Supplement to the Fourth, Fifth, and Sixth Editions of the Encyclopædia Britannica/Dissertation First/Part 1/Chapter 2/Section 3

Section III.

Progress of Philosophy during the Seventeenth Century, in some parts of Europe, not included in the preceding Review.

During the first half of the seventeenth century, the philosophical spirit which had arisen with such happy auspices in England and in France, has left behind it few or no traces of its existence in the rest of Europe. On all questions connected with the science of mind (a phrase which I here use in its largest acceptation), authority continued to be everywhere mistaken for argument; nor can a single work be named, bearing, in its character, the most distant resemblance to the Organon of Bacon; to the Meditations of Descartes; or to the bold theories of that sublime genius who, soon after, was to shed so dazzling a lustre on the north of Germany. Kepler and Galileo still lived; the former languishing in poverty at Prague; the latter oppressed with blindness, and with ecclesiastical persecution at Florence; but their pursuits were of a nature altogether foreign to our present subject.

One celebrated work alone, the treatise of Grotius De Jure Belli et Pacis (first printed in 1625), arrests our attention among the crowd of useless and forgotten volumes, which were then issuing from the presses of Holland, Germany, and Italy. The influence of this treatise, in giving a new direction to the studies of the learned, was so remarkable, and continued so long to operate with undiminished effect, that it is necessary to allot to the author, and to his successors, a space considerably larger than may, at first sight, seem due to their merits. Notwithstanding the just neglect into which they have lately fallen in our Universities, it will be found, on a close examination, that they form an important link in the history of modern literature. It was from their school that most of our best writers on Ethics have proceeded, and many of our most original inquirers into the Human Mind; and it is to the same school (as I shall endeavour to shew in the Second Part of this Discourse), that we are chiefly indebted for the modern science of Political Economy.^[1]

For the information of these who have not read the treatise De Jure Belli et Pacis, it may be proper to observe, that, under this title, Grotius has aimed at a complete system of Natural Law. Condillac says, that he chose the title, in order to excite a more general curiosity; adding (and, I believe, very justly), that many of the most prominent defects of his work may be fairly ascribed to a compliance with the taste of his age. “The author,” says Condillac, “was able to think for himself; but he constantly labours to support his conclusions by the authority of others; producing, on many occasions, in support of the most obvious and indisputable propositions, a long string of quotations from the Mosaic law; from the Gospels; from the Fathers of the Church; from the Casuists; and not unfrequently, in the very same paragraph, from Ovid and Aristophanes.” In consequence of this cloud of witnesses, always at hand to attest the truth of his axioms, not only is the attention perpetually interrupted and distracted; but the author’s reasonings, even when perfectly solid and satisfactory, fail in making a due impression on the reader’s mind; while the very little that there probably was of systematical arrangement in the general plan of the book, is totally kept out of view.

In spite of these defects, or rather, perhaps, in consequence of some of them, the impression produced by the treatise in question, on its first publication, was singularly great. The stores of erudition displayed in it, recommended it to the classical scholar; while the happy application of the author’s reading to the affairs of human life, drew the attention of such men as Gustavus Adolphus; of his Prime-Minister, the Chancellor Oxenstiern; and of the Elector Palatine, Charles Lewis. The last of these was so struck with it, that he founded at Heidelberg a Professorship for the express purpose of teaching the Law of Nature and Nations;—an office which he bestowed on Puffendorff; the most noted, and, on the whole, the most eminent of those who have aspired to tread in the footsteps of Grotius.

The fundamental principles of Puffendorff possess little merit in point of originality, being a sort of medley of the doctrines of Grotius, with some opinions of Hobbes; but his book is entitled to the praise of comparative conciseness, order, and perspicuity; and accordingly came very generally to supplant the treatise of Grotius, as a manual or institute for students, notwithstanding its immense inferiority in genius, in learning, and in classical composition.

The authors who, in different parts of the Continent, have since employed themselves in commenting on Grotius and Puffendorff; or in abridging their systems; or in altering their arrangements, are innumerable; but notwithstanding all their industry and learning, it would be very difficult to name any class of writers, whose labours have been of less utility to the world. The same ideas are constantly recurring in an eternal circle; the opinions of Grotius and of Puffendorff, where they are at all equivocal, are anxiously investigated, and sometimes involved in additional obscurity; while, in the meantime, the science of Natural Jurisprudence never advances one single step; but, notwithstanding its recent birth, seems already sunk into a state of dotage.^[2]

In perusing the systems now referred to, it is impossible not to feel a very painful dissatisfaction, from the difficulty of ascertaining the precise object aimed at by the authors. So vague and indeterminate is the general scope of their researches, that not only are different views of the subject taken by different writers, but even by the same writer in different parts of his work;—a circumstance which, of itself, sufficiently accounts for the slender additions they have made to the stock of useful knowledge; and which is the real source of that chaos of heterogeneous discussions, through which the reader is perpetually forced to fight his way. A distinct conception of these different views will be found to throw more light than might at first be expected on the subsequent history of Moral and of Political science; and I shall therefore endeavour, as accurately as I can, to disentangle and separate them from each other, at the risk perhaps of incurring, from some readers, the charge of prolixity. The most important of them may, I apprehend, be referred to one or other of the following heads:

1. Among the different ideas which have been formed of Natural Jurisprudence, one of the most common (particularly in the earlier systems) supposes its object to be—To lay down those rules of justice which would be binding on men living in a social state, without any positive institutions; or (as it is frequently called by writers on this subject), living together in a state of nature. This idea of the province of Jurisprudence seems to have been uppermost in the mind of Grotius, in various parts of his treatise.

