insoluble problems which were then called of our reasons for doubting whether Lock metaphysical. Though, in the execution of be much indebted to Hobbes for his specu his plan, there are many and great defects, lations; and certainly the mere coincidence the conception of it is entirely conformable to of the opinions of two metaphysicians is the Verulamian method of induction, which, slender evidence, in any case, that either even after the fullest enumeration of parti- of them has borrowed his opinions from the culars, requires a cautious examination of other. Where the premises are different, each subordinate class of phenomena, before and they have reached the same conclusion we attempt, through a very slowly ascending by different roads, such a coincidence is series of generalizations, to soar to compre- scarcely any evidence at all. Locke and hensive laws. "Philosophy," as Mr.Playfair Hobbes agree chiefly on those points in excellently renders Bacon, "has either taken which, except the Cartesians, all the specu much from a few things, or too little from a lators of their age were also agreed. They great many; and in both cases has too nar- differ on the most momentous questions,— row a basis to be of much duration or utility." the sources of knowledge, the power of abOr, to use the very words of the Master him-straction,-the nature of the will; on the two self-"We shall then have reason to hope last of which subjects, Locke, by his very well of the sciences, when we rise by continued steps from particulars to inferior axioms, and then to the middle, and only at last to the most general.* It is not so much by an appeal to experience (for some degree of that appeal is universal), as by the mode of conducting it, that the followers of Bacon are distinguished from the framers of hypotheses." It is one thing to borrow from experience just enough to make a supposition plausible; it is quite another to take from it all that is necessary to be the foundation of just theory. In this respect perhaps, more than in any other, the philosophical writings of Locke are contradistinguished from those of Hobbes. The latter saw, with astonishing rapidity of intuition some of the simplest and most general facts which may be observed in the operations of the understanding; and perhaps no man ever possessed the same faculty of conveying his abstract speculations in language of such clearness, precision, and force, as to engrave them on the mind of the reader. But he did not wait to examine whether there might not be other facts equally general relating to the intellectual powers; and he therefore "took too little from a great many things." He fell into the double error of hastily applying his general laws to the most complicated processes of thought, without considering whether these general laws were not themselves limited by other not less comprehensive laws, and without trying to discover how they were connected with particulars, by a scale of intermediate and secondary laws. This mode of philosophising was well suited to the dogmatic confidence and dictatorial tone which belonged to the character of the philosopher of Malmsbury, and which enabled him to brave the obloquy attendant on singular and obnoxious opinions. "The plain historical method," on the other hand, chosen by Mr. Locke, produced the natural fruits of caution and modesty; taught him to distrust hasty and singular conclusions; disposed him, on fit occasions, to entertain a mitigated scepticism:; and taught him also the rate courage to make an ingenuous avowal of ignorance. This contrast is one • Novum Organum, lib. i. civ. failures themselves, evinces a strong repug nance to the doctrines of Hobbes. They dif fer not only in all their premises, and many of their conclusions, but in their manner of philosophising itself. Locke had no prejudice which could lead him to imbibe doctrines from the enemy of liberty and religion. His style, with all its faults, is that of a man who thinks for himself; and an original style is not usually the vehicle of borrowed opinions. Few books have contributed more than Mr. Locke's Essay to rectify prejudice; to undermine established errors; to diffuse a just mode of thinking; to excite a fearless spirit of inquiry, and yet to contain it within the boundaries which Nature has prescribed to the human understanding. An amendment of the general habits of thought is, in most parts of knowledge, an object as important as even the discovery of new truths; though it is not so palpable, nor in its nature so capable of being estimated by superficial observers. In the mental and moral world, which scarcely admits of any thing which can be called discovery, the correction of the intellectual habits is probably the greates! service which can be rendered to Science. In this respect, the merit of Locke is unri valled. His writings have diffused through out the civilized world, the love of civil liberty and the spirit of toleration and charity in religious differences, with the disposition to reject whatever is obscure, fantastic, or hypothetical in speculation,-to reduce ver bal disputes to their proper value,—to abandon problems which admit of no solution,to distrust whatever cannot clearly be expressed,-to render theory the simple expression of facts,—and to prefer those studies which most directly contribute to human happiness. If Bacon first discovered the rules by which knowledge is improved, Locke has most contributed to make mankind at large observe them. He has done most, though often by remedies of silent and almost insensible operation, to cure those mental distempers which obstructed the adoption of these rules; and has thus led to that general diffusion of a healthful and vigorous understanding, which is at once the greatest of all improvements, and the mstrument by which all other progress must De accomplished. He has left to posterity the instructive example of a prudent reformer, and of a philosophy temperate as well as liberal, which spares the feelings of the good, and avoids direct hostility with obstinate and formidable prejudice. These benefits are very slightly counterbalanced by some political doctrines liable to misapplication, and by the scepticism of some of his ingenious followers;-an inconvenience to which every philosophical school is exposed, which does not steadily limit its theory to a mere exposition of experience. If Locke made few discoveries, Socrates made none: yet both did more for the improvement of the understanding, and not less for the progress of knowledge, than the authors of the most brilliant discoveries. Mr. Locke will ever be regarded as one of the great ornaments of the English nation; and the most distant posterity will speak of him in the language addressed to him by the poet"O Decus Angliaca certè, O Lux altera gentis!""