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ART. VI. Mackintosh on the Law of Nature and Nations.
(Continued from P. 280.)
CHE duties which arise from the relation of subject and
Sovereign, Mr. Mackintosh endeavours to establish“ —not upon supposed compaćts, ithich are altogether chimerical, which must be admitted to be false in fact, which, if they be admitted to be false in fact, which, if they are to be considered as titions, will be found to serve no purpose of jaft reasoning, and to be equally the foundation of a system of universal despotism in Hobbes, and of universal anarchy in Rousseau, BUT ON THE SOLID BASIS OF GENERAL CONVENIENCE. Men cannot fubfist without society 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 submitting to the restraints which a just government impokes. This plain argument establishes the duties of obedience on the part of citizens, and the duty of protection on that of magiftrates, on the same foundation with that of every other moral duty, and it thews, with sufficient evidence, that these duties are reciprocal, the only rational end for which the fiction of a contract could have been invented !"
The author does not encumber his reasoning with speculations on the origin of government. With Aristotle, he thinks the origin of government must have been coeval with that of mankind :
“-but though all enquiries," he observes, “into the origin of government be chimerical, yet the history of its progress is curious and useful. The various stages through which it pafled from savage independence, which implies every man's power of injuring his neighbour, to legal liberty, which consists in every man's fecurity against wrong; the manner in which a family expands into a tribe, and tribes coalesce into a nation; in which public justice is gradually engrafted on private revenge, and temporary submission 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 legislation. But, as general security is enjoyed in very different degrees, under different governments, those which guard it most perfectly, are, by way of eminence, called free. Such governments attain most completely the end which is common to all government. A free conftitution of government, and a good constitution of government, are, therefore, different expreslions for the same idea.
“ Another material diftin&ion, however, foon presents itself. In moft eivilized ftates the subject is tolerably protected against gross injustice from his fellows, by impartial laws, which it is the
manifest interest of the Sovereign to enforce. But some commonwealths are so happy as to be founded on a principle of much more refined and provident wisdom. The subjects of such commonwealths are guarded, not only against the injustice of each other, .but, (as far as human prudence can contriye,) against oppreflion from the Magistrate. Such itates, like all other extraordinary examples of public or private excellence and happiness, are thinly scattered 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 proteding authority is not weakened. Such a combination of ikill and fortune is not often to be expected, and, indeed, never can arise, but from the constant, though gradual, exertions .of wisdom and virtue, to improve a long succession of most fayourable circumstances. The best security which human wisdom can devise, seems to be, the distribution of political authority among different individuals and bodies, with separate interests and separate characters, corresponding to the variety of classes of which civil fociety is composed, each interested to prevent any of the others from seizing on exclufive, and, therefore, despotic, power; and all having a common intereft to co-operate in carrying on the ordinary and necessary adminiftration of government. If there were not an interest to refift cach other in extraordinary cases, there would not be liberty. If there were not an interest to co-operate in the ordinary course of affairs, there could be no government. The obje& of such wise inftitutions, which make the Telfishnets of governors a security against their injustice, is to protect men againk wrong, both from their rulers and their fellows."
It is impossible, he observes, in the present sketch, even to allude to a very small part of
those philofophical principles, political reasonings, and historical facts, which are neceffary for the illustration of this momentous fubje&t. In a full discussion of it, I shall be obliged to examine the general frame of the most celebrated governments of ancient and modern times, and especially of those which have been most renowned for their freedom. The result af fych an examination will be, that no inftitution so deteftable as an abfor lutely unbalanced government, perhaps, ever exifted; that the fimple governments are mere creatures of the imagination of theorists, 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 despotic, and, as they recede farther from that fimplicity, they become free.
“ By the conftitution of the state, I mean the body of tbofe written and unwritten fundamen!al laws, which regulate the most imporiant rights of the big ber Magistrates, and tbe most effential priviliges of the
fubjects. Such a body of political laws muft, in all countries, arise out of the character and fituation of a people; they muft grow with its progress, be adapted to its peculiarities, change with S s 3
its changes, and be incorporated into its habits. Human wisdom cannot form such a conftit:tion by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineffectual, to change, by violence, the ancient habits of men, and the established order of society, so as to fit them for an absolutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee; generally, indeed, to institutions the most opposite 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 society which arises from caules over which we have little controul, after the reforms and amendments of a series of ages, has sometimes, though very rarely, thewn itself capable of building up a free constitution, which is the growth of time and nature, rather than the work of human invention.' Such a constitution can only be formed by the wise imitation of "ibe great innovator, Time,' - which, indeed, innovateth greatly, but quickly, and by degrees scarce to be perceived. Without descending to the puerile oftentation of panegyric on that of which all mankind confess the excellence, I may observe, with truth and soberness, that a free government not only eitablishes an universal security against wrong, but that it alla cherishes all the noblest powers of the human mind; that it tends to banith 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 honesty and humanity ; and that there the social affections, expanded into public spirit, gain a wider sphere, and a more active Tpring."
