insoluble problems which were then called of our reasons for doubting whether Locke metaphysical. Though, in the execution of be much indebted to Hobbes for his specuhis 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 specumuch 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 con- failures themselves, evinces a strong repugtinued steps from particulars to inferior nance to the doctrines of Hobbes. They difaxioms, and then to the middle, and only at fer not only in all their premises, and many last to the most general.* It is not so much of their conclusions, but in their manner of by an appeal to experience (for some degree philosophising itself. Locke had no prejuof that appeal is universal), as by the mode dice which could lead him to imbibe docof conducting it, that the followers of Bacon trines from the enemy of liberty and religion. are distinguished from the framers of hy- His style, with all its faults, is that of a man potheses." It is one thing to borrow from who thinks for himself; and an original style experience just enough to make a supposition is not usually the vehicle of borrowed opinplausible; it is quite another to take from it ions. all that is necessary to be the foundation of just theory. Few books have contributed more than Mr. Locke's Essay to rectify prejudice; to In this respect perhaps, more than in any undermine established errors; to diffuse a other, the philosophical writings of Locke are just mode of thinking; to excite a fearless contradistinguished from those of Hobbes. spirit of inquiry, and yet to contain it within The latter saw, with astonishing rapidity of in- the boundaries which Nature has prescribed tuition some of the simplest and most general to the human understanding. An amendfacts which may be observed in the operations ment of the general habits of thought is, in of the understanding; and perhaps no man most parts of knowledge, an object as imporever possessed the same faculty of conveying tant as even the discovery of new truths; his abstract speculations in language of such though it is not so palpable, nor in its nature clearness, precision, and force, as to engrave so capable of being estimated by superficial them on the mind of the reader. But he observers. In the mental and moral world, did not wait to examine whether there might which scarcely admits of any thing which not be other facts equally general relating can be called discovery, the correction of the to the intellectual powers; and he therefore intellectual habits is probably the greatest "took too little from a great many things." service which can be rendered to Science. He fell into the double error of hastily ap- In this respect, the merit of Locke is unriplying his general laws to the most compli- valled. His writings have diffused throughcated processes of thought, without consider-out the civilized world, the love of civil libing whether these general laws were not erty and the spirit of toleration and charity themselves limited by other not less compre- in religious differences, with the disposition hensive laws, and without trying to discover to reject whatever is obscure, fantastic, or how they were connected with particulars, hypothetical in speculation, to reduce verby a scale of intermediate and secondary bal disputes to their proper value,-to abanlaws. This mode of philosophising was well don problems which admit of no solution,suited to the dogmatic confidence and dicta- to distrust whatever cannot clearly be extorial tone which belonged to the character pressed,-to render theory the simple exof the philosopher of Malmsbury, and which pression of facts,-and to prefer those studies enabled him to brave the obloquy attendant which most directly contribute to human on singular and obnoxious opinions. "The happiness. If Bacon first discovered the plain historical method," on the other hand, rules by which knowledge is improved, chosen by Mr. Locke, produced the natural Locke has most contributed to make manfruits of caution and modesty; taught him to kind at large observe them. He has done distrust hasty and singular conclusions; dis- most, though often by remedies of silent posed him, on fit occasions, to entertain a and almost insensible operation, to cure mitigated scepticism; and taught him also those mental distempers which obstructed the rare courage to make an ingenuous the adoption of these rules; and has thus avowal of ignorance. This contrast is one led to that general diffusion of a healthful and vigorous understanding, which is at once the greatest of all improvements, and the * Novum Organum, lib. i. civ. 