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MDCCCXXXVni. f43 .lAMKS BuRNKT, Priiitci, 23, TliUtle Slrcct. A BRIEF NOTICE OP THE AUTHOR. Sir James Mackintosh was bom on the 24th October 1765, at Aldourie, in the county of Inverness. He re- ceived the rudiments of his education at the school of Fortrose in Ross-shire, thence he removed to King's College, Aberdeen, and gave at both of these places an earnest of his future eminence. At the University above named he formed an acquaintance with the cele- brated Robert Hall, which continued during life. Hav- ing been destined by his friends for the profession of a physician, he entered the University of Edinburgh at the age of twenty, where he took his degree of M. D. in September 17C7. In 1788 he went to London, and there married Miss Stuart about a year after. In 1789 he published a pam- phlet on the Regency question, but as Mr. Pitt's theory on the subject triumphed over that of Fox, the pamphlet shared the fate of the cause which it espoused. His Vindiciae GallicsB, which appeared in 1791, passed through three editions in the short space of six months, and by the talents displayed in it procured for the author the acquaintance of Sheridan, Grey, Whitbread, Fox, and the Duke of Bedford. He renounced the medical profession, and in 1792 entered student of law in Lin- coln's-Inn, and was called to the bar in 1795. Having resolved to give a course of lectures on the Law of Na- ture and Nations, he announced his intention by a pro- spectus in 1797, and, accordingly, delivered in 1798 in Lincoln's-Inn Hall his introductory lecture, which was published in 1799. The ability and sound principle displayed in it secured universal approbation ; not only did Fox and his friends lavish their praises on the author, IV but even Lords Rosslyn and Melville, Mr. Adington, Mr. Canning, and Mr. Pitt himself, wrote him letters of compliment. The latter statesman, then a bencher of Lincoln's-Inn, thus addressed him : — " I have no motive for wishing to flatter you ; but I must be per- mitted to say, that I have never met with any thing so able and elegant on the subject in any language." Mem- bers of the Government were among his chief admirers and eulogists. No course of lectures was remembered to have found an audience so distinguished. About thirty peers, double the number of commoners, and a great crowd of the most learned and accomplished per- sons of the metropolis, were attracted to Lincoln's-Inn Hall. This is not to be wondered at, since the lecture is equally profound in thought, extensive in its range of information, and superior, perhaps, in method and order to any thing which he has produced. The course, of which the present publication forms the Introductory Lecture, not only established the au- thor's reputation, but opened up the way for him to fortune. Of the succeeding lectures it is said that only the notes or heads from which he delivered them remain. " If," says his friend Mr. Thomas Campbell, " he had published nothing else than this Discourse on the Law of Nature and Nations, he would have left a perfect monument of his intellectual strength and symmetry ; and even supposing that that essay had been recovered only imperfect and mutilated, if but a score of its con- secutive sentences could have been shown, they would bear a testimony to his genius as decided as the bust of Theseus bears to Grecian art amidst the Elgin marbles." His death, which happened on the 30th May 1832, excited deep and universal regret. In literature, in politics, and in social life, he was one of the most distinguished ornaments of his country. EciNBUliaH* 38 George Strekt. A DISCOURSE ON TJIP. LAW OF NATURE AND NATIONS. Before I begin a course of lectures on a science of great extent and importance, I think it my duty to lay before the public the reasons which have induced me to undertake such a labour, as well as a short account of the nature and objects of the course which I propose to deliver. I have always been unwilling to waste in un- profitable inactivity that leisure which the first years of my profession usually allow, and which diligent men, even with moderate talents, might often employ in a manner neither discreditable to themselves, nor wholly useless to others. Desirous that my own leisur ihould not be consumed in sloth, I anxiously looked about for some way of filling it up, which might enable me, ac- cording to the measure of my humble abilities, to con- tribute somewhat to the stock of general usefulness. I had long been convinced that public lectures, which have been used in most ages and countries to teach the elements of almost every part of learning, were the most convenient mode in which these elements could be taught ; that they were the best adapted for the impor- 6 ON THE STUDY OP THE LAW tant purposes of awakening tho attention of the student, of abridging his labours, of guiding his inquiries, of re- lieving the tediousness of private study, and of impress- ing on his recollection tho principles of science. I saw no reason why the Law of England should be less adapt- ed to this mode of instruction, or less likely to benefit by it, than any other part of knowledge. A learned gen- tleman, however, had already occupied that ground,* and will, I doubt not, persevere in the useful labour which ho has undertaken. On his province it was far from my wish to intrude. It appeared to me that a course of lectures on another science closely connected with all liberal professional studies, and which had long been the subject of my own reading and reflection, might not only prove a most useful introduction to the law of England, })ut might also become an interesting part of general study, and an important branch of tho education of those who were not destined for the profession of the law. I was confirmed in my opinion by tho assent and appro- bation of men, whose names, if it were becoming to men- tion them on so slight an occasion, would add authority to truth, and furnish some excuse even for error. En- couraged by their approbation, I resolved without delay to commence the undertaking, of which I shall now pro- ceed 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 ; be- cause I am desirous of employing in a rational and use- * See " A Syllabus of Lectures on the Law of England, to be delivered in Lincoln's- Inn Hall by M. Kolan, Esq." London, 1796. 6 OF NATURE AND NATIONS. fnl pursuit that leisure, of which the same men would have required no account, if it had hecn wasted on trifles, or even abused in dissipation. The science which teaches the rights and duties of men and of states, has, in modem times, been called the Law of Nature and Nations. Under this comprehen- sive title are mcluded the rules of morality, as they pre- scribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws, and the autho- rity of the magistrate in framing laws and administering government; as they modify the intercourse of inde- pendent commonwealths in peace, and prescribe limits to their hostility in war. This important science com- prehends only that part of private ethics which is capa- ble of being reduced to fixed and general rules. It con- siders only those general principles of Jurisprudence and politics which the wisdom of the lawgiver adapts to the peculiar situation of his own country, and which the skill of the statesman applies to the more fluctuating and infinitely varying circumstances which affect its im- mediate welfare and safety. " For there are in nature certain fountains of justice whence all civil laws are de- rived, but as streams ; and like as waters do take tinc- tures and tastes from the soils through which they run, so do civil laws vary according to the regions and govern- ments where they are planted, though they proceed from the same fountains."* — Bacon*s Dig. and Adv. of Learn, "Works, vol. i. p. 101. • I have not been deterred by some petty incongruity of meta- phor from quoting this noble sentence. Mr. Hume had, perhaps, 8 ON THE STrOY OP THE LAW On tho great questions of morality, of politics, and of municipal law, it is tho object of Ihis science to deliver only those fundamental truths of which tho particular application is as extensive as the whole private and public conduct of men; to discover those ** fountains of justice," without pursuing tho *' streams" through tho endless variety of their course. But another part of the subject is treated with greater fulness and minuteness of appli- cation; namely, that important branch of it which pro- fesses 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 civilized 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 na- tions 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 modem times) the duties of individuals with those of nations, and esta- blished their obligation on similar grounds, that the whole science has been called, " The Law of Nature and Nations." Whether this appellation be the happiest that could have been chosen for the science, and by what steps it this sentence in his recollection, when he wrote a remarkable pas- sage of his works. See Hume's Essays, vol. ii. p. 352, ed, Lond. 1788. 8 OP NATURE AM) NATION.". camo to be adopted .among our modem moralis^ts 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 know- ledge into its parts, though it may often perhaps be va- ried with little disadvantage, yet certainly depends upon some fixed principles. The modem method of consider- ing individual and national morality as the subjects of the same science, seems to me as convenient and rea- sonable an arrangement as can be adopted. The same mles of morality which hold together men in families, and which form families into commonwealths, also link to- * The learned reader is aware that the *' jus naturoe" and " jue gentium" of the Roman lawyers are phrases of very different import from the modem 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 apud omnes perceque custoditur ; vocaturque jus gen- tium." D. I. I. 9. But they sometimes neglect this subtle distinc- tion — " Jure naturali quod appellatur jus gentium." I. 2. i. ii. Juafeciale was the Roman term for our law of nations. *< Belli qui- dem eequitas sanctissim^ popvli Rom. feciali jure perscripta est." Off. I. II. Our learned civilian Zouch has accordingly entitled his work, <* De Jure Feciali, sive de Jure inter Gentes." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, sug- gested that this law should be called, " Droit entre lea Gen»" (CEuvres, tom. ii. p. 337), in which he has been followed by a late ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 324. Perhaps these learned writers do employ a phrase which expresses the subject of this law with more accuracy than our common lan- guage ; but 1 doubt whether innovations in the terms of science always repay us by their superior precision for the uncertainty and confusion which the change occasions. JO ON THE STUDY OF THE LAW Hi 1 1 f^ether these commonwealths as members of the great society of mankind. Commonwealths, as well as pri- vate men, are liable to injury, and capable of benefit, from each other ; it is, therefore, their interest, as well as their duty, to reverence, to practise, and to enforce those rules of justice which control and restrain injury, which regulate and augment benefit, which, even in their present imperfect observance, preserve civilized states in a tolerable condition of security from wrong, and which, if they could be generally obeyed, would establish, and permanently maintain, the well-being of the universal commonwealth of the human race. It is therefore with justice, that one part of this science has been called " the natural law of individuals" and the other " the natural law of states ;" and it is too obvious to require observation,* that the application of both these laws, of the former as much as of the latter, is mo- dified and varied by customs, conventions, character, and situation. With a view to these principles, the writers on general jurisprudence have considered states as moral persons ; a mode of expression which has been called a fiction of law, but which may be regarded with more propriety as a bold metaphor, used to convey the im- portant truth, that nations, though they acknowledge no common superior, 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 conceived ever to have subsisted without the pro- • This remark is suggested by an objection of Vattel, which is more specious than bolid. See his Prelim. § 6. 10 OP NATURE AND NATIONS. 