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I have selected this passage, in preference to many others that might be quoted to the same purpose from writers of higher name; because, in the sequel of this historical sketch, it appears to me peculiarly interesting to mark the progress of Ethical and Political speculation in that seat of learning, which, not many years afterwards, was to give birth to the Theory of Moral Sentiments, and to the Inquiry into the Nature and Causes of the Wealth of Nations. The powerful effect which the last of these works has produced on the political opinions of the whole civilized world, renders it unnecessary, in a Discourse destined to form part of a Scotish Encyclopædia, to offer any apology for attempting to trace, with some minuteness, the train of thought by which an undertaking, so highly honorable to the literary character of our country, seems to have been suggested to the author.
classico dato, ab eruditissimis passim et politissimis viris excoli certatim cæpit utilissima hæc nobilissimaque doctrina." (See the edition of Putfendorf, De officio Hominis et Civis, by Professor Gerschom Carmichael of Glasgow, 1724;) an author whom Dr. Hutcheson pronounces to be “ by far the best Commentator on Puffendorf; and whose notes,” he adds, “ are of much more value than the text." See his short Introduction to Moral Philosophy.
Puffendorf's principal work, entitled De Jure Natura et Gentium, was first printed in 1672, and was afterwards abridged by the author into the small volume referred to in the foregoing paragraph. The idea of Puffendorf's aim, formed by Mr. Carmichael, coincides exactly with the account of it given in the text: “Hoc demurn tractatu edito, facile intellexerunt æquiores harum rerum arbitri, non aliam esse genuinam Morum Philosophiam, quam quæ ex evidentibus principiis, in ipsâ rerum naturâ fundatis, hominis atque civis officia, in singulis vite humanæ circumstantiis debita, eruit ac demonstrat; atque adeo Juris Naturalis scientiam, quantumvis diver. sam ab Ethica quæ in scholis dudum obtinuerat, præ se ferret faciem, non esse, quod ad scopum et rem tractandam, verè aliam disciplinam, sed eandem rectius duntaxat et solidius traditam, ita ut, ad quem prius male collineaverit, tandem reipsâ feriret scopum.” See Carmichael's edition of the Treatise De Officio Hominis et Civis, p. 7.
To so late a period did this admiration of the Treatise De Officio Hominis et Civis continue in our Scotch Universities, that the very learned and respectable Sir John Pringle (afterwards President of the Royal Society of London,) adopted it as the text-book for his lectures, while he held the Professorship of Moral Philosophy at Edinburgh. Nor does the case seem to have been different in England. “I am going,” says Gray, in a letter written while a student at Cambridge, “ to attend a lecture on one Pullendorf.” And, much in the same spirit, Voltaire thus expresses himself with respect to the schools of the Continent: “On est partagé, dans les écoles, entre Grotius et Puffendorf. Croyez moi, lisez les Offices de Ciceron." From the contemptuous tone of these two writers, it should seem that the old systems of Natural Jurisprudence had entirely lost their credit among men of taste and of enlarged views, long before they ceased to form an essential part of academical instruction; thus affording an additional confirmation of Mr. Sinith's complaint, that " the greater part of universities have not been very forward to adopt improvements after they were made; and that several of those learned societies have chosen to remain, for a long time, the sanctuaries, in which exploded systems found shelter and protection, after they had been hunted out of every other corner of the world." Considering his own successful exertions, in his academical capacity, to remedy this evil, it is more than probable that Mr. Sinith had Grotius and Puffendorf in his view, when he wrote the foregoing sentence.
