IMAGE EVALUATION TEST TARGET (MT-3) ^tfk 1.0 I.I |2£ |15 1^ ^ 1^ 12.0 U& L25 lii.4 <^ >:) ^.^* -^ ^>. 9. Photographic Sciences Corporation 23 WEST MAIN STRICT WIBSTiR,N.Y. M5S0 (716)872-4503 4 /T:-;':^. t^il '.Mi ai L»j'':j*U--.. ^i^* BeJJ'ORE 1 begin a coiirfe oFleftHres oh a fci- cnce of great extent and importance, I think it my duty to lay before the Public the rea* fons which have ind^jced me to undertake fuch n, labour, as well as a (hort account 6f the nature and objeds of the coiirfe which I propofe to de^ liver. 1 have always been unwilling to wade in unprofitable ina^ivity that leifure which the firft years olf my profeflion ufually allow, and which diligent and indudrious men, even with moderate f talents, might often employ in a manner neither difcreditable to themfelves nor wholly ufelefs to others. iBefirous that my own leifore diould not be confumed in idlenefs, I anxioully lo<:^ed aboctt B for ■^^'- il 'r' (-*- T ,/ .,* I f 2 ) 'for fome way of filling it up, tvhich might enable me, according to the meafure of my humble abi- lities, to contribute fomewhat to the ftock of ge- neral ufefulnefs. I had long been convinced that public leftures, which have been ufed in moft ages and countries to teach the elements of al- moft every part of learning, were the moft conve- nient mode in which thefe elements could be taught ; that they were the beft adapted for the important purpofes of awakening the attention of the ftudent, of abridging his labours, of guiding his inquiries, of relieving the tedioufnefs of pri- vate ftudy, and of impreffing on his reeolleftion the principles of fcience. I faw no reafon why the law qf England (hould be lefs adapted to this mode of inftru^ion, or lefs likely to beneBt by if, than any other part of knowledge. A learned gentleman, however, had already occupied that ground *, and will, I doubt not, perfevere in the ufeful labour which he has undertaken. On his province it was far from my wi(h to intrude. It appeared to me that a courfe of ledturcs on an- other ftjbjeft clofely connected with all liberal profeffional ftudies, and which had long been the fubjedt of my own reading and refledlion, might not only prove a moft ufeful introdudion to the ' * Sec ** A Syllabus of Le£^ures on the Law of England, <* to be delivered in Liacoln's-Inn Hall, by M. Nolan, Efq.*' law Londoo, 1796. •• vli •\^k ' 1 I'.V' IV- ( 3 5 law of England, but might alfo become an inte- refting part of general ftudy, and an important branch of the education of thofe who were not dcftincd for the profeffion of the law. I was con- firmed in my opinion by the affent and approba- tion of men, whofe names, if it were becoming to mi \tion them on fo flight an occafion, would add authority to truth, and furnilh fome eiccufe even for error. Encouraged by their approbation, I refolved, without delay, to commence the un- dertaking, of which I (hall now proceed to give fome account ; without interrupting the progrefs of my difcourfe by anticipating or anfwering th« remarks of thofe who may, perhaps, fneer at me for a departure from the ufual courfe of my pro- feffion ; becaufe I am deiirous of employing in a rational and ufeful purfuit that leifure, of which the fame men would have required no account, if it had been confumed in floth, or waded on trifles, or even abufed in difiipation. law ^^: The fcience which teaches the ights and duties of men and of dates, has, in modern times, been called the Law of Nature and Nations. Under this comprehenfive title are included the rules of morality, as they prefcrib^ the condudt of private men towards each other in all the various rela- tions of human life ; as they regulate both the obedience of citizens to the laws, and the autho* rity of the magidrate in framing laws and admi- B a nidering y ( 4 ) niftering government; as tbey govern the in« tercourfe of independent commonwealths in peace, sind prefcribc limits to their hpftility ii\ war. This important fcience comprehends only that part oi private ethm which is capable of being rCr duced to fixed and general rules. It confider^ only thofe general principles of jurifprudence an4 politics which the wifdom of the lawgiver adapts to the peculiar lituation of his own country^ aQ4 vyhich the ikill of the ftatefm^n applies to the more flu^uating qnd infinitely varying circum- (lances whjch alfe^ its immediate welfj^re and fafety. ** For ;here are in xjatur^ certain foun* ** tains of juflice whence all civil laws are dcrived| ^f but as dreams ; if\d like as waters do take tinc«r f < tures and taftes from the fojls thropgh which *^ they run, fo do civil laws vary according tp *' the regions and governments where they are *' planted* though they proceed from the fame " fountains *.!* BacM*i Dig^ and Adfu. ofL>e(trn»'"» \Vorks, vol.-i. p. loi. ...•>'•"■ ■ ■■ ' Qn tl^e great ^qef^ipns of morality, of politics,, and of municipal Uw« it is the objed of this fci^ ence to deliver only thofe fundamental truths of ^)|ich the parti9ular applicatbn is a^ extenfiye as ,*i * I leave it to petty critips to deternoine whether fame ia^ eongruity of inet9(>hor may not be dew^d io this n<^e iisDWnce. Mr. Hume appears to h^v^ borrowed his ideas from it in a remarkable paflage of his works. See Hume'^. |iEiys. voU ii. p. ^S** ■":•:■■•■■" the # ItlCS, is) the whole prl/atcancj puWic con^uft of men ; to difcoverthofe "fountains of juftice/* withopt pur- fuing the " (Irpaajs** through the endlefs variety of their courfe, But another part of the f^ibjeft is treated with greater fylnefs and minutcnefs of ap- plication ; namely, that important branch of i% \yhich prpfeffes to regulate the relations apd in- tercourft of ftates, and more cfpecially, bo;h oi^ account of their greater perfedion and their more imn:)ediate reference to ufe^ the regulations of that intercourfe as they are modified by the ufages of the civilized nations of Chriftendom. Here this fcience no longer reds ip general principles. That proyjpce of it which we now call the law of nations, has, in many of its parts, acquired »(Qong our European nations much of the pre- cilion and certainty of pofitive law> and the par- ticulars of that law are chiefly to be found in the wofks pf thofe writers who have treated the fci- ence of which I now fpeak. It is becaufe they haye clalT^d (in a manner which feems peculiar fo modern times) the duties of individuals with |th9fe of pations, and eftablilhed their obligation on fimilar grounds, that the whole fcience has been called, " The Law of Nature and Na- ** lions.** . . , ■• •»* r. the ; Whether tl^is appellation be the happieft that couid have been chofen for the fcience, and by ^hat ^eRS jt f§(nf; fp t>e jadopted ampnjg pur mp-. ' dern ( 6 ) dcm moralifts and lawyers *, arc inquiries, per- haps, of more curiofity than ufe, and which, if they defcrve any where to be deeply purfued, will be purfued with rnore propriety in a full exa- mination of the fubjedt than within the fliort li- mits of an introdudory difcourfe. Names are, however, in a great meafure arbitrary ; but the diftribution of knowledge into its parts, though it may often perhaps be varied with little difad- vantage, yet certainly depends upon fome fixed principles. The modern method of confidering individual and national morality as the fubjedts of the fame fcience, feems to me as convenient and reafonable an arrangement as can be adopted. * The learned reader is aware that the ** jus nature** and " jus gentium" of the Roman lawyers are phrafes of very different import from the modern phiafes, ** law of nature *» and law of nations." ** Jus naturale," fays Ulpian, " eft "quod natura omnia animalia docuit." D. i. i. i. 3, ** Quod naturalis ratio inter omnes homines conftituit, id '* que apud omnes peraeque cuftoditur vocaturque jus gen- " tium." D. 1. 1.9. But they fometimcs negle£l thi« fut>- tle diftinftion — " Jure naturali quod appellatur jus gen- " tium." I. a. I. II. Juifedale was the Roman term for our law of nations. " Belli quidem xquitas fann which he has been followed by a late ingenious writer, Mr. Bentham, Frinc. of Morals and Pol. p. 324. Perhaps thefe learned wri« ters do employ a phrafe which expreflfes the fubjeft of this law with more accuracy than our common language ; but I doubt, whether innovations in the terms of fcience always repay «« hy their liiperior precifion for the uncertainty arid coi^ufion which the change occafions, 1 The ( 7 ) The fame ruUs of morality which hold together men in families^ and which mould families into commonwealths^ alfo link together thcfe com- monwealths as members of the great fociety of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit, from each other ; it is, therefore, their intered as weli as their duty to reverence, to pradife, and to en- force thofe rules of jufticc, which control and redrain injury, which regulate and augment bene- fit, which, even in their prefent imperfcdl ob- fervance, prefcrve civilized dates in a tole- rable condition of fecurity from wrong, and which, if human infirmity would fufFc them to be generally obeyed, would cftablifh, and permanently maintain, the well-being of the univerfal commonwealth of the human race. It is therefore with juftice that one part of this fcience has been called " the natural law of in- " dividualsy*' and the other, " the natural law of *f Jlatesi* and it is too obvious to require obferva- tion '*', that the application of both thefe laws, of the former as much as of the latter, is modified and varied by cuftoms, conventions, charader, and iituation. With a view to thefe principles, the writers on general jurifprudence have coniidered dates as moral perfons; a mode of exprefiloa which has been called a fidion of law, but which * This remark is fuggefted by an objedHon of FaHe\ ^which is morefpecious tl^a folid.