To this speculation about the state of nature, Grotius was manifestly led by his laudable anxiety to counteract the attempts then recently made to undermine the foundations of morality. That moral distinctions are created entirely by the arbitrary and revealed will of God, had, before his time, been zealously maintained by some theologians even of the reformed church; while, among the political theorists of the same period, it was not unusual to refer these distinctions (as was afterwards done by Hobbes) to the positive institutions of the civil magistrate. In opposition to both, it was contended by Grotius, that there is a natural law coëval with the human constitution, from which positive institutions derive all their force; a truth which, how obvious and tritical soever it may now appear, was so opposite in its spirit to the illiberal systems taught in the monkish establishments, that he thought it necessary to exhaust in its support all his stores of ancient learning. The older writers on Jurisprudence must, I think, be allowed to have had great merit in dwelling so much on this fundamental principle; a principle which renders “Man a Law to Himself;” and which, if it be once admitted, reduces the metaphysical question concerning the nature of the moral faculty to an object merely of speculative curiosity.^[3] To this faculty the ancients frequently give the name of reason; as in that noted passage of Cicero, where he observes, that “right reason is itself a law; congenial to the feelings of nature; diffused among all men; uniform; eternal; calling us imperiously to our duty, and peremptorily prohibiting every violation of it. Nor does it speak,” continues the same author, “one language at Rome and another at Athens, varying from place to place, or time to time; but it addresses itself to all nations, and to all ages; deriving its authority from the common sovereign of the universe, and carrying home its sanctions to every breast, by the inevitable punishment which it inflicts on transgressors.”^[4]

The habit of considering morality under the similitude of a law, (a law engraved on the human heart,) led not unnaturally to an application to ethical subjects of the technical language and arrangements of the Roman jurisprudence; and this innovation was at once facilitated and encouraged, by certain peculiarities in the nature of the most important of all the virtues,—that of justice; peculiarities which, although first explained fully by Hume and Smith, were too prominent to escape altogether the notice of preceding moralists.

The circumstances which distinguish justice from the other virtues, are chiefly two. In the first place, its rules may he laid down with a degree of accuracy, whereof moral precepts do not, in any other instance, admit. Secondly, its rules may be enforced, inasmuch as every transgression of them implies a violation of the rights of others. For the illustration of both propositions, I must refer to the eminent authors just mentioned.

As, in the case of justice, there is always a right, on the one hand, corresponding to an obligation on the other, the various rules enjoined by it may be stated in two different forms; either as a system of duties, or as a system of rights. The former view of the subject belongs properly to the moralist—the latter to the lawyer. It is this last view that the writers on Natural Jurisprudence (most of whom were lawyers by profession) have in general chosen to adopt; although, in the same works, both views will be found to be not unfrequently blended together.

To some indistinct conception among the earlier writers on Natural Law, of these peculiarities in the nature of justice, we may probably ascribe the remarkable contrast pointed out by Mr Smith, between the ethical systems of ancient and of modern times. “In none of the ancient moralists,” he observes, “do we find any attempt towards a particular enumeration of the rules of justice. On the contrary, Cicero in his Offices, and Aristotle in his Ethics, treat of justice in the same general manner in which they treat of generosity or of charity.”^[5]

But, although the rules of justice are in every case precise and indispensable; and although their authority is altogether independent of that of the civil magistrate, it would obviously be absurd to spend much time in speculating about the principles of this natural law, as applicable to men, before the establishment of government. The same state of society which diversifies the condition of individuals to so great a degree as to suggest problematical questions with respect to their rights and their duties, necessarily gives birth to certain conventional laws or customs, by which the conduct of the different members of the association is to be guided; and agreeably to which the disputes that may arise among them are to be adjusted. The imaginary state referred to under the title of the State of Nature, though it certainly does not exclude the idea of a moral right of property arising from labour, yet it excludes all that variety of cases concerning its alienation and transmission, and the mutual covenants of parties, which the political union alone could create;—an order of things, indeed, which is virtually supposed in almost all the speculations about which the law of nature is commonly employed.

