disguise extends from Augustus to Severus. The military despotism from Severus to Diocletian. The Asiatic Sultanship from Diocletian to the final extinction of the Roman name.
[* ]The subject of this argument merits a more ample illustration. Profound and ingenious philosophers have even questioned the existence of Grecian Legislation. No competent judge will refuse these epithets to Professor Millar. [John Millar, professor of civil law at Glasgow. Probably a reference to his An Historical View of the English Government, 4 vols. (1787), vol. 4, chap. 7, “The Progress of Science Relative to Law and Government.”] But this important subject, and more especially the similarity between the legislative age of Greece and the present condition of Europe, I reserve for a more undisturbed leisure; for a reflection and research which may enable me to reason with more force, and entitle me to decide with more confidence.
[107. ]“That from it a people, kings of broad realms and proud in war, should come forth for Libya’s downfall.” Virgil, “Aeneid,” in Virgil, trans. H. Rushton Fairclough, 2 vols. (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1967), 1:242–43 (I, 21–22).
[* ]Those who doubt the service done by Mr. Burke to his cause may be pleased with this passage of Milton.—“Magnam a regibus iniisse te gratiam omnes principes et terrarum Dominos demeruisse Defensione hâc regiâ te fortè putas Salmasi; cum illi si bona sua remque suam ex veritate potius quam ex adulationibus tuisvellent aestimare neminem te pejus, odisse, neminem a se longius abigere, atque arcere debeant. Dum enim regiam potestatem in immensum extollas admones eâdem operâ omnes fere populos servitutis suae nec opinatae; eoque vehementius impellis ut veternum illum quo se esse liberos inaniter somniabant repentè excutiant.”
[* ]ADoctor Cooper, or aDoctor Tatham, cannot be so infatuated as to dream, that even their academical titles can procure them the perusal, not to mention the refutation of men of sense. The insolence of the latter pedant had, indeed, nearly obtained him the honor of a castigation, which would have made him for ever sick of political controversy!
[† ]Both are admirably delineated by Helvetius.
[* ]These are no vague accusations. A sermon was preached in a parish church in Middlesex on the anniversary of the restoration of Charles II. in which eternal punishmentwas denounced against political disaffection! Persons for whose discernment and veracity I can be responsible, were among the indignant auditors of this infernal homily.
[108. ]Joseph Priestley.
[* ]The only thing that I recollect to have the air of argument in the two last pamphlets of Mr. Burke is, the reasoning against the right of a majority to change a Government. [Presumably a reference to Burke’s “Letter to a Member of the National Assembly” (May 1791) and “Appeal from the New to the Old Whigs” (August 1791). For recent editions see E. Burke, Further Reflections on the Revolution in France, ed. D. E. Ritchie (Indianapolis: Liberty Fund, 1992), 27–72 and 73–201.] Whatever be the plausibility or dexterity of this reasoning, its originality will be best estimated by the following passage of a profane philosopher!
[1. ]“With them came Curio of the reckless heart and venal tongue; yet once he had been the spokesman of the people and a bold champion of freedom.” Lucan, “The Civil War,” in Lucan, trans. J. D. Duff (London and New York: Heinemann and G. P. Putnam’s Sons, 1928), 22–23 [bk. 1, lines 269–71].
[* ]See the debate on Mr. Pitt’s motion for Parliamentary Reform on the 7th May, 1782. Compare the reply of the Chancellor of the Exchequer to the alarms and arguments of Mr. T. Pitt, proprietor of Old Sarum, with his speech on the notice of Mr. Grey, the 30th April, 1792, in which he expresses those alarms which he had then scouted, and retails those arguments which he had then contemned!—Ergo referens haec nuncius ibit Pelidae genitori! [“Then thou shalt bear this news and go as messenger to my sire, Peleus’ son Virgil.” “Aeneid,” in Virgil, trans. H. Rushton Fairclough, 2 vols. (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1967), 1:330–31 (bk. 2, lines 547–48). For Pitt’s motion of May 7, 1782, see Parliamentary History of England from the Norman Conquest, in 1066, to the Year 1803, 36 vols. (London: Hansard, 1806–20), 22:1416–22. The other speeches appear in appendix 9, below.]
[2. ]“That each man’s fortune may be according to his deserts towards the state.” Cicero, “The Second Philippic of M. Tullius Cicero against M. Antonius,” in M. Tullius Cicero, Orationes: Pro Milaon, Pro Marcello, Pro Ligario … trans. W. Kerr (London: Heinemann, 1957), 182–83 (speech 2, chap. 46, sect. 118).
[* ]Lord Camelford’s speech. [Also known as Thomas Pitt; see appendix 9, below.]
[3. ]Henry Flood, M.P., a member of the Society for Constitutional Information, had moved for parliamentary reform on March 4, 1790.