-^See his Prelina. § 6. tfu may ( « ) iaiay be regarded with more propriety as a bold and metaphorical language, ufed to coiivey the ith-» pbrtant truth, that nations, though they acknotr* letige no comtnon fuperior, and neither cat! noi* ought tb be fiibje<5i:ed to human puniftiment, are yet under the fame obligations mutually to prac- ti(e honefty and humanity, which would have bound individuals, ieven ifthey could be conceived ever to have fubfifted without the protecting re-^ ftraints of government; if they were not com- pelled zo the dilcharge of their duty by the juft authority of magiftrares, artd by the wholefome terrors of the laws. With the fame views thii hvr has been ftyled, and (nbtwithftanding the objedlions of fome writers to the vaguertefs of th6 language) appears to have been ftyled x^rith great propriety, " the law of nature/* It may with perfed correftnefs, or at le.ift by tfi eafy metA- phor, be called a " law,** inafmuch as it is a fu- preme, invariable, and uncontrollable rule of conduct to all men^ of vi'hich the violation is avenged by natural piiniihments, whidi • necef- farily flow from t^e conftitution of things, aitd are as fixed and inevitable as tht order of natr.re. It " the 4aw of nature y* bccaufe its general pre- ss cepts are efTditiaHy adapted to t)mmc3ite the hlap- ^ineft of toan, as long as he Tfcmains a being of t^e farrte nature with which hfc is at prdetit en- dowed,, or, in other words, as long as he con- cinutes to be man, in all the variety of tttoes, places^ ( 9 ) and circumilances^ in which he has been known, or can be imagined to exift; becaufe it is difco- verable by natural reafon, and fuitable to our na- tural conltitution ; becaufe its ircnefs and Avifdom are founded on the general nature of human beings, and not on any of thofe temporary and accidental fituations in which they may be placed. It is with ftill more propriety, and indeed with the highelt ftri(ftnefs, and the moft perfedt accuracy, confidcred as a law, when, according to thofe juft and magnificent views which philofophy and reli- gion open to us of the government of the world, it is received and reverenced as the facred code, promulgated by the great Legillator of the univerle for the guidance of his creatures to happinefs, guarded and enforced, as our own experience may inform us, by the penal fanftions of fhame, of remorfe, of infamy, and of mifery; and (all far- ther enforced by the reafonable expectation of yet more awful penalties in a future and more per- manent (late of exiftence. It is the contempla- tion of the law of nature under this full, mature, and perfedb idea of its high origin and tranf- ctndent dignity, that called forth the enthuHafm of the greateil men, and the greateft writers of ancient and modern tim^s, in thofe fublime de- fcriptions, where they have exhaufted all the powers of language, and furpafled all the other exertions, even of their own eloquence, in the 9 difplay \ y } - t4i ( 10 ) difplay of the beauty and majedy of thii foTe* reign and immutable law. It is of this law that Cicero has fpoken in fo many parts of his writings, not only with all the fplendour and copioufnefs of eloquence, but with the fenfibility of a man of virtue i and with the gravity and compreheniion of a philofopher *. It is of this law, that Hooker fpeaks in fo fublime a drain : " Of law, no lefs can be faid, than that her feat is the bofom of God, her voice the harmony of the world ; all things in heaven and earth do her homage, the very lead as feeling her care, the greateft as no« *' exempted fiom her power; both angels and " men, and creatures of what condition foever, ** though each in different fort and manner, yet ^< all with uniform confent admiring her as the " mother of their peace and joy.** — Ecclefi Foh hook i. in the (onclufiou. C( (( (( (( vj i.. •^' i. ♦ I * £fl quidem vera lex, reAa ratio, natufM eongruenst dif'- fufa in omnes, c6nftans, fempiterna, quae vocet ad officiuiil i'ubendo, vetandp a fraude deterreat, qux tamen neque pro# >os fruftra jubet aut vetat, neque improbos jubendo aut ve- tando- mover. Huic legi neque obrogari fas eft, neque dero* gari ex h^ aliquid licet, neque tota abroeari poteft. Nee vero aut per fenatum aut per populum foTvi hac lege poflU- mus. Neque eft quaerendus explanator aut interpres ejus aliuiB* Nee erit alia lex Romae, alia Athenis, alia nunc, alia pofihac, fed et omnes gentes et omni tempore una lex et fempiterna, et immortalis continebit, unufque erit communis quau magifter et imperator omnium Deus. lUe legis hujus inventor, difcep- tator, lator, cui qui non parebit ipfejifugiet et naturam hominis ofpernahitury atque hoc ipfo luet maximas poeoas etiamfi cxv tera fupplicia quae putantur effugerit. ffra^, lih, iiu Cicir, de RefuhU afud LaHant, ( " ) Let not thofc, who, to nfc the langua fame Hooker, " talk of truth," with ** fc ding the depth from whence it hnih.y take it for granted, that thefe gi of eloquence and reafon were led aft fpecious delufions of myfticifm, from confideration of the true grounds of morality the nature, neceflities, and interefts of man. They fludied and taught the principles of morals ; but they thought it dill more neceffary, and more wife, a much nobler taik, and more becoming a true philofopher, to infpire men with a love and reverence for virtue. They were not contented with elementary fpeculations. They examined the foundations of our duty, but they felt and cherifhed a moft feenily, a moft becoming, a moft rational enthufiafm, when they contemplated the majeftic edifice which is reared on thefe folid foundations. They devoted the higheft exertions of their mind to fpread that beneficent enthufiafm among men. They confccrated as a homage to virtue the moft perfect fruits of their genius. If thefe grand fentiments of " the good and fair,** have fometimes prevented them from delivering the principles of ethics with the nakednefs and drynefs of fcience, at leaft, we muft own that they have chofcn the better part ; that they have preferred virtuous feeling to moral theory; and practical benefit to fpeculative exafbnefs. Per- haps thefe wife men may have fuppofed that the c a minute- •% ( » ) minute ()ifl*e£tion and anatomy of Virtue mighty to the ill-judging eye, weaken the charm of her beauty. V:- If is not for me to attempt a theme which lus perhaps been exhaufted by thefe great writers. I Am indeed much lefs called upon to difplay the worth and ufefulnefs of the law of nations, than to vindicate myfelf from prefumption in attempting a fubjed which has been already handled by fo many maftei-s. For the purpofe of that vindica- tion it will be neceflary to iketch a very Ihort and flight account (for fuch in this place it muft una- voidably be) of the progrefs and prefent ftate of the fcience^ and of that fucceffion of able writers who have gradually brought it to its prefent per- fection. We have no Greek or Roman treatife remaining on the law of nations. From the title of one of the lod works of Ariftotle, it appearls that he compofed a treatife on the laws of war^, which, if we had the good fortune to poiTefs it, would doubtlefs have amply fatisfied our curiofity, and would have taught us both the pradtice of nations and the opinions of moralifls, with that depth and preciiion which diftinguilh the other tvorks of that great philofopher. We can now only imperfedly collect that pradlice and thofe pinions from various paiTages which are fcattered * Aixciw/AAlot Tfiv jroX(/«v» over .i:ijl Tfc.- ( «3 ) oVei: the wnungs of philofophers, hidorians, poeti^ and orators. When the time fhall arrive for i more full confideration of the flate of the govern- ment and manners of the ancient world, I (hall be able, perhaps, to offer fatisfaftory reafons why thefe enlightened nations did not feparate from the general province of ethics that part of mo- rality which regulates the intercourfe of dates, and ered it into an independent fcience. It would require a long difculfion to unfold the various caufes which united the modern na- tions of Europe into a clofer focicty ; which linked them together by the firmed bands of mu- tual dependence, and which thus, in procefs of lime, gave to the law that regulated their inter- 4Courfe greater importance, higher improvement^ and more binding force. Among thefe caufes We may enumerate a common extra(5tion, a coiiimon religion, iimilar manners, inditutions, and lan- guages ; in earlier ages the authority of the See of Rome, and the extravagant claims of the Imperial , crown ; in later times the connexions of trade, the jealoufy of power, the refinement of civiliza- tion, the cuhivation of fcience, and, above all, that general mildnefs of charader and manners which arofe from the combined and progreffive influence of chivalry, of commerce, of learning, and of re- ligion. Nor muft we omit the fimilarijty of thofe political inditutions which, in every country that had been over-run by the Gothic conquerors, bore dif- ( 14 ) difcernible marks (which the revolution of fuc- ceeding ages had obfcured, but not obliterated) of the rude but bold and noble outline of liberty that was originally iketched by the hand of thefe ge- nerous barbarians. Thefe and many other caufes confpired to unite the nations of Europe in a more intimate connexion and a more conftant inter- courfe, and of confequence made the regulation of their intercourfe more neceffary, and the law