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Title: A Discourse on the Study of the Law of Nature and Nations
Author: James Mackintosh
Release Date: July 11, 2009 [EBook #29372]
Language: English
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book.
A DISCOURSE
ON
THE STUDY
OF THE
LAW OF NATURE AND NATIONS.
BY
SIR JAMES MACKINTOSH, M.P.
_SECOND EDITION._
LONDON:
HENRY GOODE AND CO.
QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW.
SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW.
M.DCCC.XXVIII.
A DISCOURSE,
ETC.
* * * * *
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 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 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,[1] 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.
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; 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."[2]--_Bacon's Dig. and Adv. of Learn._ Works, vol. i. p.
101.
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 treated with greater
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 civilised nations
of Christendom. Here this science no longer rests in general principles.
That province of it which we now call the law of nations, has, in many
of its parts, acquired among our European nations 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,[3] are inquiries, perhaps, of more
curiosity than use, and 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 civilised 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,[4] 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
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, even if they
could be conceived ever to have subsisted without the protecting
restraints of government; 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, of which the violation is
avenged by natural punishments, which necessarily flow from the
constitution of things, and are 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; 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 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, where they have exhausted all the powers of
language, and surpassed all the other exertions, even of their own
eloquence, in the display of the beauty and majesty of this sovereign
and immutable law. 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.[5] 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."--_Eccles. Pol._ book i. in the
conclusion.
Let not those, who, to use the language of the same Hooker, "talk of
truth," without "ever sounding the depth from whence it springeth,"
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.[6] 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 mind 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 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,[7] 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; 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. 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.[8] 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 Bacon 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 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 indigested 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 be justly considered as the parent of all municipal law.[9] 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
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[10] who have
criticised Grotius, and that answer might be given in the words of
Grotius himself.[11] 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 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.
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 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. 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, 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 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,[12] he would speak an unknown
tongue.
It is not, however, alone as a mere translation of 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," less obscure and
haughty in its language, less forbidding and disgusting in its
appearance, than in the days of our ancestors. If this progress of
learning towards popularity has engendered (as it must be owned that it
has) a multitude of superficial and most mischievous sciolists, 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
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[13] 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
mild and voluptuous savages of Otaheite, to the tame, but ancient and
immovable 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; 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 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, law-givers 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 sophists 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 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[14] 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 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. 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. 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, 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 text-book 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 transient popularity, have exerted to disguise
the most miserable common-places in the shape of paradox.
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 treatises 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.[15] 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, 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 imputation 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. An action, to be
completely virtuous, must accord with moral rules, and must flow from
our natural feelings and affections, moderated, matured, and improved
into steady habits of right conduct.[16] 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 may 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 specially if they had consulted with
nature, they had made their doctrines less prolix, and more
profound."--_Bacon. Dign. and Adv. of Learn._ book ii. 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. 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 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 tract, 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."[17] 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, perhaps, but too prone, and
proceed to the more profitable consideration of our practical duty.
II. 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."[18] 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
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 civilise men consisted in
strengthening and regulating these institutions, and fencing them round
with rigorous penal laws.
Oppida coeperunt munire et ponere leges
Neu quis fur esset, neu quis latro, neu quis adulter.
1 _Serm._ iii. 105.
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.
Et leges sanctas docuit, et chara jugavit
Corpora conjugiis; et magnas condidit urbes.
_Frag. C. Licin. Calvi._
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; 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.[19] I shall
endeavour to lay open those unalterable principles of general interest
on which that institution rests: 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 history[20] of marriage, and trace it through all the
forms which it has assumed, to that decent 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.
