Chapter I · THE LAW OF NATIONS.

The increasing number of essays, pamphlets, works, and reviews of works on speculative subjects, with which the literature of England at present teems, compels the conclusion that the public mind has been greatly unsettled or strangely transformed since the days when John Bull was the plain matter-of-fact old gentleman that Washington Irving pleasantly described him.

Remembering the many sterling and noble qualities whimsically associated with this practical turn of mind, it will be felt by many to be a change for the worse. But if old English convictions, maxims, and ways of thought have lost their meaning; if in fine it is true that the mind of England has become unsettled, it says much for the practical good sense of Englishmen that they should have overcome their natural repugnances, and should so earnestly turn to the discussion of these questions, not indeed with the true zest for speculation, but in the practical conviction that it is in this arena that the battle of the Constitution must be fought.

There is, as it has been truly observed,[6] “an instinctive feeling that any speculation which affects this” (the speculation in question being the effect of the Darwinian theory on conscience), “must also affect, sooner or later, the practical principles and conduct of men in their daily lives. This naturally comes much closer to us than any question as to the comparative nearness of our kinship to the gorilla or the orang can be expected to do. No great modification of opinion takes place with respect to the moral faculties, which does not ultimately and in some degree modify the ethical practice and political working of the society in which it comes to prevail.”

There is perhaps no question which lies more at the root of political constitutions, and which must more directly determine the conduct of states in their relations to each other, than the question whether or not, or in what sense, there was such a thing as natural law, i.e. a law antecedent to the formation of individual political societies, and which is common to and binding on them all.

It may be worth while, therefore, to examine whether a stricter discrimination may not be made between things which are sometimes confounded, viz.:—The Law of Nations and International Law, natural law and the state of nature; and even if the attempt at discrimination should fail in exactitude, it may yet, by opening out fresh views, contribute light to minds of greater precision, who may thus be enabled to hit upon the exact truth.

This view was partially exposed in an article which was inserted in the Tablet, September 28, 1861,[7] entitled “International Law and the Law of Nations,” and, all things considered, I do not think that I can better consult the interests of my readers, than by reproducing an extract from it here, as a convenient basis of operation from which to advance into a somewhat unexplored country:—

“It has been the fashion since Bentham’s[8] time, to substitute the phrase ‘International Law’ for the ‘Law of Nations,’ as if they were convertible terms. The substitution, however, covers a distinction sufficiently important.

“The ‘Law of Nations’ is an obligation which binds the consciences of nations to respect the eternal principle of justice in their relations with each other. ‘International law’ is the system of rules, precedents, and maxims accumulated in recognition of the eternal law. But as men may build a theatre or a gambling-house upon the foundations constructed for a religious edifice, and upon a stone consecrated for an altar, so has it been possible for diplomacy to substitute a system of chicanery for the simple laws which were intended to facilitate the intercourse of nations, and with such effect as in a great number of cases to place international law in contradiction with the law of nations—as, for instance, when in a certain case the law of nations says that it is wrong to invade a neighbour’s territory, international law is made to say that it is lawful to invade in such a case, because such-and-such monarchs in past history have done so.

“Practically the effect of the substitution is, that the sentiment of justice disappears, that wars which formerly were called unjust, are now called inevitable, so that good men, disheartened at the conflicting evidence of precedents, yield their sense of right and wrong, and defer to the adjudication of diplomatists. This is particularly satisfactory to the modern spirit which will admit nothing to be law which is superior to, and distinct from, that which the human intellect has determined to be law.

“But the sense of right and wrong in good men is that which gives its whole efficacy to the law of nations. There is nothing else in the last resort, to restrain the ambition and passion of princes, but the reprobation of mankind—nothing but the fear of invading that “moral territory”[9] which even bad men find it necessary to conquer, ‘dans l’ame des peuples ses voisins.’ On the other hand, the whole mass of precedents to which diplomatists appeal, which are rarely carefully collated with those which legists have accumulated and digested, is nothing but a veil which thinly covers the supremacy of might and the right of force.