that was to govern it more important. In propor- tion as they approached to the condition of pro- vinces of the fame empire, it became almoft as cflential that Europe Hiould have a precife and comprehenfive code of the law of nations, as that each country (hould have a fyftem of municipal law. The labours of the learned accordingly be- gan to be dircded to this fubjefl in the fixteenth century, foon after the revival of learning, and af- ter that regular diftribution of power and territory which has fubfil^ed, with little variation, until our times. The critical examination of thefe early writers would perhaps not be very interefting in an cxtenfive work, and it would be unpardonable in a (hort difcourfe. It is fufficient to obferve that they were all more or lefs fliackled by the barbarous philofophy of the fchools, and that they were impeded in their progrefs by a timorous de- ference for the inferior and technical parts of the Roman law, without raifing their views to the comprehenfive principles which will for ever in- a fpire ( 'S ) fpirc mankind with veneration for that grand monument of human wifdom. It was only in- deed in the Hxteenth century that the Roman lav was firft (ludied and underftood as a fcience con- Xiedted with Roman hiftory and literature, and iU ludrated by men whom Ulpian and Papinian would not have difdained to acknowledge as their fuccef- fors*. Among the writers of that age we may perceive the inefiedual attempts, the partial ad- vances, the occaGonal flreaks of light which al- ways precede great difcoveries, and works chac are to inftru6t pofterity. . » re The reduftion of the law of nations to a fyftem was referved for Grotius. It was by the advice of Lord Bacon and Peirefc that he undertook this arduous tafk. He produced a work which wc now indeed juftly deem imperfed, but which is perhaps the mod complete that the world has yec owed, in fo early a ftage in the progrefs of any fcience, to the genius and learning of one man. So great is the uncertainty of pofthumous reputa- tion, and fo liable is the fame even of the greateft men to be obfcured by thofe new fafl^ions of * Cujacius, BriiTonius, Hoftomanrius, &c. &c. — P^ide Gravina Orig. Jur. Civil, p. 132 — 138. edit, Lipf. 1737. Leibnitz, a great mathematician as well as philofopher* declares that he knows nothing which approaches fo near to the method and precifion of geometry as the Roman law.—- p|>. torn. iv. p. S54. thinking ( i6 ) thinking svnd writing which fucceed each other Co japidJy among polifhcd nations, that Grotius, who f>lled fo large a fpace in the eye of his contem- poraries, is now perhaps known to fome of my readers only by name. Yet if we fairly cfthnatc both his endowments and his virtues, we may jtrflly confidcr him as one of the mod memorable men who has done honoar to modern times. He cpmbrned the difcharge of the moft important duties of aftive and pqblic life with the attainment cf that exaft and various learning which is gene- rally the portion only of the reclufe ftudcnt. He was didinguilhed as an advocate and a magiilrate, apd he compofed the moft valuable works on the law of his own country; he was almoft equally celebrated as an hiftorian, u fcholar, a poet, and a divine ; a difinterefted ftatefman, a philofophical lawyer, a patriot who united moderation with liFmnefs, and a theologian who was taught candour by his learning. Unmerited exile did not damp liis patriotifm ; the bitternefs of controverfy did not extinguifh his charity. He pafled through a turbulent political life without a fpot on his cha- rafter that could be difcerned even by the fagacity of his fierceft antagonrfts. He never deferted his friends when they were unfortunate, nor infulted his enemies when they were weak. Such was the man who was deftined to give a new form to ilie law of nations, or rather to create a fciencc, of which rude iketches and indigefled materials wcrf t 17 ) were only to be found in the writings of thofe who had gone before him. By tracing the laws of hi$ country to their principles, he was led to the con- templation of the law of nature, which he judly confidered as the parent of all municipal law^. Few works were more celebrated than that of Grotius in his own days, and in the age which fuc- ceeded. It has, however, been the fafhion of the laft half-century to depreciate his work as a (hape- lefs compilation, in which reafon lies buried un* der a mafs of authorities and quotations* This faihion originated among French wits and de- claimers, and it has been adopted, I know not for what reafon, though with far greater moderation and decency, by fome refpedtable writers among ourfelves. As to thofe who firfl ufed this lan^ guage, the moft candid fuppoiition that we can make with refpecft to them is, that they never read the work ; for, if they had not been deterred from the pcrufal of it by fuch a formidable difplay of Greek charaders, they muft foon have difcovered that Grotius never quotes on any fubjcdi: till he has firft appealed to fome principles, and often, in my humble opinion, though not always, to the founded and mod rational principles. But another fort of anfwer is due to fome of. .\ \ • Proavia juris civiiis.— De Jur. Bell, ac Pac. Proleg. ' t> thofe ( 18 ) thofe * who have criticized Grotius, andtlmt ann fwer might be given in the v^ords of Grotius him.-* (cK'jf, He was not of fuch a ftupid and fervile caft of mind, as ;o quote the opinions of poets or orators, of hidorians and philofophers, as thofe of judges, from whofe deciHon there was noapr peaU He quotes theai> as he tells us hitpfelf, ds witneiTes whofe confpiring tedimony, mightily ilrengthened and confirnied by their difcprdance xm almod every other fubjed,, is a concluHve proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On fuch matters, poets iftnd orators are the mod unexceptionable of all witnefles; for they addreft themfelve^ to the gene- ral feelings and fympathies of mankind; they ore meiiher warped by fyftem, nor perverted . by fo- .phtilry ; they can attain none of their objects -, they can neither plcafe nor perfuade if they dwell on moral fentiments not in unifoa with thofe of their readers. No fydetn of moral philofc^hy xan furely difregard the general feelings of hu« ;inan nature and the according, judgment of all ages and nations^ But where are thefe feelings and that judgment recorded and preferved ? In thole very writings which Grotius is gravely * Dr. Paley, Princ. of Mor. and Polit. Philof. Frcf. p. xiv. af!'! XV. 1 Grot. Jur. BcK et Pac, Piolcg. §404 blamed XlV* ( 19 ) blamed for having quoted. The ufages and laws of nations, the events of hiftory, the opinions of philofophers, the fentiments of orators and poets, as well as the obfervation of common life, s^re, in truth, the materials out of which the fcience of mdralily is formed'; amd ihofe who negled them ?ire juftly chargeable with a vain attempt to phi- lofophize without regard tp fadt and experience, the fole foundation of all true philofophy. If this wefc merely an objection of ufte, I (hould be willing to allow that Grotins has indeed poured forth his learning with a profufion that fometimes rather encumbers than adorns his work, and which is not always neceifary to the illudration of hisfubjedt. Yet, even in making that coqceflion, ] (hduld rather yield to ibe tafle of others than fpeak from ^y own feelings. I own that fuch richnefs and fplendouf of literature have a powerful cliartn forme. They fill my mind with an endiefs va- riety of delightful recoil^ ions and affociations. They relieve the ui^derftanding in its progrefs through a vaft fcience, by calling up the memory of great men and of interefting events. By this means we fee the truths of morality clothed wit li all the eloquence (not that could be produced by the powefs of one man, but) that could be be- ftowed on them by the colle(flive genius of rhe world. Even Virtue and Wifdom thcmfelves ac- quire fievv i^^efty in my eyes^, Nyhcn 1 thus fee all ?i:. , ( ao ) the great mafters of thinking and writing called together, as it were, from all times and countries, to do them homage, and to appear in their tram. . I : .a, But this is no place for difcufflons of .a ther overlooked all thefe thingj, or reaped no in- llrudion from the contemplation of them. . From thefe reflexions h appears, that, fince the compofition of thofe two great works on the Law of Nat tire and >,ations which continue to be the clafEcal and ilandard works on that fubjefV, we have gained lx)th more convenient inftrumcnts of reafoningand more extenfive materials for fcknce; that the code of war has been enlarged and im- proved ; that new queftions have been pradlically decided; and that new controverfies have arifen regarding the intercourfe of independent ftates, and the firft principles of morality and civil go- vernment, ' ■ - '- ' Some readers may, however, think that in thefe obfervations which 1 offer, to cxcufe the prefump- tion of my own attempt, I have omitted the men- tion of later writers, to whom fame part of the remarks is not jvjftly applicable. But, perhaps, fanher confideration will acquit me in the judg- ment of fuch readers. Writers on particular qucflions of public law are not within the fcope lof my obfervations. They have furnilhed the mod valuable materials; but I fpcak only of a ; fyftem. ( 31 ) fyftcm. To the large work of Wolffius, i!ie ob- [fervaiions which I have made on PufFcndoi-ff as A \book for general ufe, wil? furely apply with ten- [fold force. His abridger, Vattel, dcfervt in- ideed, confiderable praife. He is a very ingenious, clear, elegant, and