[4. ]On April 30, 1792, Charles Grey, the leader of the Association of the Friends of the People, had given notice of his intention to introduce a reform bill in the following year.
[* ]These remarks are neither stated to justify or to condemn the conduct of Mr. Pitt in the celebrated contest of 1784. They are merely intended to contrast his then measures with his present professions, and that any example of inconsistency so gross and notorious is to be found in the black annals of apostacy, I am yet to learn.
[5. ]Henry Dundas, Pitt’s home secretary.
[6. ]A reference to the Ochakov crisis, which followed Russia’s capture of a fortress from the Turks. In March 1791 the government obtained parliamentary support for a naval attack on Russia to secure return of the fortress to Turkey, but Pitt, perceiving a lack of popular support for war, had retreated on the question.
[7. ]“You the gods have made the sovereign arbiter of things; to us has been left the glory of obedience.” Tacitus, Annals, in The Histories, The Annals, trans. J. Jackson, 4 vols. (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1961), 3:166–67 (bk. 6, chap. 8).
[8. ]George Rose, secretary to the treasury, was implicated in corruption charges during the Westminster election, but a motion to inquire into further irregularities by him was defeated on March 13, 1792; see Parliamentary History, 29:1014–33.
[9. ]A reference to the royal proclamation against seditious writings and meetings issued on May 21, 1792.
[10. ]Thomas Paine, The Rights of Man, Part the First (London: Johnson, 1791) and Paine, The Rights of Man, Part the Second (London: Jordan, 1791–92).
[1. ]John Locke, Two Treatises of Government, bk. 2, chap. 13, secs. 157 and 158.
[2. ]William Blackstone, Commentaries on the Laws of England. A Facsimile of the First Edition of 1765–1769, ed. S. N. Katz, 4 vols. (Chicago and London: University of Chicago Press, 1979, 2002), 1:166.
[3. ]A Letter from His Grace the Duke of Richmond to Lieutenant Colonel Sharman, Chairman to the Committee of Correspondence Appointed by the Delegates of Forty-Five Corps of Volunteers, Assembled at Lisburn in Ireland; With Notes, by a Member of the Society for Constitutional Information (London: Johnson, 1792), 4–8.
[4. ]Unable to find source of this extract.
[5. ]Unable to find source of this extract.
[6. ]“Proceedings of the Meeting at the Thatched House Tavern, 16 May 1782,” in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations, ed. T. B. Howell and continued from the year 1783 to the present time by T. J. Howell (London: Hansard, 1817), 22:492–93.
[7. ]James Burgh, Political Disquisitions, 3 vols. (London: E. & C. Dilly, 1774), 1:47–48.
[8. ]Parliamentary History of England from the Norman Conquest, in 1066, to the Year 1803, 36 vols. (London: Hansard, 1806–20), 25:432–50.
[9. ]Ibid., 23:839–44.
[10. ]A slightly different version of this speech appears in Parliamentary History, 29:1310–12.
[* ]For the decency and confidency with which the Right Hon. Gentleman makes this remark. See the Resolutions at the Thatched House Tavern, No. VI. of this Appendix.
[* ]The Reader is again requested to study the character of Mr. Pitt in the contrast between this assertion and the Thatched House Resolution.
[* ]See “A Syllabus of Lectures on the Law of England, to be delivered in Lincoln’s-Inn Hall by M. Nolan, Esq.”
[* ]Advancement of Learning, book ii. [The Works of Francis Bacon … in Five Volumes (London: A. Millar, 1765), 1:101.] I have not been deterred by some petty incongruity of metaphor from quoting this noble sentence. Mr. Hume had, perhaps, this sentence in his recollection, when he wrote a remarkable passage of his works. See his Essays, vol. ii. p. 352. [Hume, Essays, 2 vols. (London, 1788), 2:352, “A Dialogue.”]
