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ologians 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 coeval 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.* 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." +
The habit of considering morality under the similitude of a law, (a law engraved on the human heart,) led not
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. 5.)-See also Dr. Butler's very original and philosophical Discourses on Human Nature.
Frag. Lib. iii. de Rep.
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 be 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 moralists-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.'
But, although the rules of justice are in every case precise and indispensable; and although their authority is
* Theory of Moral Sentiments, Part vii. sect. 4.
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 labor, 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 Puffendorf; 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 favorable. 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 labors 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 splendor 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."*
*The last sentence is thus expressed in the original. "Ex illo tempore, quasi
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 cœpit utilissima hæc nobilissimaque doctrina." (See the edition of Puffendorf, 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 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 Puffendorf'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 ipsâ rerum naturâ 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 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 Puffendorf." 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. 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 Puffendorf in his view, when he wrote the foregoing sentence.