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+The Project Gutenberg EBook of A Discourse on the Study of the Law of
+Nature and Nations, by James Mackintosh
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+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
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK STUDY OF LAW--NATURE AND NATIONS ***
+
+
+
+
+Produced by Bryan Ness, Val Wooff and the Online Distributed
+Proofreading Team at https://www.pgdp.net (This book was
+produced from scanned images of public domain material
+from the Google Print project.)
+
+
+
+
+
+
+
+Transcriber's Note
+
+Spelling and punctuation have been preserved as faithfully as possible.
+Only obvious typographical errors have been corrected.
+
+For ease of reading, the footnotes have been moved to the end of the
+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.
+
+
+
+
+
+
+End of the Project Gutenberg EBook of A Discourse on the Study of the Law of
+Nature and Nations, by James Mackintosh
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+<pre>
+
+The Project Gutenberg EBook of A Discourse on the Study of the Law of
+Nature and Nations, by James Mackintosh
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+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
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK STUDY OF LAW--NATURE AND NATIONS ***
+
+
+
+
+Produced by Bryan Ness, Val Wooff and the Online Distributed
+Proofreading Team at https://www.pgdp.net (This book was
+produced from scanned images of public domain material
+from the Google Print project.)
+
+
+
+
+
+
+</pre>
+
+
+<div class="tr">
+<h3>Transcriber's Note</h3>
+
+<p>Spelling and punctuation have been preserved as faithfully as possible. Only obvious
+typographical errors have been corrected.</p>
+
+<p>For ease of reading, the footnotes have been moved to the end of the book.</p>
+</div>
+
+<p><br />
+<br />
+<br />
+<br />
+</p>
+
+
+
+<p><br />
+<br />
+<br />
+<br />
+</p>
+
+<h1>A DISCOURSE</h1>
+
+<h4>ON</h4>
+
+<h2>THE STUDY</h2>
+
+<h5>OF THE</h5>
+
+<h3>LAW OF NATURE AND NATIONS.</h3>
+
+<h5>BY</h5>
+
+<h3>SIR JAMES MACKINTOSH, M.P.</h3>
+
+<hr style="width: 20%;" />
+
+<h4><i>SECOND EDITION.</i></h4>
+
+
+<div class="figcenter" style="width: 200px;">
+<img src="images/printers_logo.jpg" width="200" height="191" alt="Printer&#39;s Logo   Swan on Nest" title="" />
+</div>
+
+
+<h3>LONDON:<br />
+HENRY GOODE AND CO.</h3>
+
+
+<h5>QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW.</h5>
+
+<h6>SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW.</h6>
+
+<h5>M.DCCC.XXVIII.</h5>
+
+<p>
+<br />
+<br />
+<br />
+<br />
+</p>
+
+
+<h3>A DISCOURSE,</h3><p><span class='pagenum'><a name="Page_1" id="Page_1">[Page 1]</a></span></p>
+
+<h5><span class="smcap">ETC</span>.</h5>
+
+<hr style="width: 20%;" />
+
+
+<p>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<span class='pagenum'><a name="Page_2" id="Page_2">[Page 2]</a></span>
+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,<a href="#F1"><sup>&nbsp;[1]&nbsp;</sup></a><a name="a1" id="a1"></a>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.<span class='pagenum'><a name="Page_3" id="Page_3">[Page 3]</a></span>
+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,<span class='pagenum'><a name="Page_4" id="Page_4">[Page 4]</a></span>
+of which the same men would have required no account, if it had been
+wasted on trifles, or even abused in dissipation.</p>
+
+<p>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
+<i>private ethics</i> which is capable of being reduced to fixed and general
+rules. It considers only those general principles of <i>jurisprudence</i> and
+<i>politics</i> which the wisdom of the lawgiver adapts to the peculiar
+situation of his own country, and which the skill of the statesman<span class='pagenum'><a name="Page_5" id="Page_5">[Page 5]</a></span>
+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."<a href="#F2"><sup>&nbsp;[2]&nbsp;</sup></a><a name="a2" id="a2"></a>&mdash;<i>Bacon's Dig. and Adv. of Learn.</i> Works, vol. i. p.