[† ]The learned reader is aware that the “jus naturae” and “jus gentium” of the Roman lawyers are phrases of very different import from the modern phrases, “law of nature” and “law of nations.” “Jus naturale,” says Ulpian, “est quod natura omnia animalia docuit.” “Quod naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur; vocaturque jus gentium.” [“Natural law is that which nature instils in all animals.” “But what natural reason has established among all men is observed equally by all nations and is designated ius gentium or the law of nations.” Justinian, The Institutes of Justinian, Text, Translation, and Commentary, ed. J. A. C. Thomas (Cape Town: Juta, 1975), 4 (Bk. 1, Tit.).] But they sometimes neglect this subtle distinction—“Jure naturali quod appellatur jus gentium.” [“Natural Law which is known as the Law of Nations.”] “Jus feciale” was the Roman term for our law of nations. “Belli quidem aequitas sanctissimè populi Rom. feciali jure perscripta est.” De Officiis, lib. i. cap. ii. [“As for war, humane laws touching it are drawn up in the fetial code of the Roman People under all the guarantees of religion.” Cicero, De Officiis, trans. W. Miller (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1956), 38–39 (I.36).] Our learned civilian Zouch has accordingly entitled his work, “De Jure Feciali, sive de Jure inter Gentes.” [R. Zouch, Iuris et Iudicii Fecialis, sive, Iuris Inter Gentes, et Quaestionum de Eodem Explicatio (An exposition of fecial law and procedure, or of law between nations), ed. T. Erskine Holland (Washington: Carnegie Institution, 1911).] The Chancellor D’Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, “Droit entre les Gens” (oeuvres, vol. ii. p. 337) [Literally “law between people.” This is perhaps a reference to d’Aguesseau: “Elle sont le seul appui ordinaire de ce droit, qui merité proprement le nom de Droit des gens, c’est à dire, de celui qui a lieu de Royaume à Royaume ou d’Etat à d’Etat.” Oeuvres de Monseigneur le chancelier d’Aguesseau, 10 vols. (Yverdun, 1772–75), 2:76. Unable to trace the edition to which Mackintosh refers, but he may simply have taken it from Bentham; see below.], in which he has been followed by a late ingenious writer, Mr. Bentham, (Introduction to the Principles of Morals and Legislation, p. 324.) [Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (London: T. Payne & Son, 1789), 324.]. Perhaps these learned writers do employ a phrase which expresses the subject of this law with more accuracy than our common language; but I doubt whether innovations in the terms of science always repay us by their superior precision for the uncertainty and confusion which the change occasions.
[* ]This remark is suggested by an objection of Vattel, which is more specious than solid. See his Preliminaries, § 6 [E. de Vattel, Le droit des gens, ou Principes de la loi naturelle appliqués á la conduite et aus affaires de nations et des souverains, vol. 3, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, trans. of 1758 ed. by C. G. Fenwick (New York: Oceana Publications, 1964), 4 (introduction §6)].
[* ]“Est quidem vera lex recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna; quae vocet ad officium jubendo, vetando à fraude deterreat, quae tamen neque probos frustra jubet aut vetat, neque improbos jubendo aut vetando movet. Huic legi neque obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec verò aut per senatum aut per populum solvi hac lege possumus: neque est quaerendus explanator aut interpres ejus alius. Nec erit alia lex Romae, alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex et sempiterna, et immutabilis continebit; unusque erit communis quasi magister et imperator omnium Deus, ille legis hujus inventor, disceptator, lator: cui qui non parebit ipse se fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas poenas, etiamsi caetera supplicia, quae putantur, effugerit.”—De Repub. lib. iii. cap. 22. [“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.…” Cicero, De re publica, in De re publica, De legibus, trans. C. Walker Keyes (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1959), 210–11 (III, xxii, 33). The son’s edition omitted an additional paragraph: “It is impossible to read such precious fragments without deploring the loss of a work which, for the benefit of all generations, should have been immortal.”]
[* ]Ecclesiastical Polity, book i. in the conclusion [Richard Hooker, Of the Laws of Ecclesiastical Polity, ed. A. S. McGrade (Cambridge: Cambridge University Press, 1989), 127 (bk. 1, chap. 16.8)].
[1. ]Possibly based on Hooker, Of the Laws of Ecclesiastical Polity, 121.
[* ]“Age verò urbibus constitutis, ut fidem colere et justitiam retinere discerent, et aliis parere suâ voluntate consuescerent, ac non modò labores excipiendos communis commodi causâ, sed etiam vitam amittendam existimarent; qui tandem fieri potuit, nisi homines ea, quae ratione invenissent, eloquentiâ persuadere potuissent?”—De Invent. Rhet. lib. i. cap. 2. [“Consider another point; after cities had been established how could it have been brought to pass that men should learn to keep faith and observe justice and become accustomed to obey others voluntarily and believe not only that they must work for the common good but even sacrifice life itself, unless men had been able by eloquence to persuade their fellows of the truth of what they had discovered by reason?” Cicero, De inventione, trans. H. M. Hubbell (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1960), 6–7 (I.ii.3).]
[* ]ικαιώματα των πολέμων. [Though Mackintosh has translated this as “the laws of war,” in fact the word used for “of war” is a corruption in one source for “of cities,” the work being a catalogue of the various claims of the Greek cities against each other.]
[* ]Cujacius, Brissonius, Hottomannus, &c., &c.—See Gravina Origines Juris Civilis (Lips. 1737.), pp. 132–138. [Jani Vincentii Gravinae, Opera, seu originum Juris Civiliis, libri tres, quibus accedunt, de Romano Imperis liber Singularis; ejusque orationes et opuscula Latina. Recensuit et adnotationibus auxit G. Mascovius (Libsiae, 1737), 132–38.] Leibnitz, a great mathematician as well as philosopher, declares that he knows nothing which approaches so near to the method and precision of Geometry as the Roman law.—Op. vol. iv. p. 254. [Leibnitz, Opera, 6 vols. (Geneva, 1768), vol. 4, pt. 3, p. 254.]
