which the observance is immediately discovered by experience to be
essential to the security of men's rights, and which pervade the laws of
all countries. An account of the gradual application of these original
principles, first, to more simple, and afterwards to more complicated
cases, forms both the history and the theory of law. Such an historical
account of the progress of men, in reducing justice to an applicable and
practical system, will enable us to trace that chain, in which so many
breaks and interruptions are perceived by superficial observers, but
which in truth inseparably, though with many dark and hidden windings,
links together the security of life and property with the most minute
and apparently frivolous formalities of legal proceeding. We shall
perceive that no human foresight is sufficient to establish such a
system at once, and that, if it were so established, the occurrence of
unforeseen cases would shortly altogether change it; that there is but
one way of forming a civil code, either consistent with common sense, or
that has ever been practised in any country, namely, that of gradually
building up the law in proportion as the facts arise which it is to
regulate. We shall learn to appreciate the merit of vulgar objections
against the subtlety and complexity of laws. We shall estimate the good
sense and the gratitude of those who reproach lawyers for employing all
the powers of their mind to discover subtle distinctions for the
prevention of injustice;[29] and we shall at once perceive that laws
ought to be neither more _simple_ nor more _complex_ than the state of
society which they are to govern, but that they ought exactly to
correspond to it. Of the two faults, however, the excess of simplicity
would certainly be the greatest; for laws, more complex than are
necessary, would only produce embarrassment; whereas laws more simple
than the affairs which they regulate would occasion a defect of justice.
More understanding[30] has perhaps been in this manner exerted to fix
the rules of life than in any other science; and it is certainly the
most honourable occupation of the understanding, because it is the most
immediately subservient to general safety and comfort. There is not, in
my opinion, in the whole compass of human affairs, so noble a spectacle
as that which is displayed in the progress of jurisprudence; where we
may contemplate the cautious and unwearied exertions of a succession of
wise men through a long course of ages; withdrawing every case as it
arises from the dangerous power of discretion, and subjecting it to
inflexible rules; extending the dominion of justice and reason, and
gradually contracting, within the narrowest possible limits, the domain
of brutal force and of arbitrary will. This subject has been treated
with such dignity by a writer who is admired by all mankind for his
eloquence, but who is, if possible, still more admired by all competent
judges for his philosophy; a writer, of whom I may justly say, that he
was "_gravissimus et dicendi et intelligendi auctor et magister_;" that
I cannot refuse myself the gratification of quoting his words:--"The
science of jurisprudence, the pride of the human intellect, which, with
all its defects, redundancies, and errors, is the collected reason of
ages combining the principles of original justice with the infinite
variety of human concerns."[31]
I shall exemplify the progress of law, and illustrate those principles
of universal justice on which it is founded, by a comparative review of
the two greatest civil codes that have been hitherto formed--those of
Rome and of England;[32] of their agreements and disagreements, both in
general provisions, and in some of the most important parts of their
minute practice. In this part of the course, which I mean to pursue with
such detail as to give a view of both codes, that may perhaps be
sufficient for the purposes of the general student, I hope to convince
him that the laws of civilised nations, particularly those of his own,
are a subject most worthy of scientific curiosity; that principle and
system run through them even to the minutest particular, as really,
though not so apparently, as in other sciences, and applied to purposes
more important than in any other science. Will it be presumptuous to
express a hope, that such an inquiry may not be altogether an useless
introduction to that larger and more detailed study of the law of
England, which is the duty of those who are to profess and practise that
law.
In considering the important subject of criminal law it will be my duty
to found, on a regard to the general safety, the right of the magistrate
to inflict punishments, even the most severe, if that safety cannot be
effectually protected by the example of inferior punishments. It will be
a more agreeable part of my office to explain the temperaments which
Wisdom, as well as Humanity, prescribes in the exercise of that harsh
right, unfortunately so essential to the preservation of human society.
I shall collate the penal codes of different nations, and gather
together the most accurate statement of the result of experience with
respect to the efficacy of lenient and severe punishments; and I shall
endeavour to ascertain the principles on which must be founded both the
proportion and the appropriation of penalties to crimes.
