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ART. VI. Mackintosh on the Law of Nature and Nations.

THE

(Continued from P. 280.)

HE duties which arife from the relation of fubject and Sovereign, Mr. Mackintofh endeavours to establish— "-not upon fuppofed compacts, which are altogether chimerical, which must be admitted to be falfe in fact, which, if they be admitted to be false in fact, which, if they are to be confidered as fictions, will be found to ferve no purpofe of juft reafoning, and to be equally the foundation of a system of universal defpotism in Hobbes, and of universal anarchy in Rouffeau, BUT ON THE SOLID BASIS OF GENERAL CONVENIENCE. Men cannot fubfift without fociety and mutual aid; they can neither maintain focial intercourse, nor receive aid from each other, without the protection of government; and they cannot enjoy that protection without fubmitting to the restraints which a juft government impofes. This plain argument eftablishes the duties of obedience on the part of citizens, and the duty of protection on that of magiftrates, on the fame foundation with that of every other moral duty, and it fhews, with fufficient evidence, that thefe duties are reciprocal, the only rational end for which the fiction of a contract could have been invented!"

The author does not encumber his reafoning with fpeculations on the origin of government. With Ariftotle, he thinks the origin of government must have been coeval with that of mankind :

"--but though all enquiries," he obferves, "into the origin of government be chimerical, yet the hiftory of its progress is curious and useful. The various ftages through which it paffed from favage independence, which implies every man's power of injuring his neighbour, to legal liberty, which confifts in every man's fecurity against wrong; the manner in which a family expands into a tribe, and tribes coalefce into a nation; in which public juftice is gradually engrafted on private revenge, and temporary fubmiffion ripened into habitual obedience, forni a most important and extenfive fubject of inquiry, which comprehends all the improvements of mankind, in police, in judicature, and in legiflation. But, as general fecurity is enjoyed in very different degrees, under different governments, thofe which guard it most perfectly, are, by way of eminence, called free. Such governments attain moft completely the end which is common to all government. A free conftitution of government, and a good conftitution of government, are, therefore, different expreflions for the fame idea.

"Another material diftinction, however, foon presents itself. In moft eivilized ftates the fubject is tolerably protected against grofs injuftice from his fellows, by impartial laws, which it is the

manifeft

manifeft intereft of the Sovereign to enforce. But fome commonwealths are fo happy as to be founded on a principle of much more refined and provident wifdom. The fubjects of fuch commonwealths are guarded, not only against the injuftice of each other, but, (as far as human prudence can contrive,) against oppression from the Magiftrate. Such ftates, like all other extraordinary examples of public or private excellence and happiness, are thinly fcattered over the different ages and countries of the world, In them the will of the Sovereign is limited with so exact a measure, that his protecting authority is not weakened, Such a combination of kill and fortune is not often to be expected, and, indeed, never can arise, but from the conftant, though gradual, exertions of wisdom and virtue, to improve a long fucceffion of most favourable circumftances. The best fecurity which human wisdom. can devife, feems to be, the diftribution of political authority among different individuals and bodies, with separate interefts and separate characters, correfponding to the variety of claffes of which civil fociety is compofed, each interested to prevent any of the others from feizing on exclufive, and, therefore, defpotic, power; and all having a common intereft to co-operate in carrying on the ordinary and neceffary adminiftration of government, If there were not an intereft to refist each other in extraordinary cafes, there would not be liberty. If there were not an interest to co-operate in the ordinary courfe of affairs, there could be no government. The object of fuch wife inftitutions, which make the selfishness of governors a fecurity against their injuftice, is to protect men against wrong, both from their rulers and their fellows,'

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It is impoffible, he obferves, in the present sketch, even to allude to a very small part of

"thofe philofophical principles, political reafonings, and hiftorical facts, which are neceffary for the illustration of this momentous fubject. In a full difcuffion of it, I fhall be obliged to examine the general frame of the most celebrated governments of ancient and modern times, and especially of thofe which have been moft renowned for their freedom. The result of fuch an examination will be, that no institution so detestable as an abfolutely unbalanced government, perhaps, ever exifted; that the fimple governments are mere creatures of the imagination of theorifts, who have transformed names used for the convenience of arrangement into real politics; that, as conftitutions of government approach more nearly to that unmixed and uncontrouled fimplicity, they become defpotic, and, as they recede farther from that fimplicity, they become free.