+101.</p>
+
+<p>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<span class='pagenum'><a name="Page_6" id="Page_6">[Page 6]</a></span>
+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."</p>
+
+<p>Whether this appellation be the happiest that could have been chosen<span class='pagenum'><a name="Page_7" id="Page_7">[Page 7]</a></span>
+for the science, and by what steps it came to be adopted among our
+modern moralists and lawyers,<a href="#F3"><sup>&nbsp;[3]&nbsp;</sup></a><a name="a3" id="a3"></a> 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<span class='pagenum'><a name="Page_8" id="Page_8">[Page 8]</a></span>
+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<span class='pagenum'><a name="Page_9" id="Page_9">[Page 9]</a></span>
+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 "<i>the natural law of individuals</i>,"
+and the other "<i>the natural law of states</i>;" and it is too obvious to
+require observation,<a href="#F4"><sup>&nbsp;[4]&nbsp;</sup></a><a name="a4" id="a4"></a> 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,<span class='pagenum'><a name="Page_10" id="Page_10">[Page 10]</a></span>
+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 "<i>law</i>," 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<span class='pagenum'><a name="Page_11" id="Page_11">[Page 11]</a></span>
+constitution of things, and are as fixed and inevitable as the order of
+nature. It is the "<i>law of nature</i>," 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<span class='pagenum'><a name="Page_12" id="Page_12">[Page 12]</a></span>
+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.<a href="#F5"><sup>&nbsp;[5]&nbsp;</sup></a><a name="a5" id="a5"></a> It is of this law that<span class='pagenum'><a name="Page_13" id="Page_13">[Page 13]</a></span>
+Hooker speaks in so sublime a strain:&mdash;"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<span class='pagenum'><a name="Page_14" id="Page_14">[Page 14]</a></span>
+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."&mdash;<i>Eccles. Pol.</i> book i. in the
+conclusion.</p>
+
+<p>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.<a href="#F6"><sup>&nbsp;[6]&nbsp;</sup></a><a name="a6" id="a6"></a> They were not<span class='pagenum'><a name="Page_15" id="Page_15">[Page 15]</a></span>
+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<span class='pagenum'><a name="Page_16" id="Page_16">[Page 16]</a></span>
+beauty.</p>
+
+<p>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.</p>
+
+<p>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,<a href="#F7"><sup>&nbsp;[7]&nbsp;</sup></a><a name="a7" id="a7"></a> 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<span class='pagenum'><a name="Page_17" id="Page_17">[Page 17]</a></span>
+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<span class='pagenum'><a name="Page_18" id="Page_18">[Page 18]</a></span>
+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<span class='pagenum'><a name="Page_19" id="Page_19">[Page 19]</a></span>
+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<span class='pagenum'><a name="Page_20" id="Page_20">[Page 20]</a></span>
+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.<a href="#F8"><sup>&nbsp;[8]&nbsp;</sup></a><a name="a8" id="a8"></a>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.</p>
+
+<p>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,<span class='pagenum'><a name="Page_21" id="Page_21">[Page 21]</a></span>
+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<span class='pagenum'><a name="Page_22" id="Page_22">[Page 22]</a></span>
+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.<a href="#F9"><sup>&nbsp;[9]&nbsp;</sup></a><a name="a9" id="a9"></a> Few
+works were more celebrated than that of Grotius in his own days, and in<span class='pagenum'><a name="Page_23" id="Page_23">[Page 23]</a></span>
+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.</p>
+
+<p>But another sort of answer is due to some of those <a href="#F10"><sup>&nbsp;[10]&nbsp;</sup></a><a
+name="a10" id="a10"></a> who have criticised Grotius,<span class='pagenum'><a name="Page_24" id="Page_24">[Page 24]</a></span> and that
+answer might be given in the words of Grotius himself.<a href="#F11"><sup>&nbsp;[11]&nbsp;</sup></a><a
+name="a11" id="a11"></a> 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 <span class='pagenum'><a
+name="Page_25" id="Page_25">[Page 25]</a></span> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_26" id="Page_26">[Page 26]</a></span>
+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.</p>
+
+<p>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<span class='pagenum'><a name="Page_27" id="Page_27">[Page 27]</a></span> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_28" id="Page_28">[Page 28]</a></span> 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<span class='pagenum'><a name="Page_29" id="Page_29">[Page 29]</a></span>
+ some knowledge of the principles of public law.</p>
+
+<p>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<span class='pagenum'><a name="Page_30" id="Page_30">[Page 30]</a></span>
+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.&mdash;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
+"<i>moral entities</i>" of Puffendorff,<a href="#F12"><sup>&nbsp;[12]&nbsp;</sup></a><a name="a12" id="a12"></a> he would speak an unknown
+tongue.<span class='pagenum'><a name="Page_31" id="Page_31">[Page 31]</a></span></p>
+
+<p>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<span class='pagenum'><a name="Page_32" id="Page_32">[Page 32]</a></span>
+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.</p>
+
+<p>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<span class='pagenum'><a name="Page_33" id="Page_33">[Page 33]</a></span>
+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<a href="#F13"><sup>&nbsp;[13]&nbsp;</sup></a><a name="a13" id="a13"></a> where the<span class='pagenum'><a name="Page_34" id="Page_34">[Page 34]</a></span>
+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 <i>Terra del Fuego</i>, 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<span class='pagenum'><a name="Page_35" id="Page_35">[Page 35]</a></span>
+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<span class='pagenum'><a name="Page_36" id="Page_36">[Page 36]</a></span>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.</p>
+
+<p>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 <span class='pagenum'><a name="Page_37" id="Page_37">[Page 37]</a></span>
+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<span class='pagenum'><a name="Page_38" id="Page_38">[Page 38]</a></span>
+all the various conditions of human society.</p>