ufeful writer. But lie only con* [iiders one part of this extenfive fubjcft, namelyj the law of nations ftriiftly fo called ; and I cannot Jhelp thinking, that, even in this depiirtmcnt of ijthe {cience, he has adopted fbme doubtftjl and 1 dangerous principles, not to mention his conftant 51 deficiency in that fiilnels of example and illuC- tration, which fo much embclliflics and ftrengihens reafon. It is hardly neceflary to take any notice of the text-book of Heiaeccius, the bed writer of elementary books with whom I am acquainted on any fubjed. Burlamaqui is an author of fupc- rior merit ; but he confines himfelf too much to the general principles of morality and politics, to require much obfervation from me in this place. The fame reafon will excufe me for pafllng ^ver in filence the works of many philofophers and moralifts, to whom, in the courfe of my propofed ledures, I fhall owe and confefs the greateft obli- gations; and it might perhaps deliver me from the necefHty of fpeaking of the work of Dr. Paley, if 1 were not defirous of this public opportunity of profeffing my gratitude for the inftrudion and pleafure which I have received from that excellent I writer, k 3^ ) writer, who poflcires, in fo eminent a degrecy ihofe invaluable qualities of a moralift, good fenfe, caution, fobriety, and perpetual reference to con- venience and pra(5tice; and who certainly is thought lefs original than he really is, merely be- caufe his lafte and modefty have led him to dif- dain the oftentation of novelty, and becaufe he generally employs more art to blend his own argu- ments with the body of received opinions, fo as ihat they are fcarce to be dillinguifhed, than other men in the purfuit of a tranfient popularity, have exerted to difguife the mod miferable common- places in the (hape of paradox. No writer fince the time of Grotius, of.Puffen- doiff, and of Wolf, has combined an inveftigation of the principles of natural and public law, with a full application of thefe principles to particular cafes i and in thefe circumftan ;os, I truft, ii will not be deemed extravagant prefumption in me to hope that I (hall be able to exhibit a view of this fci- ence, which (hall, at leaft, be more intelligible •and attra<5live toftudents, than the learned treatifes of thefe celebrated men. I fliall now proceed to ftate the general plan and fubjefls of the ledures in which I am to make this attempt. 1. The belngr whofe avTrions the law of nature profcltes to rcgnbte, is man. It is on the know- ledge ( 33 ) kdge of his nature that the fcience his dui / muft be founded *. It is impoffible to approa^a the threlhold of moral philofopby, without a pre- vious examination of the faculties and habits of the human mind. Let no reader be repelled from this examination^ by the odious and terrible name of metaphyficsi for it is, in truth, nothing more than the employment of good fenfe, in obferving our own thoughts, feelings, and adtions; and when the fafts which are thus obferved, arc exprefled as they ought to be, in plain language, it is, per- haps, above all other fciences, mod on a level with the capacity and information of the gene- fality of thinking men. When it is thus expreff- ed, ic requires no previous qualification, but a found judgment, perfectly to comprehend it; and thofe who wrap it up in a technical and myilerious jargon, always give us ftrong reafon to fufpeft that they are not philofophers but impoftors. Who- ever thoroughly underftands fuch a fcience, mud be able to teach it plainly to all men of com- mon fenfe. The propofed courfe will therefore open with a very (hort, and, I hope, a very fim- ple and intelligible account of the powers and operations of the human mind. By this plain ftatement of fads, it will not be difficult to de- cide many celebrated, though frivolous, and ' * Natura enim juris explicanda eft nobis, eaque ah homi' Bis repetenda naturd^-^v:* de Leg. lib. i. c. 5. F merely ( 34 ) merely verbal controverfies, which have long amufed the leifure of the fchools, and which owe both their fame and their exiftcnce to the ambi- guous obfcurity of fcholaftic language. It will, for example, only require an appeal to every man's experience, to prove that we often aft purely from-a regard to the happinefs of others, and are therefore focial beings; and it is not necef- . fary to be a confummate judge of the deceptions of language, to defpife the fophiftical trifler, who tells us, that, becaufe we experience a gratifi- cation in our L^enevolent adions, we are therefore exdufively and uniformly felfifli. A corredt ex- amination of fads will lead us to difcover that quality which is common to all virtuous adions, and which diftinguilhes them from thofe which are viciouf> and criminal. But we (hall fee that it is neceflary for man to be governed not by his own tranfient and hafty opinion upon the tendency of every particular adion, but by thofe fixed and unalterable rules, which are the joint refult of the impartial judgment, ihe natural feelings, and the embodied experience of mankind. The autho- rity of thfefe rules is, indeed, founded only on their tendency to promote private and public wel- fare; but the morality of adions will appear folely to coixfiil in their correfpondence with the rule. By (he help of this obvious diftindion, we (hall vindicate a juft theory, which, far from being mo- dem, is, in fad, as ancient as philofophy, both i from ( 3S ) from plaufible objedions, and from the odions imputation of fupporting thofe abfurd and mon- ftrous fyftems which have been built upon it. Beneficial tendency is the foundation of rules, and the criterion by which habits and fentiments are to be tried. But it is neither the immediate ttandard, nor can it ever be the principal motive ofadbion. An adion, to be virtuous, muft accord with moral rules, and muft flow from our natural feelings and affedlions, moderated, matured, and improved into fteady habits of right conduct *. Without^ however, dwelling longer on fubjedls which cannot be clearly ftated, without being fully unfolded, I content myfelf with obferving, that it (hall be my objedt, in this preliminary, but moft important part of the courfe, to lay the foundations of morality fo deeply in human nature, as may fatisfy the coldeft inquirer ; and, at the fame time, to vindicate the paramount authority of the rules of our duty, at all times, and in all places, over all opinions of iniereft and fpecula- tions of benefit, fo extenfively, fo univerfally, and fo inviolably, as may well juftify the grandeft and the moft apparently extravagant cffufions of moral enthufiafm. If, notwithftand- ing all my endeavours to deliver thefe doflrines with the utmoft fimplicity, any of my auditors (hould ftill reproach me for introducing fuch ab- * Eft autem virtus nihil aliud qiiam in fe perfeAa atqiie ad fummum pcrdudta naiura. — Cic. de Leg. Hb. U c, 8. F 2 ftrufe '■'■*'^: Xx ( 36 ) ftrufe matters, I muft Qielter myfelf behind th^ authority of the wifeft of men. " If they (the an- ** cient moralifts), before they had come to the " popular and received notions of virtue and vice, *' had ftaid a little longer upon the inquiry con- " cerning the roots of good and evil, they had ^' given, in my opinion, a great light to that ** which followed ; and fpecially if they had con- ^* fulted with nature, they had made their doc- ^' trines lefs proline, and more profound."— 5tfctf«, D/^«. and Adv, of Learn, hok iL What Lord Bacon defired for the mer? gratification of fcien- tific curiofity, the welfare of mankind now im-» perioufly demands. Shallow fyftems of metaphy- fics have given birth to a brood of abominable and peftilential paradoj;eSj which nothing but a more profound philofophy can deftrpy. However we may, perhaps, lament the neceffity of difcuffions which may (hake the habitual reverence of fome men for thofe rules which it is the chief intereft of all men to pradife, we have now no choice left. We muft either difpute, or abandon the ground. Undiftrnguilhing and unmerited inve<5tives againft philofophy, will only harden fophifts and their difciples in the infolent conceit, that they are in poffeflion of an undifputed fuperiority of reafon ; and that their antagonifts have no arms to employ againft them, but thofe of popular declamation. Let us not for a moment even appear to fuppofe, that philofophical truth and human happinefs are ( 37 ) fo irreconcilably at variance. I cannot exprefs my opinion on this fubjetft fo well as in the words of a moft valuable, though generally negleded writer : " The fcience of abftrufe learning, when ** completely attained, is like Achjlles's fpear, *^ that healed the wounds it had made before j (o " this knowledge ferves to repair the damage it- " felf had occafioncd, and this perhaps is all it is *' good for; it cafts no additional light upon the '* paths of life, but difperfes the clouds with ** which it had overfpread them before ; it ad- ** vances not the traveller one (lep in his journey, ** but condufls him back again to the fpot fronn *' whence he wandered. Thus the land of Philo* *' fophy confifts partly of an open champaign ♦* country, paflable by every common under- ** (landing, and partly of a range of woods, tra- ** verfable only by the fpeculative, and where ** they too freqyently delight to amufe themfelves. ^* Since then we (hall be obliged to make incur- ** (ions into this latter trad, and (hall probably ** find it a region of obfcurity, danger, and diffi- ** cuhy, it behoves us to ufe our utmoll endea- ** vours for enlightening and fmoothing the way ^* before us */* We fliall, however, remain