[2. ]Footnote omitted in son’s edition: “I have here been misled by an expression of a modern panegyrist of Grotius. He tells us that the book ‘De Jure Belli’ was undertaken ‘hortante BACONE VERULAMIO’ [with Lord Bacon’s encouragement]. Vid. CRAS Idea perfecti Jurisconsulti in Hugone Grotio [Henrici Constantini Cras Oratio, qua perfecti iuris consulti forma in Hugone Grotio spectatur (Amsterdam, 1776)]. Though aware of the ambiguity of the expression, I thought that it referred more naturally to personal exhortation. I now find, however, that it alludes only to the plan sketched out in Lord Bacon’s writings, in which sense Sir Isaac Newton might be said to have composed his Principia ‘hortante Bacone Verulamio.’ The authentic history of the work of Grotius is to be found in his own most interesting Letters, and in Gassendi’s very able and curious life of Peiresc.” This carries the following note: “Gassendi, Viri illustris N.C. Fabricii de Peiresc … vira (Peireskii laudatio habita in concione funebri Academicorum romanorum … JJ Buccardo … Perorante, 2 parts (Paris, 1641).”
[* ]“Proavia juris civilis.”—De Jure Belli ac Pacis, proleg. §= xvi. [“Great-grandmother of municipal law.” H. Grotius, De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey, 3 vols. (repr. New York: Oceana; London: Wildy and Sons, 1964), 2:15 (prolegomena §16).]
[† ]Dr. Paley, Principles of Moral and Political Philosophy, pref. pp. xiv. xv. [W. Paley, Principles of Moral and Political Philosophy, 2 vols. (Dublin, 1785).]
[‡ ]De Jure Belli, proleg. §= 40. [Grotius, De Jure Belli, 2:23 (prolegomena §40).]
[3. ]Footnote omitted in son’s edition: “This objection against the method of Grotius is stated by Mr. WARD, in his learned work on The History of the Law of Nations before the Time of Grotius, though at the time of writing this Discourse I had forgotten that passage of his work.” This carries the following note: “Robert Ward (later Plumer Ward), An Enquiry into the Foundations and History of the Law of Nations in Europe, from the Time of the Greeks and Romans to the Age of Grotius, 2 Volumes (London, 1795).”
[4. ]Footnote omitted in son’s edition: “I am not induced to retract this commendation by the great authority even of LEIBNITZ himself, who, in one of his incomparable letters, calls Puffendorff ‘Vir parum jurisconsultus et minime philosophus.’ ” [A man too little of a lawyer and not at all a philosopher.]
[* ]I do not mean to impeach the soundness of any part of Puffendorff’s reasoning founded on moral entities: it may be explained in a manner consistent with the most just philosophy. He used, as every writer must do, the scientific language of his own time. I only assert that, to those who are unacquainted with ancient systems, his philosophical vocabulary is obsolete and unintelligible.
[5. ]J. Milton, A Mask (Comus), in Comus and Some Shorter Poems of Milton, ed. E. M. W. Tillyard (London: Harrap, 1952), 90, lines 477–78.
[6. ]Taken by Godwin to be a reference to himself.
[* ]I cannot prevail on myself to pass over this subject without paying my humble tribute to the memory of Sir William Jones, who has laboured so successfully in Oriental lïterature; whose fine genius, pure taste, unwearied industry, unrivalled and almost prodigious variety of acquirements,—not to speak of his amiable manners, and spotless integrity,—must fill every one who cultivates or admires letters with reverence, tinged with a melancholy which the recollection of his recent death is so well adapted to inspire. In hope I shall be pardoned if I add my applause to the genius and learning of Mr. Maurice, who treads in the steps of his illustrious friend, and who has bewailed his death in a strain of genuine and beautiful poetry, not unworthy of happier periods of our English literature.
[7. ]Footnote omitted in son’s edition: “The Otaheiteans will probably not be thought to deserve either to be praised for their mildness or envied for their happiness, after the interesting account of their character and situation, which has been lately laid before the Public in ‘The MISSIONARY VOYAGE,’ an account which has the strongest marks of accuracy and authenticity, and which, as it was derived from intimate intercourse, must far outweigh the hasty and superficial observations of panegyrists, who allowed themselves no sufficient time either to gain accurate information, or to let the first enthusiasm, excited by novelty, subside.” [W. Wilson, A Missionary Voyage to the Southern Pacific Ocean, … in the years 1796–1798, in the ship Duff, commanded by Captain J. Wilson. Compiled from journals of the officers and the missionaries, (chiefly by W.W.) … with a preliminary discourse on the geography and civil state of Otaheite. By a committee appointed … by … the Missionary Society (London, 1799).]
