IMAGE EVALUATION
TEST TARGET (MT-3)

^tfk

1.0

I.I

|2£ |15
1^

^ 1^ 12.0

L25 lii.4

>:)

^.^*
-^

^>.

Photographic

Sciences
Corporation

23 WEST MAIN STRICT

WIBSTiR,N.Y. M5S0

(716)872-4503

<!^ ^

CIHM/ICMH

Microfiche

Series.

CIHM/ICMH
Collection de
microfiches.

Canadian Institute for Historical Microreproductions / Institut canadien de microreproductions historiques

Technical and Bibliographic Notas/Notas tachniquas at bibliographiquas

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

D
D
D
D

Coloured covers /
Couverture de couleur

Covers damaged/
Couverture endommagie

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

Cover title missing/

Le titre de couverture manque

Coloured maps/

Cartes giographiques en couleur

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

I I Coloured plates and/or illustrations/

Planches et/ou illustrations en couleur

Bound with other m<.ierial/
Reli6 avec d'autres documents

Tight binding may cause shadows or distortion
along interior margin/

La re iiure serr^e peut causer de I'ombre ou de la
distortion le long de la marge intArieure

Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajoutAes
lors d'une restauration apparaissent dans le texte.
mais, lorsque cela 6tait possible, ces pages n'ont
pas it6 filmies.

Additional comments:/
Commentaires supplAmentaires:

L'Institut a microfilm^ le meilleur exemplaire
qu'il lui a 6td possible de se procurer. Les details
de cet exemplaire qui sont peut-Atre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mithoda normale de filmage
sont indiquAs ci-dessous.

The
to t

r~| Coloured pages/

Pages de couleur

Pages damaged/
Pages endommagies

Pages restored and/oi

Pages restaurtes et/ou pelliculies

Pages discoloured, stained or foxa<
Pages dicolor^es, tachet^es ou piqudes

Pages detached/
Pages ditachies

Showthrough/
Transparence

Quality of prir

Qualit^ inigale de I'impression

Includes supplementary materi;
Comprend du materiel supplimentaire

Only edition available/
Seule Edition disponible

I I Pages damaged/

I I Pages restored and/or laminated/

r~~1 Pages discoloured, stained or foxad/

I I Pages detached/

I 1 Showthrough/

I I Quality of print varies/

I I Includes supplementary materia!/

I I Only edition available/

Ths
pos
oft
filnn

Orii
beg
the
sioi
oth
firs
sioi
ori

Th«
sha
TIN
whi

Mai
diff
onti
bag
rigr
req
mei

Pages wholly or partially obscured by errata
slips, tissues, etc., have been refilmed to
ensure the best possible image/
Les pages totalemen: ou partiellement
obscurcies par un feuiHet d'drrata, une pelure,
etc., ont 6t^ film^es A nouveau de fapon it
obtenir la meilleure image possible.

This item is filmed at the reduction ratio checked below/

Ce document est film^ au taux de reduction indiquA ci-dassous.

10X

14X

18X

22X

26X

30X

12X

16X

2DX

24X

28X

32X

The copy filmed here hae been reproduced thanks
to the generosity of:

Seminary of Qutbec
Library

L'exemplaire film6 fut reproduit grAce A la
ginirositA de:

Stmlnaire de Quebec
Bibliothique

The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.

Las images suivantes ont AtA reproduites avec le
plus grand soin, compte tenu de la condition at
de la netteti de I'exemplaire filmA. at en
conformiti avec les conditions du contrat de
filmage.

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

Les exemplaires originaux dont la couverture en
papier est imprimie sont filmis en commenqant
par le premier plat at en terminant soit par la
dernlAre page qui comporte une empreinte
d'impression ou d'illustration, soit par le second
plat, salon le cas. Tous les autres exemplaires
originaux sont filmAs en commenpant par la
premiere page qui comporte une empreinte
d'impression ou d'illustration at en terminant par
la derniire page qui comporte une telle
empreinte.

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

Un des symboles suivants apparaitra sur la
darnlAre image de cheque microfiche, selon le
cas: le symbols —^ signifie "A SUIVRE ". le
symbols V signifie "FIN".

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

Les cartes, planches, tableaux, etc., peuvent itre
filmte A des taux de rMuction diff Arents.
Lorsque le document est trop grand pour Atre
reproduit en un seul clich6, il est filmA A partir
do Tangle supirieur gauche, de gauche A drolte.
et de haut en bas, en prenant le nombre
d'images nAcessaire. Les diagrammes suivants
illustrent la rr4thode.

\\0)

-r ■

•^.-' ,-7-.

-s^.

g.;;.7,ir;,,:.;V^:feH^^

DISCOURS

ON THE

S TUIf f

OP THE

JLAW of NATITSe and NAtioNS^

Cm. Gfr*

pY JAMES MACKINTOSH^ Esq.

OF LINCOLN'S INN^
BARRISTER AT LAW.

jf.

V ,t

,Jt .V t

b , %^

U^'

* *! " --*■••

f t

\ ■* .A

ZSESCSQECCEI

,. . , ...

J I v.t, 1 I .1 ...... .....

I f-i.

. . . ■ • s

•'i:.i^-

J.-

DISC OURSE,

»•»..< f^

, ^€.

;«■/•.

i 1

;r>/T:-;':^. t^il

'.Mi ai L»j'':j*U--.. ^i^*

BeJJ'ORE 1 begin a coiirfe oFleftHres oh a fci-
cnce of great extent and importance, I think
it my duty to lay before the Public the rea*
fons which have ind^jced me to undertake fuch n,
labour, as well as a (hort account 6f the nature
and objeds of the coiirfe which I propofe to de^
liver. 1 have always been unwilling to wade in
unprofitable ina^ivity that leifure which the firft
years olf my profeflion ufually allow, and which
diligent and indudrious men, even with moderate f
talents, might often employ in a manner neither
difcreditable to themfelves nor wholly ufelefs to
others. iBefirous that my own leifore diould not
be confumed in idlenefs, I anxioully lo<:^ed aboctt

B for

■^^'- il

'r'

(-*-

T ,/

.,*

f 2 )

'for fome way of filling it up, tvhich might enable
me, according to the meafure of my humble abi-
lities, to contribute fomewhat to the ftock of ge-
neral ufefulnefs. I had long been convinced that
public leftures, which have been ufed in moft
ages and countries to teach the elements of al-
moft every part of learning, were the moft conve-
nient mode in which thefe elements could be
taught ; that they were the beft adapted for the
important purpofes of awakening the attention of
the ftudent, of abridging his labours, of guiding
his inquiries, of relieving the tedioufnefs of pri-
vate ftudy, and of impreffing on his reeolleftion
the principles of fcience. I faw no reafon why
the law qf England (hould be lefs adapted to this
mode of inftru^ion, or lefs likely to beneBt by if,
than any other part of knowledge. A learned
gentleman, however, had already occupied that
ground *, and will, I doubt not, perfevere in the
ufeful labour which he has undertaken. On his
province it was far from my wi(h to intrude. It
appeared to me that a courfe of ledturcs on an-
other ftjbjeft clofely connected with all liberal
profeffional ftudies, and which had long been the
fubjedt of my own reading and refledlion, might
not only prove a moft ufeful introdudion to the

' * Sec ** A Syllabus of Le£^ures on the Law of England,
<* to be delivered in Liacoln's-Inn Hall, by M. Nolan, Efq.*'

law

Londoo,

1796.

••

vli

•\^k

' 1

I'.V'

IV-

( 3 5

law of England, but might alfo become an inte-
refting part of general ftudy, and an important
branch of the education of thofe who were not
dcftincd for the profeffion of the law. I was con-
firmed in my opinion by the affent and approba-
tion of men, whofe names, if it were becoming
to mi \tion them on fo flight an occafion, would
add authority to truth, and furnilh fome eiccufe
even for error. Encouraged by their approbation,
I refolved, without delay, to commence the un-
dertaking, of which I (hall now proceed to give
fome account ; without interrupting the progrefs
of my difcourfe by anticipating or anfwering th«
remarks of thofe who may, perhaps, fneer at me
for a departure from the ufual courfe of my pro-
feffion ; becaufe I am deiirous of employing in a
rational and ufeful purfuit that leifure, of which
the fame men would have required no account, if
it had been confumed in floth, or waded on
trifles, or even abufed in difiipation.

law

^^:

The fcience which teaches the ights and duties
of men and of dates, has, in modern times, been
called the Law of Nature and Nations. Under
this comprehenfive title are included the rules of
morality, as they prefcrib^ the condudt of private
men towards each other in all the various rela-
tions of human life ; as they regulate both the
obedience of citizens to the laws, and the autho*
rity of the magidrate in framing laws and admi-

B a nidering

( 4 )

niftering government; as tbey govern the in«
tercourfe of independent commonwealths in peace,
sind prefcribc limits to their hpftility ii\ war.
This important fcience comprehends only that
part oi private ethm which is capable of being rCr
duced to fixed and general rules. It confider^
only thofe general principles of jurifprudence an4
politics which the wifdom of the lawgiver adapts
to the peculiar lituation of his own country^ aQ4
vyhich the ikill of the ftatefm^n applies to the
more flu^uating qnd infinitely varying circum-
(lances whjch alfe^ its immediate welfj^re and
fafety. ** For ;here are in xjatur^ certain foun*
** tains of juflice whence all civil laws are dcrived|
^f but as dreams ; if\d like as waters do take tinc«r
f < tures and taftes from the fojls thropgh which
*^ they run, fo do civil laws vary according tp
*' the regions and governments where they are
*' planted* though they proceed from the fame
" fountains *.!* BacM*i Dig^ and Adfu. ofL>e(trn»'"»
\Vorks, vol.-i. p. loi.

...•>'•"■ ■ ■■ '

Qn tl^e great ^qef^ipns of morality, of politics,,
and of municipal Uw« it is the objed of this fci^
ence to deliver only thofe fundamental truths of
^)|ich the parti9ular applicatbn is a^ extenfiye as

,*i

* I leave it to petty critips to deternoine whether fame ia^
eongruity of inet9(>hor may not be dew^d io this n<^e
iisDWnce. Mr. Hume appears to h^v^ borrowed his ideas
from it in a remarkable paflage of his works. See Hume'^.
|iEiys. voU ii. p. ^S**
■":•:■■•■■" the

ItlCS,

is)

the whole prl/atcancj puWic con^uft of men ; to
difcoverthofe "fountains of juftice/* withopt pur-
fuing the " (Irpaajs** through the endlefs variety of
their courfe, But another part of the f^ibjeft is
treated with greater fylnefs and minutcnefs of ap-
plication ; namely, that important branch of i%
\yhich prpfeffes to regulate the relations apd in-
tercourft of ftates, and more cfpecially, bo;h oi^
account of their greater perfedion and their more
imn:)ediate reference to ufe^ the regulations of
that intercourfe as they are modified by the ufages
of the civilized nations of Chriftendom. Here
this fcience no longer reds ip general principles.
That proyjpce of it which we now call the law
of nations, has, in many of its parts, acquired
»(Qong our European nations much of the pre-
cilion and certainty of pofitive law> and the par-
ticulars of that law are chiefly to be found in the
wofks pf thofe writers who have treated the fci-
ence of which I now fpeak. It is becaufe they
haye clalT^d (in a manner which feems peculiar
fo modern times) the duties of individuals with
|th9fe of pations, and eftablilhed their obligation
on fimilar grounds, that the whole fcience has
been called, " The Law of Nature and Na-
** lions.** . .

, ■• •»* r.

the

; Whether tl^is appellation be the happieft that
couid have been chofen for the fcience, and by
^hat ^eRS jt f§(nf; fp t>e jadopted ampnjg pur mp-.