in the foreft only long enough to vi(it the fountains of thofe llreams which flow from it, and which water and fertilize the cultivated region of Morals, ♦ Search's Light of Nature, by Abraham Tucker, Efq. vol. i. pref. page xxxiii. to. ( 38 ) to become acquainted with the modes of warfare praftifed by its favage inhabitants, and to leani the means of guarding our fair and fruitful land againft their def^lating incurfions. I fhall haften from fpeculaiions, to which I am naturally, per- haps, but too prone, and proceed to the more proiicable confideration of our practical duty. II. The firft and mofl: iimple part of ethics is that which regards the duties of private men to- wards each otherj when they are confidered apart from the fandion of pofitive laws. I fay, apart from that fandion, not antecedent to it ; for though we feparate private from political duties for tnc fake of greater clearnefs and order in reafoning, yet we arc not to be fo deluded by this mere ar- rangement of convenience as to fuppofe that human fociety ever has fubfifted, or ever could fubfift, without being proteded by government and bound together by laws. All thefe relative duties of private life have been fo copioufly and beautifully treated by the moralifts of antiquity, thai few men will now choofe to follow them who are not aduated by the wild ambition of equal- ling Ariftotle in precifion, or rivalling Cicero in eloquence. They have been alfo admirably treated by modern moralifts, among whom it would be grofs injuftice not to number many of the preachers of the Chriftian religion, whofe pe- culiar charadler is that fpirit of univerfal charity, % which ( 39 ) which is the living principle of all our Tocial du* ties. For it was long ago laid, with great truth, by Lord Bacon, " that there never was any phi- " lofophy, religion, or other difcipline, which *' did fo plainly and highly exalt that good *' which is communicative, and deprefs the good " which is private and particular, as the Chrif- '' tian faith *." The appropriate praife of this religion is not fo much, that it has taught new du- ties, as that it breathes a milder and more benevo- lent fpirit over the whole extent of morals. On a fubjed which has been fo exhaulled, I ftiould naturally have contented myfelf with the mod flight and general furvey, if fome funda- mental principles had not of late been brought into queftion, which, in all former times, have been deemed too evident to require the fupport of argument, and almoft too facred to admit the liberty of difcuffion. I fliall here endeavour to ftrengthen fome parts of the fortification of mo- rality which have hitherto been negleded, be- caufe no man had ever been i7ardy enough to attack them. Almoft all the relative duties of human life will be found more immediatelv, or more remotely, to arife out of the two gieat in- ftitutions of property and marriage. They con- llitute, preferve, and improve ibtieiy. Upon their * Bacon, Dign, and Adv. of Learn, book ii. gradual ( 40 ) gradual improvement depends the progreffive ci- vilization of mankind ; on them reds the whole order of civil life. We are told by Horace, that the firft efforts of lawgivers to civilize men con* filled in ftrengthening and regulating thefe infti- tutions, and fencing them round with rigorous pe* nal laws. Oppida coeperunt munire et ponere leges Ncu quis fur eflet, neu quis latro, neu quis adulter. I Serm. iii. 105* A celebrated ancient orator, of whofe poems we have but a few fragments remaining, has well dcfcribed the progreffive order in which human fociety is gradually led to its higheft improve- ments under the guardianfhip of thofe laws which fecure property and regulate marriage. £t leges fan£);a8 docuit, et chara jugavit Corpora conjugiis ; et magnas condidit urbes. Frag. C* Liciii. Calvin Thefe two great inftitutions convert the felfilh as well as the focial paffions of our nature into the firmeft bands of a peaceable and orderly inter- courfe ; they change the fources of difcord into principles of quiet ; they difcipline the moft un- governable, they refine the groffcft, and they exalt the moft fordid propenfities ; fo that they become the perpetual fountain of all that ftrength- cns, and preferves, and adorns fociety ; they fuf- tain the individual, and they perpetuate the race. Around ( 41 ) Around thefe inftitutions all our fecial duties will be found at various diftances to range themfelves ; fome more near, obvioully eflential to the good order of human life, others more remote, and of which the neceflity is not at firft view fo apparent, and fome fo diftant, that their importance has been fometimes doubted, though upon more ma- ture confideration they will be found to be out- pofts and advanced guards of thefe fundamental principles; that man fliould fecurely enjoy the fruits of his labour, and that the fociety of the fexes fliould be fo wifely ordered as to make it a fchool of the kind afFedions, and a fit nurfery for the commonwealth. The fubjedt of property is of great extent. It will be neceflary to eftablifli the foundation of the rights of acquifition, alienation, and tranfmilfion, not in imaginary contrafts or a pretended ftate of nature, but in their fubferviency to the fubfiftence and well-being of mankind. It will not only be curious, but ufeful, to trace the hiftory of pro- perty from the firft loofe and tranfient occupancy cf the favage, through all the modifications which it has at different times received, to that comprehenfi v'e, fubtile, and anxiouily minute code of property which is the laft refult of the moft relined civilization. Khali . ( 4» ) I (hall obferve the fame order in confidering the fociety of the fexes as it is regulated by the inltitution of marriage. I (hall endeavour to lay open thofe unalterable principles of general inte- reft on which that inftitution refts : and if I enter- tain a hope that on this fubjedl I may be able to add fomething to what our mailers in morality have taught us, I truft, that the reader will bear in mind, as an excufe for my prefumption, that they were not likely to employ much argument where they did not forefeethe poffibility of doubt. I fliall alfo confider the hiltory of marriage, and trace it through all the forms which it has af- fumed, to that decent and happy permanency of union, which has, perhaps above all other caufes, contributed to the quiet of focietj^, and the refine- ment of manners in modern times. Among many other inquiries which this fubjcdt will fuggeft, I (hall be led more particularly to examine the natural fta- tion and duties of the female fex, their condition among diflferent nations, its improvement in Eu- rope, and the bounds which Nature herfelf has prcfcribed to the progrefs of that improvemcint ; beyond which, every pretended advance will be a real degradation. III. Having cftabliflied the principles of pri- vate duty, I (hall proceed to confider uian under the important relation of fubjeft and fovereign. or. ( 43 ) or, in other words, of citizen and mwigiflrate. The duties which arife from this relation I (hall endeavour to eftabliQi, not upon fuppofed corn- pads, which are altop ether chimerical, which muft be admitted to be faUe in fad:, which if they are to be confidered as fidlions, will be^found to ferve no purpofe of juft reafoning, and to be equally the foundation of a fyftem of univerfal defpoiifm in Hobbes, and of univerfal anarchy in Roufleau ; but on the folid bafis of general con- venience. Men cannot fubfift without fociety and mutual aid; they can neither maintain focial intercourfe nor receive aid from, each other with- out the prote<5lion of government ; and they cannot enjoy that protection without fubmitting to the reftraints which a juft government impoles. This plain argument eftablifhes the duty of obedience on the part of citizens, and the duty of protection on that of magiftrates, on the fame foundation with that of every other moral duty; and it fliows, with fufEcient evidence, that thefe duties are reciprocal ; the only ra- tional end for which the fidion of a contrad could have been invented. I iliall not encumber my reafoning by any fpeculations on the origin of government ; a queftion on which fo much rea- fon has been wafted in modern times ; but which the ancients * in a higher fpirit of philofophy have "* The introdu(5tion to he firft book of Ariftotle*s Poli- tics is the bell demonftration of the neceffity of political fo- o 2 ciety 1 ( 44 ) have never once mooted. If our principles be juft, the origin of government muft have been coeval with that of mankind; and as no tribe has ever yet been difcovered fo brutiOi as to be with- out feme government, and yet fo enlightened as toeftablifh a government by common confent, it is furely unneceflary to employ any ferious argu- ment in the confutation of a doftrine that is in- confiilent with reafon, and unfupported by expe- rience. But though all inquiries into the origin of government be chimerical, yet the hiftory of its progrefs is curious and ufeful. The various flages through which it pafled from favage inde- pendence, which implies every man'j power of injuring his neighbour, to legal liberty, which confifts in every man's fecurity againft wrong ; the manner in which a family expands into a tribe, and tribes coalefce into a nation; in which pubhc juftice is gradually engrafted on private revenge, and temporary fubmiffion ripened into habitual obedience; form a moft important and extenfive fubje(5l: of inquiry, which comprehends all the improvements of mankihd in police, in judicature, and in legiflation. te'd