LITMIR.BIZ

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Ancients seem never to have thought of delineating a general system of laws founded on the principles of justice, independent of such modifications as have been produced, in each particular country, by circumstances not universally applicable to mankind. This important branch of science was reserved for the moderns, among whom Grotius is the first and most eminent author, who took a view of the subject so general and extended. He has been succeeded by a multitude of later writers, most of whom, however, may be considered rather as his commentators than as original authors. A science, promising such benefits to mankind, required only to be pointed out in order to excite the attention of the learned; it spread rapidly over the whole of Europe, and soon became an established branch of education in many Universities.

      It was, indeed, a most important step in the advancement of legal study. By displaying to mankind an ideal perfection of Law, which, if attained, must have secured their prosperity and happi-<xxiv>ness, it furnished them with a standard by which the particular institutions of each country might be examined and corrected; and, by exhibiting the frequent deviations of municipal law from such a standard, it weakened that blind admiration of old and local usages, which is the great sanctifier of abuses, the most dangerous enemy of truth. The systems of Universal Law, however, which at different times have been given to the world, seem liable to several objections. They could be illustrated in no other way than by reference to particular laws, so intimately blended with other regulations, and with peculiar customs and manners, that the reasoning lost much of its universal character, and often assumed the appearance of dissertation on the institutions of an individual nation. For the most part, the writers on Jurisprudence followed too closely the system of Roman Law, even where that system is defective; but sometimes, also, in endeavouring to avoid this error, they entered so imperfectly into legal details, that their conclusions appeared vague and inaccurate.

      It may farther be objected to almost all the writers on jurisprudence, that they have insisted too much on what a man, in a particular situation, ought to do, rather than on what he can justly be compelled to do; thus confounding the important distinction<xxv> between Ethics and Law, and forgetting that, though the one be a branch of the other, it is necessary to keep their respective limits strictly in view, if we would establish any system of rules for the conduct of individuals which society has a title to enforce. From the disregard of this distinction, systems of jurisprudence came to resemble systems of morals in almost every thing, except their being treated in a more formal, and far less interesting manner.

      A new branch of study displayed itself to the capacious mind of Montesquieu. By considering the various and important deviations from the standards of jurisprudence observable in the laws of every state, he was led to compare together the different nations among whom similar deviations may be discerned; to contrast their situation with that of other countries where the laws have an opposite bias; and thus, from an extended view of human nature, to deduce the causes of those differences in laws, customs, and institutions, which, previously, had been remarked merely as isolated and uninstructive facts. In this inquiry he had been followed by many philosophers, in different parts of Europe, and by none more successfully than our countrymen, Lord Kames and Dr. Smith, the former in tracing the history of manners and<xxvi> of private law, the latter in delineating the progress of public institutions.

      Mr. Millar, in his Lectures, conjoined those separate views of jurisprudence. He began by investigating the origin and foundation of each right in the natural principles of justice; and afterwards traced its progress through the different conditions of mankind; marking such deviations from the general rule as the known circumstances of particular nations might be expected to occasion, and accounting, in the most satisfactory manner, for those diversities in laws, which must otherwise have appeared irreconcilable with the idea that there is any thing stable or precise in the moral sentiments of mankind.

      As a preparation for this course of inquiry, it was obviously necessary to investigate the principles of Moral Approbation. On this subject, Mr. Hume and Dr. Smith have written treatises, equally eloquent and ingenious; and, to Mr. Millar, little appeared to be wanting, but to combine their systems.

      Both of these philosophers have shewn, by a very extensive induction, that whatever is considered as useful, to ourselves or others, gives us pleasure; whatever is thought detrimental, gives us pain. This is the case, whether the good or evil be produced<xxvii> by inanimate objects, or by sentient beings; but when by the latter, the pleasure, excited by the perception of increased happiness, is connected with a feeling of good-will towards the agent; and the pain, arising from the perception of hurt or injury, is attended with a sentiment of dislike. Whether the good or evil may affect ourselves or others, we never fail to experience such sentiments; where our own good is promoted, we feel direct pleasure and gratitude; where the good of others is increased, we experience a reflected or sympathetic pleasure and gratitude, exactly the same in their nature, though always weaker in degree.

      The direct good, or evil, proceeding from an action, is often of less real importance to general happiness than such remote consequences as are neither intended by the agent, nor directly observable by the spectator. Every breach of duty, besides occasioning immediate evil, weakens the influence of those general rules, by which, while exposed to temptations, the virtuous regulate their conduct; and every crime that is unpunished tends to destroy the strongest barrier which human society can oppose to vice. But such remote and contingent results of actions, though they exert a powerful influence on our moral sentiments, do<xxviii> not affect us equally with their more direct and obvious effects. We enter more readily into what is immediately present to us, than into general and distant consequences, which it requires much experience and attention to discover, and some effort of imagination to delineate. Existing and present happiness makes a lively impression; future and contingent utility is more faintly and obscurely felt.

      Although the system of utility thus accounts for much of our moral sentiments, Mr. Millar was convinced, that, by itself, it could afford no satisfactory solution of many difficulties suggested by the experience of mankind. The sentiment of approbation arising from utility seems cold and languid, when compared with the warm burst of applause sometimes excited by a virtuous action; an applause, too, which bears no proportion to that experience and knowledge, which might enable the spectator to grasp all the distant consequences of the action, but frequently is most enthusiastic in the young and ignorant. Nor does the degree, in which we approve of the different classes of virtues,¹² correspond to the respective degrees of utility; Prudence is, in most situations, a more useful, though certainly a less admired quality, than Courage; and Justice, the most essential of all the vir-<xxix>tues to human welfare, meets with less rapturous applause than irregular, and perhaps thoughtless, Generosity.

      What was thus defective in the theory of utility seemed to Mr. Millar, in a great measure, to be supplied, by the systems which found our approbation of virtue on the sentiment of Propriety. We approve of such actions as we are led to expect from the particular circumstances in which the agent is placed, of such as appear to us agreeable to the general standard of human nature; and, as any remarkable deviation from the ordinary figure of the human body is disgusting, so are we displeased with any remarkable deviation from the constitution of the human mind. These sentiments of approbation and dislike have, by some authors, been referred to the influence of Custom; but they seem too steady and regular in their operations, to be the offspring of what is so very capricious. It is true that custom may bestow a higher applause on particular classes of virtues than, in themselves, they deserve; that it may diminish the abhorrence of certain vices, by rendering them objects of more cursory observation; that it may even reconcile us to flagitious crimes, which, from particular circumstances, we have associated with some of the higher<xxx> virtues; but all such effects of custom are merely to modify, and that in a smaller degree than is usually apprehended, the other sentiments of moral approbation springing from more regular sources.

      Dr. Smith has given a most ingenious and eloquent account of our sentiments of propriety, which he derives from the pleasure of Sympathy with the feelings of the agent.¹³ He has shewn, in the most satisfactory manner, that the perception of the coincidence of our own sentiments with those of others, is always attended with an exquisite enjoyment; and that the appearance of any repugnance between our feelings and those of our fellow-men is productive of disgust. Not

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