11 tecting restraints of government; if they were not com- pelled to the discharge of their duty by the just autho- rity of magistrates, and by the wholesome terrors of the laws. With the same views this law has been styled, and (notwithstanding the objections of some writers to the vagueness of the language) appears to have been styled with great propriety, " the law of nature." It may with sufficient correctness, or at least by an easy metaphor, be called a " law" inasmuch as it is a su- preme, invariable, and uncontrollable rule of conduct to all men, of which the violation is avenged by natural punishments, which necessarily flow from the constitu- tion of things, and are as fixed and inevitable as the order of nature. It is " the law of nature" because its general precepts are essentially adapted to promote the happi- ness 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 va- riety of times, places, and circumstances, in which he has been known, or can be imagined to exist ; because it is discoverable by natural reason, and suitable to our na- tural 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 pro- priety, and indeed with the highest strictness, and the most perfect accuracy, considered as a law, when, ac- cording to those just and magnificent views which philo- sophy and religion open to us of the government of the world, it is received and reverenced as the sacred code, promulgated by the great Legislator of the Universe for 11 \''.\ l\ ill I' 12 ON THE STLDi' OF THE LAW the guidance of his creatures to happiness, guarded and enforced, as our own experience may inform us, by the penal sanctions of shame, of remorse, of infamy, and of misery; and still farther, enforced by the reasonable ex- pectation of yet more awful penalties in a future and more permanent state of existence. It is the contem- plation of the law of nature under this full, mature, and perfect idea of its high origin and transcendent dignity, that called forth the enthusiasm of the greatest men, and the greatest writers of ancient and modem times, in those sublime descriptions, where they have exhausted all the powers of language, and surpassed all the other exertions, even of their own eloquence, in the display of the beauty and majesty of this sovereign and immutable law. It is of this law that Cicero has spoken in so many parts of his writings, not only with all the splendour and copiousness of eloquence, but with the sensibility of a man of virtue; and with the gravity and comprehension of a philosopher.* It is of this law that Hooker speaks * " Eat quidem vera lex, recta ratio, nahircB congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium jubendo, ve- tando a fraude deterreat, quae tamen nequeprobos frustra jubet aut .Hi.,*., neque improbos jubendo aut vetando movet. Huic legi ue- que obrogari fas est, neque derogari ex hacaliquid licet, neque tota abrogari potest. Nee vcro aut per senatum aut per populum solvi hac lege possumus. Neque est quserendus explanator aut interpres ejus alius. Nee erit alia lex Romce, alia Athenis, alia nunc, alia posthac. Bed et omnes gentes et omni tempore una lex et sempiterna, et immutabilis contincbit, unusque erit communis quasi magister et impcrator omnium Deus. Illc legis hujus inventor, disceptator, la- tor, cui qui non parebit ipse se fugiet et naturam hominis asperna- hitur, atque hoc ipso luet maximas pcenas ctiamsi csetera supplicia quae putantur effugeril." — Fragm. lib. iii. Cicer. de. JRepubl. apud Laciant. It is impossible to read such precious fragments without deploring 12 OP NATURE AND NATIONS. 13 in 80 sublime a strain : — " Of law, no less can be said, tban that 1" cat is the bosom of God, her voice the harmony of the world ; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power : both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent admiring her as the mother of their peace and joy." — Eccles. Pol, book i. in the conclusion. Let not those who, to use the language of the same Hooker, " talk of truth," without " ever sounding the depth from whence it springeth," hastily take it for granted, that these great masters of eloquence and rea- son were led astray by the specious delusions of mysti- cism, from the sober consideration of the true grounds of morality in the nature, necessities, and interests of man. They studied and taught the principles of morals ; but they thought it still more necessary, and more wise, a much nobler task, and more becoming a true philoso- pher, to inspire men with a love and reverence for vir- tue.* They were not contented with elementary spe- the loss of a work which, for the benefit of all generations, should have been immortal. [It is scarcely necessary to remind the reader, that the cause of this regret has been, if not entirely removed, at least greatly dimi- nished, in the discovery of Dr. Mains of a MS. of this precious work in the Vatican. Several editions have been edited by different Continental scholars,] * "Age vero urbibus constitutis ut fidem colere et justitiam re- tinere discercnt et aliis parere sua voluntate consuescerent, ac non modo iabores excipiendos communis commodi causa sed etiam vitam amittendam existimarent ; qui tandem fieri potuit nisi homines ea quee ratione invenissent, eloquentiu persuadere potuissent ?" — Cic. de Inv. Rhet. lib. i. in proem. la 14 ON THE STXTDY OP THE LAW 1,, M I i f'! I ;!i I ii': - I ii ' culations. They examined the foundations of ou!f duty, but they felt and cherished a most natural, a most seem- ly, a most rational enthusiasm, when they contemplated the majestic edifice which is reared on these solid foun- dations. They devoted the highest exertions of their mind to spread that beneficent enthusiasm among men. They consecrated as a homage to virtue the most per- fect 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 naked- ness and dryness of science, at least we must own that they have chosen the better part ; that they have pre- ferred virtuous feeling to moral theory ; and practical benefit to speculative exactness. Perhaps these wise men may have supposed that the minute dissection and ana- tomy of Virtue might, to the ill -judging eye, weaken the charm of her beauty. It is not for me to attempt a theme which has per- haps been exhausted by these great writers. I am in- deed much less called upon to display the worth and usefulness of the law of nations, than to vindicate my- self from presumption in attempting a subject which has been already handled by so many masters. For the purpose of that vindication it will be necessary to sketch a. very short and slight account (for such in this place it must unavoidably be) of the progress and present state of the science, and of that succession of able writers who have gradually brought it to its present perfection. We have no Greek or Roman treatise remaining on the law of nations. From the title of one of the lost works of Aristotle, it appears that he composed a trea- 14 OP NATURE AND NATIONS. 15 tise on the laws of war,* which, if wo had the good for- tune to possess it, would doubtless have amply satisfied our curiosity, and would have taught us both the prac- tice of the ancient nations and the opinions of their mo- ralists, with that depth and precision which distinguish the other works of that great philosopher. We can now only imperfectly collect that practice and those opinions from various passages which are scattered over the writings of philosophers, historians, poets, and orators. When the time shall arrive for a more full consideration of the state of the government and manners of the an- cient 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 modem nations of Europe into a closer society ; which linked them together by the firmest bands of mutual dependence, and which thus, in process of time, gave to the law that regulated their intercourse greater impor- tance, higher improvement, and more binding force. Among these causes we may enumerate a common ex- traction, a common religion, similar manners, institu- tions, and languages ; in earlier ages the authority of the See of Rome, and the extravagant claims of the impe- rial crown ; in later times the connexions of trade, the jealousy of power, the refinement of civilization, the cul- tivation of science, and, above all, that general mildness of character and manners which arose from the combined * AiKaiwfiara rwv iroKkfiuiv, 15 16 ON THE STUDY OF THE LAW and progressive influence of chivalry, of commerce, of learning, and of religion. Nor must we omit the simi- larity of those political institutions which, in every country that had been over-run by the Gothic conque- rors, bore discernible marks (which the revolutions of succeeding ages had obscured, but not obliterated) of the rude but bold and noble outline of liberty that was originally sketched by the hand of these generous bar- barians. These and many other causes conspired to unite the nations of Europe in a more intimate connex- ion and a more constant intercourse, and of consequence made the regulation of their intercourse more necessary, and the law that was to govern it more important. In proportion as they approached to the condition of pro- vinces of the same empire, it became almost as essential that Europe should have a precise and comprehensive code of the law of nations, as that each country should have a system of municipal law. The labours of the learned accordingly began to be directed to this subject in the sixteenth century, soon after the revival of learn- ing, and after that regular distribution of power and territory which has subsisted, with little variation, until our times. The critical examination of these early wri- ters would perhaps not be very interesting in an ex- tensive work, and it would be unpardonable in a short discourse. It is sufficient to observe that they were all more or less shackled by the barbarous philosophy of the schools, and that they were impeded in their pro- gress by a timorous deference for the inferior and tech- nical parts of the Roman law, without raising their views to the comprehensive principles which will for 16 OP NATURE AND NATIONS. 17 nerce, of ;he simi- in every conque- iitions of •ated) of ;hat was ous bar- pired to connex- lequence cessary, mt. In of pro- issential hensive should of the subject ■ learn- er and 1, until ly wri- an ex- % short ere all )hy of r pro- tech- their ill for ever inspire mankind with veneration for that grand monument of human wisdom. It was only indeed in the sixteenth century that the Roman law was first studied and understood as a science connected with Ro- man history and literature, 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 ineflfectual attempts, the partial advances, the occasional streaks of light which always precede great discoveries, and works that are to instruct posterity. The reduction of the law of nations to a system was reserved for Grotius. It was by the advice of Lord Bacon and Peiresc that he undertook this arduous task. He produced a work which we now indeed justly deem imperfect, but which is perhaps the most complete that the world has yet owed, at so early a stage in the pro- gress of any science, to the genius and learning of one man. So great is the uncertainty of posthumous repu- tation, and so liable is the fame even of the greatest men to be obscured by those new fashions of thinking and writing which succeed each other so rapidly among po- lished nations, that Grotius, who filled so large a space in the eye of his contemporaries, is now perhaps known to some of my readers only by name. Yet if we fairly estimate both his endowments and his virtues, we may justly consider him as one of the most memorable men * Cujacius, Brissonius, Hottomannus, &c., &c. — Vide Gravina Orig. Jut. Civil, pp. 132>38. edit. Lips. 1737. Leibnitz, a great mathematician as well as philosopher, declarer that he knows nothing which approaches so near to the method and precision of geometry as the Roman law. — Op. torn. iv. p. 254. 