If this were merely an objection of taste, I should be willi

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A DISCOURSE

ON

THE STUDY

OF THE

LAW OF NATURE AND NATIONS.

BY

SIR JAMES MACKINTOSH, M.P.

_SECOND EDITION._

LONDON:

HENRY GOODE AND CO.

QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW.

SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW.

M.DCCC.XXVIII.

A DISCOURSE,

ETC.

* * * * *

Before I begin a course of lectures on a science of great extent and

importance, I think it my duty to lay before the public the reasons

which have induced me to undertake such a labour, as well as a short

account of the nature and objects of the course which I propose to

deliver. I have always been unwilling to waste in unprofitable

inactivity that leisure which the first years of my profession usually

allow, and which diligent men, even with moderate talents, might often

employ in a manner neither discreditable to themselves, nor wholly

useless to others. Desirous that my own leisure should not be consumed

in sloth, I anxiously looked about for some way of filling it up, which

might enable me, according to the measure of my humble abilities, to

contribute somewhat to the stock of general usefulness. I had long been

convinced that public lectures, which have been used in most ages and

countries to teach the elements of almost every part of learning, were

the most convenient mode in which these elements could be taught; that

they were the best adapted for the important purposes of awakening the

attention of the student, of abridging his labours, of guiding his

inquiries, of relieving the tediousness of private study, and of

impressing on his recollection the principles of science. I saw no

reason why the Law of England should be less adapted to this mode of

instruction, or less likely to benefit by it, than any other part of

knowledge. A learned gentleman, however, had already occupied that

ground,[1] and will, I doubt not, persevere in the useful labour which

he has undertaken. On his province it was far from my wish to intrude.

It appeared to me that a course of lectures on another science closely

connected with all liberal professional studies, and which had long been

the subject of my own reading and reflection, might not only prove a

most useful introduction to the law of England, but might also become an

interesting part of general study, and an important branch of the

education of those who were not destined for the profession of the law.

I was confirmed in my opinion by the assent and approbation of men,

whose names, if it were becoming to mention them on so slight an

occasion, would add authority to truth, and furnish some excuse even for

error. Encouraged by their approbation, I resolved without delay to

commence the undertaking, of which I shall now proceed to give some

account; without interrupting the progress of my discourse by

anticipating or answering the remarks of those who may, perhaps, sneer

at me for a departure from the usual course of my profession; because I

am desirous of employing in a rational and useful pursuit that leisure,

of which the same men would have required no account, if it had been

wasted on trifles, or even abused in dissipation.

The science which teaches the rights and duties of men and of states,

has, in modern times, been called the Law of Nature and Nations. Under

this comprehensive title are included the rules of morality, as they

prescribe the conduct of private men towards each other in all the

various relations of human life; as they regulate both the obedience of

citizens to the laws, and the authority of the magistrate in framing

laws and administering government; as they modify the intercourse of

independent commonwealths in peace, and prescribe limits to their

hostility in war. This important science comprehends only that part of

_private ethics_ which is capable of being reduced to fixed and general

rules. It considers only those general principles of _jurisprudence_ and

_politics_ which the wisdom of the lawgiver adapts to the peculiar

situation of his own country, and which the skill of the statesman

applies to the more fluctuating and infinitely varying circumstances

which affect its immediate welfare and safety. "For there are in nature

certain fountains of justice whence all civil laws are derived, but as

streams; and like as waters do take tinctures and tastes from the soils

through which they run, so do civil laws vary according to the regions

and governments where they are planted, though they proceed from the

same fountains."[2]--_Bacon's Dig. and Adv. of Learn._ Works, vol. i. p.

101.

On the great questions of morality, of politics, and of municipal law,

it is the object of this science to deliver only those fundamental

truths of which the particular application is as extensive as the whole

private and public conduct of men; to discover those "fountains of

justice," without pursuing the "streams" through the endless variety of

their course. But another part of the subject is treated with greater

fulness and minuteness of application; namely, that important branch of

it which professes to regulate the relations and intercourse of states,

and more especially, both on account of their greater perfection and

their more immediate reference to use, the regulations of that

intercourse as they are modified by the usages of the civilised nations

of Christendom. Here this science no longer rests in general principles.