As to the _law of criminal proceeding_, my labour will be very easy; for
on that subject an English lawyer, if he were to delineate the model of
perfection, would find that, with few exceptions, he had transcribed the
institutions of his own country. The whole subject of my lectures, of
which I have now given the outline, may be summed up in, the words of
Cicero:--"Natura enim juris explicanda est nobis, eaque ab hominis
repetenda natura; considerandae leges quibus civitates regi debeant; tum
haec tractanda, quae composita sunt et descripta, jura et jussa populorum;
in quibus."--_Cic. de Leg._ lib. i. c. 5.
V. The next great division of the subject is the law of nations,
strictly and properly so called. I have already hinted at the general
principles on which this law is founded. They, like all the principles
of natural jurisprudence, have been more happily cultivated, and more
generally obeyed, in some ages and countries than in others; and, like
them, are susceptible of great variety in their application, from the
character and usages of nations. I shall consider these principles in
the gradation of those which are necessary to any tolerable intercourse
between nations; those which are essential to all well-regulated and
mutually advantageous intercourse; and those which are highly conducive
to the preservation of a mild and friendly intercourse between
civilised states. Of the first class, every understanding acknowledges
the necessity, and some traces of a faint reverence for them are
discovered even among the most barbarous tribes; of the second, every
well-informed man perceives the important use, and they have generally
been respected by all polished nations; of the third, the great benefit
may be read in the history of modern Europe, where alone they have been
carried to their full perfection. In unfolding the first and second
class of principles, I shall naturally be led to give an account of that
law of nations, which, in greater or less perfection, regulated the
intercourse of savages, of the Asiatic empires, and of the ancient
republics. The third brings me to the consideration of the law of
nations, as it is now acknowledged in Christendom. From the great extent
of the subject, and the particularity to which, for reasons already
given, I must here descend, it is impossible for me, within any moderate
compass, to give even an outline of this part of the course. It
comprehends, as every reader will perceive, the principles of national
independence, the intercourse of nations in peace, the privileges of
embassadors and inferior ministers, the commerce of private subjects,
the grounds of just war, the mutual duties of belligerent and neutral
powers, the limits of lawful hostility, the rights of conquest, the
faith to be observed in warfare, the force of an armistice, of safe
conducts and passports, the nature and obligation of alliances, the
means of negotiation, and the authority and interpretation of treaties
of peace. All these, and many other most important and complicated
subjects, with all the variety of moral reasoning, and historical
examples, which is necessary to illustrate them, must be fully examined
in this part of the lectures, in which I shall endeavour to put together
a tolerably complete practical system of the law of nations, as it has
for the last two centuries been recognised in Europe.
"_Le droit des gens_ est naturellement fonde sur ce principe, que les
diverses nations doivent se faire, dans la paix, le plus de bien, et
dans la guerre le moins de mal, qu'il est possible, sans nuire a leurs
veritables interets."
"L'objet de la guerre c'est la victoire; celui de la victoire la
conquete; celui de la conquete la conservation. De ce principe et du
precedent, doivent deriver toutes les loix qui forment _le droit des
gens_."
"Toutes les nations ont un droit des gens; les _Iroquois_ meme qui
mangent leurs prisonniers en ont un. Ils envoient et recoivent des
embassades; ils connoissent les droits de la guerre et de la paix: le
mal est que ce droit des gens n'est pas fonde sur les vrais principes."
_De l'Esprit des Loix_, liv. i. c. 3.
VI. As an important supplement to the practical system of our modern law
of nations, or rather as a necessary part of it, I shall conclude with a
survey of the _diplomatic and conventional law of Europe_; of the
treaties which have materially affected the distribution of power and
territory among the European states; the circumstances which gave rise
to them, the changes which they effected, and the principles which they
introduced into the public code of the Christian commonwealth. In
ancient times the knowledge of this conventional law was thought one of
the greatest praises that could be bestowed on a name loaded with all
the honours that eminence in the arts of peace and of war can confer:
"Equidem existimo, judices, cum in omni genere ac varietate artium,
etiam illarum, quae sine summo otio non facile discuntur, Cn. Pompeius
excellat, singularem quandam laudem ejus et praestabilem esse scientiam,
_in faederibus, pactionibus, conditionibus, populorum, regum, exterarum
nationum_: in universo denique bellijure ac pacis."--_Cic. Orat. pro L.
Corn. Balbo_, c. 6.