17 18 ON THE STUDY OF TDE LAW 1 :i.; 111 who have done honour to modern times. He combined the discharge of the most important duties of active and public life with the attainment of that exact and various leamixig which is generally the portion only of the re- cluse student. He was distinguished as an advocate and a magistrate, and he composed the most valuable works on the law of his own country ; he was almost equally celebrated as a historian, a scholar, a poet, and a divine ; a disinterested statesman, a philosophical lawyer, a patriot who united moderation with firmness^ and a theologian who was taught candour by his learn- ing. Unmerited exile did not damp his patriotism; the bitterness of controversy did not extinguish his cha- rity. The sagacity of his numerous and fierce adver- saries could not discover a blot on his character ; and in the midst of all the hard trials and galling provoca- tions of a turbulent political life, he never once deserted his friends when they were unfortunate, nor insulted his enemies when they were weak. In times of the most furious civil and religious faction he preserved hig name unspotted, and he knew how to reconcile fidelity to his own party, with moderation towards his oppo- nents. Such was the man who was destined to give a new form to the law of nations, or rather to create a science, of which only rude sketches and indigested ma- terials were scattered over the writings of those who had gone before him. By tracing the laws of his coun- try to their principles, he was led to the contemplation of the law of nature, which he justly considered as the parent of all municipal law.* Few works were more ' Proavia juris civilis. — De Jur. Bell, ac Pac. Proleg, § 16. 18 !< OP NATURE AND NATIONS. 19 \ celebrated than that of Grotius in his own days, and in the age which succeeded. It has, however, been the fashion of the last half-century to depreciate his work as a shapeless compilation, in which reason lies buried under a mass of authorities and quotations. This fa- shion 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 res- pectable 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 pe- rusal of it by such a formidable display of Greek charac- ters, 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 princi- ples. But another sort of answer is due to some of those* who have criticised Grotius, and that answer might be given in the words of Grotius himself. f He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philoso- phers, as those of judges, from whose decision there was no appeal. He quotes them, as he tellsus himself, as wit- nesses whose conspiring testimony, mightily strengthen- ed and confirmed by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the ' Dr. Paley, Princ. of Mor. and Polit. Philos. Prof. pp. xiv. xv. t Grot. Jur. Bell, et Pac. Proleg. § 40. 20 ON inn STUDY OF THE LAW I !'l i. I . I 1 iPiil! ! i!^i • I ' i! I fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses ; for they address themselves to the general feelings and sympathies of mankind ; they are neither warped by system, nor perverted by sophistry ; they can attain none of their objects, they can neither please nor persuade, if they dwell on moral sentiments not in unison with those of their readers. No system of mo- ral philosophy can surely disregard the general feelings of human nature and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved ? In those very writ- ings which Grotius is gravely blamed for having quot- ed. The usages and laws of nations, the events of his- tory, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of com- mon 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 experience, the sole foundation of all true philosophy. If this were merely an objection of taste, I should be willing to allow that Grotius has indeed poured forth his learning with a profusion that sometimes rather en- cumbers than adorns his work, and which is not always necessary to the illustration of his subject. Yet, even in making that concession, I should rather yield to the taste of others than speak from my own feelings. I own that such richness and splendour of literature have a powerful charm for me. They fill my mind with an endless variety of delightful recollections and associations. 20 OP NATURE AND NATIONS. 21 h matters, able of all ho general ire neither itry; they ther please ents not in ;em of mo- ral feelings of all ages } and that very writ- hing quot- mts of his- timcnts of >n of com- wliich the lio neglect npt to phi- rience, the [ should be Hired forth rather en- not always Yet, even ield to the gs. I own ire have a id with an ssociations. They relieve the understanding in its progress through a vast science, by calling up the memory of great men and of interesting events. By this means we see the truths of morality clothed with all the eloquence (not that could be produced by the powers of one man, but) that could be bestowed on them by the collective genius of the world. Even Virtue and "Wisdom themselves acquire new majesty in my eyes, when I thus see all the great masters of thinking and writing called toge- ther, as it were, from all times and countries, to do them homage, and to appear in their train. But this is no place for discussions of taste, and I am very ready to own that mine may be corrupted. The work of Grotius is liable to a more serious objection, though I do not recollect that it has ever been made. His method is inconvenient and unscientific. He has inverted the natural order. That natural order undoubt- edly dictates, that we should first search for the original principles of the science in human nature ; then apply them to the regulation of the conduct of individuals ; and lastly, employ them for the decision of those diffi- cult and complicated questions that arise with respect to the intercourse of nations. But Grotius has chosen the reverse of this method. He begins with the con- sideration of the states of peace and war, and he examines original principles only occasionally and incidentally as they grow out of the questions which he is called upon to decide. It is a necessary consequence of this disor- derly method, which exhibits the elements of the science in the form of scattered digressions, that he seldom em- ploys sufficient discussion on these fundamental truths, 21 Him 32 ON TIIK STUDY OP THE LAW i'l' i!' r!:li ;i t l!l I Im I and never in the place where such a dwcuHsloti w oulJ be most instructive to the reader. This defect in the plan of Grotius was perceived, and supplied, by PuflFendorflF, who restored natural law to that superiority which belonged to it, and with gro.it pro- priety treated the law of nations as only one main branch of the parent stock. Without the genius of his master, and with very inferior learning, he has yet treated this subject with sound sense, with clear method, with ex- tensive and accurate knowledge, and with a copiousness of detail sometimes indeed tedious, but always instruc- tive and satisfactory. His work will be always studied by those who spare no labour to acquire a deep know- ledge 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 lelteis 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 Pufibndortf. His treatise is a mine in which all his successors must dig. I only pre- sume to suggest, that a book so prolix, and so utterly void of all the attractions of composition, Is likely t'> repel many readers who are interested, and who might perhaps be disposed to acquire some knowledge of the principles of public law. ?'f nny father circumstances might be mentioned, which conspire to prove that neither of the great works of 22 I OP NATURE AND NATIONS. 23 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 com> pletely changed since both theau works were written, that whoever was now to employ their terms in his mo- ral 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. Th' learned indeed well know how little novelty or va- riety is to be found in scientific disputes. The same truths and the same errors have been repeated from age to age, with little variation but in the language ; and novelty of expression is often mistaken by the ignorant for substantial discovery. Perhaps too very nearly the same portion of genius and judgment has been exerted in most of the various forms under which science has been cultivated at different periods of history. The superiority of those writers who continue to be read, perhaps often consists chiefly in taste, in prudence, in a happy choice of subject, in a favourable moment, in au agreeable style, in the good fortune of a prevalent lan- guage, or in other advantages which are either acciden- tal, or are the result rather of the secondary than of the highest faculties of the mind. — But these reflections, while t>iey moderate the pride of invention, and dispel the extravagant conceit of superior illumination, yet serve to prove the use, and indeed the necessity, of com- posing, ffftm time to time, new systems of science adapted to the opinions and language of each succeeding period. Erery age must he taught in its own language. If a 23 ^1 '. 'M i :i! I :- I fi E |i;i:ii ii 24 ON THE STUDY OP THE LAW man were now to begin a discourse on ethics with an account of the *' moral entities" of PuffendorfF,* he would speak an unknown tongue. It is not, however, alone as a mere translation of for- mer writers into modern language that a new system of public law seems likely to be useful. The age in which we live possesses many advantages which are peculiarly favourable to such an undertaking. Since the composi- tion of the great works of Grotius and Puffendorff, a more modest, simple, and intelligible philosophy has been introduced into the schools; which has indeed been grossly abused by sophists, but which, from the time of Locke, has been cultivated and improved by a succession of disciples worthy of their illustrious master. We are thus enabled to discuss with precision, and to explain with clearness, the principles of the science of human nature, which are in themselves on a level with the capacity of every man of good sense, and which only appeared to be abstruse from the unprofitable subtleties with which they were loaded, and the barbarous jargon in which they were expressed. The deepest doctrines of morality have since that time been treated in the perspicuous and popular style, and with some degree of the beauty and eloquence of the ancient moralists. That philosophy on which are founded the principles of our duty, if it has not become more certain (for morality * I do not mean to impeach the soundness of any part of PuiTen- dorlT's reasoning founded on moral entities. It may be explained in a manner consistent with the most just philosophy. He used, as every writer must do, the scientific language of his own time. I only assert that, to those who are unacquainted with ancient sys- tems, his philosophical vocabulary is obsolete and unintelligible. 24 ' ? ,i n OP NATURE AND NATIONS. 25 ;s with an dorff,* he tion of for- f system of je in which ) peculiarly le composi- ffendorflF, a )Sophy has lias indeed , from the roved by a ous master, on, and to science of level with which only e subtleties rous jargon t doctrines ited in the e degree of ists. That pies of our )r morality art of Puffen- be explained He used, as own time. 1 ancient sys- ntelligible. admits no discoveries), is at least less " harsh and crab- bed,' less obscure and haughty in its language, less for- bidding and disgusting in its appearance, than in the days ot our ancestora. If this progress of learning to- wards popularity has engendered (as it must be owned that it lias) a multitude of superficial and most mis- chievous sciolists, the antidote must come from the samo quarter with the disease. Popular reason can alone cor- rect 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 tliat time vast additions have been made to the stock of our knowledge of human na- ture. Many dark periods of history have since been explored. Many hitherto unknown regions of the globe have been visited and described by travellers and navi- gators not less intelligent than intrepid. We may be said to stand at the confluence of the greatest number of streams of knowledge flowing from the most distant sources that ever met at one point. We arc not con- fined, as the learned of the last age generally were, to the history of those renowned nations who are our mas- ters in literature. 