2. It was probably in consequence of the very narrow field of study which Jurisprudence, considered in this light, was found to open, that its province was gradually enlarged, so as to comprehend, not merely the rules of justice, but the rules enjoining all our other moral duties. Nor was it only the province of Jurisprudence which was thus enlarged. A corresponding extension was also given, by the help of arbitrary definitions, to its technical phraseology, till at length the whole doctrines of practical ethics came to be moulded into an artificial form, originally copied from the Roman code. Although justice is the only branch of virtue in which every moral Obligation implies a corresponding Right, the writers on Natural Law have contrived, by fictions of imperfect rights, and of external rights, to treat indirectly of all our various duties, by pointing out the rights which are supposed to be their correlates:—in other words, they have contrived to exhibit, in the form of a system of rights, a connected view of the whole duty of man. This idea of Jurisprudence, which identifies its object with that of Moral Philosophy, seems to coincide nearly with that of Puffendorff; and some vague notion of the same sort has manifestly given birth to many of the digressions of Grotius.

Whatever judgment may now be pronounced on the effects of this innovation, it is certain that they were considered, not only at the time, but for many years afterwards, as highly favourable. A very learned and respectable writer, Mr Carmichael of Glasgow, compares them to the improvements made in Natural Philosophy by the followers of Lord Bacon. “No person,” he observes, “liberally educated, can be ignorant, that, within the recollection of ourselves and of our fathers, philosophy has advanced to a state of progressive improvement hitherto unexampled; in consequence partly of the rejection of scholastic absurdities, and partly of the accession of new discoveries. Nor does this remark apply solely to Natural Philosophy, in which the improvements accomplished by the united labours of the learned have forced themselves on the notice even of the vulgar, by their palpable influence on the mechanical arts. The other branches of philosophy also have been prosecuted during the last century with no less success; and none of them in a more remarkable degree than the science of Morals.

“This science, so much esteemed, and so assiduously cultivated by the sages of antiquity, lay, for a length of time, in common with all the other useful arts, buried in the rubbish of the dark ages, till (soon after the commencement of the seventeenth century), the incomparable treatise of Grotius de Jure Belli et Pacis restored to more than its ancient splendour that part of it which defines the relative duties of individuals; and which, in consequence of the immense variety of cases comprehended under it, is by far the most extensive of any. Since that period, the most learned and polite scholars of Europe, as if suddenly roused by the alarm of a trumpet, have vied with each other in the prosecution of this study,—so strongly recommended to their attention, not merely by its novelty, but by the importance of its conclusions, and the dignity of its object.”^[6]

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 honourable to the literary character of our country, seems to have been suggested to the author.

The extravagance of the praise lavished on Grotius and Puffendorff, 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 favourable 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 connection, 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 lis 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 positive 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 resistance.

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,^[7] Puffendorff 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;^[8] 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 immediately 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 recognized 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 connections, may be considered as forming one great republic. It is evident, that such a digest has no more connection with the Law of Nature, properly so called, than it has with the rules of the Roman law, or of 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 fo be recognized 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 Moral Sentiments; and this he seems to have conceived to have been likewise the idea of Grotius, in the treatise de Jure Belli et Pacis.

“It might have been expected,” says Mr Smith, “that the reasonings of lawyers upon the different imperfections and improvements of the laws of different countries, should have given occasion to an inquiry into what were the natural rules of justice, independent of all positive institution. It might have been expected, that these reasonings should have led them to aim at establishing a system of what might properly be called Natural Jurisprudence, or a theory of the principles which ought to run through, and to be the foundation of the laws of all nations. But, though the reasonings of lawyers did produce something of this kind, and though no man has treated systematically of the laws of any particular country, without intermixing in his work many observations of this sort, it was very late in the world before any such general system was thought of, or before the philosophy of laws was treated of by itself, and without regard to the particular institutions of any nation. Grotius seems to have been the first who attempted to give the world anything like a system of those principles which ought to run through, and be the foundation of the laws of all nations; and his Treatise of the Laws of Peace and War, with all its imperfections, is perhaps, at this day, the most complete work that has yet been given on the subject.”

Whether this was, or was not, the leading object of Grotius, it is not material to decide; but if this was his object, it will not be disputed that he has executed his design in a very desultory manner, and that he often seems to have lost sight of it altogether, in the midst of those miscellaneous speculations on political, ethical, and historical subjects, which form so large a portion of his Treatise, and which so frequently succeed each other without any apparent connection or common aim.^[9]

Nor do the views of Grotius appear always enlarged or just, even when he is pointing at the object described by Mr Smith. The Roman system of Jurisprudence seems to have warped, in no inconsiderable degree, his notions on all questions connected with the theory of legislation, and to have diverted his attention from that philosophical idea of law, so well expressed by Cicero,—“Non à prætoris edicto, neque à duodecim tabulis, sed penitus ex intimâ philosophiâ, hauriendam juris disciplinam.” In this idolatry, indeed, of the Roman law, he has not gone so far as some of his commentators, who have affirmed, that it is only a different name for the Law of Nature; but that his partiality for his professional pursuits has often led him to overlook the immense difference between the state of society in ancient and modern Europe, will not, I believe, be now disputed. lt must, at the same time, be mentioned to his praise, that no writer appears to have been, in theory, more completely aware of the essential distinction between Natural and Municipal laws. In one of the paragraphs of his Prolegomena, he mentions it as a part of his general plan, to illustrate the Roman code, and to systematize those parts of it which have their origin in the Law of Nature. “The task,” says he, “of moulding it into the form of a system, has been projected by many, but hitherto accomplished by none. Nor indeed was the thing possible, while so little attention was paid to the distinction between natural and positive institutions; for the former being everywhere the same, may be easily traced to a few general principles, while the latter, exhibiting different appearances at different times, and in different places, elude every attempt towards methodical arrangement, no less than the insulated facts which individual objects present to our external senses.”

