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 A DISCOURS]^ 
 
 OK 
 
 THE STUDY 
 
 OF THE 
 
 •^ 
 
 LAW OF NATURE AND NATIONS. 
 
 •' ^ 
 
 
LONDON: 
 
 J. MOVES, TOOK'S COURT, CHANCERY LANE. 
 
 \. 
 
 \ 
 
 j: 
 
 •' 
 
 *■ 
 
yi t^ 
 
 A DISCOURSE 
 
 ON 
 
 THE STUDY 
 
 OF THE 
 
 LAW OF NATURE AND NATIONS. 
 
 BY 
 
 SIR JAMES MACKINTOSH, M.P. 
 
 i 
 
 T HAVK NO MOTIVE FOR WISHING TO FI>ATTER YOU', BUT I MUST BK 
 PKBMITTED TO SAY, THAT I HAVK NEVER MET WITH ANY THING 
 SO ABLE AND ELEGANT ON THE SUBJECT IN ANY LANGDAOE." 
 
 WILLIAM PITT TO THE AUTHOR. 
 
 LONDON: 
 
 HENRY GOODE AND CO. 
 
 queen's head passage, pateknoster-row. 
 
 SOLD BY T. CLARKi EDINBURGH; AND WARDLAW AND CO. GLASGOW. 
 
 '•■^;/:^i;.r ? 
 
 M.DCCC.XXVIII. 
 
 \ A 
 
\ 
 
 McMASTER UNIVERSITY LIBRARY 
 
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 un- 
 dertake 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 unprofit- 
 able inactivity that leisure whi :b the first 
 years of my profession usually ailow, and 
 which diligent men, even with moderate ta- 
 lents, might often employ in a manner nei- 
 ther 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 fill- 
 it up, which might enable me, accordinsc 
 
 mg It up, 
 
 B 
 
ON THE STUDY OF THE LAW 
 
 ii 
 
 i 
 
 to the measure of my humble abilities, to 
 contribute somewhat to the stock of general 
 usefulness. I had long been convinc^.d 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 awa- 
 kening the attention of the student, of abridg- 
 ing 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 know- 
 ledge. A learned gentleman, however, had 
 already occupied that ground,* and will, I 
 doubt not, persevere in the useful labour 
 which he has undertaken. On his province it 
 
 * See " A Syllabus of Lectures on the Law of 
 England, to be delivered in Liucoln*8-Inn Hall by 
 M. Nolan, Esq*" London, 179C. 
 
 \ 
 
 U 
 
 \i I 
 
OF NATURE AND NATIONS. 
 
 3 
 
 to 
 
 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 reflec- 
 tion, 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 des- 
 tined 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. Encou- 
 raged by their approbation, I resolved with- 
 out 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 
 
 i 
 
ON THE STUDY OF THE LAW 
 
 II 
 
 I 
 
 «^ 
 
 that leisure, of which the same men would 
 have required no account, if it had been 
 wasted on trifles, or even abused in dissi- 
 pation. 
 
 The science which teaches the rights and 
 duties of men and of states, has, in mo- 
 dern 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 obe- 
 dience of citizens to the laws, and the autho- 
 rity 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 ca- 
 pable of being reduced to fixed and general 
 rules. It considers only those general prin- 
 ciples 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 
 
OF NATURE AND NATIONS. 5 
 
 fluctuating and infinitely varying circum- 
 stances 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 , thous:h they procsod 
 from the same fountains."* — Bacon* s Dig, 
 and Adv. of Learn, Works, vol. i. p. 101. 
 
 On the great questions of morality, of po- 
 litics, and of municipal law, it is the object 
 of this science to deliver only those funda- 
 mental truths of which the particular applica- 
 tion 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 
 
 * I have not been deterred by some petty incon- 
 gruity of metaphor from quoting this noble sentence. 
 Mr. Hume had, perhaps, this sentence in his recol- 
 lection, when he wrote a remarkable passage of his 
 works. See Hume*s Essays, vol. ii. p. 352. ed. Lond. 
 1788. 
 
6 
 
 ON THE STUDY OF THE LAW 
 
 if 
 
 Hi 
 
 \i 
 
 their course. But another part of the subject 
 is treated with greater fulness and minuteness 
 of appUcation ; 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 indi- 
 viduals 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 
 
OF NATURE AND NATIONS. 
 
 that could have been chosen for the science, 
 and by what steps it came to be adopted 
 among our modern moralists and lawyers,* 
 are inquiries, perhaps, of more curiosity 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 
 
 ; '.i 
 
 * The learned reader is aware that the " jus na- 
 turae'* 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 perasque custoditur vocaturque jus gentium." 
 D. I. I. 9. But they sometimes neglect this subtle 
 distinction — ^^ Jure naturali quod appellatur jus gen- 
 tium." I. 2. I. II. Jusfeciale was the Roman term 
 for our law of nations. " Belli quidem sequitas sanc- 
 tissime populi Rom. feciali jure perscripta est." 
 Oif. I. II. Our learned civilian Zouch has accord- 
 
 
 \H\ 
 
1^ 
 
 !(!■ 
 
 8 
 
 ON THE STUDY OF THE LAW 
 
 ■■M 
 
 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 toge- 
 ther men in families, and which form families 
 into commonwealths, also link together these 
 commonwealths as members of the great so- 
 ciety of mankind. Commonwealths, as well 
 as private men, are liable to injury, and ca- 
 pable of benefit, from each other ; it is, there- 
 fore, their interest as well as their duty to 
 
 I 
 
 A-., 5. 
 
 i;; 
 
 ingly entitled his work, " De Jure Feciali, sive de 
 Jure inter Gentes." The Chancellor D'Aguesseau, 
 probably without knowing the work of Zouch, sug- 
 gested that this law should be called, " Droit entre les 
 Gens,'''' (CEuvres, torn. 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 supe- 
 rior precision for the uncertainty and confusion which 
 the change occasions. . ' ' • 
 
OF NATURE AND NATIONS. 
 
 9 
 
 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 ob- 
 servance, preserve civilised states in a toler- 
 able 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 y* and 
 the other ** the natural law of states;** and 
 it is too obvious to require observation,* that 
 the application of both these laws, of the 
 former as much as of the latter, is modified 
 and varied by customs, conventions, character, 
 and situation. With a view to these prin- 
 ciples, the writers on general jurisprudence 
 have considered states as moral persons; a 
 mode of expression which has been called a 
 
 :!: 
 
 * This remark is suggested by an objection of 
 Vattel^ which is more specious than solid. See his 
 Prelim. § 6. 
 
10 
 
 ON THE STUDY OF THE LAW 
 
 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 supe- 
 rior, and neither can nor ought to be sub- 
 jected 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 con- 
 ceived 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 cor- 
 rectness, or at least by an easy metaphor, 
 be called a " law^'* inasmuch as it is a su- 
 preme, invariable, and uncontrollable rule of 
 conduct to all men, of which the violation is 
 avenged by natural punishments, which neces- 
 sarily flow from the constitution of things, and 
 
 ■i 
 
 
 ft 
 
 •3 
 
OF NATURE AND NATIONS. 
 