'VV'c can bring before us man in a lower and more abject condition than any in which he was ever before seen. Tlic records have been partly opened to us of those mighty empires of Asia* where ' 1 cannot prevail on myself to pass over this subject without paying my humble tribute to the memory of Sir W. Jones, who has laboured so successfully in Oriental litoiature, whose fine gnnius, pure taste, unwearied industry, unrivalled and almost pri digious va- riety of acquirements, not to speak of his amiable manners, and spot- less integrity, must fill every one who cultivates or admires letters B 25 26 ON THE STUDY OP THE LAW \:i> "\i 1 III! I the beginnings of civilization are lost in the darkness ot an unfathomable antiquity. "We can make human so- ciety pass in review before our mind, from the brutal and helpless barbarism of Terra del Fuego, and the mild and voluptuous savages of Otaheite, to the tame, but ancient and immoveable civilization of China, which bestows its own arts on every successive race of conquerors ; to the meek and servile natives of Hindostan, who preserve their ingenuity, their skill, and their science, through a long series of ages, under the yoke of foreign tyrants ; to the gross and incorrigible rudeness of the Ottomans, incapable of improvement, and extinguishing the remains of civilization among their unhappy subjects once the most ingenious nations of the earth. We can examine almost every imaginable variety in the character, man- ners, opinions, feelings, prejudices, and institutions of mankind, into which they can be thrown, either by the rudeness of barbarism, or by the capricious corruptions of refinement, or by those innumerable combinations of circumstances, which, both in these opposite conditions and in all the intermediate stages between them, influ- ence or direct the course of human aflfairs. 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 know- ledge, lawgivers and statesmen, but, above all, moralists with reverence, tinged with a melancholy which the recollection of his recent death is so well adapted to inspire. I hope I shall be pardoned if I add my applause to the genius and learning of Mr. Maurice, who treads in the steps of his illustrious friend, and who has bewailed his death in a strain of genuine and beautiful poetry, not unworthy of happier periods of our English literature. 20 OP NATURE AND NATIONS. 27 and political philosophers, may reap the most important instruction. They may plainly discover in all the use- ful and beautiful variety of governments and institutions, and under all the fantastic multitude of usages and rites which have prevailed among men, the same fundamen- tal, comprehensive truths, the sacred master-principles which are the guardians of human society, recognised and revered (with few and slight exceptions) by every nation upon earth, and uniformly taught (with still fewer exceptions) by a succession of wise men from the first dawn of speculation to the present moment. The excep- tions, 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 prin- ciples, and this endless variety in their application, which is one among many valuable truths which we may col- lect from our present extensive acquaintance with the history of man, is itself of vast importance. Much of the majesty and authority of virtue is derived from their consent, and almost the whole of practical wisdom is founded on their variety. What former age could have supplied facts for sucli a work as that of Montesquieu ? He indeed has been, perhaps justly, charged with abusing this advantage, by the'undistinguishing adoption of the narratives of tra- vellers of very different degrees of accuracy and veracity. 27 J 20 OM THE STUDY OF I'lIE LAW I - ii) J. II"' ;' i I, ,•■ li IIJ. I I '11 ' III i But if we reluctantly confess the justness of this objec- tion ; 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 lit- tle to time and circumstances, in the growth of political constitutions ; that the substantial character and essen- tial differences of governments are often lost and con- founded in his technical language and arrangement; that he often bends the free and irregular outline of nature to the imposing but fallacious geometrical regularity of sys- tem ; that he has chosen a style of affected abruptness, sententiousness, and vivacity, ill suited to the gravity of his subject : after all these concessions (for his fame is large enough to spare many concessions), the Spirit of Laws will still remain not only one of the most solid and durable monuments of the powers of the human mind, but a striking evidence of the inestimable advantages which political philosophy may receive from a wide sur- vey of all the various conditions of human society. In the present century a slow and silent, but very sub- stantial, mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations. Whoever will compare our presentmodesof warfare with the system of Grotius* will clearly discern the immense improvements which have taken place in that respect since tlie publica- tion of his work, during a period, perhaps in every point of view, the happiest to be found in the history of the * Especially those chapters of the third book, entitled, Tempera- mentum circa Captivos, &c. &c. 28 OF NATURE AND NATIONS. 20 world. In the same period many important points' of public law have been the subject of contest both by argu- ment and by arms, of which wo find either no mention, or very obscure traces, in the history of preceding times. There are other circumstances to which I allude with hesitation and reluctance, though it must be owned that they afford to a writer of this age some degree of unfortunate aud deplorable advantage over his prede- cessors. Recent events have accumulated more terribla practical instruction on every subject of politics than could have been in other times acquired by the experi- ence of ages. Men's wit sharpened by their passions has penetrated to the bottom of almost all political questions. Even the fundamental rules of morality themselves have, for the first time, unfortunately for mankind, become the subject of doubt and discussion. I shall consider it as my duty to abstain from all mention of these aw^ful events, and of these fatal controversies. But the mind of that man must indeed be incurious and indocile, who has either overlooked all these things, or reaped no instruction from the contemplation of them. From these reflections it appears, that, since tlie com- position of those two great works on the Law of Nature and Nations which continue to be the classical and standard works on that subject, we have gained both more convenient instruments of reasoning and more ex- tensive materials for science ; that the code of war has been enlarged and improved ; that new questions have been practically decided; and that new controversies have arisen regarding the intercourse of independent states, and the first principles of morality and civil government. 29 30 ON THE STUDY OP THE LAW 1,.;:^!! Some readers may, however, think that in these ob- servations which I offer, to excuse the presumption of my own attempt, I have omitted the mention of later writers, to whom some part of the remarks is not justly applicable. But, perhaps, further consideration will ac- quit 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 1 have made on Puffendorff as a book for general use, will surely apply with tenfold force. His abridger, Vattel, deserves, indeed, considerable praise. He is a very ingenious, clear, elegant, and useful writer. But he only consir.tj of good and evil, they had given, in my opinion, a great light to that which followed ; and especially 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 grati- fication of scientific curiosity, the welfare of mankind now imperiously demands. Shallow systems of metaphysics have givenbirth to a brood of abominable and pestilential paradoxes, which nothing but a more profound philoso- phy can destroy. However we may, perhaps, lament the necessity of discussions which may shake the habi- tual reverence of some men for those rules which it is the chief interest of all men to practise, we have now no 34 I i OP NATURE AND NATIONS. 15 choice left. We mu8t either dispute, or abandon Jic ground. Undistinguishing and unmerited invectives against philosophy will only harden sophists and their disciples in the insolent conceit, that they are in posses- sion of an undisputed superiority of reason ; and that their antagonists have no arms to employ against them, but those of popular declamation. Let us not for a mo- ment even appear to suppose, that philosophical truth and human happiness are so irreconcilably at variance. I cannot express my opinion on this subject so .well as in the words of a most valuable, though generally ne- glected writer : " The science of abstruse learning, when completely attained, is like Achilles's spear, that healed the wounds it had made before ; so this knowledge serves to repair the damage itself had occasioned, and this per- haps is all it is good for ; it casts no additional light upon the paths of life, but disperses the clouds with which it had overspread them before ; it advances not the travel- ler one step in his journey, but conducts him back again to the spot from whence he wandered. Thus the land of Philosophy consists partly of an open champaign country, passable by every common understanding, and partly of a range of woods, traversable only by the spe- culative, and where they too frequently delight to amuse themselves. Since then we shall be obliged to make in- cursions into this latter track, and shall probably find it a region of obscurity, danger, and difficulty, it behoves us to use our utmost endeavours for enlightening and smoothing the way before us."* We shall, however, re- * Search's Light of Nature, by Abraham Tucker, Esq. voU i. pref. p. xxxiii. 35 II':!, ( liii 3(i ON THE STUDY OF THE LAW main in tho forest only long enough to visit the fountains of th< >80 streams which flow from it, and which water and fertilise tho cultivated region of Morals, to become acquainted with the modes of warfare practised by its savage inhabitants, and to learn tho moans of guarding our fair and fruitful land against their desolating incur- sions. I shall hasten from speculations, to which I am naturally, perhaps, but too prone, and proceed to the more profitable consideration of our practical duty. II. The first and most simple part of ethics is that which regards the duties of private men towards each other, when they are considered apart from the sanction of positive laws. I say apart from that sanction, not antecedt nt to it ; for though we separate private from political duties for the sake of greater clearness and or- der in reasoning, yet we are not to be so deluded by this mere arrangement of convenience as to suppose that hu- man society ever has subsisted, or ever could subsist, without being protected by government and bound to- gether by laws. All thesu 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 thom who are not actuated by the wild ambition of equalling Aristotle in precision, or rivalling Cicero in eloquence. They have been also admirably treated by modem moralists, among whom it would be gross in- justice not to number many of the preachers of the Chris- tian 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, 36 OP NATURE AND NATIONS. ^7 fountains ch water o become cd by its guarding ng incur- lich I am d to the luty. s is that irds each t sanction tion, not ^ate from Is and or- ;d by this ) that hu- l subsist, ound to- •ivate life d by the choose to ambition Cicero in eated by jross in- le Chris- spirit of )f all our lat truth, losophy, reli^Mon, or other discipline, wl)icli did so pliiinly and highly exalt that good which is communicative, and de- press the good which is private and particular, as the Christian faith."* The appropriate praiye of this reli- gion is not so aiuch, 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 gene il survey, if some fundamental principles had not of late been brought into question, v/hich, iii all for- mer times, have been deemed too evident to require the support of argument, and almost too sacred to admit the liberty of discussion. I shall here endeavour to strength- en 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 re- lative duties of human life will be found more immedi- ately, or more remotely, to arise out of the two great institutions of property and marriage. They constitute, preserve, and improve society. Upon their gradual im- provement depends the progressive civilization of man- kind ; 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 strenjjthenino: and refiulatino: these institutions, and fencing them round with rigor- ous penal laws. Oppida cceperunt munire et poncre logos Ne quis fur esset, neu latro, neu quis adulter. 1 Scnn. Hi. 105. * Bacon, Dign. and Adv. of Learn, book ii. 37 ':!i il u i.i:,-!, ^iJi;'' 'ii' 38 ON THE STUDY OP THE LAW ij •iilj' A celebrated ancient orator, of whose poems we have but a few fragments remaining, has well described the progressive order in which human society is gradually led to its highest improvements under the guardianship of thoselaws which secure property andregulate marriage. £t leges sanctas docuit, et chara jugavit Corpora conjugiis ; et magnas condidit urbes. Fraff. C. Licin. Cahi. 