His lectures upon government he proposes to conclude with an account of the constitution of England, of which part
of his plan he gives the following sketch :
“ I Thall endeavour to trace the progress of that constitution by the light of hiftory, of laws, and of records, from the earliest times to the present age, and to thew how the general principles of liberty, originally coinmon to it, with the other Gothic mo. narchies of Europe, but in other countries loft or obscured, were, in this more fortunate island, preserved, matured, and adapted to the progreis of civilization. I thall attempt to exhibit this most complicated machine, as our history and our laws show it in action ; and not as some celebrated writers have most imperfectly repreiented it, who have torn out a few of its more fimple springs, and, putting them together, miscai them the Britith conftitution. So prevalent, indeed, have the c imperfect reprefentations hitherto been, that I will yonture to attirm there is scarcely any subject which has been less treated as it deserved 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
history, can give us just notions on this important subject. If a lawyer, without a philosophical spirit, be equal to the exainination of this great work of liberty and wisdom, still more unequal is a philosopher without practical, legal and historical knowledge; for the first may want skill, but the second wants materials. The observations of Lord Bacon, on political writers, in general, are most applicable to those who have given us fyftematic defcriptions of the English conftitution. All those who have written of governments have written as philosophers, or as lawyers, and none as statemen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discoluses are as the stars, which give little light, because they are so high.—Hec cognitio ad viros civiles proprie pertinet,' as he tells us in another part of his writings; but, unfortunately, no experienced philosophical British statelian has yet devoted his leisure to a delineation of the constitution, which such a statesman alone can practically and perfe&tly know.
- In the discullion of this great subject, and in all reasonings on the principles of politics, I thall labour, above all things, to avoid that which appears to me to have been the constant source of political error.
I mean the attempt to give an air of system, of fimplicity, and of rigorous demonttration, to subjects which do not admit it. The only means by which this could be done was by referring to a few fimple causes, what, in truth, arose froin inmense and intricate combinations, and succellions of causes. The consequence was very obvious. The system of the theorist, disincumbered from all regard to the real nature of things, easily assumed an air of speciousness. It required little dexterity to make his argument appear conclusive. But all men agreed that it was utterly inapplicable to human affairs. The theorist railed at: the folly of the world, instead of confeffing his own; and the man of practice unjustly blamed philosophy, instead of condemning the fophift. The caules which the politician has to consider, are, above all others, multiplied, mutable, minute, subtile, and, if I may so speak, evanefcent; perpetually changing their form and varying their combinations ; loling their nature, while they keep their names; exhibiting the most different coniequences in the endless variety of men and nations, on whom they operate ; in one degree of strength producing the moft fignal benefit; and, under a flight variation of circumdançes, the most tremendous mischiefs. They admit, indeed, of being reduced to theory, but to a theory formed on the most extensive views, of the moft comprehensive, and flexible principles, to embrace all their varieties, and to fit all their rapid tranfmigrations; a theory, of which the most fundamental maxim is diftruit in itself, and deference for practical prudence. Only two writers of former times have, as far as I know, observed this general defcet of political reasoners ; but these two are the greatest philosophers who have ever appeared in the world. The first of them is Aristotle, who, in a pallage of his politics, to which I cannot, at this moment, turn, plainly condemns the pursuit of a delutive geometrical accuracy in moral
reasonings, as the constant source of the grofseft error. The second is Lord Bacon, who tells us, with that authority of conscious wisdom which belongs to him, and with that power of richly adorning truth, from the wardrobe of genius, which he poffefsed, above almost all men, Civil knowledge is conversant about a subject which, above all others, is most immersed in matter, and hardlieft reduced to axiom."
On civil and criminal laws, he, with no less ability, exhibits the outlines of the history and principles of jurisprudence, and of the chief codes which have been formed;
“ I shall," he says, "exemplify the progress of law, and illustrate those principles of universal justice on which it is founded, by a comparative review of the two greatest civil codes that have been hitherto formed—those of Rome and of England; of their agreements and disagreements, both in general provisions, and in some of the most important parts of their minute pra&ice. In considering the important subject of criminal law, it will be my duty to found, on a regard to the general safety, the right of the magiftrate to inflict punishments, even the most severe, if that safety cannot be effectually protected by the example of inferior punithments. I thall collate the penal codes of different nations, and gather together the most accurate statement of the result of ex. perience, with respect to the efficacy of lenient and severe punishments; and I Thall endeavour to ascertain the principles on which must be founded both the proportion and the appropriation of penalties to crimes."
In considering what is properly called the law of nations, he proposes, first, to investigate the principles
“ —necessary to any tolerable intercourse between nations; those which are essential to all well-regulated and mutually advantageous intercourse; and those which are highly conducive to the preservation of a mild and friendly intercourse between civilized states. Of the first class every understanding acknowledges the necessity, and some traces of a faint reverence for them are discovered, even amongst the most barbarous tribes; of the second every well-informed man perceives the important use, and they have generally been respected by all polished nations; of the third, the great benefit may be read in the history of modern Europe, where alone they have been carried to their full perfection, As an important supplement to the practical system of our modern law of nations, or, rather, as a necessary part of it, I shall conclude with a survey of the diplomatic and conventional law of Europe; of the treaties which have materially affected the diftribution of power and territory among the European states; the circumstances which gave rise to them, the changes which they effected, and the principles which they introduced
into the public code of the Christian commonwealth,