* Gray, De Principiis Cogitandi. A DISCOURSE ON THE LAW OF NATURE AND NATIONS.* 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 gaiding his inquiries, of relieving the tediousness of private study, and of impressing on his recollection the principles of a 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 This discourse was the preliminary one of a course of lectures delivered in the hall of Lincoln's un during the spring of the year 1799. From the state of the original MSS. notes of these lectures, in the possession of the editor, it would seem that the lecturer had trusted, with the exception of a few passages prepared in extenso, to his powerful memory for all the aid that was required beyond what mere catchwords could supply.-ED. * any other part of knowledge. A learned gentleman, however, had already occupied that ground, 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 *See "A Syllabus of Lectures on the Law of England, to be delivered in Lincoln's Inn Hall by M. Nolen, Esq." among our modern moralists and lawyers are inquiries, perhaps, of more curiosity than use, and ones 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 na tional 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 weli as private men, are liable to injury, and capable of benefit, from each other; it is, therefore, their interest, as well as their 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; and 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 govern-duty, to reverence, to practise, and to enments where they are planted, though they proceed from the same fountains."* force 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 uni 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,† that the application of both these laws, of the former as much as of the latter, is modified and varied by customs, 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 pursu-versal commonwealth of the human race. It ing the "streams" through the endless variety of their course. But another part of the subject is to be 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 on general principles. That province of it which we now call the "law of nations," has, in many of its parts, acquired among European ones 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 Advancement of Learning, book ii. 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 his Essays, vol. ii. p. 352. gentium." " *The learned reader is aware that the "jus naturæ " and "jus gentium" of the Roman lawyers are phrases of very different import from the nations."" modern phrases, "law of nature" and "law of "Jus naturale," says Ulpian, "est quod natura omnia animalia docuit." "Quod naturalis ratio inter omnes homines constituit, id apud omnes peræque custoditur; vocaturque jus gentium." But they sometimes neglect this subtle distinction-Jure naturali quod appellatur jus Jus feciale" was the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." De Officiis, lib. i. cap. ii. Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive de Jure inter Gentes." knowing the work of Zouch, suggested that this The Chancellor D'Aguesseau, probably without law should be called, "Droit entre les Gens" (Œuvres, vol. ii. p. 337), in which he has been followed by a late ingenious writer, Mr. Bentham, (Introduction to the Principles of Morals and Legislation, p. 324.) Perhaps these learned writers of this law with more accuracy than our common do employ a phrase which expresses the subject 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. This remark is suggested by an objection of Vattel, which is more specious than solid. See his Preliminaries. 6. 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 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."t conventions, character, and situation. With | and surpassed all the other exertions, even a view to these principles, the writers on of their own eloquence, in the display of its general jurisprudence have considered states beauty and majesty. It is of this law that as moral persons; a mode of expression Cicero has spoken in so many parts of his which has been called a fiction of law, but writings, not only with all the splendour and which may be regarded with more propriety copiousness of eloquence, but with the sen as a bold metaphor, used to convey the im- sibility of a man of virtue, and with the graportant truth, that nations, though they ac-vity and comprehension of a philosopher.