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 disci- pline the most ungovernable, they refine the grossest, and they exalt the most sordid propensities ; so that they become the perpetual fountain of all that strengthens, and preserves, and adorns society ; they sustain the in- dividual, and they perpetuate the race. Around these institutions all our social duties will be found at various distances to range themselves ; some more near, obvious- ly essential to the good order of human life ; others more remote, and of which the necessity is not at first view so apparent ; and some so distant, that their importance has been sometimes doubted, though upon more mature consideration they will be found to be outposts and ad- vanced 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 order- ed as to make it a school of the kind affections, and a fit nursery for the commonwealth. The subject of property is of great extent. It vjill 1)8 necessary to establish the foundation of the rights of 38 OF NATURE AND NATIONS. nu acquialtion, alienation, and transmission, not iu imagin- ary contracts or a pretended state of nature, but in their subserviency to the subsistence and well-being of man- kind. 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 difilerent times received, to that compre- hensive, subtle, and anxiously minute code of property which is the last result of the most refined civilization. I shall observe the same order in considering the so- ciety of the sexes as it is regulated by the institution of marriage.* I shall endeavour to lay open those unal- terable principles of general interest on which that in- stitution rests : and if I entertain a hope that on this subject I may be able to add something to what our mas- ters in morality have taught us, I trust, that the reader will bear in mind, as an excuse for my presumption, that they were not likely to employ much argument where they did not foresee the possibility of doubt. I shall also consider the history f 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 clojely examined, may perhaps dispel the illusion of those gentlemen, who have so strangely take a it for granted, that Cicero was incapable of exact reasoning. •f This progress is traced with great accuracy in some beautiful lines of Lucretius: — Mulier conjuncta viro concessit in unum ; Castaque privatee Veneris connubia loeta Cognita sunt, prolemque ex se videre creatam : TUM GENUS HUMANUM PRIMUM MGI.LESCERE CCEPIT. puerique parentum Blanditiis facile ingenium fregere supcrbum. Tunc et amicitiam coeperunt Jungerc, habentes Finitima inter se, nee Isedere, nee violare ; 39 40 ON THE STUDY OF THE LAW I ):'' li !'.! :'■ I: fiii III •III all the forms which it has assumed, to that decent and happy permanency of union, which has, perhaps above all other causes, contributed to the quiet of society, and the refinement of manners in modern times. Among many otlier 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 l)rogress of that improvement ; beyond which every pre- tended advance will be a real degradation. III. Having established the principles of private duty, I shall proceed to consider man under the important re- lation 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 sup- posed 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 Rousseau; but on the solid basis of general convenience. 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 restraints which a just governmcrt imposes. This plain argument esta- Et pueros commendarunt, muliebreque sseclum ; Vocibus et geatu cum balbe significarent, Imbecillohum esse ^quuh misebier omnium. Lucret. lib. v. 1. 1010-22. OF NATUllE AND XATIONS. 41 cccnt and ips above ciety, and Among suggest, I le natural condition irope, and ed to the )very pre- t'ate duty, ortant re- words, of -rise from ipon sup- al, which they are serve no B founda- jibes, and olid basis thout so- lin social bout the njoy that which a ent esta- 0-22. blishcs the duty of obedience on the part of the 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 sufl&cient evidence, that these duties are reciprocal ; the only rational end for which the fic- tion of a contract should have been inverted. I shall not encumber my reasoning by any speculations on the origin of government; a question on which so much rea- son has been wasted in modem times ; but which the ancients* in a higher spirit of philosophy have never once mooted. If our principles be just, our origin of go- vernment must have been coeval with that of mankind ; and as no tribe has ever been discovered so brutish as to be without some government, and yet so enlightened as to establish a government by common consent, it is surely unnecessary to employ any serious argument in the confutation of the doctrine that is inconsistent with reason, and unsupported by experience. But though all inquiries into the origin of government be chimerical, yet the history of its progress is curious and useful. The va- rious stages through which it passed from savage inde- pendence, which implies every man's power of injuringhis neighbour, to legal liberty, which consists in every man's security against wrong ; the manner in which a family * 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 1 am ac- quainted. Having shewn the circumstances which render man ne- cessarily a social being, he justly concludes, *' Kai on avOputiroQ tpvan 'TToKiTiKov ^wov." — Arist. de Rep. lib. i. The same scheme of philosophy is admirably pursued in the short, l)ut invaluable fragment of the sixth book of Polybius, which de- iicribes the history and revolutions of government. 41 42 ON THE STUDY OP THE LAW il 'l:;i >;■ ■ t ;ii'i:. \'' I'' li lv>; 3 ^ lifi! m m expands 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 improvements of mankind in police, in judicature, and in legislation. I have already given the reader to understand that the description of liberty which seems to me the most compreh ensive, is th at of security against wrong. Liberty is therefore the object of all government. Men are more free under every government, even the most imperfect, than they would be if it were possible for them to exist without any government at all : they are more secure from wrong, laore undisturbed in the exercise of their na- tural powers^ and therefore more free, even in the most obvious and grossest sense of the word, than if they were altogether unprotected against injury from each other. But as general security is enjoyed in very different de- grees under different governments, those which guard it most perfectly, are by the way of eminence called free. Such governments attain most completely the end which is common to all government. A free constitution of government and a good constitution of government are therefore different expressions for the same idea. Another material distinction, however, soon presents itself. In most civilised states the subject is tolerably protected against gross injustice from his fellows by im- partial laws, which it is the manifest interest of the sovereign to enforce. But some commonwealths are so happy as to be founded on a principle of much more re- fined and provident wisdom. The subjects of such com- 42 m m ■ OF NATURE AND NATIONS. 43 i monwealths are guarded not only against the injustice of each other, but (as far as human prudence can contrive) against oppression from the magistrate. Such states, like all other extraordinary examples of public or private excellence and happiness, are thinly scattered over the different ages and countries of the world. In them the will of the sovereign is limited with so exact a measure, that his protecting authority is not weakened. Such a combination of skill and fortune is not often to be ex- pected, and indeed never can arise, but from the constant though gradual exertions of wisdom and virtue, to im- prove a long succession of most favourable circumstances. There is indeed scarce any society so wretched as to be destitute of some sort of weak provision agamst the injustice of their govennrs. Religious institutions, fa- vourite prejudices, national manners, have in different countries, with unequal degrees of force, checked or mi- tigated the exercise of supreme power. The privileges of a powerful nobility, of opulent mercantile communi- ties, of great judicial corporations, have in some mon- archies approached more near to a control on the sov- ereign. Means have been devised with more or less wis- dom to temper the despotism of an aristocracy over their subjects, and in democracies protect the minority against the majority, and the whole people against the tyranny of demagogues. But in these unmixed forms of govern- ment, as the right of legislation is vested in one indivi- dual or in on^i order, it is obvious that the legislative power may shake off all the restraints which the laws have imposed on it. All such governments, therefore, tend towards despotism, and the securities which they 43 k m 44 ON THE STUDY OF THE LAW admit against mis-government are extremely feeble and precarious. The best security which human wisdom can devise, seems to be the distribution of political author- ity among different individuals and bodies, with separ- ate interests, and separate characters, corresponding to the variety of classes of which civil society is composed, each interested to guard their own order from oppression by the rest ; each also interested to prevent any of the others from seizing on exclusive, and therefore despc .ic power; and all having a common interest to co-operate in carrying on the ordinary and necessary administra- tion of government. If there were not an interest to re- sist each other in extraordinary cases, there would not be liberty. If there were not an interest to co-operate in the ordinary course of affairs, there could be no go- vernment. The object of such wise institutions which make selfishness of governors a security against their in- justice, is to protect men against wrong both from their rulers and their fellows. Such governments are, with justice, peculiarly and emphatically called J^t^ee ; and in ascribing that liberty to the skilful combination of mu- tual dependence and mutual check, I feel my own con- viction greatly strengthened by calling to mind, that in this opinion I agree with all the wise men who have ever deeply considered the principles of politics ; with Aristotle and Polybius, with Cicero and Tacitus, with Bacon and Machiavel, with Montesquieu and Hume.* * To the weight of these great names let me add the opinion of two illustrious men of the present age, as both their opinions are combined by one of them in the following passages : " He (Mr Fox) always thought any of the simple unbalanced governnents bad ; sim- ple monarchy, simple aristocracy, simple democracy ; he held them 44 OP NATURE AND NATIONS. 4.5 feeble and isdom can il author- itli separ- onding to 3omposed, )ppression ny of the a despc .ic io-operat« iministra- rest to re- vould not o-operate ie no go- ing which ; their in- rom their are, with • ; and in •n of mil- own con- 1, that in dio have cs; with tus, with Hume.* opinion of )inions are 5 (Mr Fox) I bad ; sim- held them i It is impossible in such a cursory sketch as the present, even to allude to a very small part of those philo8oi)hi- cal principles, political reasonings, and historical facts, which arc necessary for the illustration of this momentous subject. In a full discussion of it I shall be obliged to examine the general frame of the most celebrated govern- ments 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 insti- tution so detestable as an absolutely unbalanced govern- ment, perhaps ever existed ; that the simple governments are mere creatures of the imagination of theorists, who have transformed names used for convenience of arrange- ment into real politics ; that, as constitutions of govern- ment approach more nearly to that unmixed and uncon- trolled simr»licity they become despotic, and as they re- cede farther from that simplicity they become free. By the constitution of a state, I mean " the bodt/ of those written and unwritten fundamental laws which rc' gulate the most important rights of the higher magistrates^ 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 Esti' mates, 9th Feb. 1790. In speaking of both theSe illustrious men, whose names I here join, as they will be joined in fame by posterity, which will forget their temporary differences in the recollection of their genius and their friendship, I do not entertain the vain imagination that I can add to their glory by any thing that I can say. But it is a gratification to me to give utterance to my feelings ; to express the profound venera- tion with which I am filled for ^he memory of the one, and the warm affection which I cherish for the other, who no one ever heard in public without admiration, or knew in private life without loving. 