+
+<p>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<a href="#F14"><sup>&nbsp;[14]&nbsp;</sup></a><a name="a14" id="a14"></a> 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.</p>
+
+<p>There are other circumstances to which I <span class='pagenum'><a name="Page_39" id="Page_39">[Page 39]</a></span>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.</p>
+
+<p>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 <span class='pagenum'><a name="Page_40" id="Page_40">[Page 40]</a></span>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.</p>
+
+<p>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<span class='pagenum'><a name="Page_41" id="Page_41">[Page 41]</a></span> 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 <span class='pagenum'><a name="Page_42" id="Page_42">[Page 42]</a></span>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.</p>
+
+<p>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 <span class='pagenum'><a name="Page_43" id="Page_43">[Page 43]</a></span>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.</p>
+
+<p><br /></p>
+
+<p>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.<a href="#F15"><sup>&nbsp;[15]&nbsp;</sup></a><a name="a15" id="a15"></a> 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 <i>metaphysics</i>; 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<span class='pagenum'><a name="Page_44" id="Page_44">[Page 44]</a></span> 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 <span class='pagenum'><a name="Page_45" id="Page_45">[Page 45]</a></span>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<span class='pagenum'><a name="Page_46" id="Page_46">[Page 46]</a></span> 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.<a href="#F16"><sup>&nbsp;[16]&nbsp;</sup></a><a name="a16" id="a16"></a> 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,<span class='pagenum'><a name="Page_47" id="Page_47">[Page 47]</a></span> 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
+<i>the roots of good and evil</i>, 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."&mdash;<i>Bacon. Dign. and Adv. of Learn.</i> 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 <span class='pagenum'><a name="Page_48" id="Page_48">[Page 48]</a></span>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 <span class='pagenum'><a name="Page_49" id="Page_49">[Page 49]</a></span>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."<a href="#F17"><sup>&nbsp;[17]&nbsp;</sup></a><a name="a17" id="a17"></a> 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<span class='pagenum'><a name="Page_50" id="Page_50">[Page 50]</a></span>
+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.</p>
+
+<p><br /></p>
+
+<p>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, <i>apart</i> from that sanction,
+not <i>antecedent</i> to it; for though we <i>separate</i> 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.<span class='pagenum'><a name="Page_51" id="Page_51">[Page 51]</a></span>
+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."<a href="#F18"><sup>&nbsp;[18]&nbsp;</sup></a><a name="a18" id="a18"></a> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_52" id="Page_52">[Page 52]</a></span>
+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.</p>
+
+<p><span style="margin-left: 2em;">Oppida c&#339;perunt munire et ponere leges</span><br />
+<span style="margin-left: 2em;">Neu quis fur esset, neu quis latro, neu quis adulter.</span><br />
+
+<span style="margin-left: 10em;">1 <i>Serm.</i> iii. 105.</span><br /></p>
+
+<p>A celebrated ancient orator, of whose poems we have but a few fragments
+remaining, has well described the progressive order in which<span class='pagenum'><a name="Page_53" id="Page_53">[Page 53]</a></span> human
+society is gradually led to its highest improvements under the
+guardianship of those laws which secure property and regulate marriage.</p>
+
+<p><span style="margin-left: 2em;">Et leges sanctas docuit, et chara jugavit</span><br />
+<span style="margin-left: 2em;">Corpora conjugiis; et magnas condidit urbes.</span><br />
+</p>
+<p><span style="margin-left: 10em;"><i>Frag. C. Licin. Calvi.</i></span><br /></p>
+
+<p>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<span class='pagenum'><a name="Page_54" id="Page_54">[Page 54]</a></span>
+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.</p>
+
+<p>The subject of <i>property</i> 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.</p>
+
+<p>I shall observe the same order in considering the society of the sexes
+as it is regulated<span class='pagenum'><a name="Page_55" id="Page_55">[Page 55]</a></span>
+ by the institution of marriage.<a href="#F19"><sup>&nbsp;[19]&nbsp;</sup></a><a name="a19" id="a19"></a> 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 <i>they</i> were not likely to employ much argument
+where they did not foresee the possibility of doubt. I shall also
+consider the history<a href="#F20"><sup>&nbsp;[20]&nbsp;</sup></a><a name="a20" id="a20"></a> of marriage, and trace it through<span class='pagenum'><a name="Page_56" id="Page_56">[Page 56]</a></span> 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.<br /></p>
+
+<p><br /></p>
+
+<p>III. Having established the principles of private duty, I shall proceed
+to consider <span class='pagenum'><a name="Page_57" id="Page_57">[Page 57]</a></span>
+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<span class='pagenum'><a name="Page_58" id="Page_58">[Page 58]</a></span>
+ 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<a href="#F21"><sup>&nbsp;[21]&nbsp;</sup></a><a name="a21" id="a21"></a>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<span class='pagenum'><a name="Page_59" id="Page_59">[Page 59]</a></span>
+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.</p>
+
+<p>I have already given the reader to understand that the description of
+liberty which seems to me the most comprehensive, is that of <i>security
+against wrong</i>. 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<span class='pagenum'><a name="Page_60" id="Page_60">[Page 60]</a></span>
+at all: they are more secure from wrong, <i>more undisturbed in the
+exercise of their natural powers, and therefore more free, even in the
+most obvious and grossest sense of the word</i>, 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 <i>free</i>. 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_61" id="Page_61">[Page 61]</a></span>
+ 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_62" id="Page_62">[Page 62]</a></span>
+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<span class='pagenum'><a name="Page_63" id="Page_63">[Page 63]</a></span>