 11 
 
 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 ima- 
 gined 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. re- 
 ceived 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 
 
 i 
 
 K 
 
12 
 
 ON THE STUDY OF THK LAW 
 
 experience may inform us, by the penal sanc- 
 tions of shame, of remorse, of infamy, and of 
 misery ; and still farther enforced by the rea- 
 sonable expectation of yet more awful pe- 
 nalties 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 transcend- 
 ent 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 elo- 
 quence, 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.* It is of this law that Hooker 
 
 if I- 
 
 ii 
 
 * ^' Est quidem vera lex, recta ratio, natura con- 
 gruenSf diffusa in omnes, constans, sempiterna, quaa 
 
 i»' 
 
OF NATURE AND NATIONS. 
 
 13 
 
 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; 
 
 I; 
 
 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. Nee ver6 
 aut per senatum aut per populum solvi hac lege pos- 
 sumus. Neque est quaerendus explanator aut interpres 
 ejus alius. Nee erit alia lex Romse, alia Athenis, alia 
 nunc, alia posthac, sed et omnes gentes et omni tern, 
 pore una lex et sempiterna, et immortalis continebit, 
 unusque erit communis quasi magister et imperator 
 omnium Deus. lUe 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 effu- 
 gerit." — /'Va^'OT. lib. iii. Cicer. de Repuhl. 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. 
 
 15 
 1 1 
 
 M 
 
14 
 
 ON THE STUDY OF THE LAW 
 
 In 
 
 i: 
 
 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 con- 
 clusion. 
 
 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, neces- 
 sities, 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, lo inspire men with a love 
 and reverence for virtue.* They were not 
 
 \ \ 
 
 m u 
 
 Age vero urbibus const! tutis ut fidem colere 
 et jtistitiam retinere discerent et aliis parere sua vo« 
 luntate consuescercnt, ac non modo labores excipiendos 
 cuminiinis commodi causa sed etiam vitam amitteudam 
 
OF NATURE AND NATIONS. 
 
 15 
 
 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 vir- 
 tue 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 feel- 
 ing to moral theory ; and practical benefit to 
 speculative exactness. Perhaps these wise men 
 may have supposed that the minute dissec- 
 tion and anatomy of Virtue might, to the ill- 
 judging eye, weaken the charm of her beauty. 
 
 I 
 
 i 
 
 I 
 
 
 I 
 
 !• 
 
 existimarent ; qui tandem fieri potuit nisi homines ea 
 quae rations invenissent eloquentid persuadere po> 
 tuissent." — Cic. de Inv. RheU lib. i, in proem. 
 
16 
 
 
 » 
 
 t 
 
 ,C. 
 
 V'. 
 
 i 
 
 ON THE STUDY OF THE LAW 
 
 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 pre- 
 sumption 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 un- 
 avoidably 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 re- 
 maining on the law of nations. From the 
 title of one of the lost works of Aristotle, it 
 appears that he composed a treatise on the 
 laws of war,* which, if we had the good 
 fortune to possess it, would doubtless have 
 amply satisfied our curiosity, and would have 
 taught us both the practice of the ancient 
 nations and the opinions of their moralists^ 
 
 1 
 
 •-xfj— 
 
OF NATIUE AND NATIONS. 
 
 17 
 
 with that depth and precision which distin- 
 guish the other works of that great philo- 
 sopher. We can now only imperfectly collect 
 that practice and those opinions from various 
 passages which are scattered ever 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 so- 
 ciety; 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 
 
 c 
 
 i 
 
 ■'A*t 
 
 
IS 
 
 ON THK STUDY OF THK LAW 
 
 a 
 
 11 
 
 ■V 
 
 languages; in earlier ages the authority of 
 the See of Rome, luul the extravagant claims 
 of the imperial crown ; in later times the 
 ronnexions of trade, the jealousy of power, 
 the refinement of civilization, the cultivation 
 of science, and, above all, that general mild- 
 ness 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 ob- 
 scured, but not obliterated) of the rude but 
 bold and noble outline of liberty that was 
 originally sketched by the hand of these ge- 
 nerous barbarians. These and many other 
 causes conspired to unite the nations of Eu- 
 rope 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 ap- 
 proached to the condition of provinces of the 
 
 rtMni 
 
OF NATIIRK ANi» NATIONS. 
 
 19 
 
 same empire, it became nlmost as essential 
 that Europe should have a precise and com- 
 prehensive code of the law of nations, as that 
 each country should have a system of muni- 
 cipal law. The labours of the learned accord- 
 ingly begun 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 ob- 
 serve 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 prin- 
 ciples 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 waa 
 first studied and understood as a science coa- 
 
 4 
 
 ■4.' 
 
 .•(I 
 
 
 , « 
 
 i?.! 
 
 1 
 
f^ 
 
 20 
 
 ON THE STUDV OF THE . LAW 
 
 .1 li' 
 
 if 
 
 nected with Roman history and hterature,. 
 and illustrated by men whom Ulpian and 
 Papinian would not have disdained to ac- 
 knowledge as their successors.* Among the 
 writers of that age we may perceive the in- 
 effectual attempts, the partial advances, the 
 occasional streaks of light which always pre- 
 cede 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 pro- 
 duced 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 
 
 * Cujacius, Brissonius, Hottomannus, &c. &c. ^ — 
 Vide Gravida Orig. Jar. Civil, pp. 132-3fJ. edit. 
 Li])s. 1737. 
 
 Leibnitz, a great mathematician as well as pliilo- 
 i')I)her, declares that he knows nothing which ap- 
 proaches so near to the method and precision of 
 ^eQmetry as the Roman law. — Op. torn. iv. p. 254. 
 
OF NATURE AND NATIONS. 
 
 21 
 
 man. So grcit is the uncertainty of post- 
 humous, reputation, and so liable is the tame 
 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 Giotius, who iilled 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 
 coiisider him as one of the most memorable 
 men who have done honour to modern times. 
 He combined the discharge of the most im- 
 portant 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 com- 
 posed the most valuable works on the law of 
 his own country ; he was almost equally cele- 
 brated as an historian, a scholar, a poet, and 
 a divine; a disinterested statesman, a philo- 
 sophical lawyer, a patriot who united modera- 
 tion with firmness, and a theologian who was 
 taught candour by his learning. Unmerited 
 exile did not damp his patriotism ; the bitter- 
 
 
 w 
 
 
 <l ■ 
 'I. 
 