45 40 ON tHE STUDY Of THE LAW m I ;J:i lv:i unci the most essential prii'ileges* of the subjects'* Siicli a body of political laws must in all countries arise out of the character and situation of a people ; they must grow with its progress, be adapted to its peculiarities, change with its changes, and be incorporated with its habits. Human wisdom cannot form such a constitution by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineflFcctual, to change by violence the ancient habits of men, and the established order of society, so as to fit them for an ab- solutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee ; generally, indeed, to institu- tions the most opposite to those of which they profess to seek the establishment.f But human wisdom indefa- tigably employed for remedying abuses, and in seizing favourable opportunities of improving that order of so- ciety which arises from causes over which we have little control, after the reforms and amendments of a series of * Privilege, in Roman jurisprudence, means the exemption of one individual from the operation of a law. Political privileges, in the sense in which I employ the terms, mean those rights of the subjects of a free state, which are deemed so essential to the well-being of the commonwealth, that they are excepted from the ordinary discre- tion of the magistrate, and guarded by the same fundamental la\V6 which secure his aulhority. t See an admirable passage on this subject in Dr. Smith's Theory •of Moral Sentiments, vol. ii. pp. 101-112, in which the true doc- trine of reformation is laid down with singular ability by that elo- quent and philosophical writer — See also Rlr. Burke's Speech on Economical Reform ; and Sir M. Hale on the Amendment of Laws, in the collection of my learned and most excellent friend, Mr, Har- grave, p. 248. 46 OP NATURE AND NATIONS. 47 age8, has sometimes though very rarely,* shewn itself capable of building up a free constitution, which is " the growth of time and nature, rather than the work of hu- man invention ." Such a constitution can only be formed by the wise imitation of *' the great innovator Time, which, indeed, innova»V OF THK LAW ■ '". •!.' was utterly inapplicublo to human afFiiirs. Tlio tlirorisf railed at the folly of the world, iustcad of confessing iiin own; and the ni»ni of practice unjustly blamed philo- sophy, instead of condemning the sophist. The causes which the politician has to consider arc, above all others, multiplied, mutable, minute, subtile, and, if I may so speak, evanescent; perpetually changini^ their form, and varying their combinations ; losing their nature, wliile they keep their name; exhibiting the most different con- sequences in the endless variety of men and nations on whom they operate; in one degree of strength producing the most signal benefit; and, under a slight variation of circumstances, the most tremendous mischiefs. They admit indeed of being reduced to theory; but to a theory formed on the most extensive views, of the most com- prehensive and flexible principles, to embrace all their varieties, and to fit all their rapid transmigrations ; a thfjtyy of which the most fundamental maxim is, distrust in itself, and deferencr; for practical prudence. Only two writers of former times ha < o, 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 pas- sage of his Politics, to which I cannot at this moment turn, plainly condemns the pursuit of a delusive geome- trical 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 belong-s to him, and with that power of richly adorning truth from the wardrobe of genius which he possessed above almost all men, " Civil knowledge is conversant 50 OP NATrnr and nations. 51 ic tlicon'sf jcd pliilo- hc causrs all utheri<, [ may so form, and iro, while LTcnt con- ations on producing iriation of 'a. They ) a theory io»t com- all their ations; a 3, distrust Only two observed heae two peared in in a pas- moment e geome- ^nt source con, who m which adorning possessed mversant about a subject which, above all others, is most immers.('»l in matter, and hardliest reduced to axiom."* IV. I shall next endeavour to lay open the general principles of civil and criminnl laws On thin subject I may with some confidence hope that I shall bo enabled to philosophize with better materials by my acquain- tance 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 arc simjdc maxims of reason, of which the observance is immediately dis- covered by experience to be essential to the security of men's rights, and which pervade the laws of all countries. An account of the gradual application of these original ])rinciples, first to more simple, and afterwards to more complicated cases, forms both the history and the theory of law. Such an historical account of the progress of men, in reducing justice to an applicable and practical system, will enable us to trace that chain, in which so many breaks and interruptions arc perceived by superfi- <'ial observers, but which in truth inseparably, though with many dark and hivlden windings, links together the security of life and property with the most minute * This principle is expressed by a writer of a very different charac- ter from these two great philosophers; a writer, " qu'on n'appel- Itra plus philosophe, mats qiion appellera le plus eloquent des aophistes," with great force, and, as his manner is, with some o\agge ration. II n'y a point de principes abstraits dans la politique. C'est une i^cicnce des calculf, des combinaisons, et des exceptions, selon Ics lieus, les terns, et les circonstanues. — Lettre de Rousseau au Mar- ijvie de Mirnbeau, The second propoiition is true ; but tho first is not a jutit infer- encB from it. 51 .'52 ON THE STUDY OF THE LAW I -H I* 11 !;.|l and apparently frivolous formalities of Ifjgal proceeding". We shall perceive that no human foresight is sufficient to establish such a system at once, and that, if it were so established, the occurrence of unforeseen cases would shortly altogether change it ; that there is but one way of forming a civil code, either consistent with common sense, or that has ever been practised in any country^ namely, that of gradually building up the law in pro- portion as the facts arise which it is to regulate. We shall learn to appreciate the merit of vulgar objections against the subtlety and complexity of laws. We shall estimate the good sense and the gratitude of those who reproach lawyers for employing all the powers of their mind to discover subtle distinctions for the prevention of injustice :* and we shall at once perceive that laws ought to be neither more simple nor more complex than the state of society which they are to govern, but that they ought exactly to correspond to it. Of the two faults, however, the excess of simplicity would certainly be the greatest; for laws, more complex than are necessary, would only produce embarrassment; whereas laws more simple than the affairs which they regulate would occa- sion a defect of justice. More understandingf has per- haps been in this manner exerted to fix the rules of life * The easuistical subtleties are not perhaps greater than the sub- tleties of lawyers ; but the latter are innocent, and even neceaeart/. — Hume's Essays, vol. ii. p. 558. f " Law," said Dr. Johnson, " is the science in which the great- est powers of understanding are applied to the greatest number of facts." Nobody, who is acquainted with the variety and multiplici- ty of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of thi«> observation. 1*2 I 1 1 I :|l|l OF NATURE AND NATIONS. £3 occedin^, suiiicient it were so es would one way common country, T in pro- ite. We bjections We shall' dose who of their revention hat laws \ilex than but that (vo faults, ;ainly be ecessary, kws more aid occa- has per- es of life in the sub< neceasary. the great- number of muUipliui- IU9 powers ith of thii> than in any other science ; and it is certainly the mo^t honourable occupation of the understanding, because it is the most immediately subservient to general safety and comfort. There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence ; wliere we may contemplate the cautious and' unwearied oxertionsof 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 in- flexible rules ; extending the dominion of justice and rea- son, and gradually contractiiig, within the narrowest pos- sible 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 elo- quence, but who is, if possible, still more admired by all competent judges for his philosophy ; a writer, of whom I may justly say, that he was "gravissimus et dicendi et intelligendi auctor et magister ;" that I cannot refuse myself the gratification of quoting his words : — " Ths; science of jurisprudence, the pride of the human intellect, which, with all its defects, redundaiicies, and errors, is the collected reason of ages combining the principles of origi- nal justice with the infinite variety of human concerns.' * I shall exemplify the progress of law, and illustratt' those principles of universal justice on which it is found- ed, by a comparative review of the two greatest civil codes that have been hitherto formed — those of Rome and of England 't of their agreements and disagree- • Burke's Works, vol. iii. p. 134. \ On the intimate connection of these two codes, let us hear the 6i ON t::e STi dy ok the law 111 1 .11 ir.ents, both in general provisions, and in some of tlie most important parts of their minute practice. In this })art of the course, which I mean to pursue with such detail as to give a view of both codes, that may perhaps bo sufficient for the purposes of the general student, I hope to convince him that the laws of civilized 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, thongii not so apparently, as in other sciences, and ap- |li 'd to purposes more important than in any other sci- ence. Will it be piesumptuous to express a hope, that such an inquiry may not bo altogether an useless intro- duction to that larger and more detailed study of the law of England, which is the duty of those who are to pro- fess and practise that law? In considering the important subject of criminal law it will be my duty to found, on a regard to the general safety, the right of the magistrate to inflict punishments, even the most severe, if that safety cannot be effectually protected by the example of inferior punishments. It will be a more agreeable part of my office to explain the temperaments which AVisdom, as well as Humanity, pre- scribes in the e.Korciric of that harsh right, unfortunately so essential to the preservation of human society. I ri 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 Iuks of all nations are doubtless raised out vf the ruins of the civil law, as all governments are sprung out of the ruins of the Roman empire, it must be owned that the principles tem run as really, and ap- >ther sci- )pe, that ss intro- ■ the law ' to pro- inal law general hments, pctuallv its. It lain the ty, prc- unately ety. I without ng men : erf out if It of the ciples of eil upon shall collate the penal codes of ditforcnt nations, and ga- ther 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 pro- portion and the appropriation of penalties to crimes. As to the law of criminal proceedings 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 insti- tutions of his own country. The whole subject of my lectures, of which I have now given the outline, may be summed up in the words of Cicero : — " Natura enim juris explicanda est nobis, eaque ab hominis repetenda natura ; considerandae leges quibus civitates regi de- bcant ; turn haec tractanda quae composita sunt et des- C! . V jura et jussa populorum ; in quibus ne nostri tl ..LM POPULI LATEBUNT QU^ VOCANTUR JURA CIVI- LTA." — 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 al- ready hinted at the general principles on which this law is founded. They, like all the principles of natural ju- risprudence, have been more happily cultivated, and more generally obeyed, in some ages and countries than in others ; and, like them, are susceptible of great vari- ety in their application, from the character and usages of nations. I shall consider these principles in the gra- dation of those which are necessary to any tolerable in- tercourse between nations ; those which are essential to all well-regulated and mutually advantageous inter- 55 I I l^\ ■\ liJ^M- 56 ON THE STUDY 01'' THE LAW course ; and those which are highly conducive to the preservation of a mild and friendly intercourse between civilized states. Of the first class, every understanding acknowledges the necessity, and some traces of a faint reverence for them are discovered even among the most barbarous tribes; of the second, every well-infOrmed man perceives the important use, and they have gener- ; i y been respected by all polished natiors ; of the third, the great benefit may be read in the history of modem Europe, where alone they have been carried to their full perfection. In unfolding the first and second class of principles, I shall naturally be led to give an account of that law of nations, which, in greater or less perfection, regulated the intercourse of savages, of the Asiatic em- pires, and of the ancient republics. The third brings me to the consideration of the law of nations, as it is now acknowledged in Christendom. From the great extent of the subject, and the particularity to which, for reasons Jilready given, I must here descend, it is impos- sible for me, within my moderate compass, to give even an outline of this part of the course. It comprehends, as every reader will perceive, the principles of national independence, the intercourse of nations in peace, tie privileges of embassadors and inferior ministers, the com- merce of private subjects, the grounds of just war, the mutual duties of belligerent and neutral powers, the li- mits of lawful hostility, the rights of conquest, the faith to be observed in warfare, the force of an armistice, of safe conducts and passports, the nature and obligation of alliances, the means of negotiation, and the authority and interpretation of treaties of peace. All these, and 5f) I OF NATTRE AND NATIONS. 