+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
+<i>free</i>; 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.<a href="#F22"><sup>&nbsp;[22]&nbsp;</sup></a><a name="a22" id="a22"></a> It is <span class='pagenum'><a name="Page_64" id="Page_64">[Page 64]</a></span>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<span class='pagenum'><a name="Page_65" id="Page_65">[Page 65]</a></span> 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.</p>
+
+<p>By the constitution of a state, I mean "<i>the body of those written and
+unwritten fundamental laws which regulate the most important rights of
+the higher magistrates, and the most essential privileges<a href="#F23"><sup>&nbsp;[23]&nbsp;</sup></a><a name="a23" id="a23"></a> of the
+subjects.</i>" <span class='pagenum'><a name="Page_66" id="Page_66">[Page 66]</a></span> 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 <span class='pagenum'><a name="Page_67" id="Page_67">[Page 67]</a></span>establishment.<a href="#F24"><sup>&nbsp;[24]&nbsp;</sup></a><a name="a24" id="a24"></a> 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,<a href="#F25"><sup>&nbsp;[25]&nbsp;</sup></a><a name="a25" id="a25"></a>
+shewn itself capable of building up a free constitution, which <span class='pagenum'><a name="Page_68" id="Page_68">[Page 68]</a></span>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 "<i>the
+great innovator</i> <span class="smcap">Time</span>, which, indeed, innovateth greatly, but quietly,
+and by degrees scarce to be perceived."<a href="#F26"><sup>&nbsp;[26]&nbsp;</sup></a><a name="a26" id="a26"></a> 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.</p>
+
+<p>I shall conclude what I have to offer on government, by an account of
+the constitution<span class='pagenum'><a name="Page_69" id="Page_69">[Page 69]</a></span> 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<a href="#F27"><sup>&nbsp;[27]&nbsp;</sup></a><a name="a27" id="a27"></a><span class='pagenum'><a name="Page_70" id="Page_70">[Page 70]</a></span>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<span class='pagenum'><a name="Page_71" id="Page_71">[Page 71]</a></span> English constitution. "All
+those who have written of governments have written as philosophers, or
+as lawyers, <i>and none as statesmen</i>. 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."&mdash;"<i>H&aelig;c
+cognitio ad viros civiles propri&egrave; pertinet</i>," 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.</p>
+
+<p>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,<span class='pagenum'><a name="Page_72" id="Page_72">[Page 72]</a></span>
+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<span class='pagenum'><a name="Page_73" id="Page_73">[Page 73]</a></span>
+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."<a href="#F28"><sup>&nbsp;[28]&nbsp;</sup></a><a name="a28" id="a28"></a><br /></p>
+
+<p><span class='pagenum'><a name="Page_74" id="Page_74">[Page 74]</a></span></p>
+<p><br /></p>
+
+<p>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.</p>
+
+<p>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.<span class='pagenum'><a name="Page_75" id="Page_75">[Page 75]</a></span>
+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 <span class='pagenum'><a name="Page_76" id="Page_76">[Page 76]</a></span>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; <a href="#F29"><sup>&nbsp;[29]&nbsp;</sup></a><a name="a29" id="a29"></a> and we shall at once perceive that laws
+ought to be neither more <i>simple</i> nor more <i>complex</i> 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<a href="#F30"><sup>&nbsp;[30]&nbsp;</sup></a><a name="a30" id="a30"></a> has perhaps been in this manner exerted to fix
+the rules of life than<span class='pagenum'><a name="Page_77" id="Page_77">[Page 77]</a></span>
+ 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;<span class='pagenum'><a name="Page_78" id="Page_78">[Page 78]</a></span> a writer, of whom I may justly say, that he
+was "<i>gravissimus et dicendi et intelligendi auctor et magister</i>;" that
+I cannot refuse myself the gratification of quoting his words:&mdash;"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."<a href="#F31"><sup>&nbsp;[31]&nbsp;</sup></a><a name="a31" id="a31"></a></p>
+
+<p>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&mdash;those of
+Rome and of England;<a href="#F32"><sup>&nbsp;[32]&nbsp;</sup></a><a name="a32" id="a32"></a> of their agreements and disagreements, both in
+general provisions,<span class='pagenum'><a name="Page_79" id="Page_79">[Page 79]</a></span>
+ 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.</p>
+
+<p>In considering the important subject of <span class='pagenum'><a name="Page_80" id="Page_80">[Page 80]</a></span>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.</p>
+
+<p>As to the <i>law of criminal proceeding</i>, 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,<span class='pagenum'><a name="Page_81" id="Page_81">[Page 81]</a></span> may be summed up in, the words of
+Cicero:&mdash;"Natura enim juris explicanda est nobis, eaque ab hominis
+repetenda natur&acirc;; considerand&aelig; leges quibus civitates regi debeant; tum
+h&aelig;c tractanda, qu&aelig; composita sunt et descripta, jura et jussa populorum;
+in quibus <span class="smcap">NE NOSTRI QUIDEM POPULI LATEBUNT QU&AElig; VOCANTUR JURA
+CIVILIA</span>."&mdash;<i> Cic. de Leg.</i> lib. i. c. 5.</p>
+
+<p><br /></p>
+
+<p>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<span class='pagenum'><a name="Page_82" id="Page_82">[Page 82]</a></span> 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,<span class='pagenum'><a name="Page_83" id="Page_83">[Page 83]</a></span>
+ 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.</p>
+
+<p>"<i>Le droit des gens</i> est naturellement fond&eacute; sur ce principe, que les
+diverses nations doivent se faire, dans la paix, le plus de bien,<span class='pagenum'><a name="Page_84" id="Page_84">[Page 84]</a></span> et
+dans la guerre le moins de mal, qu'il est possible, sans nuire &agrave; leurs
+v&eacute;ritables int&eacute;r&ecirc;ts."</p>
+
+<p>"L'objet de la guerre c'est la victoire; celui de la victoire la
+conqu&ecirc;te; celui de la conqu&ecirc;te la conservation. De ce principe et du
+pr&eacute;c&eacute;dent, doivent d&eacute;river toutes les loix qui forment <i>le droit des
+gens</i>."</p>
+
+<p>"Toutes les nations ont un droit des gens; les <i>Iroquois</i> m&ecirc;me qui
+mangent leurs prisonniers en ont un. Ils envoient et re&ccedil;oivent des
+embassades; ils connoissent les droits de la guerre et de la paix: le
+mal est que ce droit des gens n'est pas fond&eacute; sur les vrais principes."