“In fact, the conventional deference which is paid to them, is at best only the hypocritical homage which force is constrained to pay to justice before it strikes its blow.

“International law, therefore, as accumulated in the precedents of diplomatists, is a parasitical growth upon that tree which has its roots in the hearts of nations, and which may be compared to one of those old oaks under which kings used to sit and administer justice. It was a dream of Dodwell’s that the ‘law of nations was a divine revelation made to the family preserved in the ark.’ In the grotesqueness and wildness of this theory we detect a true idea. The law of nations is an unwritten law, tradited in the memories of the people, or, so far as it is written, to be found in the works of writers on public law, like Grotius, whose authorities, as Sir J. Mackintosh remarks, are in great part, and very properly, made up of the sayings of the poets and orators of the world, ‘for they address themselves to the general feelings and sympathies of mankind.’ It is in this that the Scriptural saying about the people is so true—‘But they will maintain the state of the world.’ And it is a just observation, that ‘the people are often wrong in their opinions, but in their sentiments rarely.’ You may produce state papers and manifestoes, written with all the dexterity of Talleyrand, and the lying tact of Fouché, but you will not convince the people. You have your opportunity. The Liberal press of Europe, at this moment, may be said to be in possession of the whole field of political literature; nevertheless, nothing will prevent its being recorded in history,[10] that Victor Emmanuel in seizing upon the patrimony of St Peter was a robber, and his conquest an usurpation.”

I have observed that International Law is the more appropriate term from Bentham’s point of view, and as Bentham is the most redoubtable opponent of natural right and the law of nations, I will quote him at some length:—

“Another man says that there is an eternal and immutable rule of right, and that that rule of right dictates so-and-so. And then he begins giving you his sentiments upon anything that comes uppermost; and these sentiments (you are to take it for granted) are so many branches of the eternal rule of right.... A great multitude of people are continually talking of the law of nature; and they go on giving you their sentiments about what is right and what is wrong, and these sentiments, you are to understand, are so many chapters and sections of the law of nature. Instead of the phrase, law of nature, you have sometimes law of reason, right reason, natural justice, natural equity, good order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be anything more than phrases. They insist, but feebly, upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility—utility is clearer, as referring more especially to pain and pleasure.”

In truth, although Mr Bentham indulges a pleasant ridicule, yet the ridicule and the thing ridiculed being eliminated, the fact that there is a belief in a law of nature remains untouched. It is probable, therefore, that appeals will be frequent to what is believed to be “the eternal and immutable rule of right,” “to the law of nature,” &c., i.e. each and every individual, all mankind distributively, so appeal, because there is a deep conviction among mankind, severally and collectively, that there is this eternal and immutable rule of right, blurred and obscured though it may be, or concealed behind a cloud of human passion and error: and most men, moreover, will have an instinct which will tell them when an individual is substituting his own ideas for the eternal and immutable law,—as, for instance, when at the conclusion of the sentence quoted, Mr Bentham seeks to substitute his own peculiar crochet, as embodied in the word “utility” (which may be used indifferently in the sense of the absolute or relative, the supernatural or the natural, the immediate or the remote utility), as synonymous with “natural justice,” “natural equity,” and “good order.”