Information on this subject is scattered over an immense variety of
voluminous compilations; not accessible to every one, and of which the
perusal can be agreeable only to very few. Yet so much of these treaties
has been embodied into the general law of Europe, that no man can be
master of it who is not acquainted with them. The knowledge of them is
necessary to negotiators and statesmen; it may sometimes be important
to private men in various situations in which they may be placed; it is
useful to all men who wish either to be acquainted with modern history,
or to form a sound judgment on political measures. I shall endeavour to
give such an abstract of it as may be sufficient for some, and a
convenient guide for others in the farther progress of their studies.
The treaties, which I shall more particularly consider, will be those of
Westphalia, of Oliva, of the Pyrenees, of Breda, of Nimeguen, of
Ryswick, of Utrecht, of Aix-la-Chapelle, of Paris (1763), and of
Versailles (1783). I shall shortly explain the other treaties, of which
the stipulations are either alluded to, confirmed, or abrogated in those
which I consider at length. I shall subjoin an account of the diplomatic
intercourse of the European powers with the Ottoman Porte, and with
other princes and states who are without the pale of our ordinary
federal law; together with a view of the most important treaties of
commerce, their principles, and their consequences.
As an useful appendix to a practical treatise on the law of nations,
some account will be given of those tribunals which in different
countries of Europe decide controversies arising out of that law; of
their constitution, of the extent of their authority, and of their modes
of proceeding; more especially of those courts which are peculiarly
appointed for that purpose by the laws of Great Britain.
Though the course, of which I have sketched the outline, may seem to
comprehend so great a variety of miscellaneous subjects, yet they are
all in truth closely and inseparably interwoven. The duties of men, of
subjects, of princes, of law-givers, of magistrates, and of states, are
all parts of one consistent system of universal morality. Between the
most abstract and elementary maxim of moral philosophy, and the most
complicated controversies of civil or public law, there subsists a
connexion which it will be the main object of these lectures to trace.
The principle of justice, deeply rooted in the nature and interest of
man, pervades the whole system, and is discoverable in every part of it,
even to its minutest ramification in a legal formality, or in the
construction of an article in a treaty.
I know not whether a philosopher ought to confess, that in his inquiries
after truth he is biased by any consideration; even by the love of
virtue. But I, who conceive that a real philosopher ought to regard
truth itself chiefly on account of its subserviency to the happiness of
mankind, am not ashamed to confess, that I shall feel a great
consolation at the conclusion of these lectures, if, by a wide survey
and an exact examination of the conditions and relations of human
nature, I shall have confirmed but one individual in the conviction,
that justice is the permanent interest of all men, and of all
commonwealths. To discover one new link of that eternal chain by which
the Author of the universe has bound together the happiness and the duty
of his creatures, and indissolubly fastened their interests to each
other, would fill my heart with more pleasure than all the fame with
which the most ingenious paradox ever crowned the most eloquent sophist.
I shall conclude this Discourse in the noble language of two great
orators and philosophers, who have, in a few words, stated the
substance, the object, and the result of all morality, and politics, and
law.
"Nihil est quod adhuc de republica putem dictum, et quo possim longius
progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria
non posse, sed hoc verissimum, sine summa justitia rempublicam regi non
posse."--_Cic. Frag._ lib. ii. _de Repub._
"Justice is itself the great standing policy of civil society, and any
eminent departure from it, under any circumstances, lies under the
suspicion of being no policy at all."--_Burke's Works_, vol. iii. p.
207.
FOOTNOTES
[1] See "A Syllabus of Lectures on the Law of England, to be delivered
in Lincoln's-Inn Hall by M. Nolan, Esq." London, 1796.
[2] I have not been deterred by some petty incongruity of metaphor from
quoting this noble sentence. Mr. Hume had, perhaps, this sentence in his
recollection, when he wrote a remarkable passage of his works. See
Hume's Essays, vol. ii. p. 352. ed. Lond. 1788.
[3] The learned reader is aware that the "jus naturae" and "jus gentium"
of the Roman lawyers are phrases of very different import from the
modern phrases, "law of nature" and "law of nations." "Jus naturale,"
says Ulpian, "est quod natura omnia animalia docuit." D. I. I. I. 3.
