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DISCOURSE

ON THE

LAW OF NATURE AND NATIONS.*

BEFORE I begin a course of lectures on a science of great extent and importance, I think it my duty to lay before the public the reasons which have induced me to undertake such a labour, as well as a short account of the nature and objects of the course which I propose to deliver. I have always been unwilling to waste in unprofitable inactivity that leisure which the first years of my profession usually allow, and which diligent men, even with moderate talents, might often employ in a manner neither discreditable to themselves, nor wholly useless to others. Desirous that my own leisure should not be consumed in sloth, I anxiously looked about for some way of filling it up, which might enable me, according to the measure of my humble abilities, to contribute somewhat to the stock of general usefulness. I had long been convinced that public lectures, which have been used in most ages and countries to teach the elements of almost

*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

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 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, which the same men would have required no account, if it had been wasted on trifles, or even abused in dissipation.

*See "A Syllabus of Lectures on the Law of England, to be delivered in Lincoln's-Inn Hall by M. Nolan, Esq."

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; and as they modify the intercourse of independent commonwealths in peace, and prescribe limits to their hostility in war. This important science comprehends only that part of private ethics which is capable of being reduced to fixed and general rules. It considers only those general principles of jurisprudence and politics which the wisdom of the lawgiver adapts to the peculiar situation of his own country, and which the skill of the statesman applies to the more fluctuating and infinitely varying circumstances which effect 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."*

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 to be treated with greater

99

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.

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 uses of the civilised 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 among our modern moralists and lawyers, are inquiries, perhaps, of more curiosity

The learned reader is aware that the "jus naturæ " and "jus gentium" of the Roman lawyers are phrases of very different import from the modern phrases, "law of nature" and "law of 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 gentium." "Jus feciale" Iwas the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." De Officiis, lib. i. cap. ii. Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive de Jure inter Gentes." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, "Droit entre les Gens" (Euvres, 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 do employ a phrase which expresses the

than use, and ones which, if they deserve any where to be deeply pursued, will be pursued with more propriety in a full examination of the subject than within the short limits of an introductory discourse. Names are, however, in a great measure arbitrary; but the distribution of knowledge into its parts, though it may often perhaps be varied with little disadvantage, yet certainly depends upon some fixed principles. The modern method of considering individual and 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

subject of this law with more accuracy than our common 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

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