The extravagance of the praise lavished on Grotius and Puffendorf, in the above citation from Carmichael, can be accounted for only by the degraded state into which Ethics had fallen in the hands of those who were led to the study of it, either as a preparation for the casuistical discussions subservient to the practice of auricular confession, or to justify a scheme of morality which recommended the useless austerities of an ascetic retirement, in preference to the manly duties of social life. The
practical doctrines inculcated by the writers on Natural Law, were all of them favorable to active virtue ; and, how reprehensible soever in point of form, were not only harmless, but highly beneficial in their tendency. They were at the same time so diversified (particularly in the work of Grotius) with beautiful quotations from the Greek and Roman classics, that they could not fail to present a striking contrast to the absurd and illiberal
systems which they supplanted ; and perhaps to these passages, to which they thus gave a sort of systematical connexion, the progress which the science made in the course of the eighteenth century, may, in no inconsiderable degree, be ascribed. Even, now when so very different a taste prevails, the treatise De Jure Belli et Pacis possesses many charms to a classical reader ; who, although he may not always set a very high value on the author's reasonings, must at least be dazzled and delighted with the splendid profusion of his learning.
The field of Natural Jurisprudence, however, was not long to remain circumscribed within the narrow limits commonly assigned to the province of Ethics.' The contrast between natural law and positive institution, which it constantly presents to the mind, gradually and insensibly suggested the idea of comprehending under it every question concerning right and wrong, on which itive law is silent. Hence the origin of two different departments of Jurisprudence, little attended to by some of the first authors who treated of it, but afterwards, from their practical importance, gradually encroaching more and more on those ethical disquisitions by which they were suggested. Of these departments, the one refers to the conduct of individuals in those violent and critical
moments when the bonds of political society are torn asunder; the other, to the mutual relations of independent communities. The questions connected with the former article, lie indeed within a comparatively narrow compass; but on the latter so much has been written, that what was formerly called Natural Jurisprudence, has been, in later times, not unfrequently distinguished by the title of the Law of Nature and Nations. The train of thought by which both subjects came to be connected with the systems now under consideration, consists of a few very simple and obvious steps.
As an individual who is a member of a political body necessarily gives up his will to that of the governors who are entrusted by the people with the supreme power, it is his duty to submit to those inconveniences which, in consequence of the imperfection of all human establishments, may incidentally fall to his own lot. This duty is founded on the Law of Nature, from which, indeed, (as must appear evident on the slightest reflection) conventional law derives all its moral force and obligation. The great end, however, of the political union being a sense of general utility, if this end should be manifestly frustrated, either by the injustice of laws, or the tyranny of rulers, individuals must have recourse to the principles of natural law, in order to determine how far it is competent for them to withdraw themselves from their country, or to resist its governors by force. To Jurisprudence, therefore, considered in this light, came with great propriety to be referred all those practical discussions which relate to the limits of allegiance, and the right of resist
By a step equally simple, the province of the science was still farther extended. As independent states acknowledge no superior, the obvious inference was, that the disputes arising among them must be determined by an appeal to the Law of Nature; and accordingly, this law, when applied to states, forms a separate part of Jurisprudence, under the title of the Law of Nations. By some writers we are told, that the general principles of the Law of Nature, and of the Law of Nations, are one and the same, and that the distinction between them is merely
verbal. To this opinion, which is very confidently stated by Hobbes,* Puffendorf has given his sanction; and, in conformity to it, contents himself with laying down the general principles of natural law, leaving it to the reader to apply it as he may find necessary, to individuals or to societies.
The later writers on Jurisprudence have thought it expedient to separate the law of nations from that part of the science which treats of the duties of individuals;
† but without being at sufficient pains to form to themselves a definite idea of the object of their studies. Whoever takes the trouble to look into their systems, will immedi
* « Lex Naturalis dividi potest in naturalem hominum, quæ sola obtinuit dici Lex Naturæ, et naturalem civitatum, quæ dici potest Lex Gentium, vulgo autem Jus Gentium appellatur. Præcepta utriusque eadem sunt; sed quia civitates semel institutæ induunt proprietates hominum personales, lex, quam loquentes de hominum singulorum officio naturalem dicimus, applicata totis civitatibus, nationibus, sive gentibus, vocatur Jus Gentium.” De Cive, cap. xiv. § 4.
