In the discussion of this great subject, and in all reasonings on the principles of politics, I shall labour, above all things, to avoid that which appears to me to have been the constant source of political error: I mean the attempt to give an air of system, of simplicity, and of rigorous demonstration, to subjects which do not admit it. The only means by which this could be done, was by referring to a few simple causes, what, in truth, arose from immense and intricate combinations,and successions of causes. The consequence was very obvious. The system of the theorist, disencumbered from all regard to the real nature of things, easily assumed an air of speciousness. It required little dexterity to make his argument appear conclusive. But all men agreed that it was utterly inapplicable to human affairs. The theorist railed at the folly of the world, instead of confessing his own; and the men of practice unjustly blamed philosophy, instead of condemning the sophist. The causes which the politician has to consider are, above all others, multiplied, mutable, minute, subtile, and, if I may so speak, evanescent; perpetually changing their form, and varying their combinations; losing their nature, while they keep their name; exhibiting the most different consequences in the endless variety of men and nations on whom they operate; in one degree of strength producing the most signal benefit; and, under a slight variation of circumstances, the most tremendous mischiefs. They admit indeed of being reduced to theory; but to a theory formed on the most extensive views, of the mostcomprehensive and flexible principles, to embrace all their varieties, and to fit all their rapid transmigrations; a theory, of which the most fundamental maxim is, distrust in itself, and deference for practical prudence. Only two writers of former times have, as far as I know, observed this general defect of political reasoners; but these two are the greatest philosophers who have ever appeared in the world. The first of them is Aristotle, who, in a passage of his Politics, to which I cannot at this moment turn, plainly condemns the pursuit of a delusive geometrical accuracy in moral reasonings as the constant source of the grossest error. The second is Lord Bacon, who tells us, with that authority of conscious wisdom which belongs to him, and with that power of richly adorning truth from the wardrobe of genius which he possessed above almost all men, "Civil knowledge is conversant about a subject which, above all others, is most immersed in matter, and hardliest reduced to axiom."[28]
IV. I shall next endeavour to lay open the general principles of civil and criminal laws. On this subject I may with some confidence hope that I shall be enabled to philosophise with better materials by my acquaintance with the law of my own country, which it is the business of my life to practise, and of which the study has by habit become my favourite pursuit.
The first principles of jurisprudence are simple maxims of reason, of 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 andcomplexity 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 moresimplenor morecomplexthan 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 thanin 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 ofcriminal 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 thelaw 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 naturâ; considerandæ leges quibus civitates regi debeant; tum hæc tractanda, quæ composita sunt et descripta, jura et jussa populorum; in quibusNE NOSTRI QUIDEM POPULI LATEBUNT QUÆ VOCANTUR JURA CIVILIA."—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 preservationof 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 gensest naturellement fondé 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 à leurs véritables intérêts."
"L'objet de la guerre c'est la victoire; celui de la victoire la conquête; celui de la conquête la conservation. De ce principe et du précédent, doivent dériver toutes les loix qui formentle droit des gens."
"Toutes les nations ont un droit des gens; lesIroquoismême qui mangent leurs prisonniers en ont un. Ils envoient et reçoivent des embassades; ils connoissent les droits de la guerre et de la paix: le mal est que ce droit des gens n'est pas fondé 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 thediplomatic 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 Christiancommonwealth. 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, cùm in omni genere ac varietate artium, etiam illarum, quæ sine summo otio non facilè discuntur, Cn. Pompeius excellat, singularem quandam laudem ejus et præstabilem esse scientiam,in fæderibus, 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 toprivate 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 practicaltreatise 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 legalformality, 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 noblelanguage 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 republicâ putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuriâ non posse, sed hoc verissimum, sine summâ justitiâ 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.