 
 ?( 
 
 u 
 
!;;i 
 
 22 
 
 ON THE STUDY OF THE LAW 
 
 k !■ ,■ 
 
 111 
 
 IV 
 
 
 ness 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 tur- 
 bulent 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 reli- 
 gious faction he preserved his name un- 
 spotted, and he knew how to reconcile fidelity 
 to his own party, with moderation towards his 
 opponents. Such was the man who was des- 
 tined 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 he 
 justly considered as the parent of all muni- 
 cipal law.* Few works were more celebrated 
 than that of Grotius in his own days, and in 
 
 * Proavia juris civilis. — /><? Jur. Bell, ac Pac, 
 Proley, % 10. 
 

 OF NATURE AND NATIONS. 
 
 23 
 
 the age which succeeded. It has, however, 
 been the fashion of the last half-century to 
 depreciate his work as a shapeless compila- 
 tion, 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 cha- 
 racters, 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* who have criticised Grotius, and 
 
 Ml" 
 
 •'i 
 
 i'- 
 
 fill 
 
 * Dr. Paley, Princ. of Mor. and Polit. Philos. Pief. 
 pp. xiv. and xv. 
 
 -•«' 
 f i 
 
 
m 
 
 24 
 
 ON THE STUDY OF THE LAW 
 
 'i 
 
 [<■:. 
 
 ■r% 
 
 1 «!'■ 
 
 that answer migiit be given in the words of 
 Grotius himself.* He was not of such a 
 stupid and servile cast of mind, as to quote 
 the opinions of poets or orators, of historians 
 and philosophers, as those of judges, from 
 whose decision there was no appeal. He 
 quotes them, as he tells us himself, as wit- 
 nesses whose conspiring testimony, mightily 
 strengthened and confirmed by their discord- 
 ance on almost every other subject, is a con- 
 clusive 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 unex- 
 ceptionable of all witnesses ; for they address 
 themselves to the general feelings and sym- 
 pathies 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 
 
 Grot. Jur. Bell, et Pac. Prolcg. § 40. 
 
 , T . - .,i Mnr i Fin;.irii(.i«MiffK 
 
EJit 
 
 OF NATURE AND NATIONS. 
 
 .25 
 
 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 sen- 
 timents 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 phi- 
 losophise without regard to fact and expe- 
 rience, the sole foundation of all true phi- 
 losophy. 
 
 If this were merely an objection of taste, I 
 should be willing to allow that Grotius has 
 indeed poured forth his learning with a pro- 
 fusion 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 rich- 
 ness and splendour of literature have a power- 
 
 -Ir* 
 
 ,4 
 
 r^i 
 
26. 
 
 ON THE STUDY OF TITE LAW 
 
 HI 
 
 \f"- 
 
 
 .47 
 
 fill charm for me. They fill my mind with 
 an endless variety of delightful recollections 
 and associations. They relieve the under-, 
 standing 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 elo- 
 quence (not that could be produced by the 
 powers of one man, but) that could be be- 
 stowed on them by the collective genius of 
 the world. Even Virtue and Wisdom them- 
 selves 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 recol- 
 lect that it has ever been made. His method 
 is inconvenient and unscientific. He has in- 
 verted the natural order. That rraurdl order 
 undoubtedly dictates, that we should first 
 search for the original principles of the sci- 
 
 I M i 
 
OF K VTUllli: AND NATIONS. 
 
 27 
 
 ence 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 na- 
 tions. But Grotius has chosen the reverse 
 of this method. He begins with the con- 
 sideration of the states of peace and war, and 
 he examines original principles only occasion- 
 ally and incidentally as they grow out of the 
 questions which he is called upon to decide. 
 It is a necessary consequence of this disor- 
 derly method, which exhibits the elements of 
 the science in the form of scattered digres- 
 sions, that he seldom employs sufficient dis- 
 cussion 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 muster, and with very inferior 
 
 it. 
 
 mi 
 
 SI] 
 
 'IM 
 
 • ■■«! 
 
 ?a 
 
 9^ 
 
 ft 
 
!^ 
 
 28 
 
 ON THL STUDY OK THE LAW 
 
 ( I 
 
 ^■" 
 
 
 •§" 
 
 • It; 
 
 ; A f 
 
 learning, he has yet treated this subject with 
 sound sense, with clear method, with ex- 
 tensive and accurate knowledge, and with a 
 copiousness of detail sometimes indeed te- 
 dious, 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 suc- 
 cessors 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 
 
 1 ,'.^ 
 
 ^^UL^^^^=^^^^^^^^ 
 
! 
 
 Ol'" XATIUE AND NATIOXS. 
 
 •20 
 
 some knowledge of the principles of public 
 law. 
 
 Many other circumstances might be men- 
 tioned, 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. Per- 
 haps too very nearly the same portion of 
 genius and judgment has been exerted iii 
 most of the various forms under which science 
 
 
 ■vi; 
 
 n 
 
 -a 
 
30 
 
 ON THE STUDY OF THE LAW 
 
 li 
 
 
 
 has been cultivated at different periods of 
 history. The superiority of those writers 
 who continue to be read, perhaps often con- 
 sists 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 arc ihe result 
 rather of the secondary than of the highest 
 faculties of the mind. — But these reflections, 
 while they moderate the pride of invention, 
 and dispel the extravagant conceit of superior 
 illumination, yet serve to prove the use, and 
 indeed the necessity, of composing, from time 
 to time, new systems of science adapted to 
 the opinions and language of each succeeding 
 period. Every age must be taught in its own 
 language. If a man were now to begin a 
 discourse on ethics with an account of the 
 " moral entities' of PuffendorfF,* he would 
 speak an unknown tongue. 
 
 * I do not mean to imj)eacli the soundness of any 
 part of PufFendorfF's reasoning founded on moral 
 entities. It may be explained in a manner consistent 
 
OF natithe and nations. 
 
 31 
 
 11 
 
 It is not, however, alone as a mere transla- 
 tion of former writers into modern Itinguage 
 that a new system of public law seems likely 
 to be useful. The age in which we live pos- 
 sesses 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 en- 
 abled 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 
 
 i! 
 
 
 •■)! 
 
 with the most just philosophy. He used, as every 
 writer must do, the scientific language of his o\fii 
 time. I only assert that, to those who are unac- 
 quainted with ancient systems, his philosophical voca- 
 bulary is obsolete and uninteUigible. 
 
 I 
 
 % 
 
 ' i; 
 
3 '2 
 
 ON TIIK STL'DV 1)1- Tlfl'. 1-AW 
 
 h 
 
 
 If, 
 
 l5?' 
 
 - iK 
 
 Irom 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 prin- 
 ciples 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 for- 
 bidding 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 mis- 
 chievous 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 
 
 ll 
 
"I.,- i 
 
 OF NATURE AND NATIOXS. 
 