ciety to the well-being, and indeed to the very being, of man, with which I am acquainted. Having Ihown the circumftances which render man neceflarily a focial being, he juftly concludes, ** Ka* lit avGewTroj (pva-ii mXCluoi iuoi,**y Arift. de Rep. lib. i. ^ I have ( 45 ) 1 have already given the reader to underftand that the dcfcription of liberty which feeins to me the mod comprehenfive, is that of fecwiiy againfl wrong. Liberty is therefore the ohjedl of all government. Met. are more free under every go- vernment, Q\ci\ the molt imperfed, than they would be if it were poflible for them tc exift with- out any government at all : ihey are more fecure from wrong, and more undiClurbed in the exer- cife of their natural powers, than if they were al- together unprotefted againft injury from each other. But as general fecuriiy is enjoyed in very different degrees under diifcrent governments, thofe which guard it mod perfedly, are by way of eminence called /r^^. Such governments attain mod completely the end which is common to all government. A free government and a good government are therefore different expreflions for the fame idea. Another material diftindion, how- ever, foon prefents itfelf. In moll: civilized ftates the fubjedt is tolerably prote(5led againft grofs in- juflice from his fellows by impa'tial laws, which it is the manifeft intereft of the fovereign to en- force. But fome commonwealths are fo happy as to be founded on a principle of much more re- fined and provident widlom. The fubjedts of fuch commonwealths are guarded not only againft the injullice of each other, but (as far as human prudence can contrive) againft oppreflion from the magiftrate. Such ftates, like all other extraordi- nary ( 46 ) nary examples of public or private excellence and happinefs, are thinly fcattered over the differ- ent ages and countries of the world. In them the will of the fovereign is limited with To exadt a meafure, that his prote(5ling authority is not weakened. Such a combination of fkill and for- tune is not often to be expected, and indeed never can arife^ but from the condant though gradual exertions of wifdom and virtue, to improve a long fucceflion of moft favourable circumftances. There is indeed fcarce any fociety fo wretched as to be deftitute of fome fort of weak provifion againft the injuftice of their governors. Religious inftitutions, favourite prejudices, national man- ners, have in different countries, with unequal de- . grees of power, checked or mitigated the exer- cife of fupreme power. The privileges of a powerful nobility, of opulent mercantile com- munities, of great judicial corporations, have in fome monarchies approached more near to a control on the fovereign. Means have been devifed with more or lefs' wifdom to temper the defpotifm of an ariftocracy over their fubjedls, and in democracies to protedl the minority againft the majority, and the whole people againft the ty- ranny of demagogues. But in thefe unmixed forms of government, as the right of legiflation is vefted in one individual or in one body, it *s obvious that the legiflaiive power may fliake off all ( 47 ) all the reftraints which the laws have impofed on it. All fuch governments, therefore, tend towards defpotifm, and the fecnrities which they admit againft mif-government are extremely feeble and precarious. The beft fecurity which human wifdom can devife, feems to be the diftribution of political authority among different individuals and bodies, with feparate interefts and feparate characters, correfponding to the variety of claffes of which civil fociety is compofed, each interefted to guard their own order from oppref- fion by the reft ; each alfo interefted to prevent any of the others from feizing on exclufive, and therefore defpotic power ; and all having a com- mon intereft to co-operate in carrying on the or- dinary and neceffary ad minift ration of govern- ment. If there were not an intereft to refift each other in extraordinary cafes, there would not be liberty. If there were not an intereft to co-ope- rate in the ordinary courfe of affairs, there could be no government. The obje<5l of fuch wife in- ftitutions which make the felfiftinefs of governors a fecurity againft their injuftice, is to proted men againft wrong both from their rulers and their fellows. Such governments are, with juftice, peculiarly and emphatically caWcd free ; and in af- cribing that liberty to the fkilful combination of mutual dependence and mutual check, I feel my own convidlion greatly ftrengthened by calling to mind, that in this opinion I agree with all the wife men ( 48 ; men who have ever deeply confidered the priD' ciples of poliLics ; with Ariftotle and Polybius, with Cicero and Tacitus, with Bacon and Ma- chiavel, with Montefquicu and Hume *. It is impoffible in fuch a curfory iketch as the prefent, even to aUude to a very fmall part of thofe phi- lofophical principles, political reafonings, and hif- torical fafls, which are neceflary for the illuftra- tion of this momentous fubjet"l. In a full difcuf- fion of it I Ihall be obliged to examine the gene- ral frame of the mod celebrated governments of ancient and modern times, and efpecially of thofe which have been moft renowned for their freedom. The refult of fuch an examination will be, that no inftitution fo deteflable as an abfolutely unbalanced government, perhaps ever exited ; that the fim- ple governments arc mere creatures of the imagina- tion of thcorifts, who have transformed names ufed for the convenience of arrangement into real polities; but that, as different crnftitutions approach more or lefs to that unmixed and uncontrolled fimplicity, it is in the exact proportion of their * To the weight of thefe great names let me add the opi- nion of two illuftrious men of the prefent age, as both their opinions are combined by one of them in the following paff- age : " He (Mr. Fox) always thought any of the limple un- *• balanced governments bad ; fimple monarchy. Ample arif- ** tocracy, limple democracy ; he held them all imperfect or " vicious, all were bad by themfelves ; the compolition alone ** was good. Thefe had been always his principles, in which *' he agreed with his friend, Mr. Burke."— Mr. Fox oij the Army Eftimates, 9lh Feb. 1 790. departure ( 49 ) departure from it that they are, and can alone be free. By the conftitutlon of a fiate, I mean " the body '" of thofe written and unwritten fundamental laws ** which regulate the rnojl important rights of the ** higher magijlrates, and the mojl ejential privileges * ** of thefuhjeSls^ Such a body of political laws muft in all countries arife but of the character and fituation of a people ; they muft grow with its progrefs, be adapted to its peculiarities^ change with its changes, and be incorporated into it$ habits. Humin wifdom cannot form fuch a con- ftitution by one adt, for human wifdom cannot create the materials of which it is compofed. The attempt, always ineffedual, to change by violence the ancient habits of men, and the edabliOied order of fociety, fo as to fit them for an abfolutely hew fcheme of government, flows from the molt: prefuiiiptuous ignorance, requires the fupport of the moft ferocious tyranny, and- leads to confe- quences which its authors can never forefee ; gene- I'ally, indeed, to inftitutions the moft oppofite to thofe of which they profefs to feek the eftablilli- * Privile^e<, in Roman jurifprudence, means the exemptioti of one individual from the operation of a law. Political privi- Jeges in the fenfe in which I employ the terms, mean thofe rights of the fubjefts of a free ftate, which are deemed fo ^flential to the well-being of the commonwealth, that they are excetted from the ordinary difcretion of the magiftrate, and guarded by the fame fundamental laws which fecure his authority. K tnenc. ( 50 ) ment. But hinnan wifdom indefatigably emj^loyed for remedying abufes, and in feizing favourable opportunities of improving that order of fociety which arifes from caufes over which we have little control, after the reforms and amendments of a feries of ages, has fometimes, though very rarely*, Ihown itfelf capable of building up a free confti- tution, which is " the growth of time and nature, " rather than the work of human invention." Such a confl-itution can only be formed by the wife imitation of " the great innovator time," •• which, indeed, innovateth greatly, but quietly, " and by degrees fcarce to be perceived •)•." Without wafting time in puerile panegyrics, on that of which all mankind confefs the ex- cellence, I may obferve, with truth and fo- bernefs, that a free government not only efta- blifties anuniverfal fecurity againft wrong, but that it alfo cheriQies all the nobleft powers of the human mind ; that it tends to banifh both the mean and the ferocious vices ; that it improves the national charader to which it is adapted, and * Pour former un gouvtrnement modere, il fam com- biner les puiflances, les regler, lea temperer, les faire agir, donner pour ainfi dire un leO: ^ i'une pour la mettre en ^tat de refifter k une autre, c*eft un chef d'ceuvre de legiflation que le hazard fait raremcnt, et que raretnent on lailTe faire ^ la pru- dence. Un gouvernement defpotique au contraire faute puur ainfi dire aux yeux ; il eft uniforme partout ; commeil ne fauc que des pafiions pour I'etablir tout le monde eft bon pour ^ela. Montefquieu, De L'Efprit des Loix, liv. v. c. 14. t Lord Bacou, EfTay xxiv. Of Innovations. 