57 T to the between rstanding [)f a faint the most •infonned ve gener- the third, f modem 1 their full I class of account of )crfection, sialic em- rd brings 3, as it is the great which, for is impos- give even prebends, ' national leace, tie , the com- ; war, the rs, the li- , the faith nistice, of obligation authority hcsc, and many other most important and complicated subjects, with all the variety of moral reasoning, and historical examples which is necessary to illustrate them, must be fully examined in this part of the lectures, in which I shall endeavour to put together a tolerably complete practical system of the law of nations, as it has for the last two centuries been recognised in Europe. " Le droit des gens est naturellement fonde sur ce principe, que les diverses nations doivcnt se faire, dana la paix, le plus de bien, et dansla guerre le moins de mal, qu'il est possible, sans nuire 5. leurs veritables interets. " L'objet de la guerre c'est la victoire ; cek i de la victoire la conquete ; celui de la conquete la conserva- tion. De ce principe et du precedent, doiveut deriver toutes les loix qui forment le droit des gens. " Toutes les nations ont un droit des gens ; les Iro- quois meme, qui maugent leurs prisonniers, en ont un. lis envoient et resolvent 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 VEsprit des Loix^ liv. i. c. 3. VI. As an important supplement to the practical system of our modem law of nations, or rather as a ne- cessary part of it, I shall conclude with a survey of the diplomatic and conventional law of Europe ; of the trea- ties which have materially aiTectcd the distribution of power and territory among the European states; the circumstances which gave rise to them, the changes which they eflfocted, and the principles which they in- troduced into the public code of the Christian common- wealth. In ancient times the knowledge of this con- 5.7 \ .-, n 5R ON TnE STUDY OP THE LAW ventional law was thought one of the greatest praises that could be bestowed on u name loaded with all the honours that eminence in the arts of peace and war can confer : " Equidem existimo, judices, cum in omni genere ac varletate artium, etiam illarum, qua9 sine sumn.^ otio non facile discuntur, Cn. Pompeivis excellat, singularem quandam laudem ejus et praestabilem esse scientiam, in Jadyi " '<*, pactionibus, condilionibus, populorum, regum, exte \im nationum : in universo denique belli jure ac pacis." — Cic. Ot^at. pro L. Corn. Balbo^ c. 6. Information on this subject is scattered over an im- mense variety of voluminous compilations ; not accessi ble to every one, and of which the perusal can be agree- able 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 negotia- tors and statesmen ; it may sometimes be important to private men in various situations in which they may be placed ; it is useful to all men who wish either to be ac- quainted with modern history, or to form a sound judg- ment on political measures. I shall endeavour to give such an abstract of it as may be sufficient for some, r^nd a convenient guide for others in the farther progress of their studies. The treaties which I shall more particu- larly consider, will be those of Westphalia, of Oliva, of the Pyrenees, of Breda, of Nimeguen, of Ryswick, of Utrecht, of Aix-la-Chapelle, of Paris (1763), and of Versailles (1783). I shall shortly explain the other trea- ties, of which the stipulations are either alluded to, con- firmed, or abrogated in those which I consider at length, 58 OF NATURE AND NATIONS. 59 praises that the honours in confer : genere ac amn.^ otio singularem ientiam, in im, regum, belli jure C.6. vQt an im- lot accessi n be agree- so treaties liirope, that inted with to negotia- iportant to ley may be 3r to be ac- jimd judg- mr to give some, and progress of re particu- f Oliva, of yswick, of 3), and of other trca- ed to, coii- r at length. I shall subjoin an account of the diplomatic intercourse of the European powers with the Ottoman Porte, and with other princes and states who are without the pale of our ordinary federal law ; together with a view of the most important treaties of commerce, their principles, and their consequences. As an useful appendix to a practical treatise on the law of nations, some account will be given of those tribunals which in different countries of Europe decide controver- sies arising out of that law ; of their constitution, of the ex- tent of their authority, and of their modes of proceeding ; more especially of those courts which are peculiarly ap- pointed for that purpose by the laws of Great Britain. Though the course, of which I have sketched the out- line, may seem to comprehend so great a variety of mis- cellaneous subjects, yet they are all in truth closely and inseparably interwoven. The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, aro ail parts of one consistent system of universal morality. Between the most abstract and elementary ma' am of moral philosophy, and the most complicated controver- sies of civil or public law, there subsists a connexion which it will be the main object of these lectures to trace. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is dis- coverable in every part of ii, even to its minuiest rami- fication in a legal formality, or in the construction of an article in a treaty. I know not whether a philosopher ought to confess, that in his inquiries after truth he is biassed by any con- sideration ; even by the love of virtue. But T-. who con- 59 60 o iiii; srrDY of tum law, ..^c. iV ceive that a real i)hilos()i)her 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 jus- tice is the permanent interest of all men, and of all com- monwealths. To disc( ver one new link of that eternal chain by which the Author of the universe has bound together the happiness and the duty of his creatures, and indissolubly fastened their interests to each other, would fill my heart with more pleasure than all the fame with which the most ingenious paradox ever crowned the most eloquent sophist. I shall conclude this Discourse in the i. )ble language of two great orators and philosophers, who hrve, in a few words, stated the substance, the object, and the re- sult of all morality, and politics, and law. " Nihil est quod adhuc de republica putem dictum, et quo possim longius progredi, nisi sit confirmaturo, non modo falsum esse illud, sine' injuria non posse, sed hoc verissimum, sine summa justitia rempublicam geri nullo modo posse." — Cic. Frag. lib. ii. de Repuh. " Justice is itself the great standing policy of civil so- ciety, and any eminent departure from it, under any cir- cumstances, lies under the suspicion of being no policy at all." — Burke's Works, vol. iii. p. 207. FI.NTS. CO I itself piness Jl feel tures, >f tlie . have it jus- i coin- ternal bound turcs, other, ) fame 2d the o'uage , m a he re- ctum, atum, e, sed 1 geri vi\ so- ly cir- policy OLD ELSI'ETII S LAMENT. 157 ii' O what is this wearisome world, Wlieii a' the beloved anes are gane, And why should a feckless auld woman, Be left broken-hearted her lane ; I'm like yon old tree in the hollow, Whase sprouts are a' withered awa, And naked it s'ands to the tempest, And lang ere the simmer maun fa'. ^ : I e, ** I £oarce kent that I was a widow. While ilk little bairn was my pride, But noo they're a' gane to their father, And a' sleepin' soun by his side ; And aft through the watches o' .midnight, Ere sleep has crept owre mine e'e, He comes wi' his looks o' aifection, And leads ilka bairn to my knee ; And while I look in their faces, I ken I lat my sorrow is vain, And its but a wee while I maun tarry, Till we're a' reunited again. " Then farewell my faithfu' auld Crummie, And oh it is part o' my pain, .. 1 158 MISCELLANEOUS POEMS. Ml II it, i: if To keu that we've [)artcd forever, And ne'er can meet ither again, Was't only for me my puir Crummie, Was sent as a comforter here ; Micht there no be some green spot or ither, Whanr she may again reappear. - Ah no, the fond wish o' my bosom, I ken is bnt fooUsh and vain. For oh we hae parted forever, And ne'er can meet ither again." SONG. 159 SONG. Written for the Scottish Gathering, in the Crystal Palace grounds, Toronto, lith September, 1869, My heart leaps up wi' joy to see Sae mony Scotchmen here. Sae I maun sing about the laun, The laun we lo'e sae dear ; We a' hae climbed her lieathy hil's, And pu'd the gowden broom, And wandered through her boimie glens, Wi' gowans a' in bloom. But oh we ne'er again shall see Her burnies wimplin by, Nor hear the blackbird on the tree, Nor laverock in the o^.y ; But tho' we've left the hame o* youth, And wandered fur and wide. In every lake and stream we hear The murmurs of the Clyde. ^lii 160 MISCELLANEOUS POKMS. Oh when I left the mountains a', That was a waefu' scene, I didna greet, but oh I drew The bonnet owre my e'en ; Benlomond seemed to liide liis head, Afar within the blue, And Leven with her hundred isles, - Was murmuring adieu. I ill We love auld Scotia's hills and dells. And vet fu' weel 1 ken, We love them mair that they're the hames O' simple honest men ; Wi' hearts as true as them wha died, Upon the bluidy sod, Ere they would let their freedom go, Or chanaio their faith in God. And should the sloekv Loon o' France, His faith wi' Britain break, We'll help to put the Lion's foot, A nee mair upon his neck ; A Highland host in Canada Will don the kilt again, SONG. 161 And rush their native land to tree, Like thunder o'er the main. And brither Scots owre a' the earth, Will stretch a haun to save, They're no the chiels wad sit and see Their mother made a slave ; The spirit of the covenant, Wi' every Scot remains, The blood o' Wallace and o' Bruce Is leaping in our veins. i 1 i Then still the rightfu' cause maintain, And whate'er ye do, Be faithfu' still to kirk and Queen, And to yoursels be true ; And still where honour points the way, O never lag behin", Tho' it should be tor naething but The credit o' your kin. I iM l«! 162 MISCELLANEOUS POKMS. I :\' m SIR COLIN ; OR, THE HIGHLANDERS AT BALAKLAVA. The Serf's of the Czar know not pity nor mercy, And many a turban is rolled on the plain, Like dust the poor sons of the prophet are trampled, And Alia il Alia, they'll shout not again. Sir Colin, Sir Colin ! why stand you thus idle. Yon dark mounted masses shall trample thee o'er, Sir Colin ! Sir Colin ! thy moments are numbered, The hills of Glenorchy shall know thee no more. Why wake not the pibroch thy fathers have sounded, Which roused up the clansmen in battles of yore, Till downward they swept like the tempests of Avin, Or demons all dashing with dirk and claymore. s- IF' i Thy band shall be hacked like the stripes of the tar- tan, M' Donald, M'Dermid, to glory adieu, SIR COLIN. 163 Gregalich, Gregalich, the shade of thy hero, May bhish for his sons by his own Avon Dhu. Hush, hark! 