This passage of Grotius has given great offence to two of the most eminent of his commentators, Henry and Samuel de Cocceii, who have laboured much to vindicate the Roman legislators against that indirect censure which the words of Grotius appear to convey. “My chief object,” says the latter of those writers, “was, by deducing the Roman law from its source in the nature of things, to reconcile Natural Jurisprudence with the civil code; and, at the same time, to correct the supposition implied in the foregoing passage of Grotius, which is indeed one of the most exceptionable to be found in his work. The remarks on this subject, scattered over the following commentary, the reader will find arranged in due order in my twelfth Preliminary Dissertation, the chief design of which is to systematize the whole Roman law, and to demonstrate its beautiful coincidence with the Law of Nature.” In the execution of this design, Cocceii must, I think, be allowed to have contributed a very useful supplement to the jurisprudential labours of Grotius, the Dissertation in question being eminently distinguished by that distinct and luminous method, the want of which renders the study of the treatise de Jure Belli et Pacis so peculiarly irksome and unsatisfactory.

The superstitious veneration for the Roman code expressed by such writers as the Cocceii, will appear less wonderful, when we attend to the influence of the same prejudice on the liberal and philosophical mind of Leibnitz; an author, who has not only gone so far as to compare the civil law (considered as a monument of human genius) with the remains of the ancient Greek geometry; but has strongly intimated his dissent from the opinions of those who have represented its principles as being frequently at variance with the Law of Nature. In one very powerful paragraph, he expresses himself thus: “I have often said, that, after the writings of geometricians, there exists nothing which, in point of strength, subtilty, and depth, can be compared to the works of the Roman lawyers. And as it would be scarcely possible, from mere intrinsic evidence, to distinguish a demonstration of Euclid’s from one of Archimedes or of Appollonius (the style of all of them appearing no less uniform than if reason herself were speaking through their organs,) so also the Roman lawyers all resemble each other like twin-brothers; insomuch that, from the style alone of any particular opinion or argument, hardly any conjecture could be formed about its author. Nor are the traces of a refined and deeply meditated system of Natural Jurisprudence anywhere to be found more visible, or in greater abundance. And even in those cases where its principles are departed from, either in compliance with the language consecrated by technical forms, or in consequence of new statutes, or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity that excites admiration. Nor are these deviations from the Law of Nature so frequent as is commonly apprehended.”

In the last sentence of this passage, Leibnitz had probably an eye to the works of Grotius and his followers; which, however narrow and timid in their views they may now appear, were, for a long time, regarded among civilians as savouring somewhat of theoretical innovation, and of political heresy.

To all this may be added, as a defect still more important and radical in the systems of Natural Jurisprudence considered as models of universal legislation, that their authors reason concerning laws too abstractedly, without specifying the particular circumstances of the society to which they mean that their conclusions should be applied. It is very justly observed by Mr Bentham, that, “if there are any books of universal Jurisprudence, they must be looked for within very narrow limits.” He certainly, however, carries this idea too far, when he asserts, that “to be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words; and that, to be strictly speaking universal, it must confine itself to terminology; that is, to an explanation of such words connected with law, as power, right, obligation, liberty, to which are words pretty exactly correspondent in all languages.”^[10] His expressions, too, are somewhat unguarded, when he calls the Law of Nature “an obscure phantom, which, in the imaginations of those who go in chace of it, points sometimes to manners, sometimes to laws, sometimes to what law is, sometimes to what it ought to be.^[11] Nothing, indeed, can be more exact and judicious than this description, when restricted to the Law of Nature, as commonly treated of by writers on Jurisprudence; but if extended to the Law of Nature, as originally understood among ethical writers, it is impossible to assent to it, without abandoning all the principles on which the science of morals ultimately rests. With these obvious, but, in my opinion, very essential limitations, I perfectly agree with Mr Bentham, in considering an abstract code of laws as a thing equally unphilosophical in the design, and useless in the execution.

In stating these observations, I would not be understood to dispute the utility of turning the attention of students to a comparative view of the municipal institutions of different nations; but only to express my doubts whether this can be done with advantage, by referring these institutions to that abstract theory called the Law of Nature, as to a common standard. The code of some particular country must be fixed on as a ground-work for our speculations; and its laws studied, not as consequences of any abstract principles of justice, but in their connection with the circumstances of the people among whom they originated. A comparison of these laws with the corresponding laws of other nations, considered also in their connection with the circumstances whence they arose, would form a branch of study equally interesting and useful; not merely to those who have in view the profession of law, but to all who receive the advantages of a liberal education. In fixing on such a standard, the preference must undoubtedly be given to the Roman law, if for no other reason than this, that its technical language is more or less incorporated with all our municipal regulations in this part of the world: and the study of this language, as well as of the other technical parts of Jurisprudence (so revolting to the taste when considered as the arbitrary jargon of a philosophical theory), would possess sufficient attractions to excite the curiosity, when considered as a necessary passport to a knowledge of that system, which so long determined the rights of the greatest and most celebrated of nations.