 33 
 
 ■' 
 
 I 
 
 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 thari intrepid. We may be 
 said to stand at the confluence of the great- 
 est number of streams of knowledge flowing 
 from the most distant sources that ever met 
 at one point. We are not confined, as the 
 learned of the last age generally were, to the 
 history of those renowned nations who are our 
 masters in literature. We can bring before 
 us man in a lower and more abject condition 
 than any in which he was ever before seen. 
 The records have been partly opened to us 
 of those mighty empires of Asia* where the 
 
 •i 
 
 if 
 
 n 
 
 • I cannot prevail on myself to pass over this sub- 
 ject 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, un- 
 wearied industry, tmrlvalled and almost prodigious va- 
 riety of ac(iuirements, n^^t to speak of his amiable man- 
 ners and spotless integrity, must fill every one who cul- 
 tivates or admires letters with reverence, tinged with 
 
34 
 
 ON THK STUDY OF THE LAW 
 
 1':! 
 
 I ..^ 
 
 I'r 
 
 
 beginnings of civilization are lost in the dark- 
 ness of an unfathomable antiquity. We can 
 make human society pass in review before our 
 mind, from the brutal and helpless barbarism 
 of Terra del FuegOy and the mild and volup- 
 tuous 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 in- 
 genuity, 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 
 
 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 un- 
 worthy of happier periods of our English literature* 
 

 OF NATUllE AND NATIONS. 
 
 35 
 
 the character, manners, opinions, feehngs, 
 prejudices, and institutions of mankind, into 
 which they can be thrown, either by the rude- 
 ness of barbarism, or by the capricious cor- 
 ruptions of refinement, or by those innumer- 
 able combinations of circumstances, which, 
 both in these opposite conditions and in all 
 the intermediate stages between them, in- 
 fluence 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 dis- 
 cover 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 
 
 
 
 t , 
 
'■;)•;» 
 
 ■36 
 
 ON THE STUDY Oi^" THE LAW 
 
 !S i 
 
 ' . ; 
 
 ^1 
 
 I 
 
 
 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 ex- 
 tensive 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 undistinguish- 
 
H 
 
 I 
 
 OF NATURE AND NATIOXS. 
 
 3T 
 
 ing 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 govern- 
 ments 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 geo- 
 metrical regularity of system ; that he has 
 chosen a style of affected abruptness, senten- 
 tiousness, and vivacity, ill suited to the gra- 
 vity 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 phi- 
 losophy may receive from a wide survey 
 
 ; V, 
 
 \ I 
 
 i 1* i *i 
 
 ^\\ 
 
I 
 
 38 
 
 ON THE STUDY OF THE LAW 
 
 
 
 
 
 of all the various conditions of human so- 
 ciety. 
 
 In the present century a slow and silent, 
 but very substantial mitigation has taken 
 place in the practice of war ; and in propor- 
 tion as that mitigated practice has received 
 the sanction of time, it is raised from the 
 rank of mere usage, and becomes part of 
 the law of nations. Whoever will compare 
 our present modes of warfare with the system 
 of Grotius* will clearly discern the immense 
 improvements which have taken place in that 
 respect since the publication of his work, 
 during a period, perhaps in every point of 
 view, the happiest to be found in the history 
 of the world. In the same period many im- 
 portant 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 pre- 
 ceding times. 
 
 There are other circumstances to which I 
 
 * Especially those chapters of the third book, en- 
 titled, Temperamentum circa Capiivos, &c. &c. 
 
 I 
 
ail 
 
 OF NATURE AND NATIONS. 
 
 39 
 
 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 po- 
 litics than could have been in other times 
 acquired by the experience of ages. Men's 
 wit, sharpened by their passions, has pene- 
 trated 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 sub- 
 ject of doubt and discussion. I shall con- 
 sider it as my duty to abstain from all men- 
 tion 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 contempla- 
 tion of them. 
 
 From these reflections it appears, that, since 
 the composition of those two great works on 
 the Law of Nature and Nations which con- 
 tinue to be the classical and standard works 
 
 
 (.' 
 
 dm 
 
 
 ri 
 
 f^ 
 
 
 
40 
 
 ON THE STUDY OF THE LAW 
 
 if? 
 
 ■»3t. 
 
 'y 
 
 
 
 M.,: 
 
 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 re- 
 garding 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 appli- 
 cable. 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, de- 
 serves, indeed, considerable praise. He is a 
 
If 
 
 IM 
 
 OF NATURE AND NATIONS. 
 
 41 
 
 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 ot the 
 science, he has adopted some doubtful and 
 dangerous principles, not to mention his con- 
 stant deficiency in that fulness of example 
 and illustration, which so much embellishes 
 and strengthens reason. It is hardly neces- 
 sary 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 pro- 
 
 'I 
 
 I . 
 
 
 '^ 
 
 m 
 
42 
 
 ON THE STUDY OF THE LAW 
 
 <•„. 
 
 I.I , 
 
 \l- 
 
 
 M 
 
 fessing my gratitude for the instruction and 
 pleasure which I have received from that ex- 
 cellent 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 mo* 
 desty 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 com- 
 mon-places in the shape of paradox. 
 
 No writer since the time of Grotius, of 
 PufFendoriF, 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 
 
 1 
 
 lii 4, 
 
t 
 
 '■!§ 
 
 OF NATURE AND NATIONS. 
 
 43 
 
 ^'il 
 
 attractive to students, than the learned trea- 
 tises of these celebrated men. I shall now 
 proceed to state the general plan and subjects 
 of the lectures in which I am to make this 
 attempt. 
 
 I. The being whose actions the law of na- 
 ture professes to regulate, is man. It is on 
 the knowledge of his nature that the science 
 of his duty must be founded.* It is impos- 
 sible to approach the threshold of moral phi- 
 losophy, without a previous examination of 
 the faculties and habits of the human mind. 
 Let no reader be repelled from this examina- 
 tion, by the odious and terrible name of meta- 
 physics ; 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 lan- 
 guage, it is, perhaps, above all other sciences, 
 most on a level with the capacity and infor- 
 
 11-.:, M 
 
 ' 1 
 
 * Natura enim juris explicanda est nobis, eaque 
 ah hominis repetenda naturd. — Cic. de Leg. lib. i. 
 c. 5. 
 
 K 
 
44 
 
 ON THE STUDY OF THE LAW 
 
 \v'-^ 
 
 U_ ' 
 
 ^^4 
 
 lint 1 
 
 ■ ""-J. 
 
 mation 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 sus- 
 pect that they are not philosophers but im- 
 postors. 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 opera- 
 tions of the human mind. By this plain state- 
 ment 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 happi- 
 ness of others, and are therefore social beings ; 
 and it is not necessary to be a consummate 
 
 f^4 
 
 :^f^' 
 
OF NATURE AND NATIONS. 
 
 45 
 
 judge of the deceptions of language, to de- 
 spise 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 examina- 
 tion of facts will lead us to discover that 
 quality which is common to all virtuous ac- 
 tions, 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 un- 
 alterable 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 
 
 i 
 
 ■I 
 
 I'M 
 
 n 
 ** 
 
 f, a 
 
46 
 
 ON THE STUDY OF THE LXVf 
 
 V 
 
 i 't . 
 
