Slike strani

the supposed catholicity of the church. Both the state of nature and the catholicity of the church are, in truth, not facts but hypotheses; they are ideal, not actual states; and, therefore, all deductions from them which assume their reality, and involve the assumption that they are positive phenomena, must be deceptive.

It sometimes happens that a real model is propounded for universal imitation, as the doctrine and discipline of the church of Rome and its canon law, the civil law of Rome, the common law of England; so the Latin and the French have been severally recommended as a universal language. More often, however, an ideal model is conceived, which is thought worthy by its author of adoption in all countries. Political models of this sort may be compared with the projects of a universal scientific language, to be current throughout the whole world of science, ') and of a universal system of weights and measures, to be used, like the algebraic and arithmetical notation, by all civilized nations. (*)

Lord Bacon, in treating of universal jurisprudence, has indicated the only point of view from which this subject can be correctly regarded. He speaks of exhibiting a

He speaks of exhibiting a 'character quidam et idea justi,' which shall serve as a general type or model for the special legislation of each separate state. (3) By substituting an ideal pattern for a universal law of nature, we express that portion of truth which the theory of natural law includes. The

(31) 'Peut-être seroit-il utile aujourd'hui d'instituer une langue écrite qui, réservée uniquement pour les sciences, n'exprimant que ces combinaisons d'idées simples qui se retrouvent exactement les mêmes dans tous les esprits, n'étant employée que pour des raisonnemens d'une rigueur logique, pour des opérations de l'entendement, précises et calculées, fût entendue

par les hommes de tous les pays, et se traduisît dans tous leurs idiômes, sans pouvoir s'altérer comme eux, en passant dans l'usage commun.' Condorcet, Tableau Historique des Progrès de l'Esprit Humain, p. 9; and see p. 290, 301 (ed. 1822). (32) Compare Comte, Cours de Phil. Pos. tom. vi.


451, (33) 'Quamobrem id nunc agatur, ut fontes justitiæ et utilitatis publicæ petantur et in singulis juris partibus character quidam et idea justi exhibeatur, ad quam particularium regnorum et rerum publicarum leges probare, atque inde emendationem moliri quisque, cui hoc cordi erit et curæ, possit.' -De Augm. viii, vol. ix. p. 83.

subject of real and ideal models of government, and of their application, will be fully examined hereafter. (31)

§ 4 III. But, it may be said, if there are no practical principles of government and jurisprudence recognised in the legislation of every country, are there not certain universal principles of human nature common to all nations, which, in the last resort, determine all laws and institutions, and form both the actual and ideal standards of political government ? Is not the constitution of the human mind as fixed and immutable as that of the human body ? and have not the descriptive propositions of the metaphysical and ethical philosopher the same certainty as those of the physiologist ? Did not the hearers of Homer or of Cicero resemble the generation of living men as closely in their mental organization as in their bodily form and functions? And if there are certain general pervading principles of human nature, do not these manifest themselves in certain effects common to all political societies, and susceptible of a general scientific expression ? If there is no universal law of nature, if there are no natural rights which every government must enforce, surely (it may be said) law is not purely arbitrary, and political institutions are not framed according to mere caprice and opinion. (*)

It is sometimes laid down, that human nature is the same

(34) Below, ch. xxi. and xxii.

(35). 'Omnium, quæ in doctorum hominum disputatione versantur, nihil est profecto præstabilius, quam plane intelligi, nos ad justitiam esse natos, neque opinione, sed naturâ, constitutum esse jus.'- Cic. de Leg. i. 10.

Aristotle (Eth. Nic. v. 10) distinguishes between natural and legal justice, as species of political justice. Natural justice is that which has everywhere the same force, and does not consist in mere opinion. Legal justice is in itself indifferent, but it acquires importance from positive in. stitution. Some persons, however, he adds,) think that all justice is of the latter class ; affirming that things which exist by nature are immutable, and the same in all places-as fire, which burns both in Greece and in Persia; whereas all laws and rights are subject to change. Aristotle admits this objection to be true, in a certain sense. He thinks that the life of the gods is immutable; but that while everything human is subject to change, some things nevertheless ist by nature.

The distinction between mala prohibita and mala in se is similar to Aristotle's distinction of legal and natural justice. Mala prohibita are those offences which are merely violations of positive law, without being also violations of natural law; mala in se are those offences which are violations both of natural and of positive law.-Blackstone, 1 Com. p. 57.

in every age and in every country.'(6) In a certain sense, this dictum is true. There are certain physical appetites, certain moral sentiments, certain intellectual faculties, which are common to the entire human race, assuming the body and mind to be in a normal state. The desire of food, the sexual passion, the feelings of revenge, anger, fear, jealousy, sympathy, compassion, pride, expectation, disappointment, the love of pleasure, the dislike of pain, are shared by all men. "The definition of one man (says Cicero) is the definition of the entire human race.' (37) Shakspeare forcibly expresses this idea in the passage where Shylock claims for his countrymen the attributes of a common humanity with the Christians : 'I am a Jew. Hath not a Jew

(36) It may, I conceive, be laid down as a fundamental principle, that between any two great portions of the human species (whatever be the age or country to which they belong) there exists no radical distinction; that the total amount of moral and intellectual endowments originally conferred by nature is altogether, or very nearly, the same; and that the wide differences which we observe arise wholly from the influence of external circumstances.'-Hugh Murray's Enquiries respecting the Character of Nations and the Progress of Society, p. 12.