[8. ]William Godwin.
[* ]Especially those chapters of the third book, entitled, “Temperamentum circa Captivos,” &c. [Grotius, De Jure Belli, bk. 3, chap. 14, “Moderation in Regard to Prisoners of War.”]
[9. ]William Godwin.
[10. ]Footnote omitted in son’s edition: “I was unwilling to have expressed more strongly or confidently my disapprobation of some parts of Vattel; though I might have justified more decisive censure by the authority of the greatest lawyers of the present age. His politics are fundamentally erroneous; his declamations are often insipid and impertinent; and he has fallen into great mistakes in important practical discussions of public law.”
[11. ]William Godwin.
[* ]“Natura enim juris explicanda est nobis, eaque ab hominis repetenda naturâ.”—De Leg. lib. i. c. 5. [“For we must explain the nature of Justice, and this must be sought for in the nature of man.” Cicero, De legibus, in De re publica, De legibus, trans. C. Walker Keyes (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1959), 314–17 (I.v.17).]
[12. ]Footnote omitted in son’s edition: “See a late ingenious tract by Mr. Green, entitled, ‘An Enquiry into the leading Principle of the new System of Morals.’ ” [T. Green, An examination of the leading principle of the new system of morals, as that principle is stated and applied in Mr. Godwin’s Enquiry concerning political justice (London, 1799).]
[13. ]The following passage was omitted in the son’s edition along with its footnotes: “No precept, indeed, deserves a place among the rules of morality, unless its observance will promote the happiness of mankind; and no man ought to cultivate in his own mind any disposition of which the natural fruits are not such actions as conduce to his own well-being, and to that of his fellow-men. Utility is doubtless always the ultimate test of general rules, but it can very rarely be the direct test of the morality of single actions. It is also the test of our habitual sentiments, but it can still more rarely supply their place as motives to virtue. A rule is moral, of which the observance tends to produce general happiness.” After “the happiness of mankind” a footnote is inserted which reads: “Or, to use the language of Cicero, unless it be adapted ‘AD TUENDAM MAGNAM ILLAM SOCIETATEM GENERIS HUMANI’ ” [to protect that great fellowship of the human race]. After “to produce general happiness” a footnote is inserted which reads: “Whoever is desirous of studying these questions thoroughly, will do well to consult ‘Search’s Light of Nature,’ vol. ii. a work which, after much consideration, I think myself authorized to call the most original and profound that has ever appeared on moral philosophy.” [Abram Tucker, The Light of Nature Pursued by Edward Search, Esq., 7 vols. (London: T. Jones, 1765–74), vol. 2.]
[* ]“Est autem virtus nihil aliud, quam in se perfecta atque ad summum perducta natura.”—Ibid. lib. i. c. 8. [“Virtue, however, is nothing else than Nature perfected and developed to its highest point.” Cicero, De legibus, in De re publica, De legibus, 324–25 (I.viii.25).]
[† ]Advancement of Learning, book ii. [Bacon, “The Dignity and Advancement of Learning,” in Works, 3:420.]
[14. ]William Godwin.
[* ][Tucker], Light of Nature, vol. i. pref. p. xxxiii.
[* ]Advancement of Learning, book ii. [Bacon, “The Dignity and Advancement of Learning,” in Works, 3:421.]
[† ]Sermon. lib. i. Serm. iii. 105. [“To build towns, and to frame laws that none should thieve or rob or commit adultery.” Horace, Satires, in Satires, Epistles, and Ars poetica, trans. H. Rushton Fairclough (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1978), 40–41 (I.iii.105–6).]
[15. ]“[Ceres] instructed men in her holy laws and joined loving bodies in wedlock and founded great cities.” This fragment is cited by “Deutero-Servius” (i.e., the expanded version of Servius’s Commentary on Virgil, Aeneid 4.58). It is Calvus fragment 6 in modern collections of Latin poetic fragments, e.g., Edward Courtney, The Fragmentary Latin Poets (Oxford: Clarendon Press, 1993), 203–4.
[* ]See on this subject an incomparable fragment of the first book of Cicero’s Economics, which is too long for insertion here, but which, if it be closely examined, may perhaps dispel the illusion of those gentlemen, who have so strangely taken it for granted that Cicero was incapable of exact reasoning. [Cicero’s Economics is in fact his translation (cited by Columella in the preface to book 12 of his De re rustica) from Xenophon, Oeconomics, 7.18–28. But, like its original, it seems to have been in only one book.]
[16. ]In emphasizing the laws of property and marriage as fundamental to social life, Mackintosh could also have been referring to William Godwin’s speculations on a future society in which they would not exist; see W. Godwin, An Enquiry Concerning Political Justice (1793), book 8. Defending these laws as the only means of countering the effects of excessive population growth lay at the heart of T. R. Malthus’s criticisms of Godwin’s system of equality in his Essay on the Principle of Population (1798). Godwin linked Malthus with Samuel Parr and Mackintosh in his reply to critics in Thoughts occasioned by the perusal of Dr Parr’s Spital Sermon … a reply to the attacks of Dr Parr, Mr. Mackintosh, the author of the Essay on Population and others (1801).