“Universal grammar,” says Dr Lowth, “cannot he taught abstractedly; it must be done with reference to some language already known, in which the terms are to be explained and the rules exemplified.”^[12] The same observation may be applied (and for reasons strikingly analogous) to the science of Natural or Universal Jurisprudence.

Of the truth of this last proposition Bacon seems to have been fully aware; and it was manifestly some ideas of the same kind which gave birth to Montesquieu’s historical speculations with respect to the origin of laws, and the reference which they may be expected to bear, in different parts of the world, to the physical and moral circumstances of the nations among whom they have sprung up. During this long interval, it would be difficult to name any intermediate writer, by whom the important considerations just stated were duly attended to.

 

In touching formerly on some of Bacon’s ideas concerning the philosophy of law, I quoted a few of the most prominent, of those fortunate anticipations, so profusely scattered over his works, which, outstripping the ordinary march of human reason, associate his mind with the luminaries of the eighteenth century, rather than with his own contemporaries. These anticipations, as well as many others of a similar description, hazarded by his bold yet prophetic imagination, have often struck me as resembling the pierres d’attente jutting out from the corners of an ancient building, and inviting the fancy to complete what was left unfinished of the architect’s design;—or the slight and broken sketches traced on the skirts of an American map, to connect its chains of hills and branches of rivers with some future survey of the contiguous wilderness. Yielding to such impressions, and eager to pursue the rapid flight of his genius, let me abandon for a moment the order of time, while I pass from the Fontes Juris to the Spirit of Laws. To have a just conception of the comparatively limited views of Grotius, it is necessary to attend to what was planned by his immediate predecessor, and first executed (or rather first begun to be executed) by one of his remote successors.

The main object of the Spirit of Laws (it is necessary here to premise) is to show, not, as has been frequently supposed, what laws ought to be,—but how the diversities in the physical and moral circumstances of the human race have contributed to produce diversities in their political establishments, and in their municipal regulations.^[13] On this point, indeed, an appeal may be made to the author himself. “I write not,” says he, “to censure anything established in any country whatsoever; every nation will here find the reasons on which its maxims are founded.” This plan, however, which, when understood with proper limitations, is highly philosophical, and which raises Jurisprudence, from the uninteresting and useless state in which we find it in Grotius and Puffendorff, to be one of the most agreeable and important branches of useful knowledge (although the execution of it occupies by far the greater part of his work), is prosecuted by Montesquieu in so very desultory a manner, that I am inclined to think he rather fell into it insensibly, in consequence of the occasional impulse of accidental curiosity, than from any regular design he had formed to himself when he began to collect materials for that celebrated performance. He seems, indeed, to confess this in the following passage of his preface: “Often have I begun, and as often laid aside, this undertaking. I have followed my observations without any fixed plan, and without thinking either of rules or exceptions. I have found the truth only to lose it again.”

But whatever opinion we may form on this point, Montesquieu enjoys an unquestionable claim to the grand idea of connecting Jurisprudence with History and Philosophy, in such a manner as to render them all subservient to their mutual illustration. Some occasional disquisitions of the same kind may, it is true, be traced in earlier writers, particularly in the works of Bodinus; but they are of a nature too trifling to detract from the glory of Montesquieu. When we compare the jurisprudential researches of the latter with the systems previously in possession of the schools, the step which he made appears to have been so vast as almost to justify the somewhat too ostentatious motto prefixed to them by the author; Prolem sine Matre creatam. Instead of confining himself, after the example of his predecessors, to an interpretation of one part of the Roman code by another, he studied the Spirit of these laws in the political views of their authors, and in the peculiar circumstances of that extraordinary race. He combined the science of law with the history of political society, employing the latter to account for the varying aims of the legislator; and the former, in its turn, to explain the nature of the government, and the manners of the people. Nor did he limit his inquiries to the Roman law, and to Roman history; but, convinced that the general principles of human nature are everywhere the same, he searched for new lights among the subjects of every government, and the inhabitants of every climate; and, while he thus opened inexhaustible and unthought-of resources to the student of Jurisprudence, he indirectly marked out to the legislator the extent and the limits of his power, and recalled the attention of the philosopher from abstract and useless theories, to the only authentic monuments of the history of mankind.^[14]

This view of law, which unites History and Philosophy with Jurisprudence, has been followed out with remarkable success by various authors since Montesquieu’s time; and for a considerable number of years after the publication of the Spirit of Laws, became so very fashionable (particularly in this country), that many seem to have considered it, not as a step towards a farther end, but as exhausting the whole science of Jurisprudence. For such a conclusion there is undoubtedly some foundation, so long as we confine our attention to the ruder periods of society, in which governments and laws may be universally regarded as the gradual result of time and experience, of circumstances and emergencies. In enlightened ages, however, there cannot be a doubt, that political wisdom comes in for its share in the administration of human affairs; and there is reasonable ground for hoping, that its influence will continue to increase, in proportion as the principles of legislation are more generally studied and understood. To suppose the contrary, would reduce us to be mere spectalors of the progress and decline of society, and put an end to every species of patriotic exertion.