' dern

( 6 )

dcm moralifts and lawyers *, arc inquiries, per-
haps, of more curiofity than ufe, and which, if
they defcrve any where to be deeply purfued,
will be purfued with rnore propriety in a full exa-
mination of the fubjedt than within the fliort li-
mits of an introdudory difcourfe. Names are,
however, in a great meafure arbitrary ; but the
diftribution of knowledge into its parts, though it
may often perhaps be varied with little difad-
vantage, yet certainly depends upon fome fixed
principles. The modern method of confidering
individual and national morality as the fubjedts of
the fame fcience, feems to me as convenient and
reafonable an arrangement as can be adopted.

* The learned reader is aware that the ** jus nature** and
" jus gentium" of the Roman lawyers are phrafes of very
different import from the modern phiafes, ** law of nature
*» and law of nations." ** Jus naturale," fays Ulpian, " eft
"quod natura omnia animalia docuit." D. i. i. i. 3,
** Quod naturalis ratio inter omnes homines conftituit, id
'* que apud omnes peraeque cuftoditur vocaturque jus gen-
" tium." D. 1. 1.9. But they fometimcs negle£l thi« fut>-
tle diftinftion — " Jure naturali quod appellatur jus gen-
" tium." I. a. I. II. Juifedale was the Roman term for
our law of nations. " Belli quidem xquitas fan<StiiIime po-
puli Rom. feciali jure perfcripta eft." Off. 1. 11. Our
learned civilian Zouch has accordingly entitled his work, " De
Jure Feciali, five de Jure inter Gentes.*' The Chancellor
I)*Agueffcau, probably without knowing the language of
Zouch, fuggefted that this law fliould be called, ** Droit
*'■ entre les Gens" (Oeuvres, tom. ii, p. 337.)» >n which he
has been followed by a late ingenious writer, Mr. Bentham,
Frinc. of Morals and Pol. p. 324. Perhaps thefe learned wri«
ters do employ a phrafe which expreflfes the fubjeft of this
law with more accuracy than our common language ; but I
doubt, whether innovations in the terms of fcience always
repay «« hy their liiperior precifion for the uncertainty arid
coi^ufion which the change occafions,

1 The

( 7 )

The fame ruUs of morality which hold together
men in families^ and which mould families into
commonwealths^ alfo link together thcfe com-
monwealths as members of the great fociety of
mankind. Commonwealths, as well as private men,
are liable to injury, and capable of benefit, from
each other ; it is, therefore, their intered as weli
as their duty to reverence, to pradife, and to en-
force thofe rules of jufticc, which control and
redrain injury, which regulate and augment bene-
fit, which, even in their prefent imperfcdl ob-
fervance, prefcrve civilized dates in a tole-
rable condition of fecurity from wrong, and
which, if human infirmity would fufFc them
to be generally obeyed, would cftablifh, and
permanently maintain, the well-being of the
univerfal commonwealth of the human race.
It is therefore with juftice that one part of this
fcience has been called " the natural law of in-
" dividualsy*' and the other, " the natural law of
*f Jlatesi* and it is too obvious to require obferva-
tion '*', that the application of both thefe laws, of
the former as much as of the latter, is modified and
varied by cuftoms, conventions, charader, and
iituation. With a view to thefe principles, the
writers on general jurifprudence have coniidered
dates as moral perfons; a mode of exprefiloa
which has been called a fidion of law, but which

* This remark is fuggefted by an objedHon of FaHe\
^which is morefpecious tl^a folid.-^See his Prelina. § 6.

tfu

may

( « )

iaiay be regarded with more propriety as a bold and
metaphorical language, ufed to coiivey the ith-»
pbrtant truth, that nations, though they acknotr*
letige no comtnon fuperior, and neither cat! noi*
ought tb be fiibje<5i:ed to human puniftiment, are
yet under the fame obligations mutually to prac-
ti(e honefty and humanity, which would have
bound individuals, ieven ifthey could be conceived
ever to have fubfifted without the protecting re-^
ftraints of government; if they were not com-
pelled zo the dilcharge of their duty by the juft
authority of magiftrares, artd by the wholefome
terrors of the laws. With the fame views thii
hvr has been ftyled, and (nbtwithftanding the
objedlions of fome writers to the vaguertefs of th6
language) appears to have been ftyled x^rith great
propriety, " the law of nature/* It may with
perfed correftnefs, or at le.ift by tfi eafy metA-
phor, be called a " law,** inafmuch as it is a fu-
preme, invariable, and uncontrollable rule of
conduct to all men^ of vi'hich the violation is
avenged by natural piiniihments, whidi • necef-
farily flow from t^e conftitution of things, aitd are
as fixed and inevitable as tht order of natr.re. It
" the 4aw of nature y* bccaufe its general pre-

cepts are efTditiaHy adapted to t)mmc3ite the hlap-
^ineft of toan, as long as he Tfcmains a being of
t^e farrte nature with which hfc is at prdetit en-
dowed,, or, in other words, as long as he con-
cinutes to be man, in all the variety of tttoes, places^

( 9 )

and circumilances^ in which he has been known,
or can be imagined to exift; becaufe it is difco-
verable by natural reafon, and fuitable to our na-
tural conltitution ; becaufe its ircnefs and Avifdom
are founded on the general nature of human
beings, and not on any of thofe temporary and
accidental fituations in which they may be placed.
It is with ftill more propriety, and indeed with the
highelt ftri(ftnefs, and the moft perfedt accuracy,
confidcred as a law, when, according to thofe juft
and magnificent views which philofophy and reli-
gion open to us of the government of the world,
it is received and reverenced as the facred code,
promulgated by the great Legillator of the univerle
for the guidance of his creatures to happinefs,
guarded and enforced, as our own experience may
inform us, by the penal fanftions of fhame, of
remorfe, of infamy, and of mifery; and (all far-
ther enforced by the reafonable expectation of yet
more awful penalties in a future and more per-
manent (late of exiftence. It is the contempla-
tion of the law of nature under this full, mature,
and perfedb idea of its high origin and tranf-
ctndent dignity, that called forth the enthuHafm
of the greateil men, and the greateft writers of
ancient and modern tim^s, in thofe fublime de-
fcriptions, where they have exhaufted all the
powers of language, and furpafled all the other
exertions, even of their own eloquence, in the

9 difplay

} -

t4i

( 10 )

difplay of the beauty and majedy of thii foTe*
reign and immutable law. It is of this law that
Cicero has fpoken in fo many parts of his writings,
not only with all the fplendour and copioufnefs of
eloquence, but with the fenfibility of a man of
virtue i and with the gravity and compreheniion
of a philofopher *. It is of this law, that Hooker
fpeaks in fo fublime a drain : " Of law, no lefs
can be faid, than that her feat is the bofom of
God, her voice the harmony of the world ; all
things in heaven and earth do her homage, the
very lead as feeling her care, the greateft as no«
*' exempted fiom her power; both angels and
" men, and creatures of what condition foever,
** though each in different fort and manner, yet
^< all with uniform confent admiring her as the
" mother of their peace and joy.** — Ecclefi Foh
hook i. in the (onclufiou.

((

vj i.. •^' i.

♦ I

* £fl quidem vera lex, reAa ratio, natufM eongruenst dif'-
fufa in omnes, c6nftans, fempiterna, quae vocet ad officiuiil

i'ubendo, vetandp a fraude deterreat, qux tamen neque pro#
>os fruftra jubet aut vetat, neque improbos jubendo aut ve-
tando- mover. Huic legi neque obrogari fas eft, neque dero*
gari ex h^ aliquid licet, neque tota abroeari poteft. Nee
vero aut per fenatum aut per populum foTvi hac lege poflU-
mus. Neque eft quaerendus explanator aut interpres ejus aliuiB*
Nee erit alia lex Romae, alia Athenis, alia nunc, alia pofihac,
fed et omnes gentes et omni tempore una lex et fempiterna, et
immortalis continebit, unufque erit communis quau magifter
et imperator omnium Deus. lUe legis hujus inventor, difcep-
tator, lator, cui qui non parebit ipfejifugiet et naturam hominis
ofpernahitury atque hoc ipfo luet maximas poeoas etiamfi cxv
tera fupplicia quae putantur effugerit.

ffra^, lih, iiu Cicir, de RefuhU afud LaHant,

( " )

Let not thofc, who, to nfc the langua
fame Hooker, " talk of truth," with
** fc ding the depth from whence it
hnih.y take it for granted, that thefe gi
of eloquence and reafon were led aft
fpecious delufions of myfticifm, from
confideration of the true grounds of morality
the nature, neceflities, and interefts of man. They
fludied and taught the principles of morals ; but
they thought it dill more neceffary, and more
wife, a much nobler taik, and more becoming a
true philofopher, to infpire men with a love and
reverence for virtue. They were not contented
with elementary fpeculations. They examined
the foundations of our duty, but they felt and
cherifhed a moft feenily, a moft becoming, a moft
rational enthufiafm, when they contemplated the
majeftic edifice which is reared on thefe folid
foundations. They devoted the higheft exertions
of their mind to fpread that beneficent enthufiafm
among men. They confccrated as a homage to
virtue the moft perfect fruits of their genius. If
thefe grand fentiments of " the good and fair,**
have fometimes prevented them from delivering
the principles of ethics with the nakednefs and
drynefs of fcience, at leaft, we muft own that
they have chofcn the better part ; that they have
preferred virtuous feeling to moral theory; and
practical benefit to fpeculative exafbnefs. Per-
haps thefe wife men may have fuppofed that the

c a minute-

•%

( » )

minute ()ifl*e£tion and anatomy of Virtue mighty
to the ill-judging eye, weaken the charm of her
beauty.

V:-

If is not for me to attempt a theme which lus
perhaps been exhaufted by thefe great writers. I
Am indeed much lefs called upon to difplay the
worth and ufefulnefs of the law of nations, than to
vindicate myfelf from prefumption in attempting
a fubjed which has been already handled by fo
many maftei-s. For the purpofe of that vindica-
tion it will be neceflary to iketch a very Ihort and
flight account (for fuch in this place it muft una-
voidably be) of the progrefs and prefent ftate of
the fcience^ and of that fucceffion of able writers
who have gradually brought it to its prefent per-
fection. We have no Greek or Roman treatife
remaining on the law of nations. From the title
of one of the lod works of Ariftotle, it appearls
that he compofed a treatife on the laws of war^,
which, if we had the good fortune to poiTefs it,
would doubtlefs have amply fatisfied our curiofity,
and would have taught us both the pradtice of
nations and the opinions of moralifls, with that
depth and preciiion which diftinguilh the other
tvorks of that great philofopher. We can now
only imperfedly collect that pradlice and thofe
pinions from various paiTages which are fcattered

* Aixciw/AAlot Tfiv jroX(/«v»

over

.i:ijl

Tfc.-

( «3 )

oVei: the wnungs of philofophers, hidorians, poeti^
and orators. When the time fhall arrive for i
more full confideration of the flate of the govern-
ment and manners of the ancient world, I (hall be
able, perhaps, to offer fatisfaftory reafons why
thefe enlightened nations did not feparate from
the general province of ethics that part of mo-
rality which regulates the intercourfe of dates,
and ered it into an independent fcience. It
would require a long difculfion to unfold the
various caufes which united the modern na-
tions of Europe into a clofer focicty ; which
linked them together by the firmed bands of mu-
tual dependence, and which thus, in procefs of
lime, gave to the law that regulated their inter-
4Courfe greater importance, higher improvement^
and more binding force. Among thefe caufes We
may enumerate a common extra(5tion, a coiiimon
religion, iimilar manners, inditutions, and lan-
guages ; in earlier ages the authority of the See of
Rome, and the extravagant claims of the Imperial
, crown ; in later times the connexions of trade,
the jealoufy of power, the refinement of civiliza-
tion, the cuhivation of fcience, and, above all, that
general mildnefs of charader and manners which
arofe from the combined and progreffive influence
of chivalry, of commerce, of learning, and of re-
ligion. Nor muft we omit the fimilarijty of thofe
political inditutions which, in every country that
had been over-run by the Gothic conquerors, bore

dif-

( 14 )

difcernible marks (which the revolution of fuc-
ceeding ages had obfcured, but not obliterated) of
the rude but bold and noble outline of liberty that
was originally iketched by the hand of thefe ge-
nerous barbarians. Thefe and many other caufes
confpired to unite the nations of Europe in a more
intimate connexion and a more conftant inter-
courfe, and of confequence made the regulation
of their intercourfe more neceffary, and the law
that was to govern it more important. In propor-
tion as they approached to the condition of pro-
vinces of the fame empire, it became almoft as
cflential that Europe Hiould have a precife and
comprehenfive code of the law of nations, as that
each country (hould have a fyftem of municipal
law. The labours of the learned accordingly be-
gan to be dircded to this fubjefl in the fixteenth
century, foon after the revival of learning, and af-
ter that regular diftribution of power and territory
which has fubfil^ed, with little variation, until our
times. The critical examination of thefe early
writers would perhaps not be very interefting in
an cxtenfive work, and it would be unpardonable
in a (hort difcourfe. It is fufficient to obferve
that they were all more or lefs fliackled by the
barbarous philofophy of the fchools, and that they
were impeded in their progrefs by a timorous de-
ference for the inferior and technical parts of the
Roman law, without raifing their views to the
comprehenfive principles which will for ever in-
a fpire