 "il ) 
 
 hi' ^ ■ i 
 
 ■I f 
 
 imputation of supporting those absurd and 
 monstrous systems which have been built 
 upon it. Beneficial tendency is the founda- 
 tion 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.* Witliout, however, dwelling 
 longer on subjects which cannot be clearly 
 stated, unless they are fully unfolded, I con- 
 tent myself with observing, that it shall be 
 my object, in this preliminary, but most im- 
 j)ortant part of the course, to lay the founda- 
 tions 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. 
 
 i 
 
 * Est autem virtus nihil aliud qnam in se perfecta 
 atqiie ad summum perducta natura. — Cic. de Leg. 
 lib. i. c. 8. 
 
OF NATURE AND NATIONS. 
 
 47 
 
 
 and in all places, over all opiuiuns 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 de- 
 liver these doctrines with the utmost sim- 
 plicity, any of my auditors should still re- 
 proach 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 evily 
 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 gra- 
 tification of scientific curiosity, the welfare of 
 mankind now imperiously demands. Shallow 
 systems of metaphysics have given birth to a 
 brood of abominable and pestilential para- 
 
 i«l 
 
 
 J'^ 
 
48 
 
 ON THE STUDY OF THE LAW 
 
 
 4;, 
 
 m 
 
 doxes, which nothing but a more profound 
 philosophy can destroy. However we may, 
 perhaps, lament the necessity of discussions 
 which may shake the habitual reverenfce 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 aban- 
 don the ground. Undistinguishing and un- 
 merited 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 declama- 
 tion. Let us not for a moment even appear 
 to suppose, that philosophical truth and hu- 
 man happiness are so irreconcilably at va- 
 riance. 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 com- 
 pletely 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 
 
 i 
 
 I 
 

 OF NATURE AND NATIONS. 
 
 49 
 
 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 ad- 
 vances not the traveller one step in his jour- 
 ney, but conducts him back again to the spot 
 from whence he wandered. Thus the land of 
 Philosophy consists partly of an open cham- 
 paign 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 them- 
 selves. Since then we shall be obliged to make 
 incursions into this latter tract, and shall pro- 
 bably find it a region of obscurity, danger, 
 and difficulty, it behoves us to use our utmost 
 endeavours for enlightening and smoothing 
 the way before us/'* We shall, however, 
 remain in the forest only long enough to visit 
 the fountains of those streams which flow from 
 it, and which water and fertilise the cultivated 
 region of Morals, to become acquainted with 
 the modes of warfare practised by its savage 
 
 * Search's Light of Nature, by Abraham Tucker, 
 esq., vol. i. pref. p. xxxiii. 
 
 E 
 
50 
 
 OX THE STUDY OF THE LAW 
 
 ■if* 5 
 
 inhabitants, and to learn the means of guard- 
 ing our fair and fruitful land against their 
 desolating incursions. I shall hasten from 
 speculations, to which I am naturally, per- 
 haps, 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 con- 
 sidered apart from the sanction of positive 
 laws. I say, apart from that sanction, not 
 antecedent to it ; for though we separate pri- 
 vate from political duties for the sake of 
 greater clearness and order in reasoning, yet 
 we are not to be so deluded by this mere ar- 
 rangement 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. 
 
OF NATURE AXD NATIONS. 
 
 51 
 
 ^•:'i 
 
 
 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 
 ■:xalt that good which is communicative, and 
 depress the good which is private and par- 
 ticular, as the Christian faith."* The appro- 
 priate 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 
 
 :i1^ 
 
 J 
 
 * Bacon, Dign, and Adv. of Learn, book ii. 
 
52 
 
 ON THE STUDY OF THE LAW 
 
 1*1 
 
 require the support of argument, and almost 
 too sacred to admit the liberty of discus- 
 sion. 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 strength- 
 ening and regulating these institutions, and 
 fencing them round with rigorous penal laws. 
 
 Oppida cceperunt munire et ponere leges 
 Neu quis fur esset, neu quis latro, neu quis adulter. 
 
 I Serm, iii. 105. 
 
 i. 
 
 A celebrated ancient orator, of whose poems 
 we have but a few fragments remaining, has 
 well described the progressive order in which 
 
k 
 
 OF NATURE AND NATIONS. 
 
 53 
 
 human society is gradually led to its high- 
 est 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 dis- 
 cipline the most ungovernable, they refine the 
 grossest, and they exalt the most sordid pro- 
 pensities ; so that they become the perpetual 
 fountain of all that strengthens, and preserves, 
 and adorns society; they sustain the indivi- 
 dual, and they perpetuate the race. Around 
 these institutions all our social duties will be 
 found at various distances to range them- 
 selves ; 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, 
 
 i 
 I 
 
54 
 
 ON THE STUDY OF THE LAW 
 
 i'?'i 
 
 that their importance has been sometimes 
 doubted, though upon more mature consi- 
 deration 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 o{ property is of great extent. 
 It will be necessary to establish the founda- 
 tion 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 com- 
 prehensive, subtle, and anxiously minute code 
 of property which is the last result of the most 
 refined civilization. 
 
 I shall observe the same order in consi- 
 dering the society of the sexes as it is regu- 
 
OF NATURE AND NATIONS. 
 
 55 
 
 lated by the institution of marriage.* I shall 
 endeavour to lay open those unalterable prin- 
 ciples of general interest on which that insti- 
 tution res*s : ' d if I entertain a hope that 
 on this s^bjec may be able v .Ad some- 
 thing 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 pos- 
 sibility of doubt. I shall also consider the 
 historyt of marriage, and trace it through 
 
 ^¥ 
 
 * 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. 
 
 •}• 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 iiunt, prolemque ex se videre coortam : 
 
 TUM GENUS HUMANUM PRIMU3I MOLLESCERE 
 CGEPIT. 
 
 i 
 
 M 
 
**• 
 
 56 
 
 OX THE STUDY OF THE LAW 
 
 all the forms which it has assumed, to that 
 decent and happy permanency of union, which 
 has, perhaps above all other causes, contri- 
 buted to the quiet of society, and the refine- 
 ment 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. 
 
 111. Having established the principles of 
 private duty, I shall proceed to consider man 
 
 puerisque parentiim 
 
 Blanditiis facile ingenium fregere superbum. 
 Tunc et amicitiam coeperunt jungere habentes 
 Finitima inter se, nee laedere uec violare. 
 Et pueros commendaruut muliebreque seclum 
 Vocibus et gestu cum balbe significarent 
 
 ImBECILLORUM esse iEQUUM MISEllIER 
 03INIUM. 
 
 Lucret. lib. v. 1. 1010-22. 
 
.1 
 
 OF NATURE AND NATIONS. 
 
