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A Discourse on the Law of Nature and Nations <341> - 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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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.”†
Appendix to the “Discourse”: Extracts from the Lectures
In laying open this plan, I am aware that men of finished judgment and experience will feel an unwillingness, not altogether unmingled with disgust, at being called back to the first rudiments of their knowledge. I know with what contempt they look down on the sophistical controversies of the schools. I own that their disgust is always natural, and their contempt often just. Something had already been said in vindication of myself on this subject in my published discourse, but perhaps not enough. I entreat such men to consider the circumstances of the times in which we live. A body of writers has arisen in all the countries of Europe, who represent all the ancient usages, all the received opinions, all the fundamental principles, all the most revered institutions of mankind, as founded in absurdity, requiring the aid both of oppression and imposture, and leading to the degradation and misery of the human race. This attack is conducted upon principles which are said to be philosophical, and such is the state of Europe, that I will venture to affirm, that, unless our ancient opinions and establishment can also be vindicated upon philosophical principles, they will not long be able to maintain that place in the affection and<112> veneration of mankind, from which they derive all their strength. In this case, I trust I shall be forgiven if I dig deeply into theory, and explore the solid foundations of practice—if I call in the aid of philosophy, not for the destruction, but for the defence, of experience. Permit me to say, the unnatural separation and, much more, the frequent hostility of speculation and practice, have been fatal to science and fatal to mankind. They are destined to move harmoniously, each in its own orbit, as members of one grand system of universal Wisdom. Guided by one common law, illuminated from one common source, reflecting light on each other, and conspiring, by their movements, to the use and beauty [of one grand] whole. Believe me, gentlemen, when we have examined this question thoroughly, we shall be persuaded that that refined and exquisite good sense, applied to the most important matters, which is called Philosophy, never differs, and never can differ in its dictates, from that other sort of good sense, which is employed in the guidance of human life. There is, indeed, a philosophy, falsely so called, which, on a hasty glance over the surface of human life, condemns all our institutions to destruction, which stigmatises all our most natural and useful feelings as prejudices; and which, in the vain effort to implant in us principles which take no root in human nature, would extirpate all those principles which sweeten and ennoble the life of man. The general character of this system is diametrically opposite to that of true philosophy:—wanting philosophical modesty, it is arrogant—philosophical caution, it is rash—philosophical calmness, it is headstrong and fanatical. Instead of that difference, and, if I may so speak, of that scepticism and cowardice, which is the first lesson of philosophy, when we are to treat of the happiness of human beings, we find a system as dog-<113>matical, boastful, heedless of every thing but its own short-sighted views, and intoxicated with the perpetual and exclusive contemplation of its own system of disorder, and demonstrations of insanity. This is not that philosophy which Cicero calls “philosophiam illam matrem omnium benefactorum beneque dictorum”;1 for its direct tendency is to wither and blast every amiable and every exalted sentiment, from which either virtue, or eloquence can flow, by holding up to the imagination an ideal picture of I know not what future perfection of human society. The doctors of this system teach their disciples to loathe that state of society in which they must live and act, to despise and abhor what they cannot be virtuous and happy without loving and revering—to consider all our present virtues either as specious vices, or at best but as the inferior and contemptible duties of a degraded condition, from which the human race must and will speedily escape. Of this supposed state of future perfection (though it be utterly irreconcilable with reason, with experience, or with analogy), the masters of this sect speak as confidently, as if it were one of the best authenticated events in history. It is proposed as an object of pursuit and attainment. It is said to be useful to have such a model of a perfect society before our eyes, though we can never reach