Montesquieu’s own aim in his historical disquisitions, was obviously much more deep and refined. In various instances, one would almost think he had in his mind the very shrewd aphorism of Lord Coke, that, “to trace an error to its fountain-head, is to refute it;”—a species of refutation, which, as Mr Bentham has well remarked, is, with many understandings, the only one that has any weight.^[15] To men prepossessed with a blind veneration for the wisdom of antiquity, and strongly impressed with a conviction that everything they see around them is the result of the legislative wisdom of their ancestors, the very existence of a legal principle, or of an established custom, becomes an argument in its favour; and an argument to which no reply can be made, but by tracing it to some acknowledged prejudice, or to a form of society so different from that existing at present, that the same considerations which serve to account for its first origin, demonstrate indirectly the expediency of now accommodating it to the actual circumstances of mankind.

According to this view of the subject, the speculations of Montesquieu were ultimately directed to the same practical conclusion with that pointed out in the prophetic suggestions of Bacon; aiming, however, at this object, by a process more circuitous; and, perhaps, on that account, the more likely to be effectual. The plans of both have been since combined with extraordinary sagacity, by some of the later writers on Political Economy;^[16] but with their systems we have no concern in the present section. I shall therefore only remark, in addition to the foregoing observations, the peculiar utility of these researches concerning the history of laws, in repressing the folly of sudden and violent innovation, by illustrating the reference which laws must necessarily have to the actual circumstances of a people,—and the tendency which natural causes have to improve gradually and progressively the condition of mankind, under every government which allows them to enjoy the blessings of peace and of liberty.

The well-merited popularity of the Spirit of Laws, gave the first fatal blow to the study of Natural Jurisprudence; partly by the proofs which, in every page, the work afforded, of the absurdity of all schemes of Universal Legislation; and partly by the attractions which it possessed, in point of eloquence and taste, when contrasted with the insupportable dulness of the systems then in possession of the schools. It is remarkable, that Montesquieu has never once mentioned the name of Grotius;—in this, probably, as in numberless other instances, conceiving it to be less expedient to attack established prejudices openly and in front, than gradually to undermine the unsuspected errors upon which they rest.

If the foregoing details should appear tedious to some of my readers, I must request them to recollect, that they relate to a science which, for much more than a hundred years, constituted the whole philosophy, both ethical and political, of the largest portion of civilized Europe. With respect to Germany, in particular, it appears from the Count de Hertzberg, that this science continued to maintain its undisputed ground, till it was supplanted by that growing passion for Statistical details, which, of late, has given a direction so different, and in some respects so opposite, to the studies of his countrymen.^[17]

 

When from Germany we turn our eyes to the south of Europe, the prospect seems not merely sterile, but afflicting and almost hopeless. Of Spanish literature I know nothing but through the medium of Translations; a very imperfect one, undoubtedly, when a judgment is to be passed on compositions addressed to the powers of imagination and taste; yet fully sufficient to enable us to form an estimate of works which treat of science and philosophy. On such subjects, it may be safely concluded, that whatever is unfit to stand the test of a literal version, is not worth the trouble of being studied in the original. The progress of the Mind in Spain during the seventeenth century, we may therefore confidently pronounce, if not entirely suspended, to have been too inconsiderable to merit attention.

“The only good book,” says Montesquieu, “which the Spaniards have to boast of, is that which exposes the absurdity of all the rest.” In this remark, I have little doubt that there is a considerable sacrifice of truth to the pointed effect of an antithesis. The unqualified censure, at the same time, of this great man, is not unworthy of notice, as a strong expression of his feelings with respect to the general insignificance of the Spanish writers.

The inimitable work here referred to by Montesquieu, is itself entitled to a place in this Discourse, not only as one of the happiest and most wonderful creations of Human fancy, but as the record of a force of character, and an enlargement of mind, which, when contrasted with the prejudices of the author’s age and nation, seem almost miraculous. It is not merely against Books of Chivalry that the satire of Cervantes is directed. Many other follies and absurdities of a less local and temporary nature have their share in his ridicule; while not a single expression escapes his pen that can give offence to the most fastidious moralist. Hence those amusing and interesting contrasts by which Cervantes so powerfully attaches us to the hero of his story; chastising the wildest freaks of a disordered imagination, by a stateliness yet courtesy of virtue, and (on all subjects but one) by a superiority of good sense and of philosophical refinement, which, even under the most ludicrous circumstances, never cease to command our respect and to keep alive our sympathy.