III. 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, 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 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 citizens, and the duty of protection on that of magistrates, on
the same foundation with that of every other moral duty; and it shews,
with sufficient evidence, that these duties are reciprocal; the only
rational end for which the fiction of a contract could 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[21] in a higher spirit of
philosophy have never once mooted. If our principles be just, the origin
of government must have been coeval with that of mankind; and as no
tribe has ever yet 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 a 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, find 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. But as general
security is enjoyed in very different degrees under different
governments, those which guard it most perfectly, are by 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 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 mis-government
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 in the ordinary course of
affairs, there could be no government. The object of such wise
institutions which make the 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.[22] 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 unbalanced government,
perhaps ever existed; that the simple governments are mere creatures of
the imagination of theorists, who have transformed names used for the
convenience of arrangement into real polities; 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
unwritten fundamental laws which regulate the most important rights of
the higher magistrates, and the most essential privileges[23] 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 into 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.[24] But human
wisdom indefatigably employed for 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,[25]
shewn itself capable of building up a free constitution, which is "the
growth of time and nature, rather than the work of human invention."
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."[26] 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 an 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 shew how the general
principles of liberty, originally common to it, with the other Gothic
monarchies of 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 shew 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, miscall 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[27] 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 because they are so high."--"_Hæc
cognitio ad viros civiles propriè pertinet_," 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 argument 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 men of
practice unjustly blamed philosophy, instead of condemning the sophist.
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 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, 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."[28]
IV. 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 law 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, 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 subtlety 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;[29] 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 defect of justice.
More understanding[30] has perhaps been in this manner exerted to fix
the rules of life than in any other science; and it is 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_;" 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."[31]
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
Rome and of England;[32] of their agreements 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, I hope to convince
him that the laws of civilised 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 in any other science. Will it be presumptuous to
express a hope, that such an inquiry may not be altogether an 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_, 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 whole subject of my lectures, of
which I have now given the outline, may be summed up in, the words of
Cicero:--"Natura enim juris explicanda est nobis, eaque ab hominis
repetenda naturâ; considerandæ leges quibus civitates regi debeant; tum
hæc tractanda, quæ composita sunt et descripta, jura et jussa populorum;
in quibus."--_Cic. de Leg._ lib. i. c. 5.
V. The next great division of the subject is the law of nations,
strictly and properly so called. I have 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 usages of nations. I shall consider these principles in
the gradation of those which are necessary to any tolerable intercourse
between nations; those which are essential to all well-regulated and
mutually advantageous intercourse; and those which are highly conducive
to the preservation of a mild and friendly intercourse between
civilised 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 any 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
embassadors 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, 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 this 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; 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."
_De l'Esprit des Loix_, liv. i. c. 3.
VI. 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_; 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 of war can confer:
"Equidem existimo, judices, cùm in omni genere ac varietate artium,
etiam illarum, quæ sine summo otio non facilè discuntur, Cn. Pompeius
excellat, singularem quandam laudem ejus et præstabilem esse scientiam,
_in fæderibus, pactionibus, conditionibus, populorum, regum, exterarum
nationum_: in universo denique bellijure ac pacis."--_Cic. Orat. pro L.
Corn. Balbo_, c. 6.
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 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 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 law-givers, 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
connexion 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 biased 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 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 regi non
posse."--_Cic. Frag._ lib. ii. _de Repub._
"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."--_Burke's Works_, vol. iii. p.
207.
FOOTNOTES
[1] See "A Syllabus of Lectures on the Law of England, to be delivered
in Lincoln's-Inn Hall by M. Nolan, Esq." London, 1796.
[2] 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
Hume's Essays, vol. ii. p. 352. ed. Lond. 1788.
[3] The learned reader is aware that the "jus naturæ" 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." D. I. I. I. 3.
"Quod naturalis ratio inter omnes homines constituit, id que apud omnes
peræque custoditur vocaturque jus gentium." D. I. I. 9. But they
sometimes neglect this subtle distinction--"Jure naturali quod
appellatur jus gentium." I. 2. I. II. _Jus feciale_ was the Roman term
for our law of nations. "Belli quidem æquitas sanctissimè populi Rom.
feciali jure perscripta est." Off. I. II. Our learned civilian Zouch has
accordingly entitled his work, "De Jure Feciali, sive de _Jure inter
Gentes_." The Chancellor D'Aguesseau, probably without knowing the work
of Zouch, suggested that this law should be called, "_Droit entre les
Gens_," (Oeuvres, tom. ii. p. 337.) in which he has been followed by a
late ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 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.