 37 
 
 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 founda- 
 tion of a system of universal despotism in 
 Hobbes, and of universal anarchy in Rous- 
 seau ; but on the solid basis of general con- 
 venience. Men cannot subsist without so- 
 ciety 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 re- 
 straints 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 suffi- 
 cient evidence, that these duties are reci- 
 procal; the only rational end for which the 
 
 «. I 
 
 J. 
 
 i 
 
 - I Hi 
 
 ■ i 
 
 I. 
 
.'iB 
 
 ON THE STUDY 01' THE LAW 
 
 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 an- 
 cients* 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 en- 
 lightened as to establish a government by 
 common consent, it is surely unnecessary to 
 employ any serious argument in the confuta- 
 tion of a doctrine that is inconsistent with 
 
 * 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, " Kat 
 on etvS^MfTos (pvffu voXinx.ov |wsv." — Arisi. de llep. lib. i. 
 
 The same scheme of philosophy is admirably pur- 
 sued in the short, but invaluable fragment of the sixth 
 book of Polybius, which describes the history and 
 revolutions of government. 
 
i 
 
 OF NATURE AND NATIONS. 
 
 o9 
 
 reason, and unsupported by experience. But 
 though all inquiries into the origin of govern- 
 ment be chimerical, yet the history of its 
 progress is curious and useful. The various 
 stages through which it passed from savage in- 
 dependence, which implies every man's power 
 of injuring his neighbour, iy legal liberty, 
 which consists in every man's security against 
 wrong; the manner in which a family ex- 
 pands into a tribe, and tribes coalesce into a 
 nation; in which public justice is gradually 
 engrafted on private revenge, and temporary 
 submission ripened into habitual obedience ; 
 form a most important and extensive subject 
 of inquiry, which comprehends all the im- 
 provements of mankind in police, in judica- 
 ture, and in legislation. 
 
 I have already given the reader to under- 
 stand that the description of liberty which 
 seems to me the most comprehensive, is that 
 of security against wrong. Liberty is there- 
 fore 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 govern- 
 
 i^ 
 k 
 
r i. 
 
 GO 
 
 ON THE STUDY OF THE LAW 
 
 .. «i 
 
 merit at all : they are more secure from wrong, 
 more undisturbed in the exercise of their na- 
 tural powerSf aad 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 ge- 
 neral 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 com- 
 mon to all government. A free constitution 
 of government and a good constitution of go- 
 vernment 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 sove- 
 reign 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 
 
01' KATIJ1U-: AND N'ATIOXS 
 
 61 
 
 other, but (as far as human prudmce can 
 contrive) against oppression from th? magis- 
 trate. Such states, like all other e:traordi- 
 nary examples of public or private ex-ellence 
 and happiness, are thinly scattered aer the 
 different ages and countries of the worll. In 
 them the will of the sovereign U limitel with 
 so exact a measure, that his protecting lutlio- 
 rity is not weakened. Such a coinbinat,a of 
 skill and fortune is not often to be expeted, 
 and indeed never can arise, but from th ^ on- 
 stant though gradual exertions of wisd* m »jd 
 virtue, to improve a long succession of nDst 
 favourable circumstances. 
 
 There is indeed scarce any soc'ety o 
 wretched as to be destitute of some sort ( 
 weak provision against the injustice of the: 
 governors. Religious institutions, favourit 
 prejudices, national manner«, I-uve in differen 
 countries, with unequal degrees of force, 
 checked or mitigated the exercise of supreme 
 power. The privilejj;es of a powerful nobility, 
 of opulent mercantile communities, of great 
 judicial corporations, have in some monarchies 
 approached more near to a control on the 
 
 I " 
 
62 
 
 on THE STUDY OF THE LAW 
 
 sovereign. Means have been devised with 
 more or .ess wisdom to temper the despotism 
 of an aistocracy over their subjects, and in 
 democncies to protect the minority against 
 the mabrity, and the whole people against the 
 tyranry of demagogues. But in these un- 
 mixed forms of government, as the right of 
 legisl:tion is vested in one individual or in 
 one )rder, it is obvious that the legislative 
 powc may shake off all the restraints which 
 the avvs have imposed on it. All such go- 
 verments, therefore, tend towards despotism, 
 ant the securities which they admit against 
 mi-government are extremely feeble and pre- 
 c£!ious. The best security which human 
 ^^sdom can devise, seems to be the distri- 
 htion of political authority among different 
 idividuals and bodies, with separate interests 
 nd separate characters, corresponding to the 
 ariety of classes of which civil society is 
 :}omposed, 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 
 
OF NATURE AKD NATIONS. 
 
 03 
 
 co-operate in carrying on the ordinary and 
 necessary administration of government. It* 
 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 
 coul ' 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 Ma- 
 chiavel, with Montesquieu and Hume.* It 
 
 4. 
 
 I ■'■" 
 
 ':"■ * 
 
 i lii 
 
 * 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 
 
64 
 
 ON THE STUDY OF THE LAW 
 
 is impossible in such a cursory sketch as the 
 present, even to allude to a very small part of 
 those philosophical principles, political rea- 
 sonings, and historical facts, which are neces- 
 sary for the illustration of this momentous 
 subject. In a full discussion of it I shall be 
 
 
 ' 5*,- 
 .1' 
 
 in the following passage : " He (IMr. Fox) always 
 thought any of the simple unbalanced governments 
 bad ; simple monarchy, simple aristocracy, simple de- 
 mocracy; 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 tliat I can say. But 
 it is a gratilication 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. 
 
OF NATURE AND NATIONS. 
 
 65 
 
 .:• ! 
 
 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 ab- 
 solutely unbalanced government, perhaps 
 ever existed; that the simple governments 
 are mere creatures of the imagination of theo- 
 rists, who have transformed names used for 
 the com enience of arrangement into real po- 
 lities; 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 funda- 
 mental laws which, regulate the most import- 
 ant rights of the higher magistrates, and the 
 most essential privileges'^ of the subjects.'' 
 
 * Privilege., in Roman jurisprudence, means the 
 r.vemption of one individual from the operation of a 
 law. Political privileges, in the sense in wiiich I 
 
 F 
 
66 
 
 ON THE STUDY OF THE LAW 
 
 
 U-t 
 
 m^ 
 
 Such a body of political laws must in all coun- 
 tries 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 constitu- 
 tion 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, in- 
 deed, to institutions the most opposite to 
 those of which they profess to seek the esta- 
 
 \'..: 
 
 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 ejn- 
 cepted from the ordinary discretion of the magistrate, 
 and guarded by the same fundamental laws which 
 secure his authority. 
 
OF NATURE AND NATIONS. 
 