it. It is said at least to be one of the harmless speculations of benevolent visionaries. But this is not true. The tendency of such a system (I impute no evil intentions to its promulgators) is to make the whole present order of human life appear so loathsome and hideous, that there is nothing to justify either warm affection, or zealous exertion, or even serious pursuit. In seeking an unattainable perfection, it tears up by the roots every principle which leads to the substantial and practicable improvement of mankind. It thwarts its own purpose,<114> and tends to replunge men into depravity and barbarism. Such a philosophy, I acknowledge, must be at perpetual variance with practice, because it must wage eternal war with truth. From such a philosophy I can hope to receive no aid in the attempt, which is the main object of these lectures, to conclude a treaty of peace, if I may venture so to express myself, between the worlds of speculation and practice, which were designed by nature to help each other, but which have been so long arrayed against each other, by the pretended or misguided friends of either. The philosophy from which I shall seek assistance in building up [my theory of] morals, is of another character; better adapted, I trust, to serve as the foundation of that which has been called, with so much truth, and with such majestic simplicity, “amplissimam omnium artium, bene vivendi disciplinam.”2 The true philosophy of morality and politics is founded on experience. It never, therefore, can contradict that practical prudence, which is the more direct issue of experience. Guided by the spirit of that philosophy, which is
I shall, in my inquiries into human nature, only to take to pieces the principles of our conduct, that I may the better show the necessity of putting them together—analyse them, that I may display their use and beauty, and that I may furnish new motives to cherish and cultivate them. In the examination of laws, I shall not set out with the assumption, that all the wise men of the world have been hitherto toiling to build up an elaborate system of folly, a stupendous edifice of injustice. As I think the contrary presumption more reasonable as well as more modest, I shall think it my duty to explore the codes of nations, for those treasures of reason which<115> must have been deposited there by that vast stream of wisdom, which, for so many ages, has been flowing over them.
Such a philosophy will be terrible to none of my hearers. Empirical statesmen have despised science, and visionary speculators have despised experience; but he who was both a philosopher and a statesman, has told us, “This is that which will indeed dignify and exalt knowledge, if contemplation and action may be more nearly conjoined and united than they have hitherto been.”4 These are the words of Lord Bacon;* and in his spirit I shall, throughout these lectures, labour with all my might to prove, that philosophical truth is, in reality, the foundation of civil and moral prudence. In the execution of this task, I trust I shall be able to avoid all obscurity of language. Jargon is not philosophy—though he who first assumed the name of philosopher, is said by Lucian to have confessed that he made his doctrines wonderful to attract the admiration of the vulgar. You will, I hope, prefer the taste of a greater than Pythagoras, of whom it was said, “that it was his course to make wonders plain, not plain things wonderful.”5 <116>
As a part of general education, I have no intention to insinuate that there is any deficiency in the original plan, or in the present conduct of those noble seminaries of learning where the youth of England are trained up in all the liberal and ingenious arts: far be such petulant, irreverent insinuations from my mind. Though I am in<117> some measure a foreigner in England, though I am a stranger to their advantages, yet no British heart can be a stranger to their glory.
Non obtusa adeo gestamus pectora.6
I can look with no common feelings on the schools which sent forth a Bacon and a Milton, a Hooker and a Locke. I have often contemplated with mingled sensations of pleasure and awe, those magnificent monuments of the veneration of our ancestors for piety and learning. May they long flourish, and surpass, if that be possible, their ancient glory.
I am not one of those who think that, in the system of English education, too much time and labour are employed in the study of the languages of Greece and Rome; it is a popular, but, in my humble opinion, a very shallow and vulgar objection. It would be easy, I think, to prove that too much time can be scarcely employed on these languages by any nation which is desirous of preserving either that purity of taste, which is its brightest ornament, or that purity of morals, which is its strongest bulwark.