[4] This remark is suggested by an objection of _Vattel_, which is more
specious than solid. See his Prelim. § 6.
[5] "Est quidem vera lex, recta ratio, _naturæ congruens_, diffusa in
omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando à
fraude deterreat, quæ 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
quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ,
alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni
tempore una lex et sempiterna, et immortalis 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 cætera supplicia quæ putantur effugerit."--_Fragm._ lib. iii.
_Cicer. de Republ. apud Lactant_.
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.
[6] "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 quæ ratione
invenissent eloquentiâ persuadere potuissent."--_Cic. de Inv. Rhet._
lib. i. in proëm.
[7] [Greek: Dichaiômata tôt polimôt.]
[8] Cujacius, Brissonius, Hottomannus, &c. &c.--Vide _Gravina Orig. Jur.
Civil._ pp. 132-38. edit. Lips. 1737.
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._ tom. iv. p. 254.
[9] Proavia juris civilis.--_De Jur. Bell. ac Pac. Proleg._ § 16.
[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.
[11] Grot. Jur. Bell. et Pac. Proleg. § 40.
[12] 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.
[13] I cannot prevail on myself to pass over this subject without paying
my humble tribute to the memory of Sir W. Jones, who has laboured so
successfully in Oriental literature, 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. I 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.
[14] Especially those chapters of the third book, entitled,
_Temperamentum circa Captivos_, &c. &c.
[15] Natura enim juris explicanda est nobis, _eaque ab hominis repetenda
naturâ_.--_Cic. de Leg._ lib i. c. 5.
[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum
perducta natura.--_Cic. de Leg._ lib. i. c. 8.
[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p.
xxxiii.
[18] Bacon, Dign. and Adv. of Learn. book ii.
[19] 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.
[20] This progress is traced with great accuracy in some beautiful lines
of Lucretius:
---- Mulier conjuncta viro concessit in unum,
castaque privatæ veneris connubia læta
cognita sunt, prolemque ex se vidère coortam:
TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT.
---- puerisque parentum
Blanditiis facile ingenium fregere superbum.
_Tunc et amicitiam coeperunt jungere_ habentes
Finitima inter se, nec lædere nec violare.
Et pueros commendârunt muliebreque sêclum
Vocibus et gestu cum balbè significarent
IMBECILLORUM ESSE ÆQUUM MISERIER OMNIUM.
_Lucret._ lib. v. 1. 1010-22.
[21] 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, "[Greek: Kai oti anthropos physei
politikon zôon.]"--_Arist. de Rep._ lib. i.
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.
[22] 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 passage: "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."--_Mr. Fox 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.
[23] _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.
[24] 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.--See also Mr. Burke's Speech on Economical Reform;
and Sir M. Hale on the Amendment of Laws, in the collection of my
learned and most excellent friend, Mr. Hargrave, p. 248.
[25] 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 des Loix_, liv. v. c. 14.
[26] Lord Bacon, Essay xxiv. Of Innovations.
[27] 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.
[28] 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_," 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.--_Lettre de Rousseau au Marquis
de Mirabeau_.
The second proposition is true; but the first is not a just inference
from it.
[29] The casuistical subtleties are not perhaps greater than the
subtleties of lawyers;_ but the latter are innocent, and even
necessary_.--HUME's _Essays_, vol. ii. p. 558.
[30] "Law," said Dr. Johnson, "is the science in which the greatest
powers of understanding are applied to the greatest number of facts."
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.
[31] Burke's Works, vol. iii. p. 134.
[32] On the intimate connexion 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."--12 _Mod._ 482.
FINIS.
J. MOYES, TOOK'S COURT, CHANCERY LANE.
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