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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.