IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

11.25

us IBii 12.2
li£ 12.0

•/,

FhotDgraphic

Sdaices

Corporation

>/^

33 WEST MAIN STREET

WEBSTER, N.Y. 14SS0

(716) •72-4503

-"^*

CIHM/ICMH

Microfiche

Series.

CIHIVI/iCMH
Collection de
microfiches.

Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques

Technical and Bibliographic Notas/Notai techniques et bibiiographiques

T
tc

The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checked below.

□ Coloured covers/
Couverture de couleur

|~n Covers damaged/

D
D

Couverture endommagte

Covers restored and/or laminated/
Couverture restaur^ et/ou pelliculie

I I Cover title missing/

Le titra de couverture manque

I I Coloured maps/

Cartes giographiques en couleur

Coloured ink (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bieue ou noire)

I I Coloured plates and/or illustrations/

Planches et/ou illustrations en couleur

Bound with other material/
ReliA avec d'autres documents

Tight binding may cause shadows or distortion
along interior margin/

La re liure serrde peut causer de I'ombre ou de la
distortion le long de la marge intirieure

Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajouties
iors d'une restauration apparaissent dans le texte.
mais. iorsque cela itait possible, ces pages n'ont
pas M fiimAes.

Additional comments:/
Commentaires suppiimentaires:

L'institut a microfilm* le meilleur exemplaire
qu'il lui a iti possible de se procurer. Les details
de cet exemplaire qui sont peut-Atre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mAthode normale de filmage
sont indiquAs ci-dessous.

I I Coloured pages/

Pages de couleur

Pages damaged/
Pages endommagies

Pages restored and/oi

Pages restauries et/ou peliicuiAes

Pages discoloured, stained or foxei
Pages dicolories, tachetdes ou piqudes

r~l Pages damaged/

I I Pages restored and/or laminated/

r~> Pages discoloured, stained or foxed/

P
o
fi

O
b

fii
si
or

□ Pages detached/
Pages ditachies

rn/Showthrough/
Lid^ Transparence

I I Quality of print varies/

Quality inigaie de ('impression

Includes supplementary material/
Comprend du materiel suppiimentaire

Only edition available/
Seule Mition disponible

Tl
sK
Tl
w

M
di
er
be
rij
re(
m(

Pages wholly or partially obscured by errata
slips, tissues, etc., have been refilmed to
ensure the best possible image/
Les pages totalement ou partiallement
obscurcies par un feuiiiet d'errata, une pelure,
etc., ont M fiim^es i nouveau de fapon &
obtenir la meilieure image possible.

This item is filmed at the reduction ratio checked below/

Ce document est film* au taux de rMuction indiquA ci-dessous.

10X 14X 18X 22X

26X

30X

12X

16X

20X

24X

28X

32X

iitails
Bs du
modifier
Br une
'ilmage

Th« copy filmsd h«r« has been reproduced thanks
to the generosity of:

Mill! MBinorial Library
McMattar Univanity

The Images appearing here are the best quality
possible considering the condition and legibility
off the original copy and In keeping with the
ffilming contract specifications.

Original copies in printed paper covers are filmed
beginning with the front cover and ending on
the last page with a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with a printed
or illustrated impression.

The last recorded frame on each microfiche
shall contain the symbol -^ (meaning "CON-
TINUED"), or the symbol y (meaning "END"),
whichever applies.

Maps, plates, charts, etc., may be filmed at
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in tife upper left hand corner, left to
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:

L'exemplaire film* f ut reproduit griee i la
ginArosit* de:

Mills Mamorial Library
McMattar Univanity

Lee images suivantjs ont AtA reproduites avee le
plus grand soin, compte tenu de la condition at
de la nettetA de i'exemplaire ffilmA, et en
confformit6 avec les conditions du contrat de
filmage.

Les exemplaires originaux dont la couverture en
papier est ImprimAe sont film^s en commenpant
par le premier plat et en terminent soit par ia
derniire page qui comporte une empreinte
d'impression ou d'illustration, soit par le second
plat, salon le cas. Tous les autres exemplaires
originaux sont filmte en commenpant par la
premiere page qui comporte une empreinte
d'impression ou d'illustration et en terminent par
la dernlAre page qui comporte une telle
empreinte.

Un des symboles suivants apparattra sur la
derniAre image de cheque microfiche, selon le
cas: le symbols — ► signifie "A SUIVRE", le
symbols V signiffle "FIN".

Les cartes, planches, tableaux, etc., peuvent Atre
film6s A des taux de reduction difffArents.
Lorsque le document est trop grand pour Atre
reproduit en un seul cliche, 11 est ffllmA A partir
de Tangle supArieur gauche, de gauche A droite,
et de haut en bas, en prenent le nombre
d'images ntcessaire. lies diagrammes suivants
illustrent la mithode.

errata
to

pelure,
>n A

32X

1 2 3

> ■

,0!.

A DISCOURS]^

THE STUDY

OF THE

•^

LAW OF NATURE AND NATIONS.

•' ^

LONDON:

J. MOVES, TOOK'S COURT, CHANCERY LANE.

•'

*■

yi t^

A DISCOURSE

THE STUDY

OF THE

LAW OF NATURE AND NATIONS.

SIR JAMES MACKINTOSH, M.P.

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,

ON THE STUDY OF THE LAW

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.

\i I

OF NATURE AND NATIONS.