That province of it which we now call the law of nations, has, in many

of its parts, acquired among our European nations much of the precision

and certainty of positive law, and the particulars of that law are

chiefly to be found in the works of those writers who have treated the

science of which I now speak. It is because they have classed (in a

manner which seems peculiar to modern times) the duties of individuals

with those of nations, and established their obligation on similar

grounds, that the whole science has been called, "The Law of Nature and

Nations."

Whether this appellation be the happiest that could have been chosen

for the science, and by what steps it came to be adopted among our

modern moralists and lawyers,[3] are inquiries, perhaps, of more

curiosity than use, and which, if they deserve any where to be deeply

pursued, will be pursued with more propriety in a full examination of

the subject than within the short limits of an introductory discourse.

Names are, however, in a great measure arbitrary; but the distribution

of knowledge into its parts, though it may often perhaps be varied with

little disadvantage, yet certainly depends upon some fixed principles.

The modern method of considering individual and national morality as the

subjects of the same science, seems to me as convenient and reasonable

an arrangement as can be adopted. The same rules of morality which hold

together men in families, and which form families into commonwealths,

also link together these commonwealths as members of the great society

of mankind. Commonwealths, as well as private men, are liable to injury,

and capable of benefit, from each other; it is, therefore, their

interest as well as their duty to reverence, to practise, and to

enforce those rules of justice which control and restrain injury, which

regulate and augment benefit, which, even in their present imperfect

observance, preserve civilised states in a tolerable condition of

security from wrong, and which, if they could be generally obeyed, would

establish, and permanently maintain, the well-being of the universal

commonwealth of the human race. It is therefore with justice that one

part of this science has been called "_the natural law of individuals_,"