In Italy, notwithstanding the persecution undergone by Galileo, physics and astronomy continued to be cultivated with success by Torricelli, Borelli, Cassini, and others; and in pure geometry, Viviani rose to the very first eminence, as the Restorer, or rather as the Diviner of ancient discoveries; but, in all those studies which require the animating spirit of civil and religious liberty, this once renowned country exhibited the most melancholy symptoms of mental decrepitude. “Rome,” says a French historian, “was too much interested in maintaining her principles, not to raise every imaginable barrier against what might destroy them. Hence that index of prohibited books, into which were put the history of the President de Thou; the works on the liberties of the Gallican church; and (who could have believed it?) the translations of the Holy Scriptures. Meanwhile, this tribunal, though always ready to condemn judicious authors upon frivolous suspicions of heresy, approved those seditious and fanatical theologists, whose writings tended to the encouragement of regicide, and the destruction of government. The approbation.and censure of books (it is justly added) deserve a place im the history of the human mind.”

The great glory of the Continent towards the end of the seventeenth century (I except only the philosophers of France) was Leibnitz. He was born as early as 1646; and distinguished himself, while still a very young man, by a display of those talents which were afterwards to contend with the united powers of Clarke and of Newton. I have already introduced his name among the writers on Natural Law; but, in every other respect, he ranks more fitly with the contemporaries of his old age than with those of his youth. My reasons for thinking so will appear in the sequel. In the meantime, it may suffice to remark, that Leibnitz, the Jurist, belongs to one century, and Leibnitz, the Philosopher, to another.

In this, and other analogous distributions of my materials, as well as in the order I have followed in the arrangement of particular facts, it may be proper, once for all, to observe, that much must necessarily be left to the discretionary, though not to the arbitrary decision of the author’s judgment;—that the dates which separate from each other the different stages in the progress of Human Reason, do not, like those which occur in the history of the exact sciences, admit of being fixed with chronological and indisputable precision; while, in adjusting the perplexed rights of the innumerable claimants in this intellectual and shadowy region, a task is imposed on the writer, resembling not unfrequently the labour of him, who should have attempted to circumscribe, by mathematical lines, the melting and intermingling colours of Arachne’s web;

In quo diversi niteant cum mille colores,
Transitus ipse tamen spectantia lumina fallunt,
Usque adco quod tangit idem est, tamen ultima distant.

But I will not add to the number (already too great) of the foregoing pages, by anticipating, and attempting to obviate, the criticisms to which they may he liable. Nor will I dissemble the confidence with which, amid a variety of doubts and misgivings, I look forward to the candid indulgence of those who are best fitted to appreciate the difficulties of my undertaking. I am certainly not prepared to say with Johnson, that “I dismiss my work with frigid indifference, and that to me success and miscarriage are empty sounds.” My feelings are more in unison with those expressed by the same writer in the conclusion of the admirable preface to his edition of Shakespeare. One of his reflections, more particularly, falls in so completely with the train of my own thoughts, that I cannot forbear, before laying down the pen, to offer it to the consideration of my readers.

“Perhaps I may not be more censured for doing wrong, than for doing little; for raising in the public, expectations which at last I have not answered. The expectation of ignorance is indefinite, and that of knowledge is often tyrannical. It is hard to satisfy those who know not what to demand, or those who demand by design what they think impossible to be done.”

1. From a letter of Grotius, quoted by Gassendi, we learn, that the treatise De Jure Belli et Pacis was undertaken at the request of his learned friend Peireskius. “Non otior, sed in illo de jure gentium opere pergo, quad si tale futurum est, ut lectores demereri possit, habebit quod tibi debeat posteritas, qui me aed hunc laborem et auxilio et hortatu tuo excitasti.” Gassendi Opera, Tom. V. p. 294.
2. I have borrowed, in this last paragraph, some expressions from Lampredi, “Grotii et Puffendorfii interpretes, viri quidem diligentissimi, sed qui vix fructum aliquem tot commentariis, adnotationibus, compendiis, tabulis, ceterisque ejusmodi aridissimis laboribus attulerunt: perpetuo circulo eadem res circumagitur, quid uterque senserit quæritur, interdum etiam utriusque sententiæ obscurantur; disciplina nostra tamen ne latum quidem unguem progreditur, et dum aliorum sententiæ disquiruntur et explanantur, Rerum Natura quasi senlo confecta squalescit, neglectaque jacet et inobservata omnino.” (Juris Publici Theoremata, p. 34.)
3. “Upon whatever we suppose that our moral faculties are founded, whether upon a certain modification of reason, upon an original instinct, called a moral sense, or upon some other principle of our nature, it cannot be doubted that they were given us for the direction of our conduct in this life. They carry along with them the most evident badges of this authority, which denote that they were set up within us to be the supreme arbiters of all our actions, to superintend all our senses, passions, and appetites, and to judge how far each of them was either to be indulged or restrained. The rules, therefore, which they prescribe, are to be regarded as the commands and laws of the Deity, promulgated by those vicegerents which he has set up within us.” (Smith’s Theory of Moral Sentiments, Part iii, chap. v)—See also Dr Butler’s very original and philosophical Discourses on Human Nature.
4. Frag. Lib. iii. de Rep.
5. Theory of Moral Sentiments, Part vii. sect. iv.
6. The last sentence is thus expressed in the original. “Ex illo tempore, quasi classico dato, ab eruditissimis passim et politissimis viris excoli certatim cæpit, utilissima hæc nobilissimaque doctrina.” (See the edition of Puffendorff, 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 Puffendorff; and “whose notes,” he adds, “are of much more value than the text.” See his short Introduction to Moral Philosophy.