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

ON THE STUDY OF THE LAW

«^

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.

ON THE STUDY OF THE LAW

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\

!(!■

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

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.

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.

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

•3

OF NATURE AND NATIONS.

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

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-

* ^' Est quidem vera lex, recta ratio, natura con-
gruenSf diffusa in omnes, constans, sempiterna, quaa

i»'

OF NATURE AND NATIONS.

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;

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

ON THE STUDY OF THE LAW

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.

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.

!•

existimarent ; qui tandem fieri potuit nisi homines ea
quae rations invenissent eloquentid persuadere po>
tuissent." — Cic. de Inv. RheU lib. i, in proem.

,C.

V'.

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^

•-xfj—

OF NATIUE AND NATIONS.

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

■'A*t

ON THK STUDY OF THK LAW

■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.

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.'

.•(I

, «

i?.!

ON THE STUDV OF THE . LAW

.1 li'

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.

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-

<l ■
'I.

!;;i

ON THE STUDY OF THE LAW

k !■ ,■

111

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.

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

ON THE STUDY OF THE LAW

[<■:.

■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*

r^i

26.

ON THE STUDY OF TITE LAW

\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.

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.

SI]

'IM

• ■■«!

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;

-a

ON THE STUDY OF THE LAW

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.

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

•■)!

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;

3 '2

ON TIIK STL'DV 1)1- Tlfl'. 1-AW

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

"I.,- i

OF NATURE AND NATIOXS.

■'

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

• 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

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.

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

' . ;

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-

OF NATURE AND NATIOXS.

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

^\\

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.

ail

OF NATURE AND NATIONS.

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

(.'

ON THE STUDY OF THE LAW

if?

■»3t.

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

OF NATURE AND NATIONS.

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 .

ON THE STUDY OF THE LAW

<•„.

I.I ,

\l-

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

lii 4,

'■!§

OF NATURE AND NATIONS.

^'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.

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.

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'M

n
**

f, a

ON THE STUDY OF THE LXVf

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.

* 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.

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'^

ON THE STUDY OF THE LAW

4;,

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

OF NATURE AND NATIONS.

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.

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.

^•:'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^

* Bacon, Dign, and Adv. of Learn, book ii.

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.

A celebrated ancient orator, of whose poems
we have but a few fragments remaining, has
well described the progressive order in which

OF NATURE AND NATIONS.

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

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.

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.

**•

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.

OF NATURE AND NATIONS.

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

- I Hi

■ 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.

OF NATURE AND NATIONS.

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.

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

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 "

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.

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

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

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.

.:• !

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

ON THE STUDY OF THE LAW

U-t

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.

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.

!!•

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.

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,

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.

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

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.

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

((

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

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.

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.

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.

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-

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.

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-

' H

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.

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,

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

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-

OF NATURE AND NATIONS.

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^"^..

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

Ki
U

IHJil

L25 1 1.4 .6

►

'/]

%^W^

'-^

Photographic

Sdences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4S03

,!tsi

'4^

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.

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*,.

FINIS.

#r.'

J, MOVES, TOOK's court, CHANCERY LANK.

LIST OF WORKS

TO BE HAD OF THE PUBLISHERS.

1. OUTRAM on SACRIFICES. By ALLEN.
New Edition, 8vo., with Portrait, 12«. boards.

2. ALLEN'S MODERN JUDAISM. 8vo.

3. PEZRON'S ANTIQUITIES of NATIONS.
Foolscap 8vo.

4. CALENDARIUM PALESTINE. By W.
CARPENTER. With Map, and the curious
Dissertation of Michaelis on the Hebrew Months,
12mo. 2s, 6d, boards. -v,

PRINTS, &c.

1. PORTRAIT of CHARLES JAMES, LORD
BISHOP OF LONDON. Half-length. 4to. 6*. On
India Paper, ^s. 6d,

2. PORTRAIT OF DR. OUTRAM, PRE-
BENDARY OF WESTMINSTER. 8vo. 1*. In-
dia Proofs, 2s.

3. ILLUSTRATIONS to BYRON, CAMP-
BELL, CRABBE, ROGERS, WALTER SCOTT,
&c. By STOTHARD. In Sets.

4. TWELVE ORIGINAL DRAWINGS, to

illustrate " Chaucer's Canterbury Tales."

5. A great variety of Portraits and Prints for
Scrap-Books, by the best Artists.

6. ETCHINGS to SIR WALTER SCOTT'S
BORDER ANTIQUITIES, in various states.

7. A few Sets of ILLUSTRATIONS to the HOLY
SCRIPTURES, 100 each, by WEIGEL, Jine im-
pressions, from the Dutch Masters.

8. A Set of FRONTISPIECES to aU the BOOKS
of the NEW TESTAMENT. By WEIGEL.

'• t

- «K

■^^ -\y-:r^ \ "

■. . ^i'vf'i,'^ A-4)%«'..^ ^•

-^: V >y -;',t"'-:y^. i:,_,j^

■Of'

•■• 'fK -X

.if: 3.

X '' • ' -■ • ■-'•-

'. -' •^»''<-

-•■

' '•;

'' 'J

K' -;:•■ ' '"

. r

■ «

>i -, ' >•/.

I / -

"i ■■

,, 4 --S '

1 :

.^^ff^

-to

T'S
►LY

)KS

■kt:.