and the other "_the natural law of states_;" and it is too obvious to

require observation,[4] that the application of both these laws, of the

former as much as of the latter, is modified and varied by customs,

conventions, character, and situation. With a view to these principles,

the writers on general jurisprudence have considered states as moral

persons; a mode of expression which has been called a fiction of law,

but which may be regarded with more propriety as a bold metaphor, used

to convey the important truth, that nations, though they acknowledge no

common superior, and neither can nor ought to be subjected to human

punishment, are yet under the same obligations mutually to practise

honesty and humanity, which would have bound individuals, even if they

could be conceived ever to have subsisted without the protecting

restraints of government; if they were not compelled to the discharge of

their duty by the just authority of magistrates, and by the wholesome

terrors of the laws. With the same views this law has been styled, and

(notwithstanding the objections of some writers to the vagueness of the

language) appears to have been styled with great propriety, "the law of

nature." It may with sufficient correctness, or at least by an easy

metaphor, be called a "_law_," inasmuch as it is a supreme, invariable,

and uncontrollable rule of conduct to all men, of which the violation is

avenged by natural punishments, which necessarily flow from the

constitution of things, and are as fixed and inevitable as the order of

nature. It is the "_law of nature_," because its general precepts are

essentially adapted to promote the happiness of man, as long as he

remains a being of the same nature with which he is at present endowed,

or, in other words, as long as he continues to be man, in all the

variety of times, places, and circumstances, in which he has been known,

or can be imagined to exist; because it is discoverable by natural

reason, and suitable to our natural constitution; because its fitness

and wisdom are founded on the general nature of human beings, and not on

any of those temporary and accidental situations in which they may be

placed. It is with still more propriety, and indeed with the highest

strictness, and the most perfect accuracy, considered as a law, when,

according to those just and magnificent views which philosophy and

religion open to us of the government of the world, it is received and

reverenced as the sacred code, promulgated by the great Legislator of

the Universe for the guidance of his creatures to happiness, guarded and

enforced, as our own experience may inform us, by the penal sanctions

of shame, of remorse, of infamy, and of misery; and still farther

enforced by the reasonable expectation of yet more awful penalties in a

future and more permanent state of existence. It is the contemplation of

the law of nature under this full, mature, and perfect idea of its high

origin and transcendent dignity, that called forth the enthusiasm of the

greatest men, and the greatest writers of ancient and modern times, in

those sublime descriptions, where they have exhausted all the powers of

language, and surpassed all the other exertions, even of their own

eloquence, in the display of the beauty and majesty of this sovereign

and immutable law. It is of this law that Cicero has spoken in so many

parts of his writings, not only with all the splendour and copiousness

of eloquence, but with the sensibility of a man of virtue; and with the

gravity and comprehension of a philosopher.[5] It is of this law that

Hooker speaks in so sublime a strain:--"Of law, no less can be said,

than that her seat is the bosom of God, her voice the harmony of the

world; all things in heaven and earth do her homage, the very least as

feeling her care, the greatest as not exempted from her power; both

angels and men, and creatures of what condition soever, though each in

different sort and manner, yet all with uniform consent admiring her as

the mother of their peace and joy."--_Eccles. Pol._ book i. in the

conclusion.

Let not those, who, to use the language of the same Hooker, "talk of

truth," without "ever sounding the depth from whence it springeth,"

hastily take it for granted, that these great masters of eloquence and

reason were led astray by the specious delusions of mysticism, from the

sober consideration of the true grounds of morality in the nature,

necessities, and interests of man. They studied and taught the

principles of morals; but they thought it still more necessary, and more

wise, a much nobler task, and more becoming a true philosopher, to

inspire men with a love and reverence for virtue.[6] They were not

contented with elementary speculations. They examined the foundations of

our duty, but they felt and cherished a most natural, a most seemly, a

most rational enthusiasm, when they contemplated the majestic edifice

which is reared on these solid foundations. They devoted the highest

exertions of their mind to spread that beneficent enthusiasm among men.

They consecrated as a homage to virtue the most perfect fruits of their

genius. If these grand sentiments of "the good and fair" have sometimes

prevented them from delivering the principles of ethics with the

nakedness and dryness of science, at least, we must own that they have

chosen the better part; that they have preferred virtuous feeling to

moral theory; and practical benefit to speculative exactness. Perhaps

these wise men may have supposed that the minute dissection and anatomy

of Virtue might, to the ill-judging eye, weaken the charm of her

beauty. It is not for me to attempt a theme which has perhaps been

exhausted by these great writers. I am indeed much less called upon to

display the worth and usefulness of the law of nations, than to

vindicate myself from presumption in attempting a subject which has been

already handled by so many masters. For the purpose of that vindication

it will be necessary to sketch a very short and slight account (for such

in this place it must unavoidably be) of the progress and present state

of the science, and of that succession of able writers who have

gradually brought it to its present perfection.

We have no Greek or Roman treatise remaining on the law of nations. From

the title of one of the lost works of Aristotle, it appears that he

composed a treatise on the laws of war,[7] which, if we had the good

fortune to possess it, would doubtless have amply satisfied our

curiosity, and would have taught us both the practice of the ancient

nations and the opinions of their moralists, with that depth and

precision which distinguish the other works of that great philosopher.

We can now only imperfectly collect that practice and those opinions

from various passages which are scattered over the writings of

philosophers, historians, poets, and orators. When the time shall arrive

for a more full consideration of the state of the government and manners

of the ancient world, I shall be able, perhaps, to offer satisfactory

reasons why these enlightened nations did not separate from the general

province of ethics that part of morality which regulates the intercourse

of states, and erect it into an independent science. It would require a

long discussion to unfold the various causes which united the modern

nations of Europe into a closer society; which linked them together by

the firmest bands of mutual dependence, and which thus, in process of

time, gave to the law that regulated their intercourse greater

importance, higher improvement, and more binding force. Among these

causes we may enumerate a common extraction, a common religion, similar

manners, institutions, and languages; 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 jealousy of power, the