[1]“Syllabus of Lectures on the Law of England, to be delivered in Lincoln's-Inn Hall by M. Nolan, Esq.”London, 1796.Back to text[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.Back to text[3] The learned reader is aware that the "jus naturæ" 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 peræque 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 fecialewas the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." Off.I. II.Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive deJure inter Gentes." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, "Droit entre les Gens," (Œuvres, 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.Back to text[4] This remark is suggested by an objection ofVattel, which is more specious than solid. See his Prelim. § 6.Back to text[5] "Est quidem vera lex, recta ratio,naturæ congruens, diffusa in omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando à fraude deterreat, quæ 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 verò aut per senatum aut per populum solvi hac lege possumus. Neque est quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ, 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 parebitipse se fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas p[oe]nas etiamsi cætera supplicia quæ 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,shouldhave been immortal.Back to text[6] "Age verò urbibus constitutis ut fidem colere et justitiam retinere discerent et aliis parere suâ voluntate consuescerent, ac non modò labores excipiendos communis commodi causâ sed etiam vitam amittendam existimarent; qui tandem fieri potuit nisi homines ea quæ ratione invenissent eloquentiâ persuadere potuissent."—Cic. de Inv. Rhet.lib. i. in proëm.Back to text[7]Δικαἱωματα των πολεμωνBack to text[8] Cujacius, Brissonius, Hottomannus, &c. &c.—VideGravina 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.Back to text[9] Proavia juris civilis.—De Jur. Bell. ac Pac. Proleg.§ 16.Back to text[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.Back to text[11] Grot. Jur. Bell. et Pac. Proleg. § 40.Back to text[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.Back to text[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.Back to text[14] Especially those chapters of the third book, entitled,Temperamentum circa Captivos, &c. &c.Back to text[15] Natura enim juris explicanda est nobis,eaque ab hominis repetenda naturâ.—Cic. de Leg.lib i. c. 5.Back to text[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum perducta natura.—Cic. de Leg.lib. i. c. 8.Back to text[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p. xxxiii.Back to text[18] Bacon, Dign. and Adv. of Learn. book ii.Back to text[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.Back to text[20] This progress is traced with great accuracy in some beautiful lines of Lucretius:—— Mulier conjuncta viro concessit in unum,castaque privatæ veneris connubia lætacognita sunt, prolemque ex se vidère coortam:tum genus humanum primum mollescere cœpit.—— puerisque parentumBlanditiis facile ingenium fregere superbum.Tunc et amicitiam cœperunt jungerehabentesFinitima inter se, nec lædere nec violare.Et pueros commendârunt muliebreque sêclumVocibus et gestu cum balbè significarentImbecillorum esse æquum miserier omnium.Lucret.lib. v. 1. 1010-22.Back to text[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, "Και ὁτι Φυσει ανθρωπος πολιτικον ζωον "—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.Back to text[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.Back to text[23]Privilege, in Roman jurisprudence, means theexemptionof 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 areexceptedfrom the ordinary discretion of the magistrate, and guarded by the same fundamental laws which secure his authority.Back to text[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.Back to text[25] Pour former un gouvernement modéré, il faut combiner les puissances, les régler, les tempérer, les faire agir, donner pour ainsi dire un lest à l'une pour la mettre en état de résister à une autre, c'est un chef-d'[oe]uvre de législation que le hasard fait rarement, et que rarement on laisse faire à 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'établir tout le monde est bon pour cela.—Montesquieu, de l'Esprit des Loix, liv. v. c. 14.Back to text[26] Lord Bacon, Essay xxiv. Of Innovations.Back to text[27] The reader will perceive that I allude toMontesquieu, 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.Back to text[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 éloquent 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.Back to text[29] The casuistical subtleties are not perhaps greater than the subtleties of lawyers;but the latter are innocent, and even necessary.—Hume'sEssays, vol. ii. p. 558.Back to text[30] "Law," said Dr. Johnson, "is the science in which the greatest powers of understanding are applied to the greatest number of facts." Nobody, who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.Back to text[31] Burke's Works, vol. iii. p. 134.Back to text[32] On the intimate connexion of these two codes, let us hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:—"Inasmuchas the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the ruins of the Roman empire, it must be ownedthat the principles of our law are borrowed from the civil law, therefore grounded upon the same reason in many things."—12Mod.482.Back to text