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By the conftitution of the state, I mean the body of thofe written and unwritten fundamental laws, which regulate the most important rights of the bigber Magiftrates, and the moft effential privileges of the fubjects. Such a body of political laws muft, in all countries, arife out of the character and fituation of a people; they muft grow with its progrefs, be adapted to its peculiarities, change with S$ 3

its

its changes, and be incorporated into its habits. Human wifdom cannot form fuch a conftitution by one act, for human wisdom cannot create the materials of which it is compofed. The attempt, always ineffectual, to change, by violence, the ancient habits of men, and the established order of society, fo as to fit them for an abfolutely new scheme of government, flows from the most prefumptuous ignorance, requires the support of the most ferocious tyranny, and leads to confequences which its authors can never forefee; generally, indeed, to inftitutions the most oppofite to those of which they profess to seek the establishment. But human wifdom, indefatigably employed for remedying abuses, and in seizing favourable opportunities of improving that order of fociety which arifes from caufes over which we have little controul, after the reforms and amendments of a series of ages, has fometimes, though very rarely, fhewn itself capable of building up a free conftitution, which is the growth of time and nature, rather than the work of human invention.' Such a conftitution can only be formed by the wife imitation of the great innovator, TIME,' which, indeed, innovateth greatly, but quickly, and by degrees fcarce to be perceived. Without defcending to the puerile oftentation of panegyric on that of which all mankind confefs the excellence, I may obferve, with truth and foberness, that a free government not only eftablishes an univerfal fecurity againft wrong, but that it alfo cherishes all the nobleft powers of the human mind; that it tends to banish both the mean and the ferocious vices; that it improves the national character to which it is adapted, and out of which it grows; that its whole administration is a practical school of honefty and humanity; and that there the focial affections, expanded into public spirit, gain a wider sphere, and a more active fpring."

His lectures upon government he propofes to conclude with an account of the conftitution of England, of which part of his plan he gives the following sketch:

"I fhall endeavour to trace the progrefs of that conftitution by the light of hiftory, of laws, and of records, from the earlieft times to the prefent age, and to fhew how the general principles of liberty, originally common to it, with the other Gothic monarchies of Europe, but in other countries loft or obfcured, were, in this more fortunate ifland, preferved, matured, and adapted to the progress of civilization. I fhall attempt to exhibit this moft complicated machine, as our hiftory and our laws fhow it in action; and not as fome celebrated writers have moft imperfectly reprefented it, who have torn out a few of its more fimple springs, and, putting them together, mifcai them the British conftitution. So prevalent, indeed, have thete imperfect reprefentations hitherto been, that I will venture to affirm there is fcarcely any fubject which has been lefs treated as it deferved than the government of England. Nothing but a patient and minute investigation of the practice of the government, in all its parts, and through its whole

hiftory,

hiftory, can give us juft notions on this important fubject. If a lawyer, without a philofophical fpirit, be equal to the examination of this great work of liberty and wifdom, ftill more unequal is a philofopher without practical, legal and hiftorical knowledge; for the firft may want fkill, but the fecond wants materials. The obfervations of Lord Bacon, on political writers, in general, are most applicable to thofe who have given us fyftematic defcriptions of the English conftitution. All those who have written of governments have written as philofophers, or as lawyers, and none as statesmen. As for the philofophers, they make imaginary laws for imaginary commonwealths, and their difcourfes are as the stars, which give little light, because they are fo high.-Haec cognitio ad viros civiles proprie pertinet, as he tells us in another part of his writings; but, unfortunately, no experienced philofophical British statesman has yet devoted his leifure to a delineation of the constitution, which fuch a statesman alone can practically and perfectly know.