refinement of civilization, the cultivation of science, and, above all,

that general mildness of character and manners which arose from the

combined and progressive influence of chivalry, of commerce, of

learning, and of religion. Nor must we omit the similarity of those

political institutions which, in every country that had been over-run by

the Gothic conquerors, bore discernible marks (which the revolutions of

succeeding ages had obscured, but not obliterated) of the rude but bold

and noble outline of liberty that was originally sketched by the hand of

these generous barbarians. These and many other causes conspired to

unite the nations of Europe in a more intimate connexion and a more

constant intercourse, and of consequence made the regulation of their

intercourse more necessary, and the law that was to govern it more

important. In proportion as they approached to the condition of

provinces of the same empire, it became almost as essential that Europe

should have a precise and comprehensive code of the law of nations, as

that each country should have a system of municipal law. The labours of

the learned accordingly began to be directed to this subject in the

sixteenth century, soon after the revival of learning, and after that

regular distribution of power and territory which has subsisted, with

little variation, until our times. The critical examination of these

early writers would perhaps not be very interesting in an extensive

work, and it would be unpardonable in a short discourse. It is

sufficient to observe that they were all more or less shackled by the

barbarous philosophy of the schools, and that they were impeded in their

progress by a timorous deference for the inferior and technical parts of

the Roman law, without raising their views to the comprehensive

principles which will for ever inspire mankind with veneration for that

grand monument of human wisdom. It was only indeed in the sixteenth

century that the Roman law was first studied and understood as a science

connected with Roman history and literature, and illustrated by men

whom Ulpian and Papinian would not have disdained to acknowledge as

their successors.[8] Among the writers of that age we may perceive the

ineffectual attempts, the partial advances, the occasional streaks of

light which always precede great discoveries, and works that are to

instruct posterity.