'tis the pipes playing HoUen M'Garadh, The spirit of Fingal at last has awoke, But motionless all as the giuiu Oaig Ailsa, When foam-crested billows rush 05 to the shock. The Muscovite horsemen roll nearer and nearer, Now slacken a moment, now sweep to the shock, One terrible flash, 'tis the lightning of Albin, One peal and the tartans are hid in the smoke. Now sons of the mountain the shades of your fathers, Are looking down on you from yon cloud of blue, Be your souh as firm as the rocks of Craigryston, Your swoop 1/.^ the eagle's of dark Benvenue. lil; i i t It is not the deer ye have met on the heather, That is not thine own Corybrechtain's loud roar, Triumphant emerge from that dark cloud of thunder, Or die and behold the red heather no more. ] i; If t Pit i 164 MISCELLANEOUS POEMS. iii The cloud clears away, 'tis the horsemen are flymg — All scattered like chaff by the might of the Gael, One long yell of trium[)h vvliile bonnets are waving, And Scotland forever, resounds through the dale. JONNY KEEPS THE KEY O T. 165 lUg— jrael, ale. JONNY KEEPS THE KEY O'T. My heart is look'd against the lads, 'Tis little they can see o't, They needna try to press its springs, For Jonny keeps the key o't. . i ! 'l Auld Aunty says I scorn them a', And that I shoudna do it, For lang ere I'm as auld as her, That I may sairly rue it. She says I'm but a pride fu' quean, Or heart I've nane to gie o't. But little, little does she ken That Jonny keeps the key o't. %i 4< t ! For scorn I'm surely no to blame. There's nane o' them will dee o't. For oh mv heart is no mine ain. For Jonny keeps the key o't. ^ !i 166 MISCELLANEOUS POEMS. MARY WHITE. D' ye Diind o' tlie laug simnier days, Ma';^'' White ? When we gaed to t lie Alpatrick braoy, Mary White ? - When I pu'd the wild gowans^ And wi' n delighi;, ^ 1 !mng them in strings roun' 'I'hy neck, Mary White ? D' ye -ihiad o' the sang ye wad raise, Mary White ? The sang o' sweet Ballenden braes, Mary White ? It coudna be love, but A nameless delight, Which thrilled through my bosom, My dear Mary AVhite ! that was a sweet happy time, Mary White ! I've ne'er had sic moments since syne, Mary White ! When we look'd at ilk ifcher, And laughed wi' delight ; Yet hardly ken't what for, My dear Mary White ! MARY WHITE. 167 hite ? Vhite ? lite? te? We were young, we were happy indeed, Mary White, Noo care's strewn gray hairs on my head, Mary White. My hopes hae a' withered Wi* sorrowfu' blight ; But still ye are green in This heart, Mary White ! And oh ! do ye e'er think on me. Mary White ? Oh ! then does the tear blin' your e'e, Mary White ? Or hae ye lang wak'd frae That spell o' delight, And left me still dreaming, My dear Mary White ? {■: hite ! 'Tis often I think upon thee, Mary White ; For still thou art dear unto me, Mary White ; For a' that this h-^art has E'er keu't o' delight. Was nocht to the moments Wi' thee, Mary White ! D' ye 'mang the living still bide, Mary White ? Or hae ye cross'd owre the dark tide, Mary White ? m t\i8 . >''■■ iv: ii 168 MISCELLANEOUS POEMS. Oh ! how this auld heart wad Yet leap wi' delight, Could I again aee thee, My dear Mary White ! i^^H i' v^H Hj^j ' tfr' ■*'" m' ^' life*' i {|: WEE JEANIE S LAMENT. 169 < i WEE JEANIE'S LAMENT. My mother sits and sighs, And my father hangs his head, And he canna speak for sighs, For our wee Johnny's dead. They wrapt him in a shroud, That was whiter than the snaw. And there cam a dolefu' crowd And they carried him awa ! And they laid him down to sleep Where the willow-tree does wave And 1 often gang and weep At our wee Johnny's grave. The licht o' joy is gane, And there's sorrow in its stead : Oh ! the world is fu' o' pain, For our wee Johnny's dead ! ' II Vi. i h f:' ' ■s" ■ 1 170 MISCELLANKOUS I'OEMS 1 1,] '■ ' t; .■ ■ I ii'i; ilr I IE ROB':! All hail to the chiefs of thought, Who vviekl the mighty pen ! That lij'ht may at last be brought To the darken'd souls of men. To the gifted seers who preach — To the humble bards who sing ; To all the heads that teach In truth's enchanted ring ; To the soldiers of the right — To the heroes of the true ; Oh ! ours were a sorry plight, Great conquerors, but for you ! ye are the men of worth ! O ye are the men of might ! ye are the kings of earth, And your swords are love and right 'Tis not at the beat of drum, Earth's great ones do appear ; HEROES. 171 At the nation's call tliev conu', But not with the sword and spear. Then hail to the brave who lead In tlie humble paths ot* peace ! To the hearts that toil and bleed, That wrong may the sooner cease ! Oh ! what are the robes we wear, Or the heights to which we climb ! 'Tis only the hearts wo bear Can make our lives sublime. 'Tis only the wood we do, That lives throughout all time ; 'Tis only the faithful tew "Who reach the height sublime. ■ I III I Ik Then hail to the chiefs of thought, Who wield the mighty pen ! That liglit may at last be brought To the darken' d souls of men ! To the soldiers of the right — To the heroes of the true ; Oh ! ours were a sorry plight, Great conquerors, but for you ! m ^ I . }] 172 MISCELLANEOUS POEMS. \l TO THE MEMORY OF BURNS. (Written for the Centenary.) ALUhail! prince and peasant, the hour that gave birth To the heart whose wild beatings resound through the earth ; Whose sympathies nations nor creeds could not bind, But gushed out in torrents of love to mankind. Let the poor and the lowly look up and rejoice ; The dumb and down-trodden find in thee a voice ; The high and the lordly, in palace and hall, — Por thou wert the playmate and brother of all ! The old hoary mountain, the streamlet, and tree, And all the dumb natures are kindred to thee ; The wee courin' beastie, the poor ourie kine, Are all fellow-mortals — all brothers of thine. Earth's proudest shall perish and sink to the tomb, But thy wee modest flower shall immortally bloom j TO THK MKMORY OI H! RNS. 173 And the poor couria' beaatie, exposed to the blast, Shall plead for the human wliile tnercy will last. Thou brother of sorrow, of doubts, and of fears — Of mirth and of madneas — oi smiles and of tears ; "With large drops of pity, which fall witliout art — And great gusts of laughter which ring through the heart. Still laden with rapture the moments do ilee, And still " Souter Jolmuy " is roaring with glee; And still on " Mare Maggie " bold Tarn is astride — He'll never dismount from that terrible ride ! M M 4 I I \ I f ..I ; ( ill And well may old Scotland bo proiid of thy name, And long may she think of thy hovel with shame : Earth welcomes her great ones witii coldness and scorn — What stripes and afflictions her giancs have borne ! • ! Dead heroes, in marble, from memory fade, But warm hearts will weep where thine ashes are laid » And earth's proudest priesthood like shadows flit by — But thou'rt of the Priesthood that never can die ! 174 MISCELLANEOUS POEM^?. TO THE MOON. 'Tis a lovely eve, and the Lady Mood Is out in her lake of blue, With its little isles of light and gloom, Where the stars are wandering through. And bhe sheds her smile like a veil of dreams, Athwart tlie earth and sky ; With its mazy deeps and its golden gleams, And its streaks of nameless dye. iVtt J Away she sails 'mong the amber isles, In her lovely lake of blue ; And the glorious golden-tinted piles. Are slowly heaving through. And the foam-bells follow, pure and bright, In her ethereal track, As she sails away 'mong the hills of light, While the stars are trembling back. TO THE MOON. 175 She follows on, by a glory led, With a heavenly cahn impressed ; For she bears tlie souls of the happy dead, To the Islands of the Blest. ti i..'- 1 < I i\ ms, f-' ii (I 1/6 MISCELLANEOUS POEMS. i WHAT POOR LITTLE FELLOWS ARE WE! ^ What poor little fellows are we ! Tho' we manage to make a great show : Oh ! Death has a claim on us all, And the king and the beggar must go. How vain the distinctions we make ! Neither wisdom nor wealth can us save ; And the prince and the peasant alike Are journeying on to the grave ! Then why should we list'jri-to aught Whicli pride or which vanity saith / We're all on the current of time, And bound for the narrows of death. The shafts of misfortune and fate, Know neither the high nor the low ; We're brothers to sorrow alike — And the king and the beggar must go. LIFE S ENIGMA. 177 WE! LIFE'S ENIGMA. An infinite dome, O'er a world of wonder ; An eye looking down On the poor dreamer under. An ocean of wrecks. And beyond it our home ; Each wave as it breaks Leaves us whiter with foam. A marriage to-day And a funeral to :r orrow ; A short smile of joy And a long sigh of sorrow. A birth and a death. With a flutter between ; All fleeting as breath — Tell me, what does it mean ? 178 MISCELLANEOUS POEMS. WHERE'ER WE MAY WANDER. Where'er we may v^ander, What'er be our lot, The heart's first affections, Still cling to the spot, Where first a fond mother. With rapture has prest. Or sung us to slumber, In peace on her breast. Where lo\e first allured us. And fondly we hung, On the magical music. Which fell from her tongue, Tho' wise ones may tell us, 'Twas foolish and vain. Yet when shall we drink of Such glory again. O fortune, thy favours Are empt}' and vain, Restore me the "riends of My boyhood again, The hearts that are scattered, Or cold in the tomb, WHERE ER WE MAY WANDER. Where hope first beguiled us, And spells o'er us cast, And told us her visions, Of beauty would last. That earth was an Eden, Untainted with guile. And men were not destined To sorrow and toil. 179 11 Where friendship first found us, And gave us her hand, And linked us for aye, to That beautiful band. Oh still shall this heart be. And cold a:> the clav, Ere one of cheir feftuves, Shall from it decay. ii w 1 ■ 180 • MISCELLANEOUS POEMS. give me again, in Their beauty and bloom. Tho' green are my laurels, And fresh is my fame, And sweet is the magic, 1:1^ •^ Which dwells in a name. •t: '< iv ~- « . W m p'ii' i iji' f How gladly I'd give them, To grasp but the hand, Of her that's away to The shadowy land. Away with ambition, It brought me hut pain, give me the big heart Of boyhood again ; The faith and the friendship, The rapture of yore, O shall they revisit. This bosom no more. I '-i^ MY LOVE IS LIKE THE LILY FLOWER. 181 MY LOVE IS LIKE THE LILY FLOWER. My love is like the lily flower, That hlooms upon the lee, I wadna gie ae blink o' her. For a' the maids I see. Her voice is like the bonnie bird's, That warble 'mang the bowers, Her breath is like the hswthoru when It's wat wi' morning showers. And frae the gowans o' the glen, fc'he's caught her modest grace, And a* the blushes o' the rose, Hae lept into her face. H She bears about I kenna hoo, The joy o' simmer days, The voice of streams and happy dreams, Amang the broomy braes. 182 MISCELLANEOUS POEMS. And when the bonnie lassie smiles Sae sweetly upon me, Nae human tongue can ever tell, The heaven that's in her e'e. And a' the lee lang simmer day, I'm in a dream divine. And aye I wauken but to wish, O were the lassie mine. 'Hm THE FIRST SORROW. 183 i 1 I: i r r THE FIRST SORROW. It is the merry month of June, The flowers are fresh and fair, The birds are warbling 'mong the boughs, No sorrow any where. . ( • :], The streams are singing as they leap. So merrily along, The trees are bending on the brink, And listening to the song. ■■ I The apple orchard's all in bloom, The bee is humming by. There's gladness in the gay green earth, And rapture in the sky. ;•>. U The schoolboys in the leafy woods. Are busy at their play. And merrily they shout, for life Is all a holiday. I 1 1 184 MISCELLANEOUS FUEM8. But see a narrow grave is dug, Beurath the apple tree, And little Johnny's sitting there, Dead Towser on his knee. I ; And tears are streaming from his eyes, A sorry child I ween, For with him Towser never more, Shall gambol on the green. And sadly he looks on its face, For all their joy is o'er, They'll hunt the squirrel in the woods, And tree the coou no more. Hs He wonders how the birds can sing, And he so full of care, And how the children laugh and shout, And Towser lying there, And now he stands and talkiS to it, And pats it on tiie neck, And then he sits him down and cries, As if his heart would break. TlIK FIRST SOU ROW. 185 And now he tries to nnderHtand, How life hangs on a breatli, And vainly strives to comprehend, This awfnl thinj;^ called death. iv, And now he lays it c Within the nam And covers it, and g The turf upon its head. )0th8 'I And long he lingers by the grave, Unwilling to depart, For this is the first sorrow that, Has settled on his heart. But of the world he's livhig in, 'Tis little he does know, And may he never, never taste, A deeper draught of woe. ; i I i