So, again, when Mr Bentham comes to the discussion of “International Law,” after pointing out, very properly, that whereas internal laws have always a super-ordinate authority to enforce them, “that when nations fall into disputes there is no such super-ordinate impartial authority to bind them to conformity with any fixed rules,” Mr Bentham goes on to say, “though there is no distinct official authority capable of enforcing right principles of international law, there is a power bearing with more or less influence on the conduct of all nations, as of all individuals, however transcendently potent they may be, this is the power of public opinion.” Public opinion! not then of public opinion threatening coercion, for in that case we should have “a super-ordinate impartial authority binding to conformity with fixed rules,” but public opinion as a moral expression. If, however, you take from it the expression of right and wrong, of natural justice, and of the eternal and immutable law; if its expression is not reprobation, and, so to speak, a fore-judgment of the retribution of the Most High, but only dissatisfaction or the mere pronouncement of the inutility of the action, whatever it may be, what even with Benthamites can be its efficacy and worth? The vanquished say to their conqueror, the multitudes to their oppressor, this oppression is not according to utility. Utility! he replies, useful to whom? To you! Fancy the look of Prince Bismarck as he would reply to such an address. What are men if you take away the notion of right and wrong but “the flies of a summer?” How different was the expression of Napoleon after his ill-usage of Pius VII., “J’ai frissonè les nations.” Napoleon had a conscience,[11] and in his moments of calm reflection felt in its full force the reprobation of mankind.

When Bentham, still speaking of public opinion, adds:—

“The power in question has, it is true, various degrees of influence. The strong are better able to put it at defiance than the weak. Countries which, being the most populous, are likely also to be the strongest, carry a certain support of public opinion with all their acts whatever they may be. But still it is the only power which can be moved to good purposes in this case; and, however high some may appear to be above it, there are in reality none who are not more or less subject to its influence.”

Here Bentham is again in imagination gathering men together like the flies of a summer,—the force of their opinion depending on their numbers. But what, again, is the force of all this buzzing if it is the mere expression of “pleasure,” or “pain,” of satisfaction or dissatisfaction in the masses? Conquerors may not always be relentless, they may at times exhibit some sympathy with their fellow men; but as a rule they are so dominated by some one idea or passion, or at best are so absorbed in the interests of their own people, as to be deaf to such appeals. Prince Bismarck’s sentiments towards France during the late war are pretty well known; but it is said that after the conflict was over, and when France was in the throes of its terrible internecine conflict, he was asked, “What is your Excellency’s opinion of the present state of France?” he replied, “Das ist mit ganz wurst,” which is equivalent to “I don’t care two straws about it.”[12] How are men of this stamp to be affected by any exclamations of pleasure or pain? If on the contrary it is the voice of reprobation which they hear, and if in their case the saying “vox populi vox Dei” is felt to have its full application, there is then a public opinion expressed which is calculated to strike the conscience and inspire terror, and that is quite another matter.

De Tocqueville, from his own point of view, puts the argument in favour of natural justice very forcibly, and in a certain construction would express the identical truth for which I contend.

“I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do whatever it pleases; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? A general law which bears the name of Justice has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are consequently confined within the limits of what is just. A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great general law of justice. Ought such a jury, which represents society, to have more power than the society in which the laws it applies originate.”—M. de Tocqueville’s “Democracy in America”, ii. 151.

Although M. de Tocqueville’s view does not go to the full length of the argument, still, regarded in this light, the voice of the majority of mankind, or of any large masses of mankind, has a very different significance from what it bears in the writings of Bentham.

Let us now consider the doctrines of Bentham in their more recent exposition.

The Pall Mall Gazette, Oct. 6, 1870, says:—

“Laws have been described as definitions of pre-existing rights, relations between man and man, reflections of divine ordinances, anything but what they really are,—forms of organised constraint. It says little for the assumed clear-headedness of Englishmen, that they have very generally preferred the ornate jargon of Hooker, to the accurate and intelligible account of law and government which forms the basis of Bentham’s juridical system.”

It says much, however, for their strong political sense and sagacity. If this is the true and only description of law, it is tantamount to saying that law is force and force is law; in other words, that the commands of a legitimate government need not be regarded when it is weak, but that the enactments of power must always be obeyed, however it is acquired, and whether its decrees are in accordance with right or contrary to justice. It is a ready justification for tyranny, equally sanctioning the “lettres de cachet” of the ancient regime, and the proscriptions of the Convention, equally at hand for the National Assembly at Versailles, or for the Commune at Paris. But however much it may be disguised, it is the only alternative definition of law, when once you say that law is not of divine ordinance and tradition. If no regard is to be had to the definition of right, but the term law is to be applied to any adequate act of repression, there is in truth nothing but force. Yet why should force adequate to its purpose seek to cloak itself in the forms of law? I suppose the question must have been put and answered before; but the answer can only be because law is felt to import a totally different set of ideas from force.