+<i>De l'Esprit des Loix</i>, liv. i. c. 3.</p>
+
+<p><br /></p>
+
+<p>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 <i>diplomatic and conventional law of Europe</i>; 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 <span class='pagenum'><a name="Page_85" id="Page_85">[Page 85]</a></span>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:</p>
+
+<p>"Equidem existimo, judices, c&ugrave;m in omni genere ac varietate artium,
+etiam illarum, qu&aelig; sine summo otio non facil&egrave; discuntur, Cn. Pompeius
+excellat, singularem quandam laudem ejus et pr&aelig;stabilem esse scientiam,
+<i>in f&aelig;deribus, pactionibus, conditionibus, populorum, regum, exterarum
+nationum</i>: in universo denique bellijure ac pacis."&mdash;<i>Cic. Orat. pro L.
+Corn. Balbo</i>, c. 6.</p>
+
+<p>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<span class='pagenum'><a name="Page_86" id="Page_86">[Page 86]</a></span>
+ 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.</p>
+
+<p>As an useful appendix to a practical <span class='pagenum'><a name="Page_87" id="Page_87">[Page 87]</a></span>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.</p>
+
+<p>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 <span class='pagenum'><a name="Page_88" id="Page_88">[Page 88]</a></span>formality, or in the
+construction of an article in a treaty.</p>
+
+<p>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.</p>
+
+<p>I shall conclude this Discourse in the noble<span class='pagenum'><a name="Page_89" id="Page_89">[Page 89]</a></span> 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.</p>
+
+<p>"Nihil est quod adhuc de republic&acirc; putem dictum, et quo possim longius
+progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuri&acirc;
+non posse, sed hoc verissimum, sine summ&acirc; justiti&acirc; rempublicam regi non
+posse."&mdash;<i>Cic. Frag.</i> lib. ii. <i>de Repub.</i></p>
+
+<p>"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."&mdash;<i>Burke's Works</i>, vol. iii. p.
+207.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2>FOOTNOTES</h2>
+
+<div class="footnote">
+
+<p><a name="F1" id="F1"></a> [1]<q>Syllabus of Lectures on the Law of England, to be delivered
+in Lincoln's-Inn Hall by M. Nolan, Esq.</q> London, 1796.  <a href="#a1">Back to text</a></p>
+
+<p><a name="F2" id="F2"></a>[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.&nbsp;&nbsp;<a href="#a2">Back to text</a></p>
+
+<p><a name="F3" id="F3"></a>[3] The learned reader is aware that the "jus natur&aelig;" 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. <span class="smcap">I. I. I.</span> 3.
+"Quod naturalis ratio inter omnes homines constituit, id que apud omnes
+per&aelig;que custoditur vocaturque jus gentium." D. <span class="smcap">I. I.</span> 9. But they
+sometimes neglect this subtle distinction&mdash;"Jure naturali quod
+appellatur jus gentium." I. 2. <span class="smcap">I. II.</span> <i>Jus feciale</i> was the Roman term
+for our law of nations. "Belli quidem &aelig;quitas sanctissim&egrave; populi Rom.
