Kames On The Law Of Nations

“I never was satisfied with the description given of the law of nations, commonly so called, That it is a law established among nations by common consent, for regulating their conduct with regard to each other.  This foundation of the law of nations I take to be chimerical.  For upon what occasion was this covenant made, and by whom?  If it be said, that the sense of common good gradually brought this law into force; I answer, that the sense of common good is too complex and too remote an object to be a solid foundation for any positive law, if it have no other foundation.

“But there is no necessity to recur to so slender a foundation.  What is just now observed, will lead us to a more rational account of these laws.  They are no other but gradual refinements of the original law of nature, accommodating itself to the improved state of mankind.  The law of nature, which is the law of our nature, cannot be stationary: it must vary with the nature of man, and consequently refine gradually as human nature refines.  Putting an enemy to death in cold blood, raises at present distaste and horror, and therefore is immoral; though it was not always so in the same degree.  It is considered as barbarous and inhuman to fight with poisoned weapons; and therefore is more remarkably disapproved by the moral sense than it was originally.

“Influenced by general objects, we have enmity against France, our natural enemy.  But this enmity is not directed against individuals; conscious, as we are, that it is the duty of subjects to serve their king and country.  Therefore we treat the prisoners of war with humanity.  And now it is creeping in among civilized nations, that in war a cartel should be established for exchange of prisoners.  The function of an ambassador has ever been held sacred.  To treat him ill was originally immoral; because it is treating as an enemy the man who comes to us with friendly intentions.  But the improved manners of later times have refined upon the privileges of an ambassador, and extended them far beyond what they were originally.  It is true, that these refinements of the law of nature gain strength and firmness from constant exercise.  Hereby they acquire the additional support of common consent.  And as every nation trusts that these laws will be observed, it is upon that account a breach of faith to transgress them.  But this is not peculiar to these institutions which pass under the name of the law of nations.  There is the same adventitious foundation for all the laws of nature, which every man trusts will be observed, and upon that faith directs his conduct.”

- Henry Home Kames, from Essays on the Principles of Morality and Natural Religion

Necessary in Order to Preserve Freedom

 “We must admire, as the key stone of civil liberty, the statute which forces the secrets of every prison to be revealed, the cause of every commitment to be declared, and the person of the accused to be produced, that he may claim his enlargement, or his trial, within a limited time.  No wiser form was ever opposed to the abuses of power.  But it requires a fabric no less than the whole political constitution of Great Britain, a spirit no less than the refractory and turbulent zeal of this fortunate people, to secure its effects.  If even the safety of the person, and the tenure of property, which may be so well defined in the words of a statute, depend, for their preservation, on the vigour and jealousy of a free people, and on the degree of consideration which every order of the state maintains for itself; it is still more evident, that what we have called the political freedom, or the right of the individual to act in his station for himself and the public, cannot be made to rest on any other foundation.  The estate may be saved, and the person released, by the forms of a civil procedure; but the rights of the mind cannot be sustained by any other force but its own.”

- Adam Ferguson, from An Essay on the History of Civil Society

Something That Could Be Guarded Against

“Virtue is a necessary constituent of national strength: capacity, and a vigorous understanding, are no less necessary to sustain the fortune of states.  Both are improved by discipline, and by the exercises in which men are engaged.  We despise, or we pity the lot of mankind, while they lived under uncertain establishments, and were obliged to sustain in the same person, the character of the senator, the statesman, and the soldier.  Commercial nations discover, that any one of these characters is sufficient in one person; and that the ends of each, when disjoined, are more easily accomplished.  The first, however, were circumstances under which nations advanced and prospered; the second were those in which the spirit relaxed, and the nation went to decay.

“We may, with good reason, congratulate our species on their having escaped from a state of barbarous disorder and violence, into a state of domestic peace and regular policy; when they have sheathed the dagger, and disarmed the animosities of civil contention; when the weapons with which they contend are the reasonings of the wise, and the tongue of the eloquent.  But we cannot, mean time, help to regret, that they should ever proceed, in search of perfection, to place every branch of administration behind the counter, and come to employ, instead of the statesman and warrior, the mere clerk and accountant.  By carrying this system to its height, men are educated, who could copy for Caesar his military instructions, or even execute a part of his plans; but none who could act in all the different scenes for which the leader himself must be qualified, in the state and in the field, in times of order or of tumult, in times of division or of unanimity; none who could animate the council when deliberating on domestic affairs, or when alarmed by attacks from abroad.”