( 'S )

fpirc mankind with veneration for that grand
monument of human wifdom. It was only in-
deed in the Hxteenth century that the Roman lav
was firft (ludied and underftood as a fcience con-
Xiedted with Roman hiftory and literature, and iU
ludrated by men whom Ulpian and Papinian would
not have difdained to acknowledge as their fuccef-
fors*. Among the writers of that age we may
perceive the inefiedual attempts, the partial ad-
vances, the occaGonal flreaks of light which al-
ways precede great difcoveries, and works chac
are to inftru6t pofterity. . »

The reduftion of the law of nations to a fyftem
was referved for Grotius. It was by the advice of
Lord Bacon and Peirefc that he undertook this
arduous tafk. He produced a work which wc
now indeed juftly deem imperfed, but which is
perhaps the mod complete that the world has yec
owed, in fo early a ftage in the progrefs of any
fcience, to the genius and learning of one man.
So great is the uncertainty of pofthumous reputa-
tion, and fo liable is the fame even of the greateft
men to be obfcured by thofe new fafl^ions of

* Cujacius, BriiTonius, Hoftomanrius, &c. &c. — P^ide
Gravina Orig. Jur. Civil, p. 132 — 138. edit, Lipf. 1737.

Leibnitz, a great mathematician as well as philofopher*
declares that he knows nothing which approaches fo near to
the method and precifion of geometry as the Roman law.—-
p|>. torn. iv. p. S54.

thinking

( i6 )

thinking svnd writing which fucceed each other Co
japidJy among polifhcd nations, that Grotius, who
f>lled fo large a fpace in the eye of his contem-
poraries, is now perhaps known to fome of my
readers only by name. Yet if we fairly cfthnatc
both his endowments and his virtues, we may
jtrflly confidcr him as one of the mod memorable
men who has done honoar to modern times. He
cpmbrned the difcharge of the moft important
duties of aftive and pqblic life with the attainment
cf that exaft and various learning which is gene-
rally the portion only of the reclufe ftudcnt. He
was didinguilhed as an advocate and a magiilrate,
apd he compofed the moft valuable works on the
law of his own country; he was almoft equally
celebrated as an hiftorian, u fcholar, a poet, and
a divine ; a difinterefted ftatefman, a philofophical
lawyer, a patriot who united moderation with
liFmnefs, and a theologian who was taught candour
by his learning. Unmerited exile did not damp
liis patriotifm ; the bitternefs of controverfy did
not extinguifh his charity. He pafled through a
turbulent political life without a fpot on his cha-
rafter that could be difcerned even by the fagacity
of his fierceft antagonrfts. He never deferted his
friends when they were unfortunate, nor infulted
his enemies when they were weak. Such was
the man who was deftined to give a new form to
ilie law of nations, or rather to create a fciencc,
of which rude iketches and indigefled materials

wcrf

t 17 )

were only to be found in the writings of thofe who
had gone before him. By tracing the laws of hi$
country to their principles, he was led to the con-
templation of the law of nature, which he judly
confidered as the parent of all municipal law^.
Few works were more celebrated than that of
Grotius in his own days, and in the age which fuc-
ceeded. It has, however, been the fafhion of the
laft half-century to depreciate his work as a (hape-
lefs compilation, in which reafon lies buried un*
der a mafs of authorities and quotations* This
faihion originated among French wits and de-
claimers, and it has been adopted, I know not for
what reafon, though with far greater moderation
and decency, by fome refpedtable writers among
ourfelves. As to thofe who firfl ufed this lan^
guage, the moft candid fuppoiition that we can
make with refpecft to them is, that they never read
the work ; for, if they had not been deterred from
the pcrufal of it by fuch a formidable difplay of
Greek charaders, they muft foon have difcovered
that Grotius never quotes on any fubjcdi: till he
has firft appealed to fome principles, and often, in
my humble opinion, though not always, to the
founded and mod rational principles.

But another fort of anfwer is due to fome of.

• Proavia juris civiiis.— De Jur. Bell, ac Pac. Proleg.

' t> thofe

( 18 )

thofe * who have criticized Grotius, andtlmt ann
fwer might be given in the v^ords of Grotius him.-*
(cK'jf, He was not of fuch a ftupid and fervile
caft of mind, as ;o quote the opinions of poets or
orators, of hidorians and philofophers, as thofe
of judges, from whofe deciHon there was noapr
peaU He quotes theai> as he tells us hitpfelf,
ds witneiTes whofe confpiring tedimony, mightily
ilrengthened and confirnied by their difcprdance
xm almod every other fubjed,, is a concluHve
proof of the unanimity of the whole human race
on the great rules of duty and the fundamental
principles of morals. On fuch matters, poets
iftnd orators are the mod unexceptionable of all
witnefles; for they addreft themfelve^ to the gene-
ral feelings and fympathies of mankind; they ore
meiiher warped by fyftem, nor perverted . by fo-
.phtilry ; they can attain none of their objects -,
they can neither plcafe nor perfuade if they
dwell on moral fentiments not in unifoa with thofe
of their readers. No fydetn of moral philofc^hy
xan furely difregard the general feelings of hu«
;inan nature and the according, judgment of all
ages and nations^ But where are thefe feelings
and that judgment recorded and preferved ? In
thole very writings which Grotius is gravely

* Dr. Paley, Princ. of Mor. and Polit. Philof. Frcf. p. xiv.

af!'! XV.

1 Grot. Jur. BcK et Pac, Piolcg. §404

blamed

XlV*

( 19 )

blamed for having quoted. The ufages and laws
of nations, the events of hiftory, the opinions of
philofophers, the fentiments of orators and poets,
as well as the obfervation of common life, s^re, in
truth, the materials out of which the fcience of
mdralily is formed'; amd ihofe who negled them
?ire juftly chargeable with a vain attempt to phi-
lofophize without regard tp fadt and experience,
the fole foundation of all true philofophy. If
this wefc merely an objection of ufte, I (hould
be willing to allow that Grotins has indeed
poured forth his learning with a profufion that
fometimes rather encumbers than adorns his work,
and which is not always neceifary to the illudration
of hisfubjedt. Yet, even in making that coqceflion,
] (hduld rather yield to ibe tafle of others than fpeak
from ^y own feelings. I own that fuch richnefs
and fplendouf of literature have a powerful cliartn
forme. They fill my mind with an endiefs va-
riety of delightful recoil^ ions and affociations.
They relieve the ui^derftanding in its progrefs
through a vaft fcience, by calling up the memory
of great men and of interefting events. By this
means we fee the truths of morality clothed wit li
all the eloquence (not that could be produced by
the powefs of one man, but) that could be be-
ftowed on them by the colle(flive genius of rhe
world. Even Virtue and Wifdom thcmfelves ac-
quire fievv i^^efty in my eyes^, Nyhcn 1 thus fee all

?i:. ,

( ao )

the great mafters of thinking and writing called
together, as it were, from all times and countries,
to do them homage, and to appear in their

tram.

. I

: .a,

But this is no place for difcufflons of .a<l<?,
and I am very ready to own that mine may be
corrupted. The work of Grotius is liable to a
more ferious objection, though I do not recolledk
that it has ever been made. His method is in«
convenient and unfcientific. He has inverted
the natural order. That natural order undoubN
edly dif^ates, that we fhould firft fearch for rbc
original principles of the fcience in human na*
ture ; then apply them to the regulation of the
conduft of individuals, and laftly, employ them
for the decifion of thofe difficult and complicated
queftions that arife with refpeft to the intercourfe
of nations. But Grotius has chofen the reverfe of
this method. He begins with the coniideration of
the dates of peace and war, and he examines origi-
nal principles only occafionally and incidentally
as they grow out of the queftions which he is
called upon to decide. It is a neceflary confe-
quence of this diforderly method, which exhibits
the elements of the fcience in the form of fcat-
tered digreffions, that he feldcin ^ rj; loys furl-
cient difcuflion on thefe fundaiiicntal truths, and
never in the place where fuch a difcufiion would
tc rpoft jnftrudtive to the reader.

This

( «I )

This great dcfcjft in chc plan of GrotitTS w«f
perceived, and fupplied, by Puffendorff, who re-
ftorcd natural law to that fuperiority which be-
longed to it, and with great propriety treated the
law of nations as only one main branch of the pa-
rent (lock. Without the genius of his mafter»,
and with very inferior learning, he has yet treated
this fubjedt with found fenfe, with clear method,
with extenfive and accurate knowledge, and with
a copioufncfs of detail fometimes indeed tedious,
but always inftrudlive and fatisfadory. His work
will be always ttudicd by thofe who fpare no la-
bour to acquire a deep knowledge of the fubjed;
but it will, in our times, I fear, be ofiener found
on the fhelf than on the de/k of the general ftu-
dent. In the time of Mr. Locke it was confiw
dered as the manual of thofe who vere intended
for aftive life ; but in the prcfent age I believe k
will be found that men of bufincfs are too hiOdi,
occupied, men of letters are too faftidious, and
men of the world too indolent, for th^ ftudy or
even the pcrufal of fuch works. Far. be it from
me to derogate from the real and great merit of
fo ufeful a writer as Puffendorff. His treatife is
a mine in which all his fucceffors muft dig. I
ooAy prefume to fuggcft, that a book fo prolix, and
fo utterly void of all the attraftions of compofi-
tion, is likely to repel many readers who are intc-
fcfted, and who might perhaps be difpofed to
a acquire

( M )

acquire fom^ knowledge of ihe principles of pub*
lie law.

Many other circumftances might be mentioned,
which confpire to prove that neither of the great
works of which I have fpoken, has fuperfeded
the neceffity of a new attempt to lay before the
public a Syftem of the Law of Nations. Th?
language of fcience is fo completely changed
fince both thefe works were written, that whoever
was now to employ their terms in his moral
reafonings would be almoR unintelligible to
fome of his hearers or readers ; and to fome
among them too who are neither ill qualified nof
ill difpofed to ftudy fuch fubje(51:s with confider*
able advantage to themfelves. The learned in-
deed well know how little novelty or variety is to
be found in fcientific difputes. The fame truths
And the fame errors have been repeated from age
to age, with little variation but in the language; and
novelty of expreffion is often miftaken by the ig-
norant for fubftantial difcovery. Perhaps too very
nearly the fame portion of genius and judgment
has been exerted under moft of the various forms
under which fcience has been cultivated at differ-
ent periods of hiftory. - The fuperiority of thofe
writers who continue to be read, perhaps often
confifts chiefly in tafte, in prudence, in a happy
choice of fubjedl^ in a favourable mpmcnt, in an
- • * agreeable

( ^3 )

agreeable flylt, in the good fortune of a prevalent
language, or in other advantages *Yhich are either
accidental, or which are the refult rather of the fe-
condary than of the higheft faculties of the mind.
— But thefe refledions, while they moderate the
pride of invention, and difpel the extravagant
conceit of fuperior illumination, yet ferve to prove
the ufe, and indeed the neceffity, of compofing,
from time to time, new fyftems of fcience adapted
to the opinions and language of each fucceeding
period. Every age mud be taught in its own lan-
guage. If a man were now to begin a difcDurfe
on ethics with an account of the " moral entities**
of Puffendorff*, he would fpeak. an unknown
tongue.