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 of ten employ in a manner neither discreditable to themselves, nor wholly useless to others. Desirous that my own leisure should not be consumed in sloth, I anxiously looked about for some way of filling it up, which might enable me according to the measure of my humble abilities, to contribute somewhat to the stock of general usefulness. I had long been convinced that public lectures, which have been used in most ages and countries to teach the elements of almost every part of learning, were the most convenient mode in which these elements could be taught;that they were the best adapted for the important purposes of awakening the attention of the student, of abridging his labours, of guiding his inquiries, of relieving the tediousness of private study, and of impressing on his recollection the principles of 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 Inn 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." are included the rules of morality, as they among our modern moralists and lawyers,* prescribe the conduct of private men towards are inquiries, perhaps, of more curiosity than each other in all the various relations of hu- use, and ones which, if they deserve any man life; as they regulate both the obedi- where to be deeply pursued, will be pursued ence of citizens to the laws, and the authority with more propriety in a full examination of of the magistrate in framing laws, and ad- the subject than within the short limits of an ministering government; and as they modify introductory discourse. Names are, howthe intercourse of independent common- ever, in a great measure arbitrary; but the wealths in peace, and prescribe limits to their distribution of knowledge into its parts, hostility in war. This important science though it may often perhaps be varied with comprehends only that part of private ethics little disadvantage, yet certainly depends which is capable of being reduced to fixed upon some fixed principles. The modern and general rules. It considers only those method of considering individual and nageneral principles of jurisprudence and poli- tional morality as the subjects of the same tics which the wisdom of the lawgiver adapts science, seems to me as convenient and reato the peculiar situation of his own country, sonable an arrangement as can be adopted. and which the skill of the statesman applies The same rules of morality which hold togeto the more fluctuating and infinitely varying ther men in families, and which form families circumstances which affect its immediate into commonwealths, also link together these welfare and safety. "For there are in nature commonwealths as members of the great socertain fountains of justice whence all civil | ciety of mankind. Commonwealths, as well laws are derived, but as streams ; and like as as private men, are liable to injury, and cawaters do take tinctures and tastes from the pable of benefit, from each other; it is, soils through which they run, so do civil laws therefore, their interest, as well as their 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 On the great questions of morality, of poli- augment benefit,-which, even in their pretics, and of municipal law, it is the object sent imperfect observance, preserve civilized of this science to deliver only those funda-states in a tolerable condition of security mental truths of which the particular appli- from wrong, and which, if they could be gencation is as extensive as the whole private erally obeyed, would establish, and permaand public conduct of men;-to discover nently maintain, the well-being of the unithose "fountains of justice," without pursu-versal commonwealth of the human race. It ing the "streams" through the endless va- is therefore with justice, that one part of this riety of their course. But another part of science has been called "the natural law of the subject is to be treated with greater ful- individuals," and the other "the natural law ness and minuteness of application; namely, of states" and it is too obvious to require that important branch of it which professes observation, that the application of both to regulate the relations and intercourse of these laws, of the former as much as of the states, and more especially, (both on account latter, is modified and varied by customs, 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. 66 66 *The learned reader is aware that the "jus naturæ" and "jus gentium" of the Roman lawyers are phrases of very different import from the law of modern phrases, "law of nature" and nations." 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. gentium." "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. men, and creatures of what condition soever, Let not those who, to use the language of 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 senas 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 It is of this law that Hooker speaks in so can, nor ought, to be subjected to human sublime a strain:-"Of Law, no less can be punishment, are yet under the same obliga- said, than that her seat is the bosom of God, tions mutually to practise honesty and hu- her voice the harmony of the world; all things manity, which would have bound individu- in heaven and earth do her homage, the very als-if the latter could be conceived ever least as feeling her care, the greatest as not 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 (notwithstanding the objections of some writers to the vagueness of the language) appears to have been styled with great propriety, "the law of nature." It may with sufficient correctness, or at least by an easy metaphor, be called a "law," inasmuch as it is a supreme, invariable, and uncontrollable rule of conduct to all men, the violation of which is avenged by natural punishments, necessarily flowing from the constitution of things, and as fixed and inevitable as the order of nature. It is "the law of nature," because its general precepts are essentially adapted to promote the happiness of man, as long as he remains a being