The reduction of the law of nations to a system was reserved for

Grotius. It was by the advice of Lord Bacon and Peiresc that he

undertook this arduous task. He produced a work which we now indeed

justly deem imperfect, but which is perhaps the most complete that the

world has yet owed, at so early a stage in the progress of any science,

to the genius and learning of one man. So great is the uncertainty of

posthumous reputation, and so liable is the fame even of the greatest

men to be obscured by those new fashions of thinking and writing which

succeed each other so rapidly among polished nations, that Grotius, who

filled so large a space in the eye of his contemporaries, is now perhaps

known to some of my readers only by name. Yet if we fairly estimate both

his endowments and his virtues, we may justly consider him as one of the

most memorable men who have done honour to modern times. He combined the

discharge of the most important duties of active and public life with

the attainment of that exact and various learning which is generally the

portion only of the recluse student. He was distinguished as an advocate

and a magistrate, and he composed the most valuable works on the law of

his own country; he was almost equally celebrated as an historian, a

scholar, a poet, and a divine; a disinterested statesman, a

philosophical lawyer, a patriot who united moderation with firmness, and

a theologian who was taught candour by his learning. Unmerited exile did

not damp his patriotism; the bitterness of controversy did not

extinguish his charity. The sagacity of his numerous and fierce

adversaries could not discover a blot on his character; and in the midst

of all the hard trials and galling provocations of a turbulent political

life, he never once deserted his friends when they were unfortunate, nor

insulted his enemies when they were weak. In times of the most furious

civil and religious faction he preserved his name unspotted, and he knew

how to reconcile fidelity to his own party, with moderation towards his

opponents. Such was the man who was destined to give a new form to the

law of nations, or rather to create a science, of which only rude

sketches and indigested materials were scattered over the writings of

those who had gone before him. By tracing the laws of his country to

their principles, he was led to the contemplation of the law of nature,

which be justly considered as the parent of all municipal law.[9] Few

works were more celebrated than that of Grotius in his own days, and in

the age which succeeded. It has, however, been the fashion of the last

half-century to depreciate his work as a shapeless compilation, in which

reason lies buried under a mass of authorities and quotations. This

fashion originated among French wits and declaimers, and it has been, I

know not for what reason, adopted, though with far greater moderation

and decency, by some respectable writers among ourselves. As to those

who first used this language, the most candid supposition that we can

make with respect to them is, that they never read the work; for, if

they had not been deterred from the perusal of it by such a formidable

display of Greek characters, they must soon have discovered that Grotius

never quotes on any subject till he has first appealed to some

principles, and often, in my humble opinion, though, not always, to the

soundest and most rational principles.

But another sort of answer is due to some of those[10] who have

criticised Grotius, and that answer might be given in the words of

Grotius himself.[11] He was not of such a stupid and servile cast of

mind, as to quote the opinions of poets or orators, of historians and

philosophers, as those of judges, from whose decision there was no

appeal. He quotes them, as he tells us himself, as witnesses whose

conspiring testimony, mightily strengthened and confirmed by their

discordance on almost every other subject, is a conclusive proof of the

unanimity of the whole human race on the great rules of duty and the

fundamental principles of morals. On such matters, poets and orators are

the most unexceptionable of all witnesses; for they address themselves

to the general feelings and sympathies of mankind; they are neither

warped by system, nor perverted by sophistry; they can attain none of

their objects; they can neither please nor persuade if they dwell on

moral sentiments not in unison with those of their readers. No system of

moral philosophy can surely disregard the general feelings of human

nature and the according judgment of all ages and nations. But where are

these feelings and that judgment recorded and preserved? In those very

writings which Grotius is gravely blamed for having quoted. The usages

and laws of nations, the events of history, the opinions of

philosophers, the sentiments of orators and poets, as well as the

observation of common life, are, in truth, the materials out of which

the science of morality is formed; and those who neglect them are justly

chargeable with a vain attempt to philosophise without regard to fact

and experience, the sole foundation of all true philosophy.

If this were merely an objection of taste, I should be willing to allow

that Grotius has indeed poured forth his learning with a profusion that

sometimes rather encumbers than adorns his work, and which is not always

necessary to the illustration of his subject. Yet, even in making that

concession, I should rather yield to the taste of others than speak from

my own feelings. I own that such richness and splendour of literature

have a powerful charm for me. They fill my mind with an endless variety

of delightful recollections and associations. They relieve the

understanding in its progress through a vast science, by calling up the

memory of great men and of interesting events. By this means we see the

truths of morality clothed with all the eloquence (not that could be

produced by the powers of one man, but) that could be bestowed on them

by the collective genius of the world. Even Virtue and Wisdom themselves

acquire new majesty in my eyes, when I thus see all the great masters of

thinking and writing called together, as it were, from all times and

countries, to do them homage, and to appear in their train.

But this is no place for discussions of taste, and I am very ready to

own that mine may be corrupted. The work of Grotius is liable to a more

serious objection, though I do not recollect that it has ever been made.

His method is inconvenient and unscientific. He has inverted the natural

order. That natural order undoubtedly dictates, that we should first

search for the original principles of the science in human nature; then

apply them to the regulation of the conduct of individuals, and lastly,

employ them for the decision of those difficult and complicated

questions that arise with respect to the intercourse of nations. But

Grotius has chosen the reverse of this method. He begins with the

consideration of the states of peace and war, and he examines original

principles only occasionally and incidentally as they grow out of the

questions which he is called upon to decide. It is a necessary

consequence of this disorderly method, which exhibits the elements of

the science in the form of scattered digressions, that he seldom employs

sufficient discussion on these fundamental truths, and never in the

place where such a discussion would be most instructive to the reader.