[* ]This progress is traced with great accuracy in some beautiful lines of Lucretius:—
[“And woman mated with man moved into one [[home, and the laws of wedlock became known, and they saw offspring born of them, then first the human race began to grow soft. For the fire saw to it that their shivering bodies were less able to endure cold under the canopy of heaven, and Venus sapped their strength, and children easily broke their parents’ proud spirit by coaxings. Then also neighbours began to join friendship amongst themselves in their eagerness to do no hurt and suffer no violence, and asked protection for their children and womankind, signifying by voice and gesture with stammering tongue that it was right for all to pity the weak.” Lucretius, De rerum natura, trans. W. H. D. Rouse, rev. M. F. Smith (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1975), 456–59 (lines 1012–23).]]]
[* ]The introduction to the first book of Aristotle’s Politics is the best demonstration of the necessity of political society to the well-being, and indeed to the very being, of man, with which I am acquainted. Having shewn the circumstances which render man necessarily a social being, he justly concludes, “καì ὅτι ὁ ἄνθρωπος Φύσει πολιτικòν ζω̑ον.” [“And that man is by nature a political animal.” Aristotle, Politics, trans. H. Rackham (London: Heinemann, 1932), i.1253a2–3.] The same scheme of philosophy is admirably pursued in the short, but invaluable fragment of the sixth book of Polybius, which describes the history and revolutions of government.
[17. ]The following note was omitted in the son’s edition: “I have never pretended to offer this description of liberty as a logical definition. According to my principles it would be folly to attempt logical definitions of political terms. The simple and original notion of liberty is, doubtless, that of the absence of restraint. Now if men are restrained in fewer actions by Government than they would be by violence in the supposed state of nature; if they are always less restrained in proportion as they are more secure; it will follow, that security and liberty must always practically coincide; that the degree of security may always be considered as a test of the degree of liberty, and that for all practical purposes one of these words may constantly be substituted for the other.”
[* ]To the weight of these great names let me add the opinion of two illustrious men of the present age, as both their opinions are combined by one of them in the following passages: “He (Mr. Fox) always thought any of the simple unbalanced governments bad; simple monarchy, simple aristocracy, simple democracy; he held them all imperfect or vicious, all were bad by themselves; the composition alone was good. These had been always his principles, in which he agreed with his friend, Mr. Burke.”—Speech on the Army Estimates, 9th Feb. 1790. In speaking of both these illustrious men, whose names I here join, as they will be joined in fame by posterity, which will forget their temporary differences in the recollection of their genius and their friendship, I do not entertain the vain imagination that I can add to their glory by any thing that I can say. But it is a gratification to me to give utterance to my feelings; to express the profound veneration with which I am filled for the memory of the one, and the warm affection which I cherish for the other, whom no one ever heard in public without admiration, or knew in private life without loving.
[18. ]The following note was omitted in the son’s edition: “The reader will observe that I insert this word ‘unwritten’ with a view to the ignorant and senseless cavils of those who contend that every country which has not a written constitution must be without a constitution.” Presumed to be a reference to Paine.
[* ]Privilege, in Roman jurisprudence, means the exemption of one individual from the operation of a law. Political privileges, in the sense in which I employ the terms, mean those rights of the subjects of a free state, which are deemed so essential to the well-being of the commonwealth, that they are excepted from the ordinary discretion of the magistrate, and guarded by the same fundamental laws which secure his authority.
[† ]See an admirable passage on this subject in Dr. Smith’s Theory of Moral Sentiments (vol. ii. pp. 101–112), in which the true doctrine of reformation is laid down with singular ability by that eloquent and philosophical writer. [Adam Smith, The Theory of Moral Sentiments (Indianapolis: Liberty Fund, 1984), 230–34 (VI.ii.2.7–18). This is a reference to the famous criticism of the “man of system,” and since it belongs to the additions made by Smith in 1790, it has been taken by some to be a warning about the need for caution in matters of legislation evoked by French revolutionary events. While this may be speculative, there can be no doubt about the applicability of a message of gradualism to Mackintosh’s postrevolutionary predicament.] See also Mr. Burke’s Speech on Economical Reform [“February 11, 1780,” in The Writings and Speeches of Edmund Burke, ed. P. Langford, vol. 3, Party, Parliament, and the American War 1774–1780 (Oxford: Clarendon Press, 1996), 481–551]; and Sir M. Hale on the Amendment of Laws, in the Collection of my learned and most excellent friend, Mr. Hargrave. [Sir Matthew Hale, “Considerations Touching the Amendment or Alteration of Lawes,” in A Collection of Tracts Relative to the Law of England, from Manuscripts, ed. Francis Hargrave (Dublin, 1787), 1:249–89.]