 67 
 
 blishment.* But human wisdom indefatigably 
 employed for remedying abuses, and in seizing 
 favourable opportunities of improving that or- 
 der of society which arises from causes over 
 which we have little control, after the reforms 
 and amendments of a series of ages, has some- 
 times, though very rarely,t shewn itself ca- 
 pable of building up a free constitution, which 
 
 * See an admirable passage on this subject in { 
 Dr, Smith's Theory of Moral Sentiments, vol. ii. 
 pp. 101-112, in which the tnie 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, JMr. Hargrave, p. 248. 
 
 f Pour former un gouvernement mod^re, il faut \ 
 combiner les puissances, les r^gler, les tempdrer, 
 les faire agir, donner pour ainsi dire un lest a Pune 
 pour la mettre en dtat de resister h. una autre, 
 c'est un chef-d'oeuvre de legislation que le hasard fait 
 rarement, et que rarement on laisse faire a la pru- 
 dence. Un gouvernement despotique an contraire 
 saute pour ainsi dire aux yeux ; il est uniforme par- 
 tout : comrae il ue faut que des passions pour I'etabllr 
 tout le monde est bon pour cela. — Montesquieu, de 
 V Esprit des Loix, liv, v. c. 14. 
 
 !!• 
 
 |( 
 
68 
 
 ON THE STUDY Ol' THE LAW 
 
 is ** the growth of time and nature, rather than 
 the work of human invention." Such a consti- 
 tution can only be formed by the wise imita- 
 tion of " the great innovator Time, which, 
 indeed, innovateth greatly, but quietly, and 
 by degrees scarce to be perceived." * With- 
 out descending to the puerile ostentation of 
 panegyric, on that of which all mankind con- 
 fess the excellence, I may observe, with truth 
 and soberness, that a free government not 
 only establishes an universal security against 
 wrong, biit 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 constitu- 
 
 I.ord Eacon, Essay xxiv. Of Innovations. 
 
OF NATURE AND NATIONS. 
 
 69 
 
 tion 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, origin- 
 ally 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 im- 
 perfectly represented it, who have torn out a 
 few of its more simple springs, and, putting 
 them together, miscall them the British con- 
 stitution. 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 de- 
 served than the government of England. Phi- 
 losophers of great and merited reputation* 
 
 
 • The reader will perceive that I allude to JMon- 
 TEsuuiEu, whom I never name without reverence, 
 
 /( 
 
fO 
 
 ON THE STUDY OF THE LAW 
 
 
 have told us that it consisted of certain por- 
 tions of monarchy, aristocracy, and demo- 
 cracy ; names which are, in truth, very little 
 applicable, and which, if they were, wodd as 
 little give an idea of this governnicnt, 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, with- 
 out a philosophical spirit, be unequal to 
 the examination of this great work of liberty 
 and wisdom, still more unequal is a philo- 
 sopher without practical. ' gal, and historical 
 knowledge ; for the first may want skill, but 
 the second wants materials. The observa- 
 tions of Lord Bacon on political writers, in 
 general, are most applicable to those who 
 have given us systematic descriptions of the 
 
 though I shall presume, with humility, to criticise 
 his account of a government which he only saw at a 
 distance. 
 
OF NATURE AND NATIONS. 
 
 71 
 
 English constitution. " All those who have 
 written of governments have written as phi- 
 losophers, or as lawyers, and none as states- 
 men. 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." — 
 " H<BC cognitio ad vivos civiles proprie per- 
 tinet" as he tells us in another part of his 
 writings; but unfortunately no experienced 
 philosophical British statesman has yet de- 
 voted his leisure to a delineation of the con- 
 stitution, 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 con- 
 stant 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 
 
 I 
 
 
72 
 
 ON THE STUDY OF THE LAW 
 
 successions of causes. The conse(|uence was 
 very obvious. The system of the theorist, dis- 
 encumbered from all regard to the real nature 
 of things, easily assumed an air of speciousness. 
 It required little dexterity to make his argu- 
 ment 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 philo- 
 sophy, instead of condemning the sophist. 
 The causes which the politician has to con- 
 sider are, above all others, multiplied, mu- 
 table, 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 ; exhibit- 
 ing the most different consequences in the 
 endless variety of men and nations on whom 
 they operate ; in one degree of strength pro- 
 ducing 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 
 
OF NATURE AND NATIONS. 
 
 73 
 
 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 practit .1 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 ward- 
 robe of genius which he possessed above 
 almost all men, " Civil knowledge is con- 
 versant about a subject which, above all 
 others, is most immersed in matter, and hard- 
 liest reduced to axiom."* 
 
 Thib principle is expressed by a writer of a very 
 
 (( 
 
74 
 
 ON THE STUDY OF THE LAW 
 
 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 1 shall be enabled to philosophise 
 with better materials by my acquaintance 
 with the laws of my own country, which it is 
 the business of my life to practise, and of 
 which the study has by habit become my 
 favourite pursuit. 
 
 The first principles of jurisprudence are 
 simple maxims of reason, of which the obser- 
 vance is immediately discovered by experience 
 to be essential to the security of men*s rights, 
 and which pervade the laws of all countries. 
 
 different character from these two great philosophers ; 
 a writer, " qu'on rCappellera plus philosopher mats 
 qu'on appellera le plus eloquent des sophistes" with 
 great force, and, as his manner is, with some exag- 
 geration. 
 
 II n'y a point de principes abstraits dans la poli- 
 tique. 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. 
 
OF NATURE AND NATION'S. 
 
 rri 
 
 An account of the gradual a::)plication 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 prac- 
 tical 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 se- 
 curity of life and property with the most mi- 
 nute 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 esta- 
 blished, 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 pro- 
 portion as the facts arise which it is to regu- 
 late. We shall learn to appreciate the merit 
 of vulgar objections against the subtlety and 
 
 M 
 
76 
 
 ON THE STUDY OF THE LAW 
 
 complexity of laws. We shall estimate the 
 ^ood sense and the gratitude of those who 
 reproach lawyers for employing all the powers 
 of their mind to discover subtle distinctions 
 for the prevention of Injustice;* and we shall 
 at once perceive that laws ought to be neither 
 more simple nor more complex than the state 
 of society which they are to govern, but that 
 they ought exactly to correspond to it. Of 
 the two faults, however, the excess of simpli- 
 city 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! has perhaps been in this 
 manner exerted to fix the rules of life than 
 
 * The casuistical subtleties are not perhaps greater 
 than the subtleties of lawyers ; but the latter are 
 innocent^ and even necessary. — Hume's Essay ft^ 
 vol. ii. p. 558. 
 
 t " Law," said Dr. Johnson, " is the science in 
 which the greatest powers of understanding are ap- 
 plied to the greatest number of facts." Nobody, who 
 is acquainted with the variety and multiplicity of the 
 
11^ 
 
 OF NATURE AND NATIONS. 
 
 77 
 
 m 
 
 in any other science ; and it is certainly the 
 most honourable occupation of the under- 
 standing, 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 spec- 
 tacle as that which is displayed in the pro- 
 gress of jurisprudence ; where we may con- 
 template 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 ; extend- 
 ing the dominion of justice and reason, and 
 gradually contracting, within the narrovvest 
 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 
 
 subjects of jurisprudence, and with the prodigiow 
 powers of discrimination employed upon them, can 
 doubt the truth of this observation. 
 