You may be sure, gentlemen, that I am not going to waste your time by expanding the common-places of panegyric on classical learning. I shall not speak of the necessity of recurring to the best models for the formation of taste. When any modern poets or orators shall have excelled Homer and Demosthenes; and when any considerable number of unlettered modern writers (for I have no concern with extraordinary exceptions) shall have attained eminence, it will be time enough to discuss the question. But I entreat you to consider the connexion between classical learning and morality, which I think as real and as close as its connexion with taste, although I do not find that it has been so often noticed. If we were to<118> devise a method for infusing morality into the tender minds of youth, we should certainly not attempt it by arguments and rules, by definition and demonstration. We should certainly endeavour to attain our object by insinuating morals in the disguise of history, of poetry, and of eloquence; by heroic examples, by pathetic incidents, by sentiments that either exalt and fortify, or soften and melt, the human heart. If philosophical ingenuity were to devise a plan of moral instruction, these, I think, would be its outlines. But such a plan already exists. Classical education is that plan; nor can modern history and literature even be substituted in its stead. Modern example can never imprint on the youthful mind the grand and authoritative sentiment, that in the most distant ages, and in states of society the most unlike, the same virtues have been the object of human veneration. Strip virtue of the awful authority which she derives from the general reverence of mankind, and you rob her of half her majesty. Modern character never could animate youth to noble exertions of duty and of genius, by the example of that durable glory which awaits them after death, and which, in the case of the illustrious ancients, they see has survived the subversion of empires, and even the extinction of nations. Modern men are too near and too familiar, to inspire that enthusiasm with which we must view those who are to be our models in virtue. When our fancy would exalt them to the level of our temporary admiration, it is perpetually checked by some trivial circumstance, by some mean association,—perhaps by some ludicrous recollection,—which damps and extinguishes our enthusiasm. They had the same manners which we see every day degraded by ordinary and vicious men; they spoke the language which we hear polluted by the use of the ignorant and the vulgar. But ancient sages and patriots are,<119> as it were, exalted by difference of language and manners, above every thing that is familiar, and low, and debasing. And if there be something in ancient examples not fit to be imitated, or even to be approved in modern times, yet, let it be recollected, that distance not only adds to their authority, but softens their fierceness. When we contemplate them at such a distance, the ferocity is lost, and the magnanimity only reaches us. These noble studies preserve, and they can only preserve the unbroken chain of learning which unites the most remote generations; the grand catholic communion of wisdom and wise men throughout all ages and nations of the world. “If,” says Lord Bacon, “the intention of the ship was thought so noble, which carrieth riches and commodities from place to place, and consociateth the most remote regions in participation of their fruits, how much more are letters to be magnified, which, as ships, pass through the vast seas of time, and make ages so distant participate of the wisdom, illuminations, and inventions, the one of the other.”7 Alas! gentlemen; what can I say that will not seem flat, and tame, and insipid, after this divine wisdom and divine eloquence? But this great commerce between ages will be broken and intercepted; the human race will be reduced to the scanty stock of their own age, unless the latest generations are united to the earliest by an early and intimate knowledge of their language, and their literature. From the experience of former times, I will venture to predict, that no man will ever obtain lasting fame in learning, who is not enlightened by the knowledge, and inspired by the genius, of those who have gone before him. But if this be true in other sciences, it is ten thousand times more evident in the science of morals.
I have said in my printed Discourse, that morality admits no discoveries; and I shall now give you some<120> reasons for a position, which may perhaps have startled some, in an age when ancient opinions seem in danger of being so exploded, that when they are produced again, they may appear novelties, and even be suspected of paradox. I do not speak of the theory of morals, but of the rule of life. First examine the fact, and see whether, from the earliest times, any improvement, or even any change, has been made in the practical rules of human conduct. Look at the code of Moses. I speak of it now as a mere human composition, without considering its sacred origin. Considering it merely in that light, it is the most ancient and the most curious memorial of the early history of mankind. More than three thousand years have elapsed since the composition of the Pentateuch; and let any man, if he is able, tell me in what important respects the rule of life has varied since that distant period. Let the Institutes of Menu be explored with the same view; we shall arrive at the same conclusion. Let the books of false religion be opened; it will be found that their moral system is, in all its grand features, the same. The impostors who composed them were compelled to pay this homage to the uniform moral sentiments of the world. Examine the codes of nations, those authentic depositories of the moral judgments of men; you every where find the same rules prescribed, the same duties imposed: even the boldest of these ingenious sceptics who have attacked every other opinion, has spared the sacred and immutable simplicity of the rules of life. In our common duties, Bayle and Hume agree with Bossuet and Barrow. Such as the rule was at the first dawn of history, such it continues till the present day. Ages roll over mankind; mighty nations pass away like a shadow; virtue alone remains the same, immortal and unchangeable.