+feciali jure perscripta est." Off. <span class="smcap">I. II.</span> Our learned civilian Zouch has
+accordingly entitled his work, "De Jure Feciali, sive de <i>Jure inter
+Gentes</i>." The Chancellor D'Aguesseau, probably without knowing the work
+of Zouch, suggested that this law should be called, "<i>Droit entre les
+Gens</i>," (&#338;uvres, 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.&nbsp;&nbsp;<a href="#a3">Back to text</a></p>
+
+<p><a name="F4" id="F4"></a>[4] This remark is suggested by an objection of <i>Vattel</i>, which is more
+specious than solid. See his Prelim. &sect; 6.&nbsp;&nbsp;<a href="#a4">Back to text</a></p>
+
+<p><a name="F5" id="F5"></a>[5] "Est quidem vera lex, recta ratio, <i>natur&aelig; congruens</i>, diffusa in
+omnes, constans, sempiterna, qu&aelig; vocet ad officium jubendo, vetando &agrave;
+fraude deterreat, qu&aelig; 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
+ver&ograve; aut per senatum aut per populum solvi hac lege possumus. Neque est
+qu&aelig;rendus explanator aut interpres ejus alius. Nec erit alia lex Rom&aelig;,
+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 <i>ipse se fugiet et
+naturam hominis aspernabitur</i>, atque hoc ipso luet maximas p[oe]nas
+etiamsi c&aelig;tera supplicia qu&aelig; putantur effugerit."&mdash;<i>Fragm.</i> lib. iii.
+<i>Cicer. de Republ. apud Lactant</i>.</p>
+
+<p>It is impossible to read such precious fragments without deploring the
+loss of a work which, for the benefit of all generations, <i>should</i> have
+been immortal.&nbsp;&nbsp;<a href="#a5">Back to text</a></p>
+
+<p><a name="F6" id="F6"></a>[6] "Age ver&ograve; urbibus constitutis ut fidem colere et justitiam retinere
+discerent et aliis parere su&acirc; voluntate consuescerent, ac non mod&ograve;
+labores excipiendos communis commodi caus&acirc; sed etiam vitam amittendam
+existimarent; qui tandem fieri potuit nisi homines ea qu&aelig; ratione
+invenissent eloquenti&acirc; persuadere potuissent."&mdash;<i>Cic. de Inv. Rhet.</i>
+lib. i. in pro&euml;m.&nbsp;&nbsp;<a href="#a6">Back to text</a></p>
+
+<p><a name="F7" id="F7"></a>[7]&#916;&#953;&#954;&#945;&#7985;&#969;&#956;&#945;&#964;&#945;
+&#964;&#969;&#957; &#960;&#959;&#955;&#949;&#956;&#969;&#957; &nbsp;&nbsp;<a href="#a7">Back to text</a></p>
+
+<p><a name="F8" id="F8"></a>[8] Cujacius, Brissonius, Hottomannus, &amp;c. &amp;c.&mdash;Vide <i>Gravina Orig. Jur.
+Civil.</i> pp. 132-38. edit. Lips. 1737.</p>
+
+<p>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.&mdash;<i>Op.</i> tom. iv. p. 254.&nbsp;&nbsp;<a href="#a8">Back to text</a></p>
+
+<p><a name="F9" id="F9"></a>[9] Proavia juris civilis.&mdash;<i>De Jur. Bell. ac Pac. Proleg.</i> &sect; 16.&nbsp;&nbsp;<a href="#a9">Back to text</a></p>
+
+<p><a name="F10" id="F10"></a>[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.&nbsp;&nbsp;<a href="#a10">Back to text</a></p>
+
+<p><a name="F11" id="F11"></a>[11] Grot. Jur. Bell. et Pac. Proleg. &sect; 40.&nbsp;&nbsp;<a href="#a11">Back to text</a></p>
+
+<p><a name="F12" id="F12"></a>[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.&nbsp;&nbsp;<a href="#a12">Back to text</a></p>
+
+<p><a name="F13" id="F13"></a>[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.&nbsp;&nbsp;<a href="#a13">Back to text</a></p>
+
+<p><a name="F14" id="F14"></a>[14] Especially those chapters of the third book, entitled,
+<i>Temperamentum circa Captivos</i>, &amp;c. &amp;c.&nbsp;&nbsp;<a href="#a14">Back to text</a><br /></p>
+
+<p><a name="F15" id="F15"></a>[15] Natura enim juris explicanda est nobis, <i>eaque ab hominis repetenda
+natur&acirc;</i>.&mdash;<i>Cic. de Leg.</i> lib i. c. 5.&nbsp;&nbsp;<a href="#a15">Back to text</a></p>
+
+<p><a name="F16" id="F16"></a>[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum
+perducta natura.&mdash;<i>Cic. de Leg.</i> lib. i. c. 8.&nbsp;&nbsp;<a href="#a16">Back to text</a><br /></p>
+
+<p><a name="F17" id="F17"></a>[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p.