It is not, however, alone as a mere tranilation
of former writers into modern language that a
new fyftem of public law feems likely to be ufe-
ful. The age in which we live poffeffes many
advantages^ which are peculiarly favourable to
fuch an undertaking. Since the compoiition of
the great works of Grotius and Puffendorff, a
more modeft, fimple, and intelligible philofophy
has been introduced into the fchoolsi which has

* I do not mean to impeach the foundnefs of any part of
Puifendorif' s reafoning founded on moral entities. It may
be explained in a manner confident with the moft juil philo-
fophy. He iifed, as every writer muft do, the fcieniific lan-
guage of his own time. I only aflert that, to thofe who are
unacquainted with aitcient fyuems, his philofophical voca-
bulary is obfolete aau unintelligible.

indeed

( »4 )

indeed been grofsly abufed by fophids, but whrcl?^
from the time of Locke, has been cultivated and
improved by a lucceffion of difciples worthy of
their illullrious maften We are thus enabled to
difcufs with precifion, and to explain with clear-
nefs, the principles of the fcience of human na-
ture, which are in themfelves on a level with the
capacity of every man of good fenfe, and which
only appeared to be abftrufe from the unprofitable
fubtleties with which they were loaded, and the
, barbarous jargon in which they were expreffed.
The deepefl: doftrines of morality have fince that
time been treated in the perfpicuous and popular
ftyle, and with feme degree of the beauty and elo-
quence of the ancient moralifts. That philofophy
on which are founded the principles of our duty,
if it has not become more certain (for morality ad-
mits no difcoveries), is at leaft lefs " harfh and
" crabbed," lefs obfcure and haughty in its lan-
guage, lefs forbidding and difgufting in its ap-
pearance, than in the days of our anceftors. If
this progrefs of learning toward popularity has
engendered (as it muft be owned that it has) a
multitude of fuperficial and moft mifchievons
fciolifts, the antidote muft come from the fame-
quarter with the difeafe. Popular reafon can alone
correft popular fophiftry.

M ,♦■

Nor is this the only advantage which a writer
of the prefent age would pofTefs over the cele-
brated

( »J )

brated jurifts of the lafl: century. Since that time
vafl additions have been made to the llock of our
knowledge of human nature. Many dark periods
of hiftory have fince been explored. Many hi-
therto unknown regions of the globe have been
vifitcd and defcribed by travellers and navigators
not lefs intelligent than intrepid. We may be faid
to (land at the confluence of the greateft number
of dreams of knowledge flowing from the moft
diftant fources, that ever met at one point. We
are not confined, as the learned of the lad age ge-
nerally were, to the hiftory of thofe renowned na-
tions who are our matters in literature. We caa
bring before us man in a lower and more abjedt
condition than any in which he was ever before
feen. The records have been partly opened to us
of thofe mighty empires of Afia *, where the
beginnings of civilization are loft in the darkncfs
of an unfathomable antiquity. We can pafs hu-
man focicty in review before our mind, from the

* I cannot prevail on myfelf to pafs over this fubje^
without paying my humble tribute to the memory of Sir W.
Jones, who has laboured fo fuccefsfully in Oriental litera-
ture, whofe fine genius, pure tafte, unwearied induftry, \in-
rivalted and almoft prodigious variety of acquirements, not
to fpeak of his amiable manners and fpotlefs integrity, muft
fill every one who cultivates or admires letters with reverence,
tinged with a melancholy which the recollection of his recent
death is fo well adapted to infpire. I hope I fliall be par- [
doned if 1 add my applaufe to the genius and learning of Mr.
Maurice, who treads in the fteps of his illuftrious friend;
and who has bewailed his death in a drain of genuine and
beautiful poetry, not unworthy of happier periods of our
Englifli literature.

E brutal

( a6 )

brutal and helplefs barbarifiil of fcna del Fuego,
and the mild and Voluptuous favages of Otaheite,
to the tame, but ancient and immoveable civiliza-
tion of Qiina, which beftowsits own arts on every
fuccefiive race of conquerors ; to the meek and
fervile natives of Hindollan, who prefervc their
ingenuity, their fkill and their fcience, through a
long feries of ages, under the yoke of foreign ty-
rants ; to the grofs and incorrigible rudenefs of
the Ottomans, incapable of improvement, and ex-
tinguilhing the remains of civilization among
their unhappy fubjeds, once the moft ingenious
nations of the earth. We can examine almoft
every imaginable variety in the charader, man-
ners, opinions, feelings, prejudices and inftitu-
tions of mankind, into which they can be thrown,
cither by the rudenefs of barbarifm, or by the
capricious corruptions of refinement, or by thofe
innumerable combinations of circumftances, which,
both in chefe oppofite conditions and in all the in-
termediate ftages between them, influence ordirecl
the courfe of human aifairs. Hiftory, if I may
l)e allowed the cxprcflion, is now a vaft mufeum,
in which fpecimens of every variety of human
nature may be fludicd. From thefe great accef-
fions to knowledge, lawgivers and ftatefmen, but,
above all, moraliils and political philofophers,
may reap the moft important inftruftion. They
may plain iy difcover in all the uieful and beautiful
variety of governments and inftitutions, and under

all

( 27 )

all the fantaftic multitude of ulages and rites
which have prevailed among men, the fame fun-
damental, comprehenfivc truths, the facred maf-
ter-principles which are the guardians of human
fbciety, iccognifed and revered (with few and
flight exceptioris) by every nation upon earth,
and uniformly taught (with ftill fewer exceptions)
by a fucceffion of wife men from the firft dawn of
fpeculation to the prefent moment. The excep-
tions, few as they are, will, on more reflection, be
found rather apparent than real. If we could
raife ourfeives to that height from which we ought
to furvey fo vaft a fubjed, thefe exceptions would
altx5gether vanilh ; the brutality of a handful of
favages would difappear in the immenfe profpe(St
of human nature, and the murmurs of a few
licentious fophills would not afcend to break the
general harmony. This confcnt of mankind in
iirfl: principles, and this endlefs variety in their
application, which is one among many valuable
truths which we may colled from cur prefent ex-
tenfive acquaintance with the hiftory of man, is
itfelf of vaft importance. Much of the raajefty
and authority of virtue is derived from their con-
fent, and almoft the whole of pradical wifdom is
founded on their variety.

What former age could have fupplied fafls
for fuch a work as that of Montefquieu ? He in-
deed has been, perhaps juftly, charged with

E z abufmg

( a8 )

abufing this advantage, by the undiftinguilhing
adoption of the narratives of travellers of very differ-
ent degrees of accuracy and veracity. But if we
reluftantly confefs the juftncfs of this objeflion ;
if we are compelled to own that he exaggerates
the influence of climate, that he afcribcs coo much
to the forefight and forming fkill of legiflators, and
far too little to time and circumftances, in the growth
of political cpnftituiions ; that the fubftantial cha-
radler and eflential differences of governments
are often loft and confounded in his technical lan-
guage and arrangement ; that he often bends the
free and irregular outline of nature to the impef-
ing but fallacious geometrical regularity of fyf-
tem J that he has chofen a ftyle of affefted
abruptnefs, fententioufnefs, and vivacit)^, ill fuited
to the ferioufnefs and gravity of his fubjedl :
after all thefe conceflfions (for his fame is large
enough to fpare many concefllons), the Spirit of
Laws will ftill remain not only one of the mod
folid and durable monuments of the powers of
the human mind, but a ftriking evidence of the
ineftimable advantages which political philofophy
may receive from a wide furvey of all the various
conditions of human fociety.

Y'i^

In the prefent century a flow and filent, but
very fubftantial mitigation has taken place in the
pradlice of war; and in proportion as that miti-
gated pra6lice has received the fan(flion of time,

( 29 )

it is raifcd from the rank of mere ufage, and "be-
comes part of the law of nations. Whoever
will compare our prefent modes of warfare with
the fyftem of Grotius* will clearly difcern the
immenfe improvements which have taken place
in that refped fince the publication of his work,
during a period, perhaps in every point of view,
the happieft to be found in the hiftory of the
world. In the fame period many important
points of public law have been the fubjeA of con-
left both by argument and by arms, of which wc
find either no mention, or very obfcure traces, in
the hiftory of preceding times.

There are other circumftances to which I al-
lude with hefitation and reluctance, though k
muft be owned that they afford to a writer of this
age fome degree of unfortunate and deplorable
advantage over his predeceflbrs. Recent events
have accumulated more terrible practical inftruc-
tion on every fubjed of politics than could have
been in other times acquired by the experience of
ages. Men's witj fharpened by their paffions, has
penetrated to the bottom of almoft all political
queftions. Even the fundamental rules of mo-
rality themfclves have, for the firft time, unfortu-
nately for mankind, become the fubjed of doubt

* Efpecially thofe chapters of the third
^tmperamttttmn circa Captivos, ^c. &c.

book, entitledi

and

( so )

and- dlftuQion. I (liall confidcr it as my duty to ab-
ftain from all mention of thefe awful events, and of
thefc fatal controverfies. But the mind of tlwt man
mud indeed be incurious and indocile, who has ei->
ther overlooked all thefe thingj, or reaped no in-
llrudion from the contemplation of them. .

From thefe reflexions h appears, that, fince the
compofition of thofe two great works on the Law of
Nat tire and >,ations which continue to be the
clafEcal and ilandard works on that fubjefV, we
have gained lx)th more convenient inftrumcnts of
reafoningand more extenfive materials for fcknce;
that the code of war has been enlarged and im-
proved ; that new queftions have been pradlically
decided; and that new controverfies have arifen
regarding the intercourfe of independent ftates,
and the firft principles of morality and civil go-
vernment, ' ■ - '- '

Some readers may, however, think that in thefe
obfervations which 1 offer, to cxcufe the prefump-
tion of my own attempt, I have omitted the men-
tion of later writers, to whom fame part of the
remarks is not jvjftly applicable. But, perhaps,
fanher confideration will acquit me in the judg-
ment of fuch readers. Writers on particular
qucflions of public law are not within the fcope
lof my obfervations. They have furnilhed the
mod valuable materials; but I fpcak only of a
; fyftem.

( 31 )

fyftcm. To the large work of Wolffius, i!ie ob-
[fervaiions which I have made on PufFcndoi-ff as A
\book for general ufe, wil? furely apply with ten-
[fold force. His abridger, Vattel, dcfervt in-
ideed, confiderable praife. He is a very ingenious,
clear, elegant, and ufeful writer. But lie only con*
[iiders one part of this extenfive fubjcft, namelyj
the law of nations ftriiftly fo called ; and I cannot
Jhelp thinking, that, even in this depiirtmcnt of
ijthe {cience, he has adopted fbme doubtftjl and
1 dangerous principles, not to mention his conftant
51 deficiency in that fiilnels of example and illuC-
tration, which fo much embclliflics and ftrengihens
reafon. It is hardly neceflary to take any notice
of the text-book of Heiaeccius, the bed writer
of elementary books with whom I am acquainted
on any fubjed. Burlamaqui is an author of fupc-
rior merit ; but he confines himfelf too much to
the general principles of morality and politics, to
require much obfervation from me in this place.
The fame reafon will excufe me for pafllng ^ver
in filence the works of many philofophers and
moralifts, to whom, in the courfe of my propofed
ledures, I fhall owe and confefs the greateft obli-
gations; and it might perhaps deliver me from
the necefHty of fpeaking of the work of Dr. Paley,
if 1 were not defirous of this public opportunity
of profeffing my gratitude for the inftrudion and
pleafure which I have received from that excellent
I writer,

k 3^ )

writer, who poflcires, in fo eminent a degrecy
ihofe invaluable qualities of a moralift, good fenfe,
caution, fobriety, and perpetual reference to con-
venience and pra(5tice; and who certainly is
thought lefs original than he really is, merely be-
caufe his lafte and modefty have led him to dif-
dain the oftentation of novelty, and becaufe he
generally employs more art to blend his own argu-
ments with the body of received opinions, fo as
ihat they are fcarce to be dillinguifhed, than other
men in the purfuit of a tranfient popularity, have
exerted to difguife the mod miferable common-
places in the (hape of paradox.