The fact is evident, that no improvements have been<121> made in practical morality. The reasons of this fact it is not difficult to discover. It will be very plain, on the least consideration, that mankind must so completely have formed their rule of life, in the most early times, that no subsequent improvements could change it. The chances of a science being improvable, seem chiefly to depend on two considerations.
When the facts which are the groundwork of a science are obvious, and when the motive which urge men to the investigation of them is very powerful, we may always expect that such a science will be so quickly perfected, in the most early times, as to leave little for after ages to add. When, on the contrary, the facts are remote and of difficult access, and when the motive which stimulates men to consider them is not urgent, we may expect that such a science will be neglected by the first generations of mankind; and that there will be, therefore, a boundless field for its improvement left open to succeeding times. This is the grand distinction between morality, and all other sciences. This is the principle which explains its peculiar history and singular fortune. It is for this reason that it has remained for thirty centuries unchanged, and that we have no ground to expect that it will be materially improved, if this globe should continue inhabited by men for twice thirty centuries more. The facts which lead to the formation of moral rules are as accessible, and must be as obvious, to the simplest barbarian, as to the most enlightened philosopher. It requires no telescope to discover that undistinguishing and perpetual slaughter will terminate in the destruction of his race. The motive that leads him to consider them is the most powerful that can be imagined. It is the care of preserving his own existence. The case of the physical and speculative sciences is directly opposite. There the facts are remote, and scarcely acces-<122>sible; and the motive that induces us to explore them is comparatively weak. It is only curiosity; or, at most, only a desire to multiply the conveniences and ornaments of life. It is not, therefore, till very late in the progress of refinement, that these sciences become an object of cultivation. From the countless variety of the facts, with which they are conversant, it is impossible to prescribe any bounds to their future improvement. It is otherwise with morals. They have hitherto been stationary; and, in my opinion, they are likely for ever to continue so.
[* ]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.]
[1. ]“Philosophy, that mother of all good deeds and eloquent sayings.”
[2. ]“This the most fruitful of all arts, which teaches the way of right living.” Cicero, Tusculan Disputations, trans. J. E. King (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1960), 332–33 (IV.iii.5).
[3. ]John Milton, A Mask (Comus), in Comus and Some Shorter Poems of Milton, ed. E. M. W. Tillyard (London: Harrap, 1952), 90, lines 477–78.
[4. ]Bacon, “The Dignity and Advancement of Learning,” in Works, 3:294.
[* ]In his copy of Lord Bacon’s Works was the following note:—“Jus naturae et gentium diligentius tractaturus, omne quod in Verulamio ad jurisprudentiam universalem spectat relegit J M apud Broadstairs in agro Rutupiano Cantiae, anno salutis humanae 1798, latè tum flagrantè per Europae felices quodam populos misero fatalique bello, in quo nefarii et scelestissimi latrones infando consilio apertè et audacter, virtutem, libertatem, Dei Immortalis cultum, mores et instituta majorum, hanc denique pulcherrimè et sapientissimè constitutam rempublicam labefactare, et penitùs evertere conantur.” [“When he came to deal with the Law of Nature and of Nations J[ames] M[ackintosh] reread everything in Verulam [Lord Bacon’s writings] that had to do with universal jurisprudence. He did this reading in Broadstairs in the district of Richborough in Kent, in the year of Salvation 1798, a time when there was a dreadful and deadly war raging widely among the once happy peoples of Europe. In this war impious and criminal mercenaries, with unspeakably evil intent, openly and boldly tried to dislodge and completely overturn virtue, freedom, worship of the Everlasting God, ancestral customs and practices, and lastly this finely and wisely founded commonwealth.”]—A plan of study, which, some time after he wrote out for a young friend, concludes thus: “And as the result of all study, and the consummation of all wisdom, Bacon’s Essays to be read, studied, and converted into part of the substance of your mind.”
[5. ]Unable to find the source of this quotation.
[6. ]“Not so dull are our Punic hearts.” Virgil, “Aeneid,” in Virgil, trans. H. Rushton Fairclough, 2 vols. (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1967), 1:280–81 (bk. 1, line 567).
[7. ]Bacon, “The Dignity and Advancement of Learning,” in Works, 3:318.