It is necessary, more especially now that the utilitarian theory is dominant, to enter a protest according to the turn the argument may take, but in the end nothing more can be said than was said by Cicero in the century before our Lord:—

“Est enim unum jus, quo devincta est hominum societas, et quod lex constituit una; quæ lex est recta ratio imperandi atque prohibendi: quam qui ignorat is est injustus, sive est illa scripta uspiam, sive nusquam. Quod si justitia est obtemperatio scriptis legibus institutisque populorum, et si, ut iidem dicunt utilitate omnia metienda sunt, negliget leges, easque perrumpit, si poterit, is, qui sibi eam rem fructuosam putabit fore. Ita fit, ut nulla sit omnino justitia; si neque naturâ est, eaque propter utilitatem constituitur, utilitate alia convellitur.”—De Legibus, i. 15.

It is only upon this construction that the Law of Nations can be said to exist, as “there is no superordinate authority to enforce it.” It is accordingly asserted that the law of nations is not really law. But is not this only when it is regarded from the point of view of “organised constraint?”[13] If it is regarded as a divine ordinance, or even as under the divine sanction, then it is law in a much higher degree than simple internal or municipal law, for it more immediately and directly depends upon this sanction; and hence nations may more confidently appeal to heaven for the redress of wrong here below than individuals—seeing that, as Bossuet somewhere says, God rewards and chastises nations in this world, since it is not according to His divine dispensation to reward them corporately in the next.

More recently, however, the extraordinary successes and subversions which we have witnessed during this last year, have brought the Pall Mall Gazette face to face with problems pressing for immediate and anxious settlement; and in a series of articles it has discussed the question of the law of nations with much depth and earnestness.

I there observe phrases which I can hardly distinguish from those I have just employed. Combating Mr Mill’s view, the writer says:—

“Nobody knows better than he that International Law is not really law, and why it is not law; but he seems to have jumped to the conclusion that it is therefore the same thing as morality.... There cannot, in truth, be any closer analogy than that which we drew the other day between the law of nations and the law of honour, and between public war and private duelling.” [This is upon an assumption that there is nothing “essentially immoral in the code of honour,” as “to a great extent it coincided with morality.”] “But it differed from simple morality in that its precepts were enforced, not by general disapprobation, but by a challenge to the offender by anybody who supposed himself to be aggrieved by the offence. The possible result always was, that the champion of the law might himself be shot, and this was the weakness of the system. But this is exactly the weakness of international law, and the original idea at the basis both of public war and of private duelling was precisely the same,—that God Almighty somehow interposed in favour of the combatant who had the juster cause. There is clear historical evidence that the feuds which became duels were supposed to be fought out under divine supervision, just as battles were believed to be decided by the God of battles.”

I believe that if history could be re-written from this point of view that many startling revelations would be brought to light. It is with reluctance that I turn from the points upon which I approach to agreement with the writer, to those upon which we fundamentally differ.

And here I must remark, that “the accurate and intelligible account of law and government which forms the basis of Bentham’s juridical system”[14] (supra, p. 9), is not distinguishable from, and in any case ultimately depends upon, his theory of utility as a foundation, or, as his later disciples say, a “standard” of morals. Such a standard is the negation of all morality; and if it ever came to stand alone every notion of morals would be obliterated, because, being open to every interpretation, and incapable of supplying any definite rule itself, it would abrogate every other, and under a plausible form abandon mankind to its lusts and passions.

In the Pall Mall Gazette, April 12, 1871, an article entitled “Mr Darwin on Conscience,” discusses Benthamism with reference to Darwinism. There is a fitness in this which does not immediately appear.