No writer fince the time of Grotius, of.Puffen-
doiff, and of Wolf, has combined an inveftigation
of the principles of natural and public law, with a
full application of thefe principles to particular
cafes i and in thefe circumftan ;os, I truft, ii will not
be deemed extravagant prefumption in me to hope
that I (hall be able to exhibit a view of this fci-
ence, which (hall, at leaft, be more intelligible
•and attra<5live toftudents, than the learned treatifes
of thefe celebrated men. I fliall now proceed to
ftate the general plan and fubjefls of the ledures
in which I am to make this attempt.

1. The belngr whofe avTrions the law of nature
profcltes to rcgnbte, is man. It is on the know-
ledge

( 33 )

kdge of his nature that the fcience his dui /
muft be founded *. It is impoffible to approa^a
the threlhold of moral philofopby, without a pre-
vious examination of the faculties and habits of
the human mind. Let no reader be repelled from
this examination^ by the odious and terrible name
of metaphyficsi for it is, in truth, nothing more
than the employment of good fenfe, in obferving
our own thoughts, feelings, and adtions; and when
the fafts which are thus obferved, arc exprefled
as they ought to be, in plain language, it is, per-
haps, above all other fciences, mod on a level
with the capacity and information of the gene-
fality of thinking men. When it is thus expreff-
ed, ic requires no previous qualification, but a
found judgment, perfectly to comprehend it; and
thofe who wrap it up in a technical and myilerious
jargon, always give us ftrong reafon to fufpeft
that they are not philofophers but impoftors. Who-
ever thoroughly underftands fuch a fcience, mud
be able to teach it plainly to all men of com-
mon fenfe. The propofed courfe will therefore
open with a very (hort, and, I hope, a very fim-
ple and intelligible account of the powers and
operations of the human mind. By this plain
ftatement of fads, it will not be difficult to de-
cide many celebrated, though frivolous, and '

* Natura enim juris explicanda eft nobis, eaque ah homi'
Bis repetenda naturd^-^v:* de Leg. lib. i. c. 5.

F merely

( 34 )

merely verbal controverfies, which have long
amufed the leifure of the fchools, and which owe
both their fame and their exiftcnce to the ambi-
guous obfcurity of fcholaftic language. It will,
for example, only require an appeal to every
man's experience, to prove that we often aft
purely from-a regard to the happinefs of others,
and are therefore focial beings; and it is not necef-
. fary to be a confummate judge of the deceptions
of language, to defpife the fophiftical trifler, who
tells us, that, becaufe we experience a gratifi-
cation in our L^enevolent adions, we are therefore
exdufively and uniformly felfifli. A corredt ex-
amination of fads will lead us to difcover that
quality which is common to all virtuous adions, and
which diftinguilhes them from thofe which are
viciouf> and criminal. But we (hall fee that it is
neceflary for man to be governed not by his own
tranfient and hafty opinion upon the tendency of
every particular adion, but by thofe fixed and
unalterable rules, which are the joint refult of the
impartial judgment, ihe natural feelings, and the
embodied experience of mankind. The autho-
rity of thfefe rules is, indeed, founded only on
their tendency to promote private and public wel-
fare; but the morality of adions will appear folely
to coixfiil in their correfpondence with the rule.
By (he help of this obvious diftindion, we (hall
vindicate a juft theory, which, far from being mo-
dem, is, in fad, as ancient as philofophy, both

i from

( 3S )

from plaufible objedions, and from the odions
imputation of fupporting thofe abfurd and mon-
ftrous fyftems which have been built upon it.
Beneficial tendency is the foundation of rules, and
the criterion by which habits and fentiments are
to be tried. But it is neither the immediate
ttandard, nor can it ever be the principal motive
ofadbion. An adion, to be virtuous, muft accord
with moral rules, and muft flow from our natural
feelings and affedlions, moderated, matured, and
improved into fteady habits of right conduct *.
Without^ however, dwelling longer on fubjedls
which cannot be clearly ftated, without being
fully unfolded, I content myfelf with obferving,
that it (hall be my objedt, in this preliminary, but
moft important part of the courfe, to lay the
foundations of morality fo deeply in human nature,
as may fatisfy the coldeft inquirer ; and, at the
fame time, to vindicate the paramount authority
of the rules of our duty, at all times, and in all
places, over all opinions of iniereft and fpecula-
tions of benefit, fo extenfively, fo univerfally,
and fo inviolably, as may well juftify the
grandeft and the moft apparently extravagant
cffufions of moral enthufiafm. If, notwithftand-
ing all my endeavours to deliver thefe doflrines
with the utmoft fimplicity, any of my auditors
(hould ftill reproach me for introducing fuch ab-

* Eft autem virtus nihil aliud qiiam in fe perfeAa atqiie ad
fummum pcrdudta naiura. — Cic. de Leg. Hb. U c, 8.

F 2 ftrufe

'■'■*'^:

( 36 )

ftrufe matters, I muft Qielter myfelf behind th^
authority of the wifeft of men. " If they (the an-
** cient moralifts), before they had come to the
" popular and received notions of virtue and vice,
*' had ftaid a little longer upon the inquiry con-
" cerning the roots of good and evil, they had
^' given, in my opinion, a great light to that
** which followed ; and fpecially if they had con-
^* fulted with nature, they had made their doc-
^' trines lefs proline, and more profound."— 5tfctf«,
D/^«. and Adv, of Learn, hok iL What Lord
Bacon defired for the mer? gratification of fcien-
tific curiofity, the welfare of mankind now im-»
perioufly demands. Shallow fyftems of metaphy-
fics have given birth to a brood of abominable and
peftilential paradoj;eSj which nothing but a more
profound philofophy can deftrpy. However we
may, perhaps, lament the neceffity of difcuffions
which may (hake the habitual reverence of fome
men for thofe rules which it is the chief intereft
of all men to pradife, we have now no choice left.
We muft either difpute, or abandon the ground.
Undiftrnguilhing and unmerited inve<5tives againft
philofophy, will only harden fophifts and their
difciples in the infolent conceit, that they are in
poffeflion of an undifputed fuperiority of reafon ;
and that their antagonifts have no arms to employ
againft them, but thofe of popular declamation.
Let us not for a moment even appear to fuppofe,
that philofophical truth and human happinefs are

( 37 )

fo irreconcilably at variance. I cannot exprefs
my opinion on this fubjetft fo well as in the words
of a moft valuable, though generally negleded
writer : " The fcience of abftrufe learning, when
** completely attained, is like Achjlles's fpear,
*^ that healed the wounds it had made before j (o
" this knowledge ferves to repair the damage it-
" felf had occafioncd, and this perhaps is all it is
*' good for; it cafts no additional light upon the
'* paths of life, but difperfes the clouds with
** which it had overfpread them before ; it ad-
** vances not the traveller one (lep in his journey,
** but condufls him back again to the fpot fronn
*' whence he wandered. Thus the land of Philo*
*' fophy confifts partly of an open champaign
♦* country, paflable by every common under-
** (landing, and partly of a range of woods, tra-
** verfable only by the fpeculative, and where
** they too freqyently delight to amufe themfelves.
^* Since then we (hall be obliged to make incur-
** (ions into this latter trad, and (hall probably
** find it a region of obfcurity, danger, and diffi-
** cuhy, it behoves us to ufe our utmoll endea-
** vours for enlightening and fmoothing the way
^* before us */* We fliall, however, remain in
the foreft only long enough to vi(it the fountains
of thofe llreams which flow from it, and which
water and fertilize the cultivated region of Morals,

♦ Search's Light of Nature, by Abraham Tucker, Efq.
vol. i. pref. page xxxiii.

to.

( 38 )

to become acquainted with the modes of warfare
praftifed by its favage inhabitants, and to leani
the means of guarding our fair and fruitful land
againft their def^lating incurfions. I fhall haften
from fpeculaiions, to which I am naturally, per-
haps, but too prone, and proceed to the more
proiicable confideration of our practical duty.

II. The firft and mofl: iimple part of ethics is
that which regards the duties of private men to-
wards each otherj when they are confidered apart
from the fandion of pofitive laws. I fay, apart
from that fandion, not antecedent to it ; for though
we feparate private from political duties for tnc
fake of greater clearnefs and order in reafoning,
yet we arc not to be fo deluded by this mere ar-
rangement of convenience as to fuppofe that
human fociety ever has fubfifted, or ever could
fubfift, without being proteded by government
and bound together by laws. All thefe relative
duties of private life have been fo copioufly and
beautifully treated by the moralifts of antiquity,
thai few men will now choofe to follow them who
are not aduated by the wild ambition of equal-
ling Ariftotle in precifion, or rivalling Cicero in
eloquence. They have been alfo admirably
treated by modern moralifts, among whom it
would be grofs injuftice not to number many of
the preachers of the Chriftian religion, whofe pe-
culiar charadler is that fpirit of univerfal charity,

% which

( 39 )

which is the living principle of all our Tocial du*
ties. For it was long ago laid, with great truth,
by Lord Bacon, " that there never was any phi-
" lofophy, religion, or other difcipline, which
*' did fo plainly and highly exalt that good
*' which is communicative, and deprefs the good
" which is private and particular, as the Chrif-
'' tian faith *." The appropriate praife of this
religion is not fo much, that it has taught new du-
ties, as that it breathes a milder and more benevo-
lent fpirit over the whole extent of morals.

On a fubjed which has been fo exhaulled, I
ftiould naturally have contented myfelf with the
mod flight and general furvey, if fome funda-
mental principles had not of late been brought
into queftion, which, in all former times, have
been deemed too evident to require the fupport
of argument, and almoft too facred to admit the
liberty of difcuffion. I fliall here endeavour to
ftrengthen fome parts of the fortification of mo-
rality which have hitherto been negleded, be-
caufe no man had ever been i7ardy enough to
attack them. Almoft all the relative duties of
human life will be found more immediatelv, or
more remotely, to arife out of the two gieat in-
ftitutions of property and marriage. They con-
llitute, preferve, and improve ibtieiy. Upon their

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

gradual

( 40 )

gradual improvement depends the progreffive ci-
vilization of mankind ; on them reds the whole
order of civil life. We are told by Horace, that
the firft efforts of lawgivers to civilize men con*
filled in ftrengthening and regulating thefe infti-
tutions, and fencing them round with rigorous pe*
nal laws.

Oppida coeperunt munire et ponere leges

Ncu quis fur eflet, neu quis latro, neu quis adulter.

I Serm. iii. 105*

A celebrated ancient orator, of whofe poems
we have but a few fragments remaining, has well
dcfcribed the progreffive order in which human
fociety is gradually led to its higheft improve-
ments under the guardianfhip of thofe laws which
fecure property and regulate marriage.

£t leges fan£);a8 docuit, et chara jugavit
Corpora conjugiis ; et magnas condidit urbes.

Frag. C* Liciii. Calvin

Thefe two great inftitutions convert the felfilh as
well as the focial paffions of our nature into the
firmeft bands of a peaceable and orderly inter-
courfe ; they change the fources of difcord into
principles of quiet ; they difcipline the moft un-
governable, they refine the groffcft, and they
exalt the moft fordid propenfities ; fo that they
become the perpetual fountain of all that ftrength-
cns, and preferves, and adorns fociety ; they fuf-
tain the individual, and they perpetuate the race.