2 out f 51 ) out of which it grows; that its whole adminiftra- tion is a pradicalfchool of honeftyand humanity; and that there the fecial affections, expanded into public fpiritj gain a wider fphere, and a more ac- tive fpring. ■ . . > I fhall conclude what I have to offer on govern- ment, by an account of the conftitution of Eng- land. I (hall endeavour to trace the progrefs of that conftitution by the light of hiftory, of laws, and of records, from the earlieft times to the prc- fent age ; and to (how how the general principles of liberty, originally common to it, with the other Gothic monarchies of Europe, but in other coun- tries loft or obfcured, were in this more fortunate illand preferved, matured, and adapted to the pro- grefs of civilization. I (hall attempt to exhibit this moft complicated machine, as our hiftory and our laws (how it in action j and not as fome celebrated writers have moft imperfedly reprefented it, who have torn out a few of its more (imple fprings, and, putting them together, mifcall them the Bri- ti(h conftitution. So prevalent, indeed, have thefe imperfedl accounts hitherto been, that I will ven- ture to affirm, there is fcarcely any fubjefl which has been lefs treated as it deferved than the £0- vernment of England. Philofophers of great and merited reputation * have told us that it con(ifted of * The reader will perceive that I allude to Montes- (ji^iEV, whom I never name without reverence, though I H ft fliall V 1^^ t'ff ( s» ) of certain portions of monarchy, ariftocracy, and democracy; names which are, in truth, very lit- tle applicable, and which, if they were, would as little give an idea of this government, as an ac- count of the weight of bone, offleQi, and of blood in a human body, would be a pidure of a living man. Nothing but a patient and minute inveftiga- tionof the prafticeof the government in all its parts, and through its wholp hiftory, can give us juft potions on this important fubjeft. If a lawyer, without a philofophical fpirit, be unequal to the examination of this great work of liberty and wif- dom, ftill more uneqj'^i is a philofopher without pradicaly legal, and hiftorical knowledges ; for the lirft may want fkill, but the fecond wants mate- rials. The observations of Lord Bacon on political writers, in general, are moft applicable to thofe who have given us fyftematic defcriptions of the Englilh conftitution. " All thofp who have writ- ** ten of goyernments have vyritten as philofo- *' phers, or as lawyers, and none asjiatefmen. As f* for the philofophers, they make imaginary laws *^ for imaginary commonwealths, and their dif- " courfes are as the ftar?, which give little light " becaufe they are fo high." — ** Hac co^rtitio ad ^f viros chiles proprie pertinet,** as he tells us in another part of his writings ; but unfortunately no experienced philofophical Britifli ftatcfman has yet (liall prefume, with humility, to criticize his account of a go- vernmenl: which h^ only faw at a diilanpe. ^ ■ ' devotee^ ( S3 ) devoted his leifure to a delineation of the confti- tiition, which fuch a ftatefman alone can pradi^ tally and perfedly know. In the difcuffion of this gre^ fubjed, and in all reafonings on the principles of politics, I (hall labour, above all things, to avoid that which ap- pears to me to have been the conftant fource of political error : I mean the attempt to give an air of fyftem, of iimplicity, and of rigorous demon- ftration, to fubjedts which do not admit it. The only means by which this could be done, was by referring to a few fimple caufes, what, in truth, arofe from immenfe and intricate combinations, and fucceffions of caufes. The confequence was 1 ^ry obvious. 1 he fyftem of the theoriftyidifen- *.ambered from all regard to the real nature of things, was eafily made very fpecious. It re- quired little dexterity to make his argument appear conclufive. But all men agreed that it was utterly inapplicable to human affairs. The theorift railed at the folly of the world, inftead of confeffing his own; and the men of prac- tice unjuftly blamed philofophy, inftead of con- demning the fophift. The caufes which the poli- tician has to confider are, above all others, the moft multiplied, mutable, rpinute, fubtle, and, if I may fo fpe^k, evanefcent ; perpetually changing their form, and varying their combinations; lo- ^ng their nature, while they keep their name ; ex- hibiting V fl I it '.if 1 ( 54 ) liibiiing the moft different confequenccs in the endiefs variety of men and nations on whom they operate ; in one degree of ftrcngth producing the moft fignal benefit j and, under a flight variation of circumftances, the moft tremendous mifchiefs. They admit indeed of being reduced to theory ; but to a theory formed on the moft extenlive views, of the moft comprehenfive and flexible piinciples, to embrace all their varieties, and to fit all their rapid tranfmigrations ; a theory, of which the moft fundamental maxim is, diftruft in itfclf, and deference for practical prudence. Only two writers of former times have, as far as I know, ob- ferved this general defed of political reafoners ; but thefe two arethe greateft philofophers who have ever appeated in the world. The firft of them is Atif- totle, who, in a paflage of his PoHtics, to which I cannot at this moment turn, plainly condemns the purfuit of a delufive geometrical accuracy in moral reafonings as the conftant fource of the groflTeft error. The fecond is Lord Bacon, who tells us, with that authority of confcious wifdom which be- longs to him, and with that power of richly adorn- ing truth from the wardrobe of genius which he poflefled above almoj all men, ** Civil know- ** ledge is converfant about a fubjedl which, ** above all others, is moft immerfed in matter, 5' and hardlieft reduced to axiom *." IV. I * This principle is cxpreffed by a writer of a very differ* ent character from thefe two great philofophers ; a writer, ( S5 ) IV. I fliall next endeavour to lay open the ge- neral principles of civil and criminal laws. On this fubjed I may with fome confidence hope that I (hall be enabled to philofophi^e wkh better ma- terials by my acquaintance r. ith the laws of my own country, which it is the bufinefs of my life to prac- tife, and of which the ftudy has by habit become my favourite purfuit. The firfl: principles of jurifprudence are fimple maxims of reafon, of which the obfervance is im- mediately difcovered by experience to be eflential to the fecurity o^ men*s rights, and which pervade the laws of all countries. An account of the gra- dual application of ihefe original principles, firft, to more fimple, and afterwards to more compli- cated cafes, forms both the hiftory and the theory of law. Such an hiftorical account of the pro- grefs of men, in reducing juftice to an applicable and pradtical fyftem, will enable us to trace that chain, in which fo many breaks and interruptions are perceived by fuperficial obfervers, but which in truth infeparably, though with many dark and ** ^u*0n n*appellera plus phllofophe, mats qtton apptUera Ic plus " eloquent des fopbiftest'^ with great force, and, as his manner is, with fome exaggeration. '* 11 n*y a point de principes abftraits dans la politique. •* Cell une fcience des calculs des combinaifons et d'excep- " tions, felon les lieux, les terns et les circonftanccs." — Lettre de RouJJeau au Marquis Je Miraheau, The fecond propofition is true; but the firft is not a juft inference from it. i . hidden ( S6 ) I ''J Lidden windings, links together the fecurityo/ life and property with the moft minute and appa- rently frivolous formalities of legal proceeding,- We (hall perceive that no human forcn-rht is fuf- ficient to eftablifh .'uch a fyftem at once, and thaty if it were fo eftablillied, the occurrence of forefeen f* -^fes would Qiortly altogether change it ; that there . but one way of forming a civil code, either confident with common fcnfe, or that has ever been pradifed in any country, namely, that of gradually building up the law in proportion as- the fads arife which it is to regulate. We fhall learn to appreciate the merit of vulgar objedions againft the fubtlety and complexity of laws. We ftiall eftimate the good fenfe and the gratitude of ihofe who reproach lawyers for employing all the powers of their mind to difcover fubtle diftinc- tions for the prevention of injuftice * j and we |[hall at once perceive that laws ought to be nei- ther more Jimpk nor more complex than the ftate of fociety which they are to govern, but that they ought exadly to correfpond to it. Of the two faults, however, the cxcefs of fimplicity would certainly be the greatefl: ; for laws, more complex than are neceflary, would only produce embarrafl'-* ment ; whereas laws more fimple than the affairs which they regulate would occafion a d«fe6t of * " The cafuiftical fubtleties are not perhaps greater than <* the fubtleties of lawyers ; hut the latter are innocent^ and »* even neceffaryy — Hume's fiflays, vol. ii.p. 55S. juftice^ \\ ( 57 ) « jiiftice. More underftanding * has perhaps been in this manner exerted to fix the rules of life than in any other fcience ; and it is certainly the moft honourable occupation of the underftanding, be- caufc it is the moft immediately fubfervient to general fafety and comfort. There is not, in my opinion, in the whole compafs of human affairs, fo noble a fpedtacle as that which is difplayed in the progrefs of jurifprudence ; where we may contemplate the cautious and unwearied exertions of a fucceffion of wife men through a long courfe of ages ; withdrawing every cafe as it arifes from the dangerous power of difcretion, and fubjedting it to inflexible rules ; extending the dominion of juftice and reafon, and gradually contradling, within the narroweft poffible limits, the domain of brutal force and of arbitrary will. This fubje<5t has been treated with fuch dignity by a writer who is admired by all mankind for his eloquence, but who is, if poflible, ftill more admired by all competent judges for his philofophy ; a writer, of whom I may juftly fay, that he was " graviffimui " et dicendi et intelligendi auSior et magifter ;" that I cannot refufe myfelf the gratification of quoting his words : — " The fcience of jcrifprudence, the * " Law," faid Dr. Johnfon, " is the fcience in which the ** greateft powers of underftanding are applied to the great- *• eft number of fafts.'