This defect in the plan of Grotius was perceived, and supplied, by

Puffendorff, who restored natural law to that superiority which belonged

to it, and with great propriety treated the law of nations as only one

main branch of the parent stock. Without the genius of his master, and

with very inferior learning, he has yet treated this subject with sound

sense, with clear method, with extensive and accurate knowledge, and

with a copiousness of detail sometimes indeed tedious, but always

instructive and satisfactory. His work will be always studied by those

who spare no labour to acquire a deep knowledge of the subject; but it

will, in our times, I fear, be oftener found on the shelf than on the

desk of the general student. In the time of Mr. Locke it was considered

as the manual of those who were intended for active life; but in the

present age I believe it will be found that men of business are too much

occupied, men of letters are too fastidious, and men of the world too

indolent, for the study or even the perusal of such works. Far be it

from me to derogate from the real and great merit of so useful a writer

as Puffendorff. His treatise is a mine in which all his successors must

dig. I only presume to suggest, that a book so prolix, and so utterly

void of all the attractions of composition, is likely to repel many

readers who are interested, and who might perhaps be disposed to

acquire some knowledge of the principles of public law.

Many other circumstances might be mentioned, which conspire to prove

that neither of the great works of which I have spoken, has superseded

the necessity of a new attempt to lay before the public a System of the

Law of Nations. The language of science is so completely changed since

both these works were written, that whoever was now to employ their

terms in his moral reasonings would be almost unintelligible to some of

his hearers or readers; and to some among them too who are neither ill

qualified nor ill disposed to study such subjects with considerable

advantage to themselves. The learned indeed well know how little novelty

or variety is to be found in scientific disputes. The same truths and

the same errors have been repeated from age to age, with little

variation but in the language; and novelty of expression is often

mistaken by the ignorant for substantial discovery. Perhaps too very

nearly the same portion of genius and judgment has been exerted in most

of the various forms under which science has been cultivated at

different periods of history. The superiority of those writers who

continue to be read, perhaps often consists chiefly in taste, in

prudence, in a happy choice of subject, in a favourable moment, in an

agreeable style, in the good fortune of a prevalent language, or in

other advantages which are either accidental, or are the result rather

of the secondary than of the highest faculties of the mind.--But these

reflections, while they moderate the pride of invention, and dispel the

extravagant conceit of superior illumination, yet serve to prove the

use, and indeed the necessity, of composing, from time to time, new

systems of science adapted to the opinions and language of each

succeeding period. Every age must be taught in its own language. If a

man were now to begin a discourse on ethics with an account of the

"_moral entities_" of Puffendorff,[12] he would speak an unknown

tongue.

It is not, however, alone as a mere translation of former writers into

modern language that a new system of public law seems likely to be

useful. The age in which we live possesses many advantages which are

peculiarly favourable to such an undertaking. Since the composition of

the great works of Grotius and Puffendorff, a more modest, simple, and

intelligible philosophy has been introduced into the schools; which has

indeed been grossly abused by sophists, but which, from the time of

Locke, has been cultivated and improved by a succession of disciples

worthy of their illustrious master. We are thus enabled to discuss with

precision, and to explain with clearness, the principles of the science

of human nature, which are in themselves on a level with the capacity of

every man of good sense, and which only appeared to be abstruse from

the unprofitable subtleties with which they were loaded, and the

barbarous jargon in which they were expressed. The deepest doctrines of

morality have since that time been treated in the perspicuous and

popular style, and with some degree of the beauty and eloquence of the

ancient moralists. That philosophy on which are founded the principles

of our duty, if it has not become more certain (for morality admits no

discoveries), is at least less "harsh and crabbed," less obscure and

haughty in its language, less forbidding and disgusting in its

appearance, than in the days of our ancestors. If this progress of

learning towards popularity has engendered (as it must be owned that it

has) a multitude of superficial and most mischievous sciolists, the

antidote must come from the same quarter with the disease. Popular

reason can alone correct popular sophistry.