The writer says:—

“What is called the question of the moral sense is really two: how the moral faculty is acquired, and how it is regulated. Why do we obey conscience or feel pain in disobeying it? And why does conscience prescribe one kind of actions and condemn another kind? To put it more technically, there is the question of the subjective existence of conscience, and there is the question of its objective prescriptions.”

I will avail myself of this distinction, and, setting aside the questions referring to the “subjective existence of conscience,” I will ask attention only to “its objective prescriptions.” Assuming, then, the operations of conscience in the individual man, there will necessarily also have been in the course of history some outward expression of this inward feeling in maxims, precepts, and laws, if not also reminiscences of primeval revelations and divine commands.

It will be true, therefore, to say, without touching the deeper question of the foundation of morals, that there has been a tradition of morals which cannot but have had its influence in all ages upon the “social feelings” in which, according to the Pall Mall Gazette, “it will always be necessary to lay the basis of conscience.” Now is this tradition of morals identical with utilitarian precept? If the tradition of morals is identical with “the greatest happiness principle,” then that principle was no discovery of Bentham’s,[15] neither can Benthamism be regarded as “the new application of an old principle.” Bentham in that case simply informed mankind that they had been talking prose all their lives without knowing it! Benthamism, however, in point of fact, is felt as a new principle precisely in so far as it discards the old morality. The question which I ask is, how does it account for these old notions of morality obtaining among mankind? How is it that mankind has so long and so persistently, both in their notion of what was good and their sense of what was evil, departed from the line of their true interests, as disclosed in the utilitarian philosophy? If the history of man is what the Scriptures tell us it was, the manner in which this has come about is sufficiently explained; and there is no mystery as to the notion of sin, the necessity of expiation, the restraints and limitations of natural desires, the excellence of contemplation, and the obligation of sacrifices and prayers. Now, if the history of mankind is not to be invoked in explanation, it is difficult to see how these notions should not conflict with any theory and plan of life based on a principle of utility.[16] It is not unnatural, therefore, that the utilitarians should turn to Darwinism and other such kindred systems for the solution of their difficulties.

The Pall Mall Gazette, April 12, 1871, says:—

“Between Mr Darwin and utilitarians, as utilitarians, there is no such quarrel as he would appear to suppose. The narrowest utilitarian could say little more than Mr Darwin says (ii. 393):—‘As all men desire their own happiness, praise or blame is bestowed on actions and motives according as they tend to this end; and as happiness is an essential part of the general good, the greatest happiness principle indirectly serves as a nearly safe standard of right and wrong.’”

Now, there is nothing in this reiteration of Benthamism which has not been thrice refuted by Lord Macaulay in the Essays above referred to. I append an extract more exactly to the point.[17]

I refer to it because it will be interesting to see how the argument looks in its application to Darwinism.

It will be seen that if the conditions of unlimited enjoyment anywhere existed, Lord Macaulay’s strictures would lose something of their force. If, indeed, there was superabundance and superfluity of everything for all in this life, then anything which conduces to the satisfaction of the individual would add to, or at least would not detract from, the sum of happiness of all mankind. But unless you can show this—if even the reverse of this is the truth—then “the greatest happiness” will be in proportion to the self-abnegation of those who possess more, or have the greatest faculties or facilities of producing more.

Now, if there is one view more prominent than another in Mr Darwin’s work, it is embodied in the phrase to which he has given a new sense and significance, “the struggle for existence.” In the midst of this struggle for existence, what is there in the greatest happiness principle to bind the individual to abnegation? Why should he postpone his certain and immediate gratification to the remote advantage of others, or of distant and contingent advantage to himself? If, on the other hand, he regards the transitoriness of the enjoyment, and balances it against the fixity and eternity of the consequences, the argument takes altogether different proportions, and the temptation to enjoyment is inversely to the intensity of the struggle for existence.