* Nobody, who is acquainted with the variety and muhiplicity of the fubjefts of jurifprudence, and with the prodigious powers of dil'crimination employed upon them, can doubt the truth of this obfervation. I ** pride ( S8 ) " pride of the human intelied^, which, with all iti " defefls, redundancies, and errors, is the col- •* leded reafon of ages combining the principles " of original juftice with the infinite variety of *' human concerns *.'* I (hall exemplify the progrefs of law, and il- luftrate .hofe principles of univerfal juftice on which ik is founded, by a comparative review of the two j^reateft civil codes that have been hitherto formed — thofe of Rome and of England "f- ; of their agreements and difagreements, both in ge- neral provifions, and in fome of the moft important parts of their minute practice. In this part of the courfe, which I mean to purfue with fuch detail as to give a view of both codes, that m^y perhaps be fufficient for the purpofes of the general ftudent, I hope to convince him that the laws of civilized nations, particularly thofe of his own, are a fub- jeft moft worthy of fcientific curiofity ; that prin- ciple and fyftem run through them even to the minuteft particular, as really, though not fo ap- parently, as in other fciences, and applied to purpofes more important than in any other fcience. * Burke's Works, vol. iii. p. 1 34. ■f- On the intimate connexion of thefe two codes, let us hear the words of Lord Holt, whofe name never can be pro- nounced without veneration, as long as wifdom and integrity are revered among men :— " Inafmuch as the latvsof all na- '• tians are douhtlefs raifed out of the ruins of the civil lawt as *' all governroentsi are fprung out of the ruins of the Roman ** empire, it muft be owned that the principles of our latv are ** horronued from the civil lawj therefore y;rounded upon the "fame reafon in many things." — la Mod. 482. I Will ( 59 ) Will it be prefumptuous to exprefs a hope, that fuch an inquiry may not be altogether an ufelefs introduftion to that larger and more detailed ftudy of the law of England, which is incumbent on thofe who are to profefs and pradtife that law ? On the important fubjeft of criminal law it will be my duty to found, on a regard to the general fafety, the right of the magidrate to inflidt: puniftiments, even the mod fevcre, if that fafety cannot be effecftually proteded by the example of inferior puniftiments. It will be a more agree- able part of my office to explain the tempera- ments which Wil'dom, as well as Humanity, pre- fcribes in the exercife of that harfti right, unfor- tunately fo effential to the prefervation of human fociety. I Ihall collate the penal codes of differ- ent nations, and gather together the moft accurate ftatement of the refult of experience with refpedt to the efficacy of lenient and fevere puniftiments ; and I ftiall endeavour to afcertain the principles oi> which mud be founded both the proportion and the appropriation of penalties to crimes. As to the law of criminal proceeding, my labour wiii be very eafy ; for on that fubjeft an Englifti lawyer, if he were to delineate the model of per- feftion, would find that, with few exceptions, he had tranfcribed the inftitutions of his own country. The whole fubjed of my ledures, of which I have I a now ( 6o ) now given the outline, may be fummed up in the words of Cicero : — ** Natura enim juris expli- ** canda eft nobis, eaque ab hominis repetend^ *' naturd ; confiderandas leges quibus civitates *' regi dcbeant ; turn haec tradanda quae compo- ** fita Tunc ec defcripta, jura et jufla populorum; " in quibus ne nostri (^uidem populi late- ** BUNT q^M VOCANTUR JUPA CIVILIA." Cic. de Leg, lib. i c. 5. V, The next great divifion of the fubje<^ is th^ law of nations, itridtiy and properly fo called. 1 have already hinted at the general principles on ^vhich this law is founded. They, like all th^ principles of natural jurifprudence, have been mor^ happily cultivated, and more generally obeyed, in fome ages and countries than in others ; and, like them, are fufceptiblc of great variety in their appli- cation, from the chara(fter and ufagcs of nations. I (hall confider thefe principles in the gradation of thofe which are neceffary, to any tolerable intercourfe between nations: thofe which are effential to all well-regulated and mutually ad- vantageous intercourfe; and thofe which are highly conducive to the prefervation of a mild and friendly intercourfe between civilized ftates. Of the firft clafs, every underftanding acknowledges the neceflity, and fome traces of a faint reverencp for them are difcovered even among the molt barbarous tribes i of the feCond, every well-in- formed ( 6I ) formed man perceives the important ufe, and they have generally been refpeded by all polifticd nations; of the third, the great benefit may be read in the hiftory of modern Europe, where alone they have been carried to their full per- fcAion. In unfolding the firft and fecond clafs of principles, I (hall naturally be led to give an acp count of that law of nations, which, in greater or Jefs perfedion, regulated the intercourfe of fa- vages, of the Afiatjc empires, and of the ancient republics. The third brings me to the confidera^- lion of the law of nations, as it is now acknow- ledged in Chriftendom. From the great extent of the fubjed, and the particularity to which, for reafons already given, I muft here defcend, it is impoffible for me, within any moderate compafs, to give even an outline of this part of the courfe. It comprehends, as every reader will perceive, the principles of national independence, the inter- courfe of nations in peace, the privileges of em- bafladors and inferior minifters, the commerce of private fubjeds, the grounds of juft war, the mu- tual duties of belligerent and neutral powers, the limits of lawful hoftiliiy, the rights of conqueft, the faith to be obfcrved in warfare, the force of an armiftice, of fafe conduds and paflports, the na- ture and obligation of alliances, the means of negotiation, and the authority and interpretation of treaties of peace. All thefe, and many other mod important and complicated fubjeds, with a}! thq ^ !t ,1 1 ( 6^, ) the variety of moral reafoning, and hiftorical ex- amples, which is neceflary to illuftrate them, mud be fully examined in this part of the leiflures, in which I (hall endeavour .to put together a tolerably complete practical fyftem of the law of nations, as it has for the lall two centuries been recognifed in Europe. ** Le droit des gens eft naturellement fonde fur " ce principe; que les diverfes nations doivent fe *< faire, dans la paix, le plus de bien, et dans la *' guerre le molns de mal, qu'ii eft poffible, fans *' nuire a Icurs vcritables interets. " L'objet de la guerre c*eft la viftoire ; celui " de la viftoire la conquete ; celui de la conqucte •« la confervaiion. De ce principe & du prece- ** dent, doivent deriver toutes les loix qui forment ** U droit des gens. *^ Toutes les nations ont un droit des gens ; les " Iroquois meme qui mangent leur prifonniers en ** ont un. lis envoient & re9oivent des embaf- ** fades ; ils connoifTent les droits de la guerre et de la paix : le mal eft que ce droit des gens n*eft pas fonde fur les vrais principes." — De VEfprit des Loix, liv. i. c. 3. i ■, .;# wide furvey and an e:ica6l: escamination of the cdnj ditions and relations of hunnan nature, I (hall have confirmed but one individual in the convidlionj that juftice is the permanent intereft of all men, and of all comtnonwealths. To difcover one new link of that eternal chain by which the Author , the univcrfe has bound together the happinels| and the duty of his creatures, and indilTolubljl fattened their interefts to each other, vfOxxH fill ray heart with more pleafure than all the fame witli which the moil ingenious paradpx ever crowned the moft eloquent lophift* ii^:i*i H^o vft... I (hall conclude this Dilcourfc in thcf noble language of two great orators and philofophers ■who havp, in a few words, dated the fubftance, the obje^l:, and the refuk of all morality, and po Jlfi^Sii' l4 law. .,((;'.' .:",rf ■ (( "irfi^s Nihil eft quod adhac de republica putem " diftum, et quo polTim longius progredi, nifi fii '* confirffiatifln, non modo falfum eflfe illud, fine in- ** juria non PpiTe, fed hoc veriffimum, fine fumma *« juftittd rctnpublicam regi non poiTc." — Cic, Fra^ lib, ii. Repub, % ?!»;*> €e *' Juftice is itfelf the great ftanding policy o civil fociety, and any eminent departure from it '< under any circumftances, ]ies under the fufpi *^ cion of being no policy at aM"'^Purkis PForks vol. iii. p. 207. FINIS. of the coin. I (hall havel convidlionj of all men] er one new! Author I happineii| indilfolublyl >uld fill ray fatpe witlil er crowneiil iji t -i 3 the nobltl fiilofophersj fubftanceJ ty> and po«| ica pute di^ nifi fi jdj line in ine fumm -C/V. Fra^ % policy re from it the fufpi )kis fVorh