Nor is this the only advantage which a writer of the present age would

possess over the celebrated jurists of the last century. Since that time

vast additions have been made to the stock of our knowledge of human

nature. Many dark periods of history have since been explored. Many

hitherto unknown regions of the globe have been visited and described by

travellers and navigators not less intelligent than intrepid. We may be

said to stand at the confluence of the greatest number of streams of

knowledge flowing from the most distant sources that ever met at one

point. We are not confined, as the learned of the last age generally

were, to the history of those renowned nations who are our masters in

literature. We can bring before us man in a lower and more abject

condition than any in which he was ever before seen. The records have

been partly opened to us of those mighty empires of Asia[13] where the

beginnings of civilization are lost in the darkness of an unfathomable

antiquity. We can make human society pass in review before our mind,

from the brutal and helpless barbarism of _Terra del Fuego_, and the

mild and voluptuous savages of Otaheite, to the tame, but ancient and

immovable civilization of China, which bestows its own arts on every

successive race of conquerors; to the meek and servile natives of

Hindostan, who preserve their ingenuity, their skill, and their science,

through a long series of ages, under the yoke of foreign tyrants; to the

gross and incorrigible rudeness of the Ottomans, incapable of

improvement, and extinguishing the remains of civilization among their

unhappy subjects, once the most ingenious nations of the earth. We can

examine almost every imaginable variety in the character, manners,

opinions, feelings, prejudices, and institutions of mankind, into which

they can be thrown, either by the rudeness of barbarism, or by the

capricious corruptions of refinement, or by those innumerable

combinations of circumstances, which, both in these opposite conditions

and in all the intermediate stages between them, influence or direct the

course of human affairs. History, if I may be allowed the expression, is

now a vast museum, in which specimens of every variety of human nature

may be studied. From these great accessions to knowledge, law-givers and

statesmen, but, above all, moralists and political philosophers, may

reap the most important instruction. They may plainly discover in all

the useful and beautiful variety of governments and institutions, and

under all the fantastic multitude of usages and rites which have

prevailed among men, the same fundamental, comprehensive truths, the

sacred master-principles which are the guardians of human society,

recognised and revered (with few and slight exceptions) by every nation

upon earth, and uniformly taught (with still fewer exceptions) by a

succession of wise men from the first dawn of speculation to the present

moment. The exceptions, few as they are, will, on more reflection, be

found rather apparent than real. If we could raise ourselves to that

height from which we ought to survey so vast a subject, these exceptions

would altogether vanish; the brutality of a handful of savages would

disappear in the immense prospect of human nature, and the murmurs of a

few licentious sophists would not ascend to break the general harmony.

This consent of mankind in first principles, and this endless variety in

their application, which is one among many valuable truths which we may

collect from our present extensive acquaintance with the history of man,

is itself of vast importance. Much of the majesty and authority of

virtue is derived from their consent, and almost the whole of practical

wisdom is founded on their variety.

What former age could have supplied facts for such a work as that of

Montesquieu? He indeed has been, perhaps justly, charged with abusing

this advantage, by the undistinguishing adoption of the narratives of

travellers of very different degrees of accuracy and veracity. But if we

reluctantly confess the justness of this objection; if we are compelled

to own that he exaggerates the influence of climate, that he ascribes

too much to the foresight and forming skill of legislators, and far too

little to time and circumstances, in the growth of political

constitutions; that the substantial character and essential differences

of governments are often lost and confounded in his technical language

and arrangement; that he often bends the free and irregular outline of

nature to the imposing but fallacious geometrical regularity of system;

that he has chosen a style of affected abruptness, sententiousness, and

vivacity, ill suited to the gravity of his subject: after all these

concessions (for his fame is large enough to spare many concessions),

the Spirit of Laws will still remain not only one of the most solid and

durable monuments of the powers of the human mind, but a striking

evidence of the inestimable advantages which political philosophy may

receive from a wide survey of all the various conditions of human

society.

In the present century a slow and silent, but very substantial

mitigation has taken place in the practice of war; and in proportion as

that mitigated practice has received the sanction of time, it is raised

from the rank of mere usage, and becomes part of the law of nations.