[19. ]Bishop Shipley, The Works of the Right Reverend Jonathan Shipley, D.D., Lord Bishop of St Asaph, 2 vols. (London: T. Cadell, 1792), 2:112. The following statement was omitted in the son’s edition: “I quote this passage from Bishop Shipley’s beautiful account of the English constitution one of the finest parts of a writer, whose works I cannot help considering as the purest and most faultless model of composition that the present age can boast. Greater vigour and splendour may be found in others; but so perfect a taste, such chaste and modest elegance, it will, I think, be hard to discover in any other English writer of this reign.”
[* ]Pour former un gouvernement modéré, il faut combiner les puissances, les régler, les tempérer, les faire agir; donner pour ainsi dire un lest à l’une, pour la mettre en état de résister à une autre; c’est un chef-d’oeuvre de législation que le hasard fait rarement, et que rarement on laisse faire à la prudence. Un gouvernement despotique au contraire saute, pour ainsi dire, aux yeux; il est uniforme partout: comme il ne faut que des passions pour l’établir, tout le monde est bon pour cela.—Montesquieu, De l’Esprit de Loix, liv. v. c. 14. [“In order to form a moderate government, it is necessary to combine powers, to regulate them, to temper them, to make them act, to provide, so to speak, one to resist another, this is the main aim of legislation that chance rarely achieves and prudence is rarely allowed to achieve. A despotic government, by contrast, leaps to view, so to speak, it is uniform everywhere as only passions are required to establish it, everyone can do that.”]
[† ]Bacon, Essay xxiv. (Of Innovations.) [The Works of Francis Bacon … in Five Volumes (London: A. Millar, 1765), 6:433.]
[* ]The reader will perceive that I allude to Montesquieu, whom I never name without reverence, though I shall presume, with humility, to criticise his account of a government which he only saw at a distance. [Montesquieu, The Spirit of the Laws, bk. 2, chap. 6.]
[20. ]Bacon, “The Dignity and Advancement of Learning,” in Works, 3:475.
[21. ]“Certe cognitio ista ad viros civiles proprie spectat.” “The science of such matters certainly belongs more particularly to the province of men [who by habits of public business have been led to take a comprehensive survey of the social order]; of the interests of the community at large; of the rules of natural equity; of the manners of nations; of the different forms of government; and who are thus prepared to reason concerning the wisdom of laws, both from considerations of justice and of policy.” Bacon, De Augmentis Scientiarum, bk. 8, chap. 3. The full passage is quoted, with a translation, in Dugald Stewart, Account of the Life and Writings of Adam Smith, sec. 4. Transactions of the Royal Society of Edinburgh, 1793. (Now in Essays on Philosophical Subjects, vol. 3 of The Glasgow Edition of the Works and Correspondence of Adam Smith, Liberty Fund, 1982, 311–12.)
[22. ]The son’s edition omits the following sentences: “The reason of this constant war between speculation and practice is not difficult to discover. It arises from the very nature of political science.”
[23. ]The following note was omitted in the son’s edition: “I have since discovered the passage or rather passages of Aristotle to which I alluded; I have collected several of these passages from various parts of his writings, that the reader may see the anxiety of that great philosopher to inculcate, even at the expense of repetition, the absurdity of every attempt to cultivate or teach moral philosophy with a geometrical exactness, which, in the vain pursuit of an accuracy which never can be more than apparent, betrays the inquirer into real, innumerable, and most mischievous fallacies.
[* ]This principle is expressed by a writer of a very different character from these two great philosophers,—a writer, “qu’on n’appellera plus philosophe, mais qu’on appellera le plus éloquent des sophistes,” [“That one will no longer call him a philosopher, but that one will call him the most eloquent of the sophists.”] with great force, and, as his manner is, with some exaggeration. “Il n’y a point de principes abstraits dans la politique. C’est une science des calculs, des combinaisons, et des exceptions, selon les lieux, les tems, et les circonstances.” [“There are no longer abstract principles in politics. It is a science of calculations, or combinations, and of exceptions, according to the place, the time, and the circumstances.”]—Lettre de Rousseau au Marquis de Mirabeau. [Correspondence complète de Jean Jacques Rousseau, ed. R. A. Leigh, 52 vols. (Genève and Oxford, 1965–98), 33:239 (July 1767).] The second proposition is true; but the first is not a just inference from it.
[24. ]Bacon, “The Dignity and Advancement of Learning,” in Works, 3:445.
[* ]“The casuistical subtilties are not perhaps greater than the subtilties of lawyers; but the latter are innocent, and even necessary.”—Hume, Essays, vol. ii. p. 558. [A reference to “An Enquiry Concerning the Principles of Morals,” sec. 3, “Of Justice,” in Essays, 2 vols. (London: A. Millar, 1765).]
