« 上一頁繼續 »
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 approba tion of men, whose namnes, if it were becoming to mention them on so night 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 profeffion; 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 autho. rity of the magistrate in framing laws and admi.
niftering 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 foun“ cains of justice whence all civil laws are derived, " but as streams; and like as waters do take tinc“ tures and tastes from the soils through which " they run, fo do civil laws vary according to “ the regions and governments where they are “ planted, though they proceed from the same 16 fountains * 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
* I have not been deterred by fome 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 EfTays, vol. ii. p. 352. ed. Lond. 1788.
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 civilized 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 arę 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 seenis peculiar to modern times) the duties of individuals with those of nations, and ellablished their obligation on similar grounds, that the whole science has been called, “ The Law of Nature and Na. “ tions."
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 mo
(6) dern moralists and lawyers *, are inquiries, perá haps, 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, seeins to me as convenient and reasonable an arrangement as can be adopted.
* 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,
66 law of nature 6 and law of nations.” “ Jus naturale,” says Ulpian, quod natura omnia animalia docuit."
D. 1. I. 1. 3. Quod naturalis ratio inter omnes homines constituit, id que apud omnes peræque custoditur vocaturque jus gen
D. 1. 1.9. But they sometimes neglect this lubtle distinction—66 Jure naturali quod appellatur jus gen“tium.” 1. 2. 1.11. Jus feciale was the Roman term for our law of nations.. “ Belli quidem æquitas fanétiffime po. puli Rom. feciali jure perfcripta eft.” Off. 1. II. Our learned civilian Zouch has according!y entitled his work, " De " Jure Feciali, five de Jure inter Gentes.” The Chancellor D'Agueffeau, 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 confufion which the change occasions. I
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 fociety of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit, from each other; it is, cherefore, 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 civilized 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 in66 dividuals,” and the other, “ the natural law of
ftates;” and it is too obvious to require observation *, 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
* This remark is suggested by an objection of Vattel, which is more specious than solid. See his Prelim. § 6.