In a late publication, from the title of which some attention to dates might have been expected, we are told, that “ Hobbes's book De Cive appeared but a little time before the treatise of Grotius ;” whereas, in point of fact, Hobbes's book did not appear till twenty-two years after it. A few copies were indeed printed at Paris, and privately circulated by Hobbes, as early as 1642, but the book was not published till 1647. (See “ An Inquiry into the Foundation and History of the Law of Nations in Europe,” &c. "By Robert Ward of the Inner Temple, Esq. London, 1795.) This inaccuracy, however, is trifling, when compared with those committed in the same work, in stating the distinguishing doctrines of the two systenis.
As a writer on the Law of Nations, Hobbes is now altogether unworthy of notice. I shall therefore only remark on this part of his philosophy, that its aim is precisely the reverse of that of Grotius; the latter Jaboring, through the whole of his treatise, to extend, as far as possible, among independent states, the same laws of justice and of huinanity, which are universally recognised among individuals ; while Hobbes, by inverting the argument, exerts his ingenuity to show, that the moral repulsion which commonly exists between independent and neighbouring communities, is an exact picture of that which existed among individuals prior to the origin of government. The inference, indeed, was most illogical, inasmuch as it is the social attraction among individuals which is the source of the mutual repulsion among nations: and as this attraction invariably operates with the greatest force, where the individual is the most completely independent of his species, and where the advantages of the political union are the least sensibly felt. If
, in any state of human nature, it be in danger of becoming quite evanescent, it is in large and civilized empires, where man becomes indispensably necessary to man: depending for the gratification of his artificial wants on the cooperation of thousands of his fellow citizens.
Let me add, that the theory, so fashionable at present, which resolves the whole of morality into the principle of utility, is more nearly akin to Hobbism, than some of its partisans are aware of.
† The credit of this improvement is ascribed by Vattel (one of the most esteemed writers on the subject,) to the celebrated German philosopher Wolfius, whose labors in this department of study he estimates very highly. (Questions de Droit Naturel. Berne, 1762.) Of this great work I know nothing but the title, which is not calculated to excite much curiosity in the present times : « Christiani Wolfii Jus Nature methodo scientificâ pertractatum, in 9 Tomos distributum.” (Francof. 1740.) “Non est,” says Lampredi, himself a professor of public law, “ qui non deterreatur tantâ librorum farragine, quasi vero Herculeo labore opus esset, ut quis honestatem et justitiam addiscat." VOL. VI.
ately perceive, that their leading aim is not (as might have been expected,) to ascertain the great principles of morality binding on all nations in their intercourse with each other; or to point out with what limitations the ethical rules recognised among individuals must be understood, when extended to political and unconnected bodies; but to exhibit a digest of those laws and usages, which, partly from considerations of utility, partly from accidental circumstances, and partly from positive conventions, have gradually arisen among those states of Christendom, which, from their mutual connexions, may be considered as forming one great republic. It is evident, that such a digest has no more connexion with the Law of Nature, properly so called, than it has with the rules of the Roman law, or any other municipal code. The details contained in it are highly interesting and useful in themselves; but they belong to a science altogether different; a science, in which the ultimate appeal is made, not to abstract maxims of right and wrong, but to precedents, to established customs, and to the authority of the learned.
The intimate alliance, however, thus established between the Law of Nature and the conventional Law of Nations, has been on the whole attended with fortunate effects. In consequence of the discussions concerning questions of justice and of expediency which came to be blended with the details of public law, more enlarged and philosophical views have gradually presented themselves to the minds of speculative statesmen ; and, in the last result, have led, by easy steps, to those liberal doctrines concerning commercial policy, and the other mutual relations of separate and independent states, which, if they should ever become the creed of the rulers of mankind, promise so large an accession to human happiness.
3. Another idea of Natural Jurisprudence, essentially distinct from those hitherto mentioned, remains to be considered. According to this, its object is to ascertain the general principles of justice which ought to be recognised in every municipal code; and to which it ought to be the aim of every legislator to accommodate his institutions. It is to this idea of Jurisprudence that Mr. Smith has given his sanction in the conclusion of his Theory of