[† ]“Law,” said Dr. Johnson, “is the science in which the greatest powers of the understanding are applied to the greatest number of facts.” [Unable to find the source of this quotation.] Nobody, who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.
[25. ]“That eminent master and teacher both of style and of thought.” Compare Cicero, Orator, in Brutus, Orator, trans. H. M. Hubbell (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1952), 312–13 (iii.10), said of Plato.
[* ]Burke, [The Works of the Right Honourable Edmund Burke, Collected in Three Volumes (Dublin, 1792), 3:134. For a modern version see Reflections on the Revolution in France, vol. 2 of Select Works of Edmund Burke, 3 vols. (Indianapolis: Liberty Fund, 1999), 191–92.]
[26. ]The following note was omitted in the son’s edition: “It may perhaps not be disagreeable to the reader to find here the passage of LEIBNITZ, to which I have referred in the former editions of the Discourse. ‘Caeteroquin ego Digestorum Opus vel potius auctorum unde excerpta sunt labores admiror, nec quidquam vidi sive rationum pondere sive dicendi nervos spectes quod magis accedat ad mathematicorum laudem.’—Leibnitz Op. vol. iv. p. 254.” (“In other respects I admire the Digest, or rather the labours of the authors from whom the excerpts were made, and have not seen anything, whether in regard to the weight of the reasons or the tautness of the diction, that approaches more nearly to the merits of mathematics.” Leibnitz, Opera, 6 vols. (Geneva, 1768), vol. 4, pt. 3, p. 254.)
[* ]On the intimate connection of these two codes, let us hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:—“Inasmuch as the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the ruins of the Roman empire, it must be owned that the principles of our law are borrowed from the civil law, therefore grounded upon the same reason in many things.” [The extract comes from Chief Justice Holt’s judgment. The full legal citation is Lane v. Sir Robert Cotton (1701), 12. mod. 472 at 482 per Holt C.J.]
[27. ]The following note was omitted in the son’s edition: “On a closer examination, this part of my scheme has proved impracticable in the extent which I have here proposed, and within the short time to which I am necessarily confined. A general view of the principles of law, with some illustrations from the English and Roman codes, is all that I can compass.”
[28. ]The following note was omitted in the son’s edition: “By the ‘Law of criminal proceeding,’ I mean those laws which regulate the trial of men accused of crimes, as distinguished from penal law, which fixes the punishment of crimes. ‘tanda quae composita sunt et descripta, jura et jussa populorum; in quibus NE NOSTRI QUIDEM POPULI LATEBUNT QUAE VOCANTUR JURA CIVILIA.’ Cic. de Leg. lib. i. c. 5.” Mackintosh begins the passage halfway through a word—traditanda; the full passage reads, “then we must deal with the enactments and decrees of nations which are already formulated and put in writing; and among these the civil law, as it is called, of the Roman people will not fail to find a place.” Cicero, De legibus, in De re publica, De legibus, trans. C. Walker Keyes (London: Heinemann, 1959), 314–17 (I.V.17).
[* ]De l’Esprit des Loix, liv. i. c. 3. [“The law of nations is naturally founded on this principle; that the various nations should do to one another in times of peace the most good possible, and in times of war the least evil possible, without harming their own interests. The object of war is victory, that of victory conquest, that of conquest preservation. From this principle and from the preceding one, all laws which form the law of nations must be derived. All nations have a law of nations; even the Iroquois who eat their prisoners have one. They send and receive ambassadors; they know the laws of war and peace; the problem is that their law of nations is not founded on true principles.” Montesquieu, The Spirit of the Laws, bk. 1, chap. 3.]
[* ]Cic. Orat. pro L. Corn. Balbo, c. vi. [“For my part, gentlemen, I think on the contrary, that while Gnaeus Pompeius excels in every sort and variety of accomplishments, even those which it is not easy to acquire without much leisure, his quite outstanding merit is his most remarkable knowledge of treaties, of agreements, of terms imposed upon peoples, kings, and foreign races, and, in fact, of the whole code of law that deals with war and peace.” Cicero, “Pro Balbo,” in Orationes, trans. R. Gardner (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1958), 640–42 (vi, 15).]
[* ]Cic. De Repub. lib. ii. [“We must consider all the statements we have made so far about the commonwealth as amounting to nothing, and must admit that we have no basis whatever for further progress, unless we can not merely disprove the contention that a government cannot be carried on without injustice, but are also able to prove positively that it cannot be carried on without the strictest justice.” Cicero, De re publica, in De re publica, De legibus, trans. C. Walker Keyes (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1959), 182–83 (II, xliv).]
[† ]Burke, Works, vol. iii. p. 207. [For a recent version see Burke, Reflections, 260.]