Whoever will compare our present modes of warfare with the system of

Grotius[14] will clearly discern the immense improvements which have

taken place in that respect since the publication of his work, during a

period, perhaps in every point of view, the happiest to be found in the

history of the world. In the same period many important points of public

law have been the subject of contest both by argument and by arms, of

which we find either no mention, or very obscure traces, in the history

of preceding times.

There are other circumstances to which I allude with hesitation and

reluctance, though it must be owned that they afford to a writer of this

age some degree of unfortunate and deplorable advantage over his

predecessors. Recent events have accumulated more terrible practical

instruction on every subject of politics than could have been in other

times acquired by the experience of ages. Men's wit, sharpened by their

passions, has penetrated to the bottom of almost all political

questions. Even the fundamental rules of morality themselves have, for

the first time, unfortunately for mankind, become the subject of doubt

and discussion. I shall consider it as my duty to abstain from all

mention of these awful events, and of these fatal controversies. But the

mind of that man must indeed be incurious and indocile, who has either

overlooked all these things; or reaped no instruction from the

contemplation of them.

From these reflections it appears, that, since the composition of those

two great works on the Law of Nature and Nations which continue to be

the classical and standard works on that subject, we have gained both

more convenient instruments of reasoning and more extensive materials

for science; that the code of war has been enlarged and improved; that

new questions have been practically decided; and that new controversies

have arisen regarding the intercourse of independent states, and the

first principles of morality and civil government.

Some readers may, however, think that in these observations which I

offer, to excuse the presumption of my own attempt, I have omitted the

mention of later writers, to whom some part of the remarks is not justly

applicable. But, perhaps, further consideration will acquit me in the

judgment of such readers. Writers on particular questions of public law

are not within the scope of my observations. They have furnished the

most valuable materials; but I speak only of a system. To the large work

of Wolffius, the observations which I have made on Puffendorff as a book

for general use, will surely apply with tenfold force. His abridger,

Vattel, deserves, indeed, considerable praise. He is a very ingenious,

clear, elegant, and useful writer. But he only considers one part of

this extensive subject, namely, the law of nations strictly so called;

and I cannot help thinking, that, even in this department of the

science, he has adopted some doubtful and dangerous principles, not to

mention his constant deficiency in that fulness of example and

illustration, which so much embellishes and strengthens reason. It is

hardly necessary to take any notice of the text-book of Heineccius, the

best writer of elementary books with whom I am acquainted on any

subject. Burlamaqui is an author of superior merit; but he confines

himself too much to the general principles of morality and politics, to

require much observation from me in this place. The same reason will

excuse me for passing over in silence the works of many philosophers and

moralists, to whom, in the course of my proposed lectures, I shall owe

and confess the greatest obligations; and it might perhaps deliver me

from the necessity of speaking of the work of Dr. Paley, if I were not

desirous of this public opportunity of professing my gratitude for the

instruction and pleasure which I have received from that excellent

writer, who possesses, in so eminent a degree, those invaluable

qualities of a moralist, good sense, caution, sobriety, and perpetual

reference to convenience and practice; and who certainly is thought less

original than he really is, merely because his taste and modesty have

led him to disdain the ostentation of novelty, and because he generally

employs more art to blend his own arguments with the body of received

opinions, so as that they are scarce to be distinguished, than other

men, in the pursuit of a transient popularity, have exerted to disguise

the most miserable common-places in the shape of paradox.

No writer since the time of Grotius, of Puffendorff, and of Wolf, has

combined an investigation of the principles of natural and public law,

with a full application of these principles to particular cases; and in

these circumstances, I trust, it will not be deemed extravagant

presumption in me to hope that I shall be able to exhibit a view of this

science, which shall, at least, be more intelligible and attractive to

students, than the learned treatises of these celebrated men. I shall

now proceed to state the general plan and subjects of the lectures in

which I am to make this attempt.

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