- Adam Ferguson, from An Essay on the History of Civil Society

Roughly, this concerns the threat of a danger when a society proceeds too far in differentiating people and their roles -- particularly roles relevant to citizenship and government, and to citizens participating in and running their own government and its parts -- reaching a point where few people are competent in more than one principal area of leadership, or even where those separate areas become subdivided in such a way that they depend for their operation on regulation, routine, and the communication and execution of instructions, and where it does not require (if it continues even to allow for the possibility of it) many of the people involved to have more than a superficial comprehension of what they are doing.  It becomes rare for a person to know the reasons that underlie any of it, to understand the part that it plays in the larger plan (or, possibly, even to be aware that it plays a part in a larger plan), or to have mastery of the larger subject.  In this condition, will we be able to find the people (if they exist) who not only know what is being done but understand it well enough to competently lead or assist in repairing, updating, enhancing, or in any other way altering the organizational machinery?  How will we prepare or identify them?  At what point will we even realize that we have a need for this?

Complacent

“Republican governments, in general, are in hazard of ruin from the ascendant of particular factions, and from the mutinous spirit of a populace, who, being corrupted, are no longer fit to share in the administration of state.  But under other establishments, where liberty may be more successfully attained if men are corrupted, the national vigour declines from the abuse of that very security which is procured by the supposed perfection of public order.  A distribution of power and office; an execution of law, by which mutual encroachments and molestations are brought to an end; by which the person and the property are, without friends, without cabal, without obligation, perfectly secured to individuals, does honour to the genius of a nation; and could not have been fully established, without those exertions of understanding and integrity, those trials of a resolute and vigorous spirit, which adorn the annals of a people, and leave to future ages a subject of just admiration and applause.

“But if we suppose that the end is attained, and that men no longer act, in the enjoyment of liberty from liberal sentiments, or with a view to the preservation of public manners; if individuals think themselves secure without any attention or effort of their own; this boasted advantage may be found only to give them an opportunity of enjoying, at leisure, the conveniencies and necessaries of life; or, in the language of Cato, teach them to value their houses, their villas, their statues, and their pictures, at a higher rate than they do the republic.  They may be found to grow tired in secret of a free constitution, of which they never cease to boast in their conversation, and which they always neglect in their conduct.

“The dangers to liberty are not the subject of our present consideration; but they can never be greater from any cause than they are from the supposed remissness of a people, to whose personal vigour every constitution, as it owed its establishment, so must continue to owe its preservation.  Nor is this blessing ever less secure than it is in the possession of men who think that they enjoy it in safety, and who therefore consider the public only as it presents to their avarice a number of lucrative employments; for the sake of which, they may sacrifice those very rights which render themselves objects of management or of consideration.  From the tendency of these reflections, then, it should appear, that a national spirit is frequently transient, not on account of any incurable distemper in the nature of mankind, but on account of their voluntary neglects and corruptions.”

- Adam Ferguson, from An Essay on the History of Civil Society

Let Justice Be Done

Following a couple of mentions that I made last month of the old legal maxims (and their value), I now present one of my favorites, as it was used by Mansfield in Somerset's Case:

"If the parties will have judgment, Fiat justitia, ruat coelum; let justice be done whatever be the consequence."

Too Little Noise

“But if a rigorous policy, applied to enslave, not to restrain from crimes, has an actual tendency to corrupt the manners, and to extinguish the spirit of nations; if its severities be applied to terminate the agitations of a free people, not to remedy their corruptions; if forms be often applauded as salutary, because they tend merely to silence the voice of mankind, or be condemned as pernicious, because they allow this voice to be heard; we may expect that many of the boasted improvements of civil society, will be mere devices to lay the political spirit at rest, and will chain up the active virtues more than the restless disorders of men.  If to any people it be the avowed object of policy in all its internal refinements, to secure only the person and the property of the subject, without any regard to his political character, the constitution indeed may be free, but its members may likewise become unworthy of the freedom they possess, and unfit to preserve it.  The effects of such a constitution may be to immerse all orders of men in their separate pursuits of pleasure, which they may on this supposition enjoy with little disturbance; or of gain, which they may preserve without any attention to the commonwealth.  If this be the end of political struggles, the design, when executed, in securing to the individual his estate, and the means of subsistence, may put an end to the exercise of those very virtues that were required in conducting its execution.