I will take another test of Benthamism by Darwinism, which will more exactly bring out the argument for which I contend. We have a traditional horror of infanticide which revolts all our best feelings and shocks our principles. But if Mr Darwin has demonstrated this struggle for existence existing from all time; if also we are disembarrassed from all advertence to another world; if, further, Mr Malthus, before Mr Darwin, has shown reason to believe that over-population is the cause of half the evils of this life, what is there in Benthamite principles which should prevent our sacrificing these unconscious innocents to the greatest happiness of the greatest number? Nothing, except the horror we should excite among mankind still imbued with the old superstitions! A person who did not hold to Mr Malthus’ views might demur; but a Malthusian, who was also a disciple of Mr Bentham, could only hold back because his feelings were better than his principles. A disciple of Mr Darwin’s would probably stand aloof, and would merely see in our notions an artificial interference with the working of his theory, preventing the struggle for existence going on according to natural laws. This seems to me to be almost said in the same article from the Pall Mall Gazette, from which I have quoted. Mr Darwin, in his “Origin of Species” (p. 249), has pointed out that “we ought to admire the savage instinct which leads the queen-bee to destroy her young daughters as soon as born, because this is for the good of the community.” And in his new book he says, firmly and unmistakably (i. 73), that “if men were reared under precisely the same conditions as hive-bees, there can hardly be a doubt that our unmarried females would, like the worker-bees, think it a sacred duty to kill their brothers, and mothers would strive to kill their fertile daughters, and no one would think of interfering.” The Pall Mall continues—

“If, from one point of view, this is apt to shock a timorous and unreflecting mind, by asserting that the most cherished of our affections might have been, under certain circumstances, a vicious piece of self-indulgence, and its place in the scale of morality taken by what is now the most atrocious kind of crime; nevertheless, from another point of view, such an assertion is as reassuring as the most absolute of moralists could desire, for it is tantamount to saying that the foundations of morality, the distinctions of right and wrong, are deeply laid in the very conditions of social existence; that there is, in the face of these conditions, a positive and definite difference between the moral and the immoral, the virtuous and the vicious, the right and the wrong, in the actions of individuals partaking of that social existence.”

This is very well. It is so now, because of the traditional sentiments and principles which still retain their force—but how long will it continue?

I invite attention to the following passage from Mr Hepworth Dixon’s “New America” (vol. i. p. 312, 6th edition), which I must say struck me very forcibly when I read it. He narrates a conversation which he had with Brigham Young on the subject of incest:—“Speaking for himself, not for the church, he (Brigham Young) said he saw none at all (i.e. no objection at all). He added, however, that he would not do it himself,—‘my prejudices prevent me.’” Upon which Mr Hepworth Dixon observes—

“This remnant of an old feeling brought from the Gentile world, and this alone, would seem to prevent the saints (Mormons) from rushing into the higher forms of incest. How long will these Gentile sentiments remain in force? ‘You will find here,’ said elder Stenhouse to me, talking on another subject, ‘polygamists of the third generation. When these boys and girls grow up and marry, you will have in these valleys the true feeling of patriarchal life. The old world is about us yet, and we are always thinking of what people may say in the Scottish hills and the Midland shires.’”

Here, and in the previous extract, we seem to catch glimpses of what the morality of the future is likely to be, at any rate in such matters as infanticide and incest, if old notions are to be discarded, and men are left, in each generation, to no higher rule than their own individual calculation as to pleasure and pain, or to the prevailing sense or determination of the community as to what the conditions of utility may permit.

The nineteenth century is now verging on its decline, and of it, too, may we say that it has been better than its principles. Yet, in spite of its philanthropy, and its aspirations for good, the destructive principles which it has nursed are rapidly gaining on its instincts: and if we may not truly at this moment paint its glories, as they have been depicted, I think by Alexandre Dumas, as “the livery of heroism, turned up with assassination and incest,” is the time very remote when the description will apply?