"Quod naturalis ratio inter omnes homines constituit, id que apud omnes
peraeque custoditur vocaturque jus gentium." D. I. I. 9. But they
sometimes neglect this subtle distinction--"Jure naturali quod
appellatur jus gentium." I. 2. I. II. _Jus feciale_ was the Roman term
for our law of nations. "Belli quidem aequitas sanctissime populi Rom.
feciali jure perscripta est." Off. I. II. Our learned civilian Zouch has
accordingly entitled his work, "De Jure Feciali, sive de _Jure inter
Gentes_." The Chancellor D'Aguesseau, probably without knowing the work
of Zouch, suggested that this law should be called, "_Droit entre les
Gens_," (Oeuvres, tom. ii. p. 337.) in which he has been followed by a
late ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 324.
Perhaps these learned writers do employ a phrase which expresses the
subject of this law with more accuracy than our common language; but I
doubt whether innovations in the terms of science always repay us by
their superior precision for the uncertainty and confusion which the
change occasions.
[4] This remark is suggested by an objection of _Vattel_, which is more
specious than solid. See his Prelim. Sec. 6.
[5] "Est quidem vera lex, recta ratio, _naturae congruens_, diffusa in
omnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a
fraude deterreat, quae tamen neque probos frustra jubet aut vetat, neque
improbos jubendo aut vetando movet. Huic legi neque obrogari fas est,
neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec
vero aut per senatum aut per populum solvi hac lege possumus. Neque est
quaerendus explanator aut interpres ejus alius. Nec erit alia lex Romae,
alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni
tempore una lex et sempiterna, et immortalis continebit, unusque erit
communis quasi magister et imperator omnium Deus. Ille legis hujus
inventor, disceptator, lator, cui qui non parebit _ipse se fugiet et
naturam hominis aspernabitur_, atque hoc ipso luet maximas poenas
etiamsi caetera supplicia quae putantur effugerit."--_Fragm._ lib. iii.
_Cicer. de Republ. apud Lactant_.
It is impossible to read such precious fragments without deploring the
loss of a work which, for the benefit of all generations, _should_ have
been immortal.
[6] "Age vero urbibus constitutis ut fidem colere et justitiam retinere
discerent et aliis parere sua voluntate consuescerent, ac non modo
labores excipiendos communis commodi causa sed etiam vitam amittendam
existimarent; qui tandem fieri potuit nisi homines ea quae ratione
invenissent eloquentia persuadere potuissent."--_Cic. de Inv. Rhet._
lib. i. in proem.
[7] [Greek: Dichaiomata tot polimot.]
[8] Cujacius, Brissonius, Hottomannus, &c. &c.--Vide _Gravina Orig. Jur.
Civil._ pp. 132-38. edit. Lips. 1737.
Leibnitz; a great mathematician as well as philosopher, declares that he
knows nothing which approaches so near to the method and precision of
geometry as the Roman law.--_Op._ tom. iv. p. 254.
[9] Proavia juris civilis.--_De Jur. Bell. ac Pac. Proleg._ Sec. 16.
[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.
[11] Grot. Jur. Bell. et Pac. Proleg. Sec. 40.
[12] I do not mean to impeach the soundness of any part of Puffendorff's
reasoning founded on moral entities. It may be explained in a manner
consistent with the most just philosophy. He used, as every writer must
do, the scientific language of his own time. I only assert that, to
those who are unacquainted with ancient systems, his philosophical
vocabulary is obsolete and unintelligible.
[13] I cannot prevail on myself to pass over this subject without paying
my humble tribute to the memory of Sir W. Jones, who has laboured so
successfully in Oriental literature, whose fine genius, pure taste,
unwearied industry, unrivalled and almost prodigious variety of
acquirements, not to speak of his amiable manners and spotless
integrity, must fill every one who cultivates or admires letters with
reverence, tinged with a melancholy which the recollection of his recent
death is so well adapted to inspire. I hope I shall be pardoned if I add
my applause to the genius and learning of Mr. Maurice, who treads in the
steps of his illustrious friend, and who has bewailed his death in a
strain of genuine and beautiful poetry, not unworthy of happier periods
of our English literature.
[14] Especially those chapters of the third book, entitled,
_Temperamentum circa Captivos_, &c. &c.
[15] Natura enim juris explicanda est nobis, _eaque ab hominis repetenda
natura_.--_Cic. de Leg._ lib i. c. 5.
[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum
perducta natura.--_Cic. de Leg._ lib. i. c. 8.
[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p.
xxxiii.
[18] Bacon, Dign. and Adv. of Learn. book ii.
[19] See on this subject an incomparable fragment of the first book of
Cicero's Economics, which is too long for insertion here, but which, if
it be closely examined, may perhaps dispel the illusion of those
gentlemen, who have so strangely taken it for granted, that Cicero was
incapable of exact reasoning.