 I 
 
 V 
 
78 
 
 ON THE STUDY OF THE LAW 
 
 writer, of whom I may justly say, that he was 
 " gravissimus tt 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."* 
 
 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;! of their agreements and 
 disagreements, both in general provisions. 
 
 * Burke's Works, vol. Hi. p. 134. 
 
 i 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 
 mised out of the ruins of the civil laio^ as all govern- 
 nfients are sprung out of the ruins of the Romaa 
 
•I, . 
 
 •I ; 
 
 OF NATURE AND NATIONS. 
 
 79 
 
 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 
 IT' re 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 <ji England, 
 which is the duty of those wbo are to pro- 
 fess and practise that law. 
 
 In considering the important subject of 
 
 empire, it must be owned that the principles of our 
 law are borrowedfrora the civil lavj, therefore grouaded 
 upon the same reason in many things.'*— 12 Mod. 
 482. 
 
 V- 
 
 ^\ 
 
80 
 
 ON THE STUDY OF THE LAW 
 
 
 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 effec- 
 tually 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, pre- 
 scribes 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 out- 
 
OF NATURE AND NATIONS. 
 
 81 
 
 line, may be summed up in the words of 
 Cicero; — " Natura eiiim. juris explicanda est 
 nobis, eaque ab hominis repetenda natuia ; 
 considerandse leges quibus civitates regi de- 
 beant ; turn hsec tractanda quse composita 
 sunt et descripta, jura et jussa populorum ; 
 in quibus ne nostri quidem populi late- 
 bunt QUTE VOCANTUR JURA CIVILIA." — 
 
 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 juris- 
 prudence, have been more happily cultivated, 
 and more generally obeyed, in some ages and 
 countries than m others ; and, like them, are 
 susceptible of great variety in theiv applica- 
 tion, from the character and usages of nations. 
 I shall consider these principles in the gra- 
 dation 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 preserva- 
 
 G 
 
 ' H 
 
82 
 
 ON THE STUDY OF THE LAW 
 
 tion of a mild and friendly intercourse be- 
 tween civilised states. Of the first class, 
 every understanding acknowledges the: neces- 
 sity, 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 aloue they have been carried 
 to their full perfection. In unfolding the first 
 and second class of principles, I shall natu- 
 rally 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 Christe^don-', From the great extent of 
 the subject, and the p^Tticularity to which, 
 for reasoiis already given, I must here de- 
 scend, it is impossible for roe, within any 
 moderate compass, to give even an outline of 
 this part of the course. It comprehends, as 
 
OF NATURE AND NATIONS. 
 
 83 
 
 as 
 
 every reader will perceive, the principles of 
 national independence, the intercourse of na- 
 tions in peace, the privileges of embassadors 
 and inferior ministers, the commerce of pri- 
 vate 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 obli- 
 gation 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 topfether 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, 
 
 
84 
 
 ON THE STUDV QF THE LAW 
 
 !'' ) 
 
 et dans la guerre le moins de mal, qu*il est 
 possible, sans nuire k leurs veritables inter^ts. 
 
 " L'objet de la guerre c'est la victoire; 
 celui de la victoire la conquMe; celui de la 
 conquete la conservation. De ce principe et 
 du precedent, doivent deriver toutes les loix 
 qui forment le droit des yens, 
 
 ** Toutes les nations ont un droit des o^ens; 
 les Iroquois m^me qui mangent leurs prison- 
 niers en ont un. lis envoient et re9oivent 
 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 V 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 con- 
 clude with a survey of the diplomatic and 
 conventional law of Europe ; of the treaties 
 which have materially affected the distri- 
 bution 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 in- 
 troduced into the public code of the Christian 
 
OF NATURE AND NATION'S. 
 
 8.') 
 
 commonwealth. In ancient times the know- 
 ledge 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, ciim in omni 
 genere ac varietate artium, etiam illarum, 
 quae sine summo otio non facile discuntur, 
 Cn. Pompeius excellat, singularem quandam 
 laudem ejus et prsestabilem esse scientiam, in 
 fcederibuSy pactionibuSj conditionibuSy popu- 
 lorum, regum, exterarum nationum : in uni- 
 verso denique belli jure ac pacis." — Cic. Orat. 
 pro L. Corn. Balbo, c. 6. 
 
 Information on this subject is scattered 
 over an immense variety of voluminous com- 
 pilations ; 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 states- 
 men ; it may sometimes be iirportant , to 
 
 I 
 
86 
 
 ON THE STUDY OF THE LAW 
 
 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 
 histoiy, or to form a sound judgmv nt 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 farth( • progress of their studies. The 
 treaties, which I shall more particularly con- 
 sider, 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 
 «hali 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 ac- 
 count 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 trea- 
 
IW 
 
 OF NATURE AND NATIONS. 
 
 87 
 
 in wliich 
 to all men 
 ith modern 
 gmcFit on 
 Dur to give 
 fficient for 
 
 others in 
 iies. The 
 ularly con- 
 , of Oliva, 
 neguen, of 
 Jhapelle, of 
 ;1783). I 
 reaties, of 
 alluded to, 
 e which I 
 oin an ac- 
 irse of the 
 nan Porte, 
 is who are 
 ederal law ; 
 
 important 
 ciples, and 
 
 ctical trea- 
 
 tise on the law of nations, some account will 
 be given of those tribunals which in different 
 countries of Europe decide controversies aris- 
 ing out of that law ; of their constitution, of 
 the extent of their authorit and of their 
 modes of proceeding ; more ^ci^illy of those 
 courts which are peculiarly 3 ted 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 inter- 
 woven. 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 phi- 
 losophy, and the most complicated contro- 
 versies 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 in- 
 terest of man, pervades the whole system, 
 and is discoverable in every part of it, even 
 to its minutest ramification in a legal for- 
 
 'ii^ 
 
^f^"^.. 
 
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88 
 
 ON THE STUDY OF THE LAW 
 
 mality, or in the coustructioil of an article in 
 a treaty. ' ■'^*' '' - ■ ■ <«*%^ ' * 
 
 I know not whether a philosopher ought to 
 confess, that in his inquiries after tiuth he is 
 biassed by any consideration ; even by the 
 iove 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 in- 
 terest 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 crown- 
 ed the most eloquent sophist. "' 
 
 I shall conclude this Discourse in the noble 
 
OF NATURE AND NATIONS. 
 
 89 
 
 language of two great orators and philoso- 
 phers, 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 republicsL putem 
 dictum, et quo possim longius progredi, nisi 
 sit confirmatum, non modo falsum esse illud, 
 sine injurid non posse, sed hoc verissimum, 
 sine summsL 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. 
 
 V. - 
 
 T*,. 
 
 n 
 
 FINIS. 
 
 #r.' 
 
 J, MOVES, TOOK's court, CHANCERY LANK. 
 
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