A Discourse on the Study of the Law of Nature and Nations

Part 1

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A DISCOURSE

THE STUDY

OF THE

LAW OF NATURE AND NATIONS.

SIR JAMES MACKINTOSH, M.P.

SECOND EDITION.

LONDON: HENRY GOODE AND CO.

QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW.

SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW.

M.DCCC.XXVIII.

A DISCOURSE,

ETC.

* * * * *

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 guiding his inquiries, of relieving the tediousness of private study, and of impressing on his recollection the principles of 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 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 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; 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 governments where they are planted, though they proceed from the same 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 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 civilised 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 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 among our modern moralists and lawyers, are inquiries, perhaps, 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, 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 well as private men, are liable to injury, and capable of benefit, from each other; it is, therefore, 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 civilised 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 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, 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 may be regarded with more propriety as a bold metaphor, used to convey the important truth, that nations, though they acknowledge 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, even if they could be conceived ever to have subsisted without the protecting restraints of government; 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, of which the violation is avenged by natural punishments, which necessarily flow from the constitution of things, and are 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; 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 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, where they have exhausted all the powers of language, and surpassed all the other exertions, even of their own eloquence, in the display of the beauty and majesty of this sovereign and immutable law. It is of this law that Cicero has spoken in so many parts of his writings, not only with all the splendour and copiousness of eloquence, but with the sensibility of a man of virtue; and with the gravity and comprehension of a philosopher. 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 exempted from her power; both angels and 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."--Eccles. Pol. book i. in the conclusion.

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