+xxxiii.&nbsp;&nbsp;<a href="#a17">Back to text</a></p>
+
+<p><a name="F18" id="F18"></a>[18] Bacon, Dign. and Adv. of Learn. book ii.&nbsp;&nbsp;<a href="#a18">Back to text</a><br /></p>
+
+<p><a name="F19" id="F19"></a>[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.&nbsp;&nbsp;<a href="#a19">Back to text</a><br /></p>
+
+<p><a name="F20" id="F20"></a>[20] This progress is traced with great accuracy in some beautiful lines
+of Lucretius:</p>
+
+<p><span style="margin-left: 2.5em;">&mdash;&mdash; Mulier conjuncta viro concessit in unum,</span><br />
+<span style="margin-left: 2.5em;">castaque privat&aelig; veneris connubia l&aelig;ta</span><br />
+<span style="margin-left: 2.5em;">cognita sunt, prolemque ex se vid&egrave;re coortam:</span><br />
+<span style="margin-left: 2.5em;"><span class="smcap">tum genus humanum primum mollescere c&oelig;pit</span>.</span><br />
+<span style="margin-left: 2.5em;">&mdash;&mdash; puerisque parentum</span><br />
+<span style="margin-left: 2.5em;">Blanditiis facile ingenium fregere superbum.</span><br />
+<span style="margin-left: 2.5em;"><i>Tunc et amicitiam c&oelig;perunt jungere</i> habentes</span><br />
+<span style="margin-left: 2.5em;">Finitima inter se, nec l&aelig;dere nec violare.</span><br />
+<span style="margin-left: 2.5em;">Et pueros commend&acirc;runt muliebreque s&ecirc;clum</span><br />
+<span style="margin-left: 2.5em;">Vocibus et gestu cum balb&egrave; significarent</span><br />
+<span style="margin-left: 2.5em;"><span class="smcap">Imbecillorum esse &aelig;quum miserier omnium</span>.</span><br />
+
+<span style="margin-left: 2em;"><i>Lucret.</i> lib. v. 1. 1010-22.</span><br />&nbsp;&nbsp;<a href="#a20">Back to text</a><br /></p>
+
+<p><a name="F21" id="F21"></a>[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, "&#922;&#945;&#953;
+&#8001;&#964;&#953; &#934;&#965;&#963;&#949;&#953;
+&#945;&#957;&#952;&#961;&#969;&#960;&#959;&#962;
+&#960;&#959;&#955;&#953;&#964;&#953;&#954;&#959;&#957;
+&#950;&#969;&#959;&#957; "&mdash;<i>Arist. de Rep.</i> lib. i.</p>
+
+<p>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.&nbsp;&nbsp;<a href="#a21">Back to text</a><br /></p>
+
+<p><a name="F22" id="F22"></a>[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."&mdash;<i>Mr. Fox on the Army Estimates</i>, 9th Feb. 1790.</p>
+
+<p>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.&nbsp;&nbsp;<a href="#a22">Back to text</a><br /></p>
+
+<p><a name="F23" id="F23"></a>[23] <i>Privilege</i>, in Roman jurisprudence, means the <i>exemption</i> 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 <i>excepted</i> from the ordinary discretion of
+the magistrate, and guarded by the same fundamental laws which secure
+his authority.&nbsp;&nbsp;<a href="#a23">Back to text</a><br /></p>
+
+<p><a name="F24" id="F24"></a>[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.&mdash;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.&nbsp;&nbsp;<a href="#a24">Back to text</a><br /></p>
+
+<p><a name="F25" id="F25"></a>[25] Pour former un gouvernement mod&eacute;r&eacute;, il faut combiner les
+puissances, les r&eacute;gler, les temp&eacute;rer, les faire agir, donner pour ainsi
+dire un lest &agrave; l'une pour la mettre en &eacute;tat de r&eacute;sister &agrave; une autre,
+c'est un chef-d'[oe]uvre de l&eacute;gislation que le hasard fait rarement, et
+que rarement on laisse faire &agrave; 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'&eacute;tablir tout le monde est bon
+pour cela.&mdash;<i>Montesquieu, de l'Esprit des Loix</i>, liv. v. c. 14.&nbsp;&nbsp;<a href="#a25">Back to text</a><br /></p>
+
+<p><a name="F26" id="F26"></a>[26] Lord Bacon, Essay xxiv. Of Innovations.&nbsp;&nbsp;<a href="#a26">Back to text</a><br /></p>
+
+<p><a name="F27" id="F27"></a>[27] The reader will perceive that I allude to <span class="smcap">Montesquieu</span>, 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.&nbsp;&nbsp;<a href="#a27">Back to text</a><br /></p>
+
+<p><a name="F28" id="F28"></a>[28] This principle is expressed by a writer of a very different
+character from these two great philosophers; a writer, "<i>qu'on
+n'appellera plus philosophe, mais qu'on appellera le plus &eacute;loquent des
+sophistes</i>," with great force, and, as his manner is, with some
+exaggeration.</p>
+
+<p>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.&mdash;<i>Lettre de Rousseau au Marquis
+de Mirabeau</i>.</p>
+
+<p>The second proposition is true; but the first is not a just inference
+from it.&nbsp;&nbsp;<a href="#a28">Back to text</a><br /></p>
+
+<p><a name="F29" id="F29"></a>[29] The casuistical subtleties are not perhaps greater than the
+subtleties of lawyers;<i> but the latter are innocent, and even
+necessary</i>.&mdash;<span class="smcap">Hume</span>'s <i>Essays</i>, vol. ii. p. 558.&nbsp;&nbsp;<a href="#a29">Back to text</a><br /></p>
+
+<p><a name="F30" id="F30"></a>[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.&nbsp;&nbsp;<a href="#a30">Back to text</a><br /></p>
+
+<p><a name="F31" id="F31"></a>[31] Burke's Works, vol. iii. p. 134.&nbsp;&nbsp;<a href="#a31">Back to text</a><br /></p>
+
+<p><a name="F32" id="F32"></a>[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:&mdash;"Inasmuch <i>as the
+laws of all nations are doubtless raised out of the ruins of the civil
+law</i>, as all governments are sprung out of the ruins of the Roman
+empire, it must be owned <i>that the principles of our law are borrowed
+from the civil law</i>, therefore grounded upon the same reason in many
+things."&mdash;12 <i>Mod.</i> 482.&nbsp;&nbsp;<a href="#a32">Back to text</a><br /></p>
+</div>
+
+<p><br />
+<br />
+<br />
+<br />
+</p>
+
+<h3>FINIS.</h3>
+
+<p>
+<br />
+<br />
+</p>
+<h6>
+J. MOYES, TOOK'S COURT, CHANCERY LANE.</h6>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of the Project Gutenberg EBook of A Discourse on the Study of the Law of
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+The Project Gutenberg EBook of A Discourse on the Study of the Law of
+Nature and Nations, by James Mackintosh
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+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
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK STUDY OF LAW--NATURE AND NATIONS ***
+
+
+
+
+Produced by Bryan Ness, Val Wooff and the Online Distributed
+Proofreading Team at https://www.pgdp.net (This book was
+produced from scanned images of public domain material
+from the Google Print project.)