"In the difcution of this great fubject, and in all reafonings on the principles of politics, I fhall labour, above all things, to avoid that which appears to me to have been the conftant fource of political error. I mean the attempt to give an air of fyftem, of fimplicity, and of rigorous demonftration, to fubjects which do not admit it. The only means by which this could be done was by referring to a few fimple caufes, what, in truth, arofe from immenfe and intricate combinations, and fucceffions of caufes. The confequence was very obvious. The fyftem of the theorift, difincumbered from all regard to the real nature of things, eafily affumed an air of fpecioufnefs. It required little dexterity to make his argument appear conclufive. But all men agreed that it was utterly inapplicable to human affairs. The theorist railed atthe folly of the world, inftead of confeffing his own; and the man of practice unjustly blamed philofophy, inftead of condemning the fophift. The caufes which the politician has to confider, are, above all others, multiplied, mutable, minute, fubtile, and, if I may fo fpeak, evanefcent; perpetually changing their form and varying their combinations; lofing their nature, while they keep their names; exhibiting the mott different confequences in the endless variety of men and nations, on whom they operate; in one degree of ftrength producing the moft fignal benefit; and, under a flight variation of circumftances, the most tremendous mifchiefs. They admit, indeed, of being reduced to theory, but to a theory formed on the most extenfive views, of the moft comprehenfive, and flexible principles, to embrace all their varieties, and to fit all their rapid tranfmigrations; a theory, of which the moft fundamental maxim is distrust in itself, and deference for practical prudence. Only two writers of former times have, as far as I know, obferved this general defect of political reafoners; but these two are the greateft philofophers who have ever appeared› in the world. The firft of them is Ariftotle, who, in a patfage of his politics, to which I cannot, at this moment, turn, plainly con-> denins the purfuit of a delufive geometrical accuracy in moral reafonings,

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reafonings, as the conftant fource of the groffeft error. The fecond is Lord Bacon, who tells us, with that authority of confcious wifdom which belongs to him, and with that power of richly adorning truth, from the wardrobe of genius, which he poffeffed, above almost all men, Civil knowledge is converfant about a fubject which, above all others, is moft immersed in matter, and hardlieft reduced to axiom."

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On civil and criminal laws, he, with no lefs ability, exhibits the outlines of the hiftory and principles of jurifprudence, and of the chief codes which have been formed:

"I fhall," he fays, "exemplify the progrefs of law, and illuf trate those principles of univerfal juftice on which it is founded, by a comparative review of the two greatest civil codes that have been hitherto formed-thofe of Rome and of England; of their agreements and difagreements, both in general provifions, and in fome of the most important parts of their minute practice. In confidering the important fubject of criminal law, it will be my duty to found, on a regard to the general fafety, the right of the magiftrate to inflict punishments, even the most severe, if that fafety cannot be effectually protected by the example of inferior punishments. I fhall collate the penal codes of different nations, and gather together the most accurate statement of the refult of experience, with refpect to the efficacy of lenient and fevere punishments; and I fhall endeavour to afcertain the principles on which must be founded both the proportion and the appropriation of penalties to crimes."

In confidering what is properly called the law of nations, he proposes, first, to investigate the principles

"-neceffary to any tolerable intercourfe between nations; thofe which are effential to all well-regulated and mutually advantageous intercourfe; and thofe which are highly conducive to the prefervation of a mild and friendly intercourfe between civilized states. Of the firft clafs every understanding acknowledges the neceffity, and fome traces of a faint reverence for them are discovered, even amongst the most barbarous tribes; of the fecond every well-informed man perceives the important ufe, and they have generally been respected by all polished nations; of the third, the great benefit may be read in the hiftory of modern Europe, where alone they have been carried to their full perfection, As an important fupplement to the practical fyftem of our modern law of nations, or, rather, as a neceffary part of it, I fhall conclude with a furvey of the diplomatic and conventional law of Europe; of the treaties which have materially affected the diftribution of power and territory among the European ftates; the circumftances which gave rife to them, the changes which they effected, and the principles which they introduced into the public code of the Chriftian commonwealth."

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