Around

( 41 )

Around thefe inftitutions all our fecial duties will
be found at various diftances to range themfelves ;
fome more near, obvioully eflential to the good
order of human life, others more remote, and of
which the neceflity is not at firft view fo apparent,
and fome fo diftant, that their importance has
been fometimes doubted, though upon more ma-
ture confideration they will be found to be out-
pofts and advanced guards of thefe fundamental
principles; that man fliould fecurely enjoy the
fruits of his labour, and that the fociety of the
fexes fliould be fo wifely ordered as to make it a
fchool of the kind afFedions, and a fit nurfery for
the commonwealth.

The fubjedt of property is of great extent. It
will be neceflary to eftablifli the foundation of the
rights of acquifition, alienation, and tranfmilfion,
not in imaginary contrafts or a pretended ftate of
nature, but in their fubferviency to the fubfiftence
and well-being of mankind. It will not only be
curious, but ufeful, to trace the hiftory of pro-
perty from the firft loofe and tranfient occupancy
cf the favage, through all the modifications
which it has at different times received, to that
comprehenfi v'e, fubtile, and anxiouily minute
code of property which is the laft refult of the
moft relined civilization.

Khali

. ( 4» )

I (hall obferve the fame order in confidering
the fociety of the fexes as it is regulated by the
inltitution of marriage. I (hall endeavour to lay
open thofe unalterable principles of general inte-
reft on which that inftitution refts : and if I enter-
tain a hope that on this fubjedl I may be able to
add fomething to what our mailers in morality
have taught us, I truft, that the reader will bear
in mind, as an excufe for my prefumption, that
they were not likely to employ much argument
where they did not forefeethe poffibility of doubt.
I fliall alfo confider the hiltory of marriage, and
trace it through all the forms which it has af-
fumed, to that decent and happy permanency of
union, which has, perhaps above all other caufes,
contributed to the quiet of focietj^, and the refine-
ment of manners in modern times. Among many
other inquiries which this fubjcdt will fuggeft, I (hall
be led more particularly to examine the natural fta-
tion and duties of the female fex, their condition
among diflferent nations, its improvement in Eu-
rope, and the bounds which Nature herfelf has
prcfcribed to the progrefs of that improvemcint ;
beyond which, every pretended advance will be a
real degradation.

III. Having cftabliflied the principles of pri-
vate duty, I (hall proceed to confider uian under
the important relation of fubjeft and fovereign.

or.

( 43 )

or, in other words, of citizen and mwigiflrate.
The duties which arife from this relation I (hall
endeavour to eftabliQi, not upon fuppofed corn-
pads, which are altop ether chimerical, which
muft be admitted to be faUe in fad:, which if they
are to be confidered as fidlions, will be^found to
ferve no purpofe of juft reafoning, and to be
equally the foundation of a fyftem of univerfal
defpoiifm in Hobbes, and of univerfal anarchy in
Roufleau ; but on the folid bafis of general con-
venience. Men cannot fubfift without fociety
and mutual aid; they can neither maintain focial
intercourfe nor receive aid from, each other with-
out the prote<5lion of government ; and they
cannot enjoy that protection without fubmitting
to the reftraints which a juft government impoles.
This plain argument eftablifhes the duty of
obedience on the part of citizens, and the duty
of protection on that of magiftrates, on the fame
foundation with that of every other moral
duty; and it fliows, with fufEcient evidence,
that thefe duties are reciprocal ; the only ra-
tional end for which the fidion of a contrad
could have been invented. I iliall not encumber
my reafoning by any fpeculations on the origin of
government ; a queftion on which fo much rea-
fon has been wafted in modern times ; but which
the ancients * in a higher fpirit of philofophy

have

"* The introdu(5tion to he firft book of Ariftotle*s Poli-
tics is the bell demonftration of the neceffity of political fo-

o 2 ciety

( 44 )

have never once mooted. If our principles be
juft, the origin of government muft have been
coeval with that of mankind; and as no tribe has
ever yet been difcovered fo brutiOi as to be with-
out feme government, and yet fo enlightened as
toeftablifh a government by common confent, it
is furely unneceflary to employ any ferious argu-
ment in the confutation of a doftrine that is in-
confiilent with reafon, and unfupported by expe-
rience. But though all inquiries into the origin
of government be chimerical, yet the hiftory of
its progrefs is curious and ufeful. The various
flages through which it pafled from favage inde-
pendence, which implies every man'j power of
injuring his neighbour, to legal liberty, which
confifts in every man's fecurity againft wrong ;
the manner in which a family expands into a
tribe, and tribes coalefce into a nation; in which
pubhc juftice is gradually engrafted on private
revenge, and temporary fubmiffion ripened into
habitual obedience; form a moft important and
extenfive fubje(5l: of inquiry, which comprehends
all the improvements of mankihd in police, in
judicature, and in legiflation.

te'd

ciety to the well-being, and indeed to the very being, of
man, with which I am acquainted. Having Ihown the
circumftances which render man neceflarily a focial being,
he juftly concludes, ** Ka* lit avGewTroj (pva-ii mXCluoi iuoi,**y
Arift. de Rep. lib. i. ^

I have

( 45 )

1 have already given the reader to underftand
that the dcfcription of liberty which feeins to me
the mod comprehenfive, is that of fecwiiy againfl
wrong. Liberty is therefore the ohjedl of all
government. Met. are more free under every go-
vernment, Q\ci\ the molt imperfed, than they
would be if it were poflible for them tc exift with-
out any government at all : ihey are more fecure
from wrong, and more undiClurbed in the exer-
cife of their natural powers, than if they were al-
together unprotefted againft injury from each
other. But as general fecuriiy is enjoyed in very
different degrees under diifcrent governments,
thofe which guard it mod perfedly, are by way of
eminence called /r^^. Such governments attain
mod completely the end which is common to all
government. A free government and a good
government are therefore different expreflions for
the fame idea. Another material diftindion, how-
ever, foon prefents itfelf. In moll: civilized ftates
the fubjedt is tolerably prote(5led againft grofs in-
juflice from his fellows by impa'tial laws, which
it is the manifeft intereft of the fovereign to en-
force. But fome commonwealths are fo happy as
to be founded on a principle of much more re-
fined and provident widlom. The fubjedts of
fuch commonwealths are guarded not only againft
the injullice of each other, but (as far as human
prudence can contrive) againft oppreflion from the
magiftrate. Such ftates, like all other extraordi-
nary

( 46 )

nary examples of public or private excellence
and happinefs, are thinly fcattered over the differ-
ent ages and countries of the world. In them the
will of the fovereign is limited with To exadt a
meafure, that his prote(5ling authority is not
weakened. Such a combination of fkill and for-
tune is not often to be expected, and indeed never
can arife^ but from the condant though gradual
exertions of wifdom and virtue, to improve a
long fucceflion of moft favourable circumftances.

There is indeed fcarce any fociety fo wretched
as to be deftitute of fome fort of weak provifion
againft the injuftice of their governors. Religious
inftitutions, favourite prejudices, national man-
ners, have in different countries, with unequal de-
. grees of power, checked or mitigated the exer-
cife of fupreme power. The privileges of a
powerful nobility, of opulent mercantile com-
munities, of great judicial corporations, have
in fome monarchies approached more near to a
control on the fovereign. Means have been
devifed with more or lefs' wifdom to temper the
defpotifm of an ariftocracy over their fubjedls,
and in democracies to protedl the minority againft
the majority, and the whole people againft the ty-
ranny of demagogues. But in thefe unmixed
forms of government, as the right of legiflation
is vefted in one individual or in one body, it *s
obvious that the legiflaiive power may fliake off

all

( 47 )

all the reftraints which the laws have impofed
on it. All fuch governments, therefore, tend
towards defpotifm, and the fecnrities which they
admit againft mif-government are extremely
feeble and precarious. The beft fecurity which
human wifdom can devife, feems to be the
diftribution of political authority among different
individuals and bodies, with feparate interefts and
feparate characters, correfponding to the variety
of claffes of which civil fociety is compofed, each
interefted to guard their own order from oppref-
fion by the reft ; each alfo interefted to prevent any
of the others from feizing on exclufive, and
therefore defpotic power ; and all having a com-
mon intereft to co-operate in carrying on the or-
dinary and neceffary ad minift ration of govern-
ment. If there were not an intereft to refift each
other in extraordinary cafes, there would not be
liberty. If there were not an intereft to co-ope-
rate in the ordinary courfe of affairs, there could
be no government. The obje<5l of fuch wife in-
ftitutions which make the felfiftinefs of governors
a fecurity againft their injuftice, is to proted men
againft wrong both from their rulers and their
fellows. Such governments are, with juftice,
peculiarly and emphatically caWcd free ; and in af-
cribing that liberty to the fkilful combination of
mutual dependence and mutual check, I feel my
own convidlion greatly ftrengthened by calling to
mind, that in this opinion I agree with all the wife

men

( 48 ;

men who have ever deeply confidered the priD'
ciples of poliLics ; with Ariftotle and Polybius,
with Cicero and Tacitus, with Bacon and Ma-
chiavel, with Montefquicu and Hume *. It is
impoffible in fuch a curfory iketch as the prefent,
even to aUude to a very fmall part of thofe phi-
lofophical principles, political reafonings, and hif-
torical fafls, which are neceflary for the illuftra-
tion of this momentous fubjet"l. In a full difcuf-
fion of it I Ihall be obliged to examine the gene-
ral frame of the mod celebrated governments of
ancient and modern times, and efpecially of thofe
which have been moft renowned for their freedom.
The refult of fuch an examination will be, that no
inftitution fo deteflable as an abfolutely unbalanced
government, perhaps ever exited ; that the fim-
ple governments arc mere creatures of the imagina-
tion of thcorifts, who have transformed names
ufed for the convenience of arrangement into real
polities; but that, as different crnftitutions approach
more or lefs to that unmixed and uncontrolled
fimplicity, it is in the exact proportion of their

* To the weight of thefe great names let me add the opi-
nion of two illuftrious men of the prefent age, as both their
opinions are combined by one of them in the following paff-
age : " He (Mr. Fox) always thought any of the limple un-
*• balanced governments bad ; fimple monarchy. Ample arif-
** tocracy, limple democracy ; he held them all imperfect or
" vicious, all were bad by themfelves ; the compolition alone
** was good. Thefe had been always his principles, in which
*' he agreed with his friend, Mr. Burke."— Mr. Fox oij the
Army Eftimates, 9lh Feb. 1 790.

departure

( 49 )

departure from it that they are, and can alone be
free.

By the conftitutlon of a fiate, I mean " the body
'" of thofe written and unwritten fundamental laws
** which regulate the rnojl important rights of the
** higher magijlrates, and the mojl ejential privileges *
** of thefuhjeSls^ Such a body of political laws
muft in all countries arife but of the character and
fituation of a people ; they muft grow with its
progrefs, be adapted to its peculiarities^ change
with its changes, and be incorporated into it$
habits. Humin wifdom cannot form fuch a con-
ftitution by one adt, for human wifdom cannot
create the materials of which it is compofed. The
attempt, always ineffedual, to change by violence
the ancient habits of men, and the edabliOied
order of fociety, fo as to fit them for an abfolutely
hew fcheme of government, flows from the molt:
prefuiiiptuous ignorance, requires the fupport of
the moft ferocious tyranny, and- leads to confe-
quences which its authors can never forefee ; gene-
I'ally, indeed, to inftitutions the moft oppofite to
thofe of which they profefs to feek the eftablilli-

* Privile^e<, in Roman jurifprudence, means the exemptioti
of one individual from the operation of a law. Political privi-
Jeges in the fenfe in which I employ the terms, mean thofe
rights of the fubjefts of a free ftate, which are deemed fo
^flential to the well-being of the commonwealth, that they
are excetted from the ordinary difcretion of the magiftrate, and
guarded by the fame fundamental laws which fecure his
authority.

K tnenc.