[20] This progress is traced with great accuracy in some beautiful lines
of Lucretius:
---- Mulier conjuncta viro concessit in unum,
castaque privatae veneris connubia laeta
cognita sunt, prolemque ex se videre coortam:
TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT.
---- puerisque parentum
Blanditiis facile ingenium fregere superbum.
_Tunc et amicitiam coeperunt jungere_ habentes
Finitima inter se, nec laedere nec violare.
Et pueros commendarunt muliebreque seclum
Vocibus et gestu cum balbe significarent
IMBECILLORUM ESSE AEQUUM MISERIER OMNIUM.
_Lucret._ lib. v. 1. 1010-22.
[21] The introduction to the first book of Aristotle's Politics is the
best demonstration of the necessity of political society to the
well-being, and indeed to the very being, of man, with which I am
acquainted. Having shewn the circumstances which render man necessarily
a social being, he justly concludes, "[Greek: Kai oti anthropos physei
politikon zoon.]"--_Arist. de Rep._ lib. i.
The same scheme of philosophy is admirably pursued in the short, but
invaluable fragment of the sixth book of Polybius, which describes the
history and revolutions of government.
[22] To the weight of these great names let me add the opinion of two
illustrious men of the present age, as both their opinions are combined
by one of them in the following passage: "He (Mr. Fox) always thought
any of the simple unbalanced governments bad; simple monarchy, simple
aristocracy, simple democracy; he held them all imperfect or vicious,
all were bad by themselves; the composition alone was good. These had
been always his principles, in which he agreed with his friend, Mr.
Burke."--_Mr. Fox on the Army Estimates_, 9th Feb. 1790.
In speaking of both these illustrious men, whose names I here join, as
they will be joined in fame by posterity, which will forget their
temporary differences in the recollection of their genius and their
friendship, I do not entertain the vain imagination that I can add to
their glory by any thing that I can say. But it is a gratification to me
to give utterance to my feelings; to express the profound veneration
with which I am filled for the memory of the one, and the warm affection
which I cherish for the other, whom no one ever heard in public without
admiration, or knew in private life without loving.
[23] _Privilege_, in Roman jurisprudence, means the _exemption_ of one
individual from the operation of a law. Political privileges, in the
sense in which I employ the terms, mean those rights of the subjects of
a free state, which are deemed so essential to the well-being of the
commonwealth, that they are _excepted_ from the ordinary discretion of
the magistrate, and guarded by the same fundamental laws which secure
his authority.
[24] See an admirable passage on this subject in Dr. Smith's Theory of
Moral Sentiments, vol. ii. pp. 101-112, in which the true doctrine of
reformation is laid down with singular ability by that eloquent and
philosophical writer.--See also Mr. Burke's Speech on Economical Reform;
and Sir M. Hale on the Amendment of Laws, in the collection of my
learned and most excellent friend, Mr. Hargrave, p. 248.
[25] Pour former un gouvernement modere, il faut combiner les
puissances, les regler, les temperer, les faire agir, donner pour ainsi
dire un lest a l'une pour la mettre en etat de resister a une autre,
c'est un chef-d'oeuvre de legislation que le hasard fait rarement, et
que rarement on laisse faire a la prudence. Un gouvernement despotique
au contraire saute pour ainsi dire aux yeux; il est uniforme partout:
comme il ne faut que des passions pour l'etablir tout le monde est bon
pour cela.--_Montesquieu, de l'Esprit des Loix_, liv. v. c. 14.
[26] Lord Bacon, Essay xxiv. Of Innovations.
[27] The reader will perceive that I allude to MONTESQUIEU, whom I never
name without reverence, though I shall presume, with humility, to
criticise his account of a government which he only saw at a distance.
[28] This principle is expressed by a writer of a very different
character from these two great philosophers; a writer, "_qu'on
n'appellera plus philosophe, mais qu'on appellera le plus eloquent des
sophistes_," with great force, and, as his manner is, with some
exaggeration.
Il n'y a point de principes abstraits dans la politique. C'est une
science des calculs, des combinaisons, et des exceptions, selon les
lieux, les tems, et les circonstances.--_Lettre de Rousseau au Marquis
de Mirabeau_.
The second proposition is true; but the first is not a just inference
from it.