* knowledge 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,-if the latter could be conceived ever to have subsisted without the protecting re-exempted from her power; both angels and straints of government, and 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 Let not those who, to use the language of (notwithstanding the objections of some writ- the same Hooker, "talk of truth," without ers to the vagueness of the language) ap- "ever sounding the depth from whence it pears to have been styled with great pro- springeth," hastily take it for granted, that priety, "the law of nature." It may with these great masters of eloquence and reason sufficient correctness, or at least by an easy were led astray by the specious delusions of metaphor, be called a "law," inasmuch as mysticism, from the sober consideration of it is a supreme, invariable, and uncontrolla- the true grounds of morality in the nature, ble rule of conduct to all men, the violation necessities, and interests of man. They of which is avenged by natural punishments, studied and taught the principles of morals necessarily flowing from the constitution of but they thought it still more necessary, and things, and as fixed and inevitable as the more wise,-a much nobler task, and more order of nature. It is "the law of nature," becoming a true philosopher, to inspire men because its general precepts are essentially with a love and reverence for virtue. They adapted to promote the happiness of man, were not contented with elementary specuas long as he remains a being of the same lations: they examined the foundations of nature with which he is at present endowed, our duty; but they felt and cherished a most or, in other words, as long as he continues to natural, a most seemly, a most rational enbe man, in all the variety of times, places, thusiasm, when they contemplated the maand circumstances, in which he has been jestic edifice which is reared on these solid known, or can be imagined to exist; because foundations. They devoted the highest exit is discoverable by natural reason, and suit-ertions of their minds to spread that benefi able to our natural constitution; and 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 re sonable 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, in which they have exhausted all the powers of language, cent enthusiasm among men. They consecrated as a homage to Virtue the most perfect "Est quidem vera lex recta ratio, naturæ congruens, diffusa in omnes, constans, sempiterna; que 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 immutabilis 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 cætera sup. plicia, quæ putantur, effugerit."-De Repub. lib. II. cap. 22. + Ecclesiastical Polity, book i. in the conclusion. "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 potuit, nisi homines ea, quæ ratione invenisset vitam amittendam existimarent; qui tandem fier eloquentia persuadere potuissent ?-De Luvent Rhet. lib. i. cap. 2. 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. fruits of their genius. If these grand senti- |ners which arose from the combined and ments of "the good and fair" have some-progressive influence of chivalry, of comtimes prevented them from delivering the merce, of learning and of religion. Nor must principles of ethics with the nakedness and we omit the similarity of those political in dryness of science, at least we must own stitutions which, in every country that hac that they have chosen the better part,-that been overrun by the Gothic conquerors, bore they have preferred virtuous feeling to moral discernible marks (which the revolutions of theory, and practical benefit to speculative succeeding ages had obscured, but not obexactness. Perhaps these wise men may literated) of the rude but bold and noble outhave supposed that the minute dissection line of liberty that was originally sketched and anatomy of Virtue might, to the ill-judg- by the hand of these generous barbarians. ing eye, weaken the charm of her beauty. 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 sub ject in the sixteenth century, soon after the We have no Greek or Roman treatise re- revival of learning, and after that regular maining on the law of nations. From the distribution of power and territory which has title of one of the lost works of Aristotle, it subsisted, with little variation, until our appears that he composed a treatise on the times. The critical examination of these laws of war, which, if we had the good for- early writers would, perhaps, not be very intune to possess it, would doubtless have am-teresting in an extensive work, and it would ply satisfied our curiosity, and would have be unpardonable in a short discourse. It taught us both the practice of the ancient is sufficient to observe that they were all nations and the opinions of their moralists, more or less shackled by the barbarous phiwith that depth and precision which distin-losophy of the schools, and that they were guish the other works of that great philoso- impeded in their progress by a timorous defpher. We can now only imperfectly collecterence for the inferior and technical parts of that practice and those opinions from various the Roman law, without raising their views 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 The reduction of the law of nations to a time, gave to the law that regulated their system was reserved for Grotius. It was by intercourse, greater importance, higher im- the advice of Lord Bacon and Peiresc that he provement, and more binding force. Among undertook this arduous task. He produced a these causes, we may enumerate a common work which we now, indeed, justly deem im-" extraction, a common religion, similar man-perfect, but which is perhaps the most com ners, institutions, and languages; in earlier plete that the world has yet owed, at so early ages the authority of the See of Rome, and a stage in the progress of any science, to the the extravagant claims of the imperial crown; in latter times the connexions of trade, the * Cujacius, Brissonius, Hottomannus, &c., &c jealousy of power, the refinement of civiliza--See Gravina Origines Juris Civilis (Lips. 1737), tion, the cultivation of science, and, above all, that general mildness of character and man Δικαιώματα τῶν πολέμων. 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.* Among the writers of that age we may perceive the ineffectual attempts, the partial advances, the occasional streaks of light which always precede great discov. eries, and works that are to instruct pos terity. pp. 132-133. Leibnitz, a great mathematician as thing which approaches so near to the metho well as philosopher, declares that he knows no and precision of Geometry as the Roman law.Op. vol. iv. p. 254. |