( 50 )

ment. But hinnan wifdom indefatigably emj^loyed
for remedying abufes, and in feizing favourable
opportunities of improving that order of fociety
which arifes from caufes over which we have little
control, after the reforms and amendments of a
feries of ages, has fometimes, though very rarely*,
Ihown itfelf capable of building up a free confti-
tution, which is " the growth of time and nature,
" rather than the work of human invention."
Such a confl-itution can only be formed by the
wife imitation of " the great innovator time,"
•• which, indeed, innovateth greatly, but quietly,
" and by degrees fcarce to be perceived •)•."
Without wafting time in puerile panegyrics,
on that of which all mankind confefs the ex-
cellence, I may obferve, with truth and fo-
bernefs, that a free government not only efta-
blifties anuniverfal fecurity againft wrong, but that
it alfo cheriQies all the nobleft powers of the
human mind ; that it tends to banifh both the
mean and the ferocious vices ; that it improves
the national charader to which it is adapted, and

* Pour former un gouvtrnement modere, il fam com-
biner les puiflances, les regler, lea temperer, les faire agir,
donner pour ainfi dire un leO: ^ i'une pour la mettre en ^tat de
refifter k une autre, c*eft un chef d'ceuvre de legiflation que le
hazard fait raremcnt, et que raretnent on lailTe faire ^ la pru-
dence. Un gouvernement defpotique au contraire faute puur
ainfi dire aux yeux ; il eft uniforme partout ; commeil ne fauc
que des pafiions pour I'etablir tout le monde eft bon pour ^ela.
Montefquieu, De L'Efprit des Loix, liv. v. c. 14.

t Lord Bacou, EfTay xxiv. Of Innovations.

2 out

f 51 )

out of which it grows; that its whole adminiftra-
tion is a pradicalfchool of honeftyand humanity;
and that there the fecial affections, expanded into
public fpiritj gain a wider fphere, and a more ac-
tive fpring. ■ . . >

I fhall conclude what I have to offer on govern-
ment, by an account of the conftitution of Eng-
land. I (hall endeavour to trace the progrefs of
that conftitution by the light of hiftory, of laws,
and of records, from the earlieft times to the prc-
fent age ; and to (how how the general principles
of liberty, originally common to it, with the other
Gothic monarchies of Europe, but in other coun-
tries loft or obfcured, were in this more fortunate
illand preferved, matured, and adapted to the pro-
grefs of civilization. I (hall attempt to exhibit this
moft complicated machine, as our hiftory and our
laws (how it in action j and not as fome celebrated
writers have moft imperfedly reprefented it, who
have torn out a few of its more (imple fprings,
and, putting them together, mifcall them the Bri-
ti(h conftitution. So prevalent, indeed, have thefe
imperfedl accounts hitherto been, that I will ven-
ture to affirm, there is fcarcely any fubjefl which
has been lefs treated as it deferved than the £0-
vernment of England. Philofophers of great and
merited reputation * have told us that it con(ifted

* The reader will perceive that I allude to Montes-
(ji^iEV, whom I never name without reverence, though I

H ft fliall

1^^

t'ff

( s» )

of certain portions of monarchy, ariftocracy, and
democracy; names which are, in truth, very lit-
tle applicable, and which, if they were, would as
little give an idea of this government, as an ac-
count of the weight of bone, offleQi, and of blood
in a human body, would be a pidure of a living
man. Nothing but a patient and minute inveftiga-
tionof the prafticeof the government in all its parts,
and through its wholp hiftory, can give us juft
potions on this important fubjeft. If a lawyer,
without a philofophical fpirit, be unequal to the
examination of this great work of liberty and wif-
dom, ftill more uneqj'^i is a philofopher without
pradicaly legal, and hiftorical knowledges ; for the
lirft may want fkill, but the fecond wants mate-
rials. The observations of Lord Bacon on political
writers, in general, are moft applicable to thofe
who have given us fyftematic defcriptions of the
Englilh conftitution. " All thofp who have writ-
** ten of goyernments have vyritten as philofo-
*' phers, or as lawyers, and none asjiatefmen. As
f* for the philofophers, they make imaginary laws
*^ for imaginary commonwealths, and their dif-
" courfes are as the ftar?, which give little light
" becaufe they are fo high." — ** Hac co^rtitio ad
^f viros chiles proprie pertinet,** as he tells us in
another part of his writings ; but unfortunately no
experienced philofophical Britifli ftatcfman has yet

(liall prefume, with humility, to criticize his account of a go-
vernmenl: which h^ only faw at a diilanpe.

^ ■ ' devotee^

( S3 )

devoted his leifure to a delineation of the confti-
tiition, which fuch a ftatefman alone can pradi^
tally and perfedly know.

In the difcuffion of this gre^ fubjed, and in all
reafonings on the principles of politics, I (hall
labour, above all things, to avoid that which ap-
pears to me to have been the conftant fource of
political error : I mean the attempt to give an air
of fyftem, of iimplicity, and of rigorous demon-
ftration, to fubjedts which do not admit it. The
only means by which this could be done, was by
referring to a few fimple caufes, what, in truth,
arofe from immenfe and intricate combinations,
and fucceffions of caufes. The confequence was
1 ^ry obvious. 1 he fyftem of the theoriftyidifen-
*.ambered from all regard to the real nature of
things, was eafily made very fpecious. It re-
quired little dexterity to make his argument
appear conclufive. But all men agreed that it
was utterly inapplicable to human affairs. The
theorift railed at the folly of the world, inftead
of confeffing his own; and the men of prac-
tice unjuftly blamed philofophy, inftead of con-
demning the fophift. The caufes which the poli-
tician has to confider are, above all others, the
moft multiplied, mutable, rpinute, fubtle, and, if
I may fo fpe^k, evanefcent ; perpetually changing
their form, and varying their combinations; lo-
^ng their nature, while they keep their name ; ex-
hibiting

'.if

( 54 )

liibiiing the moft different confequenccs in the
endiefs variety of men and nations on whom they
operate ; in one degree of ftrcngth producing the
moft fignal benefit j and, under a flight variation
of circumftances, the moft tremendous mifchiefs.
They admit indeed of being reduced to theory ;
but to a theory formed on the moft extenlive
views, of the moft comprehenfive and flexible
piinciples, to embrace all their varieties, and to fit
all their rapid tranfmigrations ; a theory, of which
the moft fundamental maxim is, diftruft in itfclf,
and deference for practical prudence. Only two
writers of former times have, as far as I know, ob-
ferved this general defed of political reafoners ; but
thefe two arethe greateft philofophers who have ever
appeated in the world. The firft of them is Atif-
totle, who, in a paflage of his PoHtics, to which I
cannot at this moment turn, plainly condemns the
purfuit of a delufive geometrical accuracy in moral
reafonings as the conftant fource of the groflTeft
error. The fecond is Lord Bacon, who tells us,
with that authority of confcious wifdom which be-
longs to him, and with that power of richly adorn-
ing truth from the wardrobe of genius which he
poflefled above almoj all men, ** Civil know-
** ledge is converfant about a fubjedl which,
** above all others, is moft immerfed in matter,

5' and hardlieft reduced to axiom *."

IV. I

* This principle is cxpreffed by a writer of a very differ*
ent character from thefe two great philofophers ; a writer,

( S5 )

IV. I fliall next endeavour to lay open the ge-
neral principles of civil and criminal laws. On
this fubjed I may with fome confidence hope that
I (hall be enabled to philofophi^e wkh better ma-
terials by my acquaintance r. ith the laws of my own
country, which it is the bufinefs of my life to prac-
tife, and of which the ftudy has by habit become
my favourite purfuit.

The firfl: principles of jurifprudence are fimple
maxims of reafon, of which the obfervance is im-
mediately difcovered by experience to be eflential
to the fecurity o^ men*s rights, and which pervade
the laws of all countries. An account of the gra-
dual application of ihefe original principles, firft,
to more fimple, and afterwards to more compli-
cated cafes, forms both the hiftory and the theory
of law. Such an hiftorical account of the pro-
grefs of men, in reducing juftice to an applicable
and pradtical fyftem, will enable us to trace that
chain, in which fo many breaks and interruptions
are perceived by fuperficial obfervers, but which
in truth infeparably, though with many dark and

** ^u*0n n*appellera plus phllofophe, mats qtton apptUera Ic plus
" eloquent des fopbiftest'^ with great force, and, as his manner
is, with fome exaggeration.

'* 11 n*y a point de principes abftraits dans la politique.
•* Cell une fcience des calculs des combinaifons et d'excep-
" tions, felon les lieux, les terns et les circonftanccs." — Lettre
de RouJJeau au Marquis Je Miraheau,

The fecond propofition is true; but the firft is not a juft
inference from it. i .

hidden

( S6 )

''J

Lidden windings, links together the fecurityo/
life and property with the moft minute and appa-
rently frivolous formalities of legal proceeding,-
We (hall perceive that no human forcn-rht is fuf-
ficient to eftablifh .'uch a fyftem at once, and thaty
if it were fo eftablillied, the occurrence of forefeen
f* -^fes would Qiortly altogether change it ; that there
. but one way of forming a civil code, either
confident with common fcnfe, or that has ever
been pradifed in any country, namely, that of
gradually building up the law in proportion as-
the fads arife which it is to regulate. We fhall
learn to appreciate the merit of vulgar objedions
againft the fubtlety and complexity of laws. We
ftiall eftimate the good fenfe and the gratitude of
ihofe who reproach lawyers for employing all the
powers of their mind to difcover fubtle diftinc-
tions for the prevention of injuftice * j and we
|[hall at once perceive that laws ought to be nei-
ther more Jimpk nor more complex than the ftate
of fociety which they are to govern, but that they
ought exadly to correfpond to it. Of the two
faults, however, the cxcefs of fimplicity would
certainly be the greatefl: ; for laws, more complex
than are neceflary, would only produce embarrafl'-*
ment ; whereas laws more fimple than the affairs
which they regulate would occafion a d«fe6t of

* " The cafuiftical fubtleties are not perhaps greater than
<* the fubtleties of lawyers ; hut the latter are innocent^ and
»* even neceffaryy — Hume's fiflays, vol. ii.p. 55S.

juftice^

( 57 ) «

jiiftice. More underftanding * has perhaps been
in this manner exerted to fix the rules of life than
in any other fcience ; and it is certainly the moft
honourable occupation of the underftanding, be-
caufc it is the moft immediately fubfervient to
general fafety and comfort. There is not, in my
opinion, in the whole compafs of human affairs,
fo noble a fpedtacle as that which is difplayed in
the progrefs of jurifprudence ; where we may
contemplate the cautious and unwearied exertions
of a fucceffion of wife men through a long courfe
of ages ; withdrawing every cafe as it arifes from
the dangerous power of difcretion, and fubjedting
it to inflexible rules ; extending the dominion of
juftice and reafon, and gradually contradling,
within the narroweft poffible limits, the domain
of brutal force and of arbitrary will. This fubje<5t
has been treated with fuch dignity by a writer
who is admired by all mankind for his eloquence,
but who is, if poflible, ftill more admired by all
competent judges for his philofophy ; a writer,
of whom I may juftly fay, that he was " graviffimui
" et dicendi et intelligendi auSior et magifter ;" that
I cannot refufe myfelf the gratification of quoting
his words : — " The fcience of jcrifprudence, the

* " Law," faid Dr. Johnfon, " is the fcience in which the
** greateft powers of underftanding are applied to the great-
*• eft number of fafts.'* Nobody, who is acquainted with
the variety and muhiplicity of the fubjefts of jurifprudence,
and with the prodigious powers of dil'crimination employed
upon them, can doubt the truth of this obfervation.

I ** pride

( S8 )

" pride of the human intelied^, which, with all iti
" defefls, redundancies, and errors, is the col-
•* leded reafon of ages combining the principles
" of original juftice with the infinite variety of
*' human concerns *.'*

I (hall exemplify the progrefs of law, and il-
luftrate .hofe principles of univerfal juftice on
which ik is founded, by a comparative review of
the two j^reateft civil codes that have been hitherto
formed — thofe of Rome and of England "f- ; of
their agreements and difagreements, both in ge-
neral provifions, and in fome of the moft important
parts of their minute practice. In this part of the
courfe, which I mean to purfue with fuch detail as
to give a view of both codes, that m^y perhaps be
fufficient for the purpofes of the general ftudent,
I hope to convince him that the laws of civilized
nations, particularly thofe of his own, are a fub-
jeft moft worthy of fcientific curiofity ; that prin-
ciple and fyftem run through them even to the
minuteft particular, as really, though not fo ap-
parently, as in other fciences, and applied to
purpofes more important than in any other fcience.