+
+
+
+
+
+
+
+Transcriber's Note
+
+Spelling and punctuation have been preserved as faithfully as possible.
+Only obvious typographical errors have been corrected.
+
+For ease of reading, the footnotes have been moved to the end of the
+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."--"_Haec
+cognitio ad viros civiles proprie 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 natura; considerandae leges quibus civitates regi debeant; tum
+haec tractanda, quae 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 fonde 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 a leurs
+veritables interets."
+
+"L'objet de la guerre c'est la victoire; celui de la victoire la
+conquete; celui de la conquete la conservation. De ce principe et du
+precedent, doivent deriver toutes les loix qui forment _le droit des
+gens_."
+
+"Toutes les nations ont un droit des gens; les _Iroquois_ meme qui
+mangent leurs prisonniers en ont un. Ils envoient et recoivent des
+embassades; ils connoissent les droits de la guerre et de la paix: le
+mal est que ce droit des gens n'est pas fonde 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, cum in omni genere ac varietate artium,
+etiam illarum, quae sine summo otio non facile discuntur, Cn. Pompeius
+excellat, singularem quandam laudem ejus et praestabilem esse scientiam,
+_in faederibus, 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 republica putem dictum, et quo possim longius
+progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria
+non posse, sed hoc verissimum, sine summa justitia 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 naturae" and "jus gentium"
+of the Roman lawyers are phrases of very different import from the
+modern phrases, "law of nature" and "law of nations." "Jus naturale,"
+says Ulpian, "est quod natura omnia animalia docuit." D. I. I. I. 3.
+"Quod naturalis ratio inter omnes homines constituit, id que apud omnes
+peraeque 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 aequitas sanctissime 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. Sec. 6.
+
+[5] "Est quidem vera lex, recta ratio, _naturae congruens_, diffusa in
+omnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a
+fraude deterreat, quae tamen neque probos frustra jubet aut vetat, neque
+improbos jubendo aut vetando movet. Huic legi neque obrogari fas est,
+neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec
+vero aut per senatum aut per populum solvi hac lege possumus. Neque est
+quaerendus explanator aut interpres ejus alius. Nec erit alia lex Romae,
+alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni
+tempore una lex et sempiterna, et 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 caetera supplicia quae 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 vero urbibus constitutis ut fidem colere et justitiam retinere
+discerent et aliis parere sua voluntate consuescerent, ac non modo
+labores excipiendos communis commodi causa sed etiam vitam amittendam
+existimarent; qui tandem fieri potuit nisi homines ea quae ratione
+invenissent eloquentia persuadere potuissent."--_Cic. de Inv. Rhet._
+lib. i. in proem.
+
+[7] [Greek: Dichaiomata tot polimot.]
+
+[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._ Sec. 16.
+
+[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.
+
+[11] Grot. Jur. Bell. et Pac. Proleg. Sec. 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
+natura_.--_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 privatae veneris connubia laeta
+     cognita sunt, prolemque ex se videre coortam:
+     TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT.
+     ---- puerisque parentum
+     Blanditiis facile ingenium fregere superbum.
+     _Tunc et amicitiam coeperunt jungere_ habentes
+     Finitima inter se, nec laedere nec violare.
+     Et pueros commendarunt muliebreque seclum
+     Vocibus et gestu cum balbe significarent
+     IMBECILLORUM ESSE AEQUUM 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 zoon.]"--_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 modere, il faut combiner les
+puissances, les regler, les temperer, les faire agir, donner pour ainsi
+dire un lest a l'une pour la mettre en etat de resister a une autre,
+c'est un chef-d'oeuvre de legislation que le hasard fait rarement, et
+que rarement on laisse faire a 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'etablir 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 eloquent 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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