[1]“Syllabus of Lectures on the Law of England, to be delivered in Lincoln's-Inn Hall by M. Nolan, Esq.”London, 1796.Back to text
[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.Back to text
[3] The learned reader is aware that the "jus naturæ" 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 peræque 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 fecialewas the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." Off.I. II.Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive deJure inter Gentes." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, "Droit entre les Gens," (Œuvres, 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.Back to text
[4] This remark is suggested by an objection ofVattel, which is more specious than solid. See his Prelim. § 6.Back to text
[5] "Est quidem vera lex, recta ratio,naturæ congruens, diffusa in omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando à fraude deterreat, quæ 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 verò aut per senatum aut per populum solvi hac lege possumus. Neque est quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ, 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 parebitipse se fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas p[oe]nas etiamsi cætera supplicia quæ 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,shouldhave been immortal.Back to text
[6] "Age verò urbibus constitutis ut fidem colere et justitiam retinere discerent et aliis parere suâ voluntate consuescerent, ac non modò labores excipiendos communis commodi causâ sed etiam vitam amittendam existimarent; qui tandem fieri potuit nisi homines ea quæ ratione invenissent eloquentiâ persuadere potuissent."—Cic. de Inv. Rhet.lib. i. in proëm.Back to text
[7]Δικαἱωματα των πολεμωνBack to text
[8] Cujacius, Brissonius, Hottomannus, &c. &c.—VideGravina 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.Back to text
[9] Proavia juris civilis.—De Jur. Bell. ac Pac. Proleg.§ 16.Back to text
[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.Back to text
[11] Grot. Jur. Bell. et Pac. Proleg. § 40.Back to text
[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.Back to text
[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.Back to text
[14] Especially those chapters of the third book, entitled,Temperamentum circa Captivos, &c. &c.Back to text
[15] Natura enim juris explicanda est nobis,eaque ab hominis repetenda naturâ.—Cic. de Leg.lib i. c. 5.Back to text
[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum perducta natura.—Cic. de Leg.lib. i. c. 8.Back to text
[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p. xxxiii.Back to text
[18] Bacon, Dign. and Adv. of Learn. book ii.Back to text
[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.Back to text
[20] This progress is traced with great accuracy in some beautiful lines of Lucretius:
—— Mulier conjuncta viro concessit in unum,castaque privatæ veneris connubia lætacognita sunt, prolemque ex se vidère coortam:tum genus humanum primum mollescere cœpit.—— puerisque parentumBlanditiis facile ingenium fregere superbum.Tunc et amicitiam cœperunt jungerehabentesFinitima inter se, nec lædere nec violare.Et pueros commendârunt muliebreque sêclumVocibus et gestu cum balbè significarentImbecillorum esse æquum miserier omnium.Lucret.lib. v. 1. 1010-22.Back to text
[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, "Και ὁτι Φυσει ανθρωπος πολιτικον ζωον "—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.Back to text
[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.Back to text
[23]Privilege, in Roman jurisprudence, means theexemptionof 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 areexceptedfrom the ordinary discretion of the magistrate, and guarded by the same fundamental laws which secure his authority.Back to text
[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.Back to text
[25] Pour former un gouvernement modéré, il faut combiner les puissances, les régler, les tempérer, les faire agir, donner pour ainsi dire un lest à l'une pour la mettre en état de résister à une autre, c'est un chef-d'[oe]uvre de législation que le hasard fait rarement, et que rarement on laisse faire à 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'établir tout le monde est bon pour cela.—Montesquieu, de l'Esprit des Loix, liv. v. c. 14.Back to text
[26] Lord Bacon, Essay xxiv. Of Innovations.Back to text
[27] The reader will perceive that I allude toMontesquieu, 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.Back to text
[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 éloquent 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.Back to text
[29] The casuistical subtleties are not perhaps greater than the subtleties of lawyers;but the latter are innocent, and even necessary.—Hume'sEssays, vol. ii. p. 558.Back to text
[30] "Law," said Dr. Johnson, "is the science in which the greatest powers of understanding are applied to the greatest number of facts." Nobody, who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.Back to text
[31] Burke's Works, vol. iii. p. 134.Back to text
[32] On the intimate connexion of these two codes, let us hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:—"Inasmuchas the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the ruins of the Roman empire, it must be ownedthat the principles of our law are borrowed from the civil law, therefore grounded upon the same reason in many things."—12Mod.482.Back to text