* Burke's Works, vol. iii. p. 1 34.

■f- On the intimate connexion of thefe two codes, let us
hear the words of Lord Holt, whofe name never can be pro-
nounced without veneration, as long as wifdom and integrity
are revered among men :— " Inafmuch as the latvsof all na-
'• tians are douhtlefs raifed out of the ruins of the civil lawt as
*' all governroentsi are fprung out of the ruins of the Roman
** empire, it muft be owned that the principles of our latv are
** horronued from the civil lawj therefore y;rounded upon the
"fame reafon in many things." — la Mod. 482.

I Will

( 59 )

Will it be prefumptuous to exprefs a hope, that
fuch an inquiry may not be altogether an ufelefs
introduftion to that larger and more detailed ftudy
of the law of England, which is incumbent on
thofe who are to profefs and pradtife that law ?

On the important fubjeft of criminal law it
will be my duty to found, on a regard to the
general fafety, the right of the magidrate to inflidt:
puniftiments, even the mod fevcre, if that fafety
cannot be effecftually proteded by the example of
inferior puniftiments. It will be a more agree-
able part of my office to explain the tempera-
ments which Wil'dom, as well as Humanity, pre-
fcribes in the exercife of that harfti right, unfor-
tunately fo effential to the prefervation of human
fociety. I Ihall collate the penal codes of differ-
ent nations, and gather together the moft accurate
ftatement of the refult of experience with refpedt
to the efficacy of lenient and fevere puniftiments ;
and I ftiall endeavour to afcertain the principles
oi> which mud be founded both the proportion
and the appropriation of penalties to crimes.

As to the law of criminal proceeding, my labour
wiii be very eafy ; for on that fubjeft an Englifti
lawyer, if he were to delineate the model of per-
feftion, would find that, with few exceptions, he
had tranfcribed the inftitutions of his own country.
The whole fubjed of my ledures, of which I have

I a now

( 6o )

now given the outline, may be fummed up in the
words of Cicero : — ** Natura enim juris expli-
** canda eft nobis, eaque ab hominis repetend^
*' naturd ; confiderandas leges quibus civitates
*' regi dcbeant ; turn haec tradanda quae compo-
** fita Tunc ec defcripta, jura et jufla populorum;
" in quibus ne nostri (^uidem populi late-

** BUNT q^M VOCANTUR JUPA CIVILIA."

Cic. de Leg, lib. i c. 5.

V, The next great divifion of the fubje<^ is th^
law of nations, itridtiy and properly fo called. 1
have already hinted at the general principles on
^vhich this law is founded. They, like all th^
principles of natural jurifprudence, have been mor^
happily cultivated, and more generally obeyed, in
fome ages and countries than in others ; and, like
them, are fufceptiblc of great variety in their appli-
cation, from the chara(fter and ufagcs of nations.
I (hall confider thefe principles in the gradation
of thofe which are neceffary, to any tolerable
intercourfe between nations: thofe which are
effential to all well-regulated and mutually ad-
vantageous intercourfe; and thofe which are
highly conducive to the prefervation of a mild and
friendly intercourfe between civilized ftates. Of
the firft clafs, every underftanding acknowledges
the neceflity, and fome traces of a faint reverencp
for them are difcovered even among the molt
barbarous tribes i of the feCond, every well-in-
formed

( 6I )

formed man perceives the important ufe, and they
have generally been refpeded by all polifticd
nations; of the third, the great benefit may be
read in the hiftory of modern Europe, where
alone they have been carried to their full per-
fcAion. In unfolding the firft and fecond clafs of
principles, I (hall naturally be led to give an acp
count of that law of nations, which, in greater or
Jefs perfedion, regulated the intercourfe of fa-
vages, of the Afiatjc empires, and of the ancient
republics. The third brings me to the confidera^-
lion of the law of nations, as it is now acknow-
ledged in Chriftendom. From the great extent of
the fubjed, and the particularity to which, for
reafons already given, I muft here defcend, it is
impoffible for me, within any moderate compafs,
to give even an outline of this part of the courfe.
It comprehends, as every reader will perceive, the
principles of national independence, the inter-
courfe of nations in peace, the privileges of em-
bafladors and inferior minifters, the commerce of
private fubjeds, the grounds of juft war, the mu-
tual duties of belligerent and neutral powers, the
limits of lawful hoftiliiy, the rights of conqueft,
the faith to be obfcrved in warfare, the force of an
armiftice, of fafe conduds and paflports, the na-
ture and obligation of alliances, the means of
negotiation, and the authority and interpretation
of treaties of peace. All thefe, and many other
mod important and complicated fubjeds, with a}!

thq

,1
1

( 6^, )

the variety of moral reafoning, and hiftorical ex-
amples, which is neceflary to illuftrate them, mud
be fully examined in this part of the leiflures, in
which I (hall endeavour .to put together a tolerably
complete practical fyftem of the law of nations, as
it has for the lall two centuries been recognifed in
Europe.

** Le droit des gens eft naturellement fonde fur
" ce principe; que les diverfes nations doivent fe
*< faire, dans la paix, le plus de bien, et dans la
*' guerre le molns de mal, qu'ii eft poffible, fans
*' nuire a Icurs vcritables interets.

" L'objet de la guerre c*eft la viftoire ; celui
" de la viftoire la conquete ; celui de la conqucte
•« la confervaiion. De ce principe & du prece-
** dent, doivent deriver toutes les loix qui forment
** U droit des gens.

*^ Toutes les nations ont un droit des gens ; les
" Iroquois meme qui mangent leur prifonniers en
** ont un. lis envoient & re9oivent des embaf-
** fades ; ils connoifTent les droits de la guerre et
de la paix : le mal eft que ce droit des gens n*eft
pas fonde fur les vrais principes." — De VEfprit
des Loix, liv. i. c. 3.

VI. As an important fupplement to the prafti-
cal fyftcm of our modern law of nations, or rather

( 63 )

as a necefTary part of it, I (hall conclude with a
iurvcy of tlie diplomatic and conventional la:v of
Europe ; of the treaties which have materially af-
fedecl the dillribution of power and territory
among the European ftates; the circumftances
which gave rife to them, the changes which they
cfFedcd, and the principles which they introduced
into the public code of the Chriftian common-
wealth. In ancient times the knowledge of this
conventional law was thought one of the greatcfl:
praifes that could be bellowed on a name loadtd
with all the honours that eminence in the aits of
peace and of war can confer :

Equidem exiftimo, judices, cum in omni
" genere ac varietate artium, etiam illarirn, quse
" fine fummo otio non facile difcuntur, Cn. Pom-
" peius excellat, (ingularem quandam laudem ejus
" ct praeftabilem effe fcientiam, in foederibusy pac-
*' tionihuSf populorum, regum, exterarum nationum :
** in univerfo denique belli jure ac pacis.**— C/V.
Oral* pro L. Corn. Balbo, c. 6.

Information on this fubjeft ;, 'altered over an
immenfe variety of voluminous compilations ; not
acccflible to every one, and of which the perufal
can be agreeable only to very few. Yet fo much
of thefe treaties has been embodied into the ge-
neral law of Europe, than no man can be mafter
of it who is not acquainted with them. The

knowledge

( 64 )

knowledge of them is neceffary to negotiators and
ftatefmen i it may fometimes be important to pri-
vate men in various fituations in which they may
be placed ; it is ufeful to all men who wilh either
to be acquainted with modern hiftory, or to form a
found judgment on political meafures. I Ihall
endeavour to give fuch an abftra(5t of it as may be
fufficient for fome, and a convenient guide for
others in the farther progrefs of their ftudies. The
treaties, which I (hali more particularly confider,
will be thofe ot Weftphalia, of Oliva, of the Pyre-
nees, of Breda, of Nimeguen,ofRyfwick,of Utrecht,
of Aix-la-Chapelle, of Paris (1763), and of
Verfailles (1783). I fhali fhortly explain the
other treaties, of which the ftipulations are cither
alluded to, confirmed, or abrogated in thofe which
I confider at length. I (hall fubjoin an account of
the diplomatic intercourfe of the European powers
'^ith the Ottoman Porte, and with other princes
and ftates who are without the pale of our ordi-
nary federal law; together with a view of the
moft important treaties of commerce, their prin-
ciples, and their confequences.

As an ufeful appendix to a practical treatife on
the law of nations, fome account will be given
of thofe tribunals which in different countries of
Europe decide controverfies arifing out of that
law ; of their conftitution, of the extent of their
authority, and of their modes of proceeding;

( 6J )

iiore efpeclally of thofe courts which arc pecu-
iaily appointed for that purpofc by the laws of
Ireat Britain.

■in-

Though the courfe, of which I have fketchcd
he outline, may feem to connprehcnd fo great a
variety of mifcellaneous fubjedts, yet they are all
n truth clofely and infcparably interwoven. The
uties of men, of fubjcdts, of princes, of law*
Igivers, of magiftrates, and of Hates, are all parts
of one confiftent fyftem of univerfal morality.
Between the moft abftraft and elementary maxim
of moral philofophy, and the moft complicated
controverfies of civil or public law, there fub-
fifts a connexion which it will be the main object
of thefe lectures to trace. The principle of juf-
tice, deeply rooted in the nature and intereft of
man, pervades the whole fyftem, and is difcovcr-
able in every part of it, even to its minuteft ra-
mification in a legal formality, or in the conftruc-
tjon of an article in a treaty.

.jn i

I know not whether a philofopher ought to
confefs, that in his inquiries after truth he is biaflVd
by any confideration ; even by the love of virtue.
But I, who conceive that a real philofopher oiighc
10 regard truth itfelf chiefly on account of its
fubferviency to the happinefs of mankind, am not
alhamed to confefs, that I fhall feel a great confo-
lation at the conclufion of thcfc k(5tures, if, by a

K wide

.-•*';

1»

■'■■^.

•4/

( 66 )

-/■?

>i ■,

.;#

wide furvey and an e:ica6l: escamination of the cdnj
ditions and relations of hunnan nature, I (hall have
confirmed but one individual in the convidlionj
that juftice is the permanent intereft of all men,
and of all comtnonwealths. To difcover one new
link of that eternal chain by which the Author
, the univcrfe has bound together the happinels|
and the duty of his creatures, and indilTolubljl
fattened their interefts to each other, vfOxxH fill ray
heart with more pleafure than all the fame witli
which the moil ingenious paradpx ever crowned
the moft eloquent lophift* ii^:i*i H^o

vft... I (hall conclude this Dilcourfc in thcf noble
language of two great orators and philofophers
■who havp, in a few words, dated the fubftance,
the obje^l:, and the refuk of all morality, and po
Jlfi^Sii' l4 law.

.,((;'.' .:",rf ■

((

"irfi^s

Nihil eft quod adhac de republica putem
" diftum, et quo polTim longius progredi, nifi fii
'* confirffiatifln, non modo falfum eflfe illud, fine in-
** juria non PpiTe, fed hoc veriffimum, fine fumma
*« juftittd rctnpublicam regi non poiTc." — Cic, Fra^
lib, ii. Repub, %

?!»;*>

€e

*' Juftice is itfelf the great ftanding policy o
civil fociety, and any eminent departure from it
'< under any circumftances, ]ies under the fufpi
*^ cion of being no policy at aM"'^Purkis PForks
vol. iii. p. 207.

FINIS.

of the coin.
I (hall havel

convidlionj
of all men]
er one new!

Author
I happineii|
indilfolublyl
>uld fill ray

fatpe witlil
er crowneiil

iji t -i 3

the nobltl
fiilofophersj

fubftanceJ
ty> and po«|

ica pute
di^ nifi fi
jdj line in
ine fumm
-C/V. Fra^

policy

re from it

the fufpi

)kis fVorh