The following passages, from different authors, contain the same thought:-γιγνόμενα μεν και αεί εσόμενα, έως άν ή αυτή φύσις ανθρώπων ή, μάλλον δε και ήσυχαίτερα και τους είδεσι διηλλαγμένα, ώς αν έκασται αι μεταβολαι των ξυντυχιών εφιστώνται.-Τhuc. ii. 82. όμοια γαρ ως επί το πολύ τα μέλ. dovra tois yeyovóol.–Aristot. Rhet. ii. 20, $ 8.

• The nature of man seems to be the same in all times and places, but varied, like their statures, complexions, and features, by the force and influence of the several climates where they are born and bred, which produce in them, by a different mixture of the humours and operation of the air, a different and unequal course of imaginations and passions, and consequently of discourses and actions.'—Sir W. Temple, Essay upon the Original and Nature of Government; Works, vol. ii. p. 29, ed. 8vo. Spinoza (Tract. Pol. c. 7, § 27) lays down, in arguing, the proposition, 'natura una et communis omnium est.'

• Remarquez-le avec soin : les mêmes lois, les mêmes passions, les mêmes maurs, les mêmes vertus, les mêmes vices, ont constamment produit les mêmes effets ; le sort des états tient, donc, à des principes fixes, immuables, et certains.'— Mably de l'Etude de l'Histoire, part i. ch. 1; Euvres, tom. xii. p. 20.

*That the capacities of the human mind have been in all ages the same, and that the diversity of phenomena exhibited by our species is the result merely of the different circumstances in which men are placed, has been long received as an incontrovertible logical maxim; or rather, such is the influence of early instruction, that we are apt to regard it as one of the most obvious suggestions of common sense.'—Stewart, First Dissertation, p. 35.

(37) See De Leg. i. 10, 11, where the identity of human nature in different countries is insisted on with much amplification.

eyes ? háth not a Jew hands, organs, dimensions, senses, affections, passions ? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is ? If you prick us, do we not bleed ? if you tickle us, do we not laugh? if you poison us, do we not die ? and if you wrong us, shall we not revenge ?' (35) To

say that a man is liable to anger and fear, that he seeks pleasure and avoids pain, is, indeed, equivalent to saying that he is a red-blooded animal, and that he has a heart with four cavities—one proposition expresses an ethical, the other a physiological, fact common to the human race. In every country, and in every form of civilization, there are certain common desires and feelings, which determine men to action and govern their practical conduct. But the circumstances which awaken these feelings differ so much, according to time and place, that it is difficult to lay down general propositions concerning them. The feeling of anger or pity may be substantially the same in all men; but the circumstances which call it into active operation are wholly dissimilar. That which would arouse the anger of a man in one state of civilization, would produce no such effect in another. The man of European culture would feel sympathy or compassion on occasions which would create no such feeling in the mind of an Oriental. A similar remark applies to different countries of the western civilization, and also to different classes and different persons in the same community. All men seek what is pleasant, and avoid what is painful; but their notions of pleasure and pain, in the concrete, are almost infinitely various. It is a very different proposition to say, that all men are liable to anger and pity, that they avoid what is painful and seek what is pleasant; and to say that, under certain defined circumstances, all men will feel anger or pity, or that certain things are painful or pleasant to all men. In like manner, it is one thing to say

(38) Merchant of Venice, act iii. sc. 1. Compare Seneca de Ira, iji. 2: • Nulla gens est, quam non ira instiget, tam inter Graios quam barbaros potens.'

that all men have a brain, a spinal column, a heart, &c., and another to say that certain sorts of food, or certain modes of life, are healthy or unhealthy for all men.

Attempts have, indeed, been made by historians and politicians, from the earliest commencement of intelligent political observation, to generalise the operation of certain active principles, and to lay down universal propositions with respect to the manner in which men in large bodies, or the average ordinary man, will act under certain assumed circumstances. Propositions of this sort do not profess to express a law of nature which shall be absolute, immutable, and unerring, like the law of gravitation, the law of reflection of light, and other laws in physics. They aim only at being general presumptions, which, like presumptions in law, are taken to be true until they are shown, in the individual case, to be false. Many propositions of this kind, founded on a wide induction of facts in the countries within the writer's horizon, and therefore useful within those limits as a practical guide to conduct, may be cited. Thus, Thucydides describes the Athenians, in the Melian conference, as saying, that it is a universal law of man's nature for the strong to govern the weak; that the Athenians neither established this principle, nor were the first to use it, and that it will continue in use by all others, in their position, to the end of time.(39) In another place, a speaker in an assembly of delegates from different Sicilian states, is represented as declaring, that he does not blame the Athenians for their encroachments upon Sicily, for that it is the universal nature of man that he should exercise dominion over those that submit, but that he should take precautions against aggression.(*) The

(39) v. 105. Compare the argument of Callicles, in the Gorgias of Plato, c. 86-7, p. 483-4; and the fifth axiom of Plato, above, p. 28.

• Et quoniam cum prius ageretur pro injustitiæ partibus contra justitiam, et diceretur, nisi per injustitiam rempublicam stare augerique non posse; hoc veluti validissimum positum erat, injustum esse, ut homines hominibus dominantibus serviant: quam tamen injustitiam nisi sequatur imperiosa civitas, cujus est magna respublica, non eam posse provinciis imperare.'—Cic. de Rep. iii. 24 ; ap. Augustin, Civ. Dei, xix. 21.

(40) iv. 61. Compare Dionysius, Ant. Rom. i. 5: púoews yàp 8vópos άπασι κοινός, όν ουδείς καταλύσει χρόνος, άρχειν αεί των ηττόνων τους κρείτ


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