   Puffendorff’s principal work, entitled De Jure Naturæ 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 Puffendorff’s aim, formed by Mr Carmichael, coincides exactly with the account of it given in the text: “Hoc demum tractatu edito, facile intellexerunt æquiores harum rerum arbitri, non aliam esse genuinam Morum Philosophiam, quam quæ ex evidentibus principiis, in ipsa rerum natura fundatis, hominis atque civis officia, in singulis vitæ humanæ circumstantiis debita, eruit ac demonstrat; atque adeo Juris Naturalis scientiam, quantumvis diversam 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 quam prius male collineaverit, tandem reipsâ feriret scopum.” See Carmichael’s edition of the Treatise De Officio Hominus 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 Puffendorff.” 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 Puffendorff. 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 Smith’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 Smith had Grotius and Puffendorff in his view, when he wrote the foregoing sentence.

7. “Lex Naturalis dividi potest in naturalem hominum quæ sola obtinuit dici Lox Naturæ, et naturalem civitatum, quæ dici potest Lex Gentium, vulgo autem Jus Gentium appellatur. Præcepta utriusque eadem sunt; sed quia civitates semel institutæ induunt proprictates 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 systems.

   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 labouring, through the whole of his treatise, to extend, as far as possible, among independent states, the same laws of justice and of humanity, which are universally recognized among individuals; while Hobbes, by inverting the argument, exerts his ingenuity to shew, 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 logical, 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 co-operation 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.

8. 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 labours 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 Naturæ methodo scientifica pertractatum, in 9 Tomos distributum.” (Francof. 1740.) “Non est,” says Lampredi, himself a professor of public law, “qui non deterreatur tanta librorum farragine, quasi vero Herculeo labore opus esset, ut quis honestatem et justitiam addiscat.”
9. “Of what stamp,” says a most ingenious and original thinker, “are the works of Grotius, Puffendorff, and Burlemaqui? Are they political or ethical, historical or juridical, expository or censorial?—Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves.” Bentham’s Introduction to the Principles of Morals and Legislation, p. 327.
10. Introduction to the Principles of Morals and Legislation, p. 323.
11. Ibid. p. 327.
12. Preface to his English Grammar.
13. This, though somewhat ambiguously expressed, must, I think, have been the idea of D’Alembert in the following sentence: “Dans cet ouvrage, M. de Montesquieu s’occupe moins des loix qu’on a faites, que de celles qu’on a du faire.” (Eloge de M. de Montesquieu.) According to the most obvious interpretation of his words, they convey a meaning which I conceive to be the very reverse of the truth.
14. As examples of Montesquieu’s peculiar and characteristical style of thinking in The Spirit of Laws, may be mentioned his Observations on the Origin and Revolutions of the Roman Laws on Successions; and what he has written on the History of the Civil Laws in his own Country; above all, his Theory of the Feudal Laws among the Franks, considered in relation to the revolutions of their monarchy. On many points connected with these researches, his conclusions have been since controverted; but all his successors have agreed in acknowledging him as their common master and guide.
15. “If our ancestors have been all along under a mistake, how came they to have fallen into it? is a question that naturally occurs upon all such occasions. The case is, that, in matters of law more especially, such is the dominion of authority over our-minds, and such the prejudice it creates in favour of whatever institution it has taken under its wing, that, after all manner of reasons that can be thought of in favour of the institution have been shewn to be insufficient, we still cannot forbear looking te seme unassignable and latent reason for its efficient cause. But if, instead of any such reason, we can find a cause for it in some notion, of the erroneousness of which we are already satisfied, then at last we are content to give it up without further struggle; and then, and not till then, our satisfaction is complete.” Defence of Usury, pp 94, 95.
16. Above all, by Mr Smith; who, in his Wealth of Nations, has judiciously and skilfully combined with the investigation of general principles, the most luminous sketches of Theoretical History relative to that form of political society, which has given birth to so many of the institutions and customs peculiar to modern Europe.—“The strong ray of philosophic light on this interesting subject,” which, according to Gibbon, “broke from Scotland in our times,” was but a reflection, though with a far steadier and more concentrated force, from the scattered but brilliant sparks kindled by the genius of Montesquieu. I shall afterwards have occasion to take notice of the mighty influence which his writings have had on the subsequent history of Scotish literature.
17. “La connoissance des états qu’on se plait aujourd’hui d’appeller Statistique, est une de ces sciences qui sont devenues à la mode, et qui ont pris une vogue générale depuis quelques années ; elle a presque dépossédé celle du Droit Public, qui régnoit au commencement et jusques vers le milieu du siècle présent.” Reflexions sur la Force des Etats. Par M. le Comte de Hertzberg. Berlin, 1782.