“A man who, in concert with his fellow subjects, contends with usurpation in defence of his estate or his person, may in that very struggle have found an exertion of great generosity, and of a vigorous spirit; but he who, under political establishments, supposed to be fully confirmed, betakes him, because he is safe, to the mere enjoyment of fortune, has in fact turned to a source of corruption the advantages which the virtues of the other procured.  Individuals, in certain ages, derive their protection chiefly from the strength of the party to which they adhere; but in tithes of corruption they flatter themselves; that they may continue to derive from the public that safety which, in former ages, they must have owed to their own vigilance and spirit, to the warm attachment of their friends, and to the exercise of every talent which could render them respected, feared, or beloved.  In one period, therefore, mere circumstances serve to excite the spirit, and to preserve the manners of men; in another, great wisdom and zeal for the good of mankind on the part of their leaders, are required for the same purposes.”

- Adam Ferguson, from An Essay on the History of Civil Society

So Much Noise!

“Whatever be the national extent, civil order, and regular government, are advantages of the greatest importance; but it does not follow, that every arrangement made to obtain these ends, and which may, in the making, exercise and cultivate the best qualities of men, is therefore of a nature to produce permanent effects, and to secure the preservation of that national spirit from which it arose.  We have reason to dread the political refinements of ordinary men, when we consider that repose, or inaction itself, is in a great measure their object; and that they would frequently model their governments, not merely to prevent injustice and error, but to prevent agitation and bustle; and by the barriers they raise against the evil actions of men, would prevent them from acting at all.  Every dispute of a free people, in the opinion of such politicians, amounts to disorder, and a breach of the national peace.  What heart burnings? What delay to affairs? What want of secrecy and despatch? What defect of police?  Men of superior genius sometimes seem to imagine, that the vulgar have no title to act, or to think.  A great prince is pleased to ridicule the precaution by which judges in a free country are confined to the strict interpretation of law.

“We easily learn to contract our opinions of what men may, in consistence with public order, be safely permitted to do.  The agitations of a republic, and the license of its members, strike the subjects of monarchy with aversion and disgust.  The freedom with which the European is left to traverse the streets and the fields, would appear to a Chinese a sure prelude to confusion and anarchy.  ‘Can men behold their superior and not tremble?  Can they converse without a precise and written ceremonial?  What hopes of peace, if, the streets are not barricaded at an hour?  What wild disorder, if men are permitted in any thing to do what they please?’”

- Adam Ferguson, from An Essay on the History of Civil Society

“Remiss or Supine”

“States, even distinguished for military prowess, sometimes lay down their arms from lassitude, and are weary of fruitless contentions; but if they maintain the station of independent communities, they will have frequent occasions to recall, and to exert their vigour.  Even under popular governments, men sometimes drop the consideration of their political rights, and appear at times remiss or supine; but if they have reserved the power to defend themselves, the intermission of its exercise cannot be of long duration.  Political rights, when neglected, are always invaded; and alarms from this quarter must frequently come to renew the attention of parties.

“The love of learning, and of arts, may change its pursuits, or droop for a season; but while men are possessed of freedom, and while the exercises of ingenuity are not superseded, the public may proceed, at different times, with unequal fervour; but its progress is seldom altogether discontinued, or the advantages gained in one age are seldom entirely lost to the following.  If we would find the causes of final corruption, we must examine those revolutions of state that remove, or withhold, the objects of every ingenious study or liberal pursuit; that deprive the citizen of occasions to act as the member of a public; that crush his spirit; that debase his sentiments, and disqualify his mind for affairs.”

- Adam Ferguson, from An Essay on the History of Civil Society