of the same nature with which he is at present endowed, or, in other words, as long as he continues to be man, in all the variety of times, places, and circumstances, in which he has been known, or can be imagined to exist; because it is discoverable by natural reason, and suitable to our natural constitution; 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 considered as a law, when, accordaccuracy, ing to those just and magnificent views which philosophy and religion open to us of the government of the world, it is received and reverenced as the sacred code, promulgated by the great Legislator of the Universe for the guidance of His creatures to happiness;-guarded and enforced, as our own experience may inform us, by the penal sanctions of shame, of remorse, of infamy, and of misery; and still farther enforced by the reasonable expectation of yet more awful penalties in a future and more permanent state of existence. It is the contemplation of the law of nature under this full, mature, and perfect idea of its high origin and transcendent dignity, that called forth the enthusiasm of the greatest men, and the greatest writers of ancient and modern times, in those sublime descriptions, in which they have exhausted all the powers of language, "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 tando movet. Huic legi neque obrogari fas est, jubet aut vetat, neque improbos jubendo aut veneque 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 Roma, alia Athenis, alia nunc, pore una lex et sempiterna, et immutabilis conalia posthac; sed et omnes gentes et omni temtinebit; unusque erit communis quasi magister et imperator omnium Deus, ille legis hujus inventor, disceptator, lator: cui qui non parebit ipse sc fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas pœnas, etiamsi cætera supplicia, quæ putantur, effugerit."—De Repub. lib. iii. cap. 22. + Ecclesiastical Polity, book i. in the conclusion. "Age verò urbibus constitutis, ut fidem colere et justitiam retinere discerent, et aliis parere excipiendos communis commodi causâ, sed etiam suâ voluntate consuescerent, ac non modò labores exam amittendam existimarent; qui tandem fieri potuit, nisi homines ea, quæ ratione invenisset, eloquentiâ persuadere potuissent ?"-De Invent. Rhet. lib. i. cap. 2. c 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 indryness of science, at least we must own stitutions which, in every country that had 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 em-. pire, it became almost as essential that Europe should have a precise and comprehensive code of the law of nations, as that each country should have a system of municipal law. The labours of the learned, accordingly, began to be directed to this subject in the sixteenth century, soon after the 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 taught us both the practice of the ancient nations and the opinions of their moralists, with that depth and precision which distinguish the other works of that great philosopher. We can now only imperfectly collecterence for the inferior and technical parts of that practice and those opinions from various passages which are scattered over the writings of philosophers, historians, poets, and orators. When the time shall arrive for a more full consideration of the state of the government and manners of the ancient world, I shall be able, perhaps, to offer satis-understood as a science connected with Rofactory reasons why these enlightened nations did not separate from the general province of ethics that part of morality which regulates the intercourse of states, and erect it into an independent science. It would require a long discussion to unfold the various causes which united the modern nations of Europe into a closer society,-which linked them together by the firmest bands of mutual dependence, and which thus, in process of time, gave to the law that regulated their intercourse, greater importance, higher improvement, and more binding force. Among these causes, we may enumerate a common extraction, a common religion, similar manners, institutions, and languages; in earlier ages the authority of the See of Rome, and the extravagant claims of the imperial crown; in 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. be unpardonable in a short discourse. It is sufficient to observe that they were all more or less shackled by the barbarous philosophy of the schools, and that they were impeded in their progress by a timorous def the Roman law, without raising their views to the comprehensive principles which will for ever inspire mankind with veneration for that grand monument of human wisdom. It was only, indeed, in the sixteenth century that the Roman law was first studied and man 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 discoveries, and works that are to instruct posterity. The reduction of the law of nations to a system was reserved for Grotius. It was by the advice of Lord Bacon and Peiresc that he undertook this arduous task. He produced a work which we now, indeed, justly deem imperfect, but which is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the pp. 132-138. Leibnitz, a great mathematician as thing which approaches so near to the method well as philosopher, declares that he knows no and precision of Geometry as the Roman law. Op. vol. iv. p. 254. |