The Origin of the Distinction of Ranks. John Millar
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it is long before a change of circumstances can produce any correspondent<xxxviii> change upon the laws. It was thus that the Patria Potestas, originating in very rude ideas, maintained its ground even during the most civilized times of Rome:* and thus the Feudal law, adapted to a state of society which has long ceased to exist, still continues to regulate the landed property of Scotland.
But besides the direct tendency of the progress of civilization to alter and modify the Laws, it has an indirect influence, still more important. In another course of Lectures (which I shall soon have occasion to mention more particularly), Mr. Millar had traced the natural progress of Government, as arising from the most obvious views of utility, as improved and varied by the advancement of a community, from the state of a rude horde to that of a civilized nation, and as influenced by many circumstances both of general and of particular application. He had, at the same time, pointed out the various distributions of Property that took place; the various distinctions of Ranks; the innumerable diversities of Public Opinion, of Public Institutions, and of National Character. All these varieties, from whatever circumstances they proceed, cannot fail to oc-<xxxix>casion endless diversities in systems of Law. But, by an attentive inquirer the causes of such diversities may usually be discovered; and thus all anomalies of Law will be explained, and the uniformity of our moral principles established, by an examination of what, at first view, has the appearance of irreconcileable contradiction.
It was on these principles, that Mr. Millar proceeded in the investigation of the Origin and History of private Rights. He rejected, as fabulous, the great and sudden alterations said to have been introduced by particular legislators, or at least he reduced such interpositions to a mere modification of what must have been occasioned by the circumstances of the times; and he doubted, if he did not altogether discredit, those wonderful effects that have been ascribed to the direct operation of climate on the human mind. I shall only add to the reasons he himself has assigned for these opinions,* that, by accounting from moral causes for the varieties which occur between the codes of different nations, he rendered unnecessary and unphilosophical, all historical assertions resting on<xl> questionable authority, and all assumed physical affections of the human mind, from their own nature, incapable of proof; substituting for such gratuitous hypothesis, a simple and universal theory, founded on the acknowledged nature of man, and capable of receiving confirmation from the whole history of the human race.
A system of Jurisprudence, embracing so many and such important disquisitions, reducing such apparently discordant facts in human nature to a few simple principles, and exemplifying the operation of our moral sentiments in such a variety of situations and circumstances, is surely one of the noblest efforts of the mind of man: Nor can any branch of education be considered as more important. While, by the richness of its illustrations, the variety of its facts, and the unexpected simplicity of its results, it fixes the attention, and delights the imagination; it accustoms the student to an accuracy of discrimination, and a generalisation of ideas, which are the surest characteristics of a philosophic mind. But, unconfined in their operations to a few individuals, the effects of studies so conducted may often be extended to the welfare of nations. By proving that no institutions, however just in themselves, can be either expedient or permanent, if inconsistent with established ranks,<xli> manners, and opinions, a system of Jurisprudence checks inconsiderate innovation, and indiscriminate reform; while, on the other hand, it points out, to the enlightened Legislator, such parts of the municipal code, as, introduced during ruder times, have remained in force, long after the circumstances from which they arose have ceased to exist, and directs him in the noble, but arduous, attempt, to purify and improve the laws of his country.
The investigation of the Nature and History of the several rights, subsisting between Individuals, called Mr. Millar’s attention to another species of rights, those subsisting between different Orders, and Classes, of the community. The former are so remarkably modified by the latter, that, in his Lectures on Jurisprudence, he had very frequently found it necessary, to give some explanation of the principles, according to which, distinguished powers and privileges are committed to particular persons: but this he had always done in as concise a manner as was consistent with perspicuity. The origin and progress of authority seemed to demand a more detailed investigation, than could<xlii> be introduced into his other Lectures, and promised to open up both an amusing and very useful field of inquiry.
To many of his students, indeed, who, without any intention of becoming practical lawyers, had been sent to the University, as to a seminary of liberal education, a course of Lectures on Public Law seemed more important than on almost any other science. In a free country, every man may be said to be born a politician; and the higher classes of society, those who chiefly resort to Universities as general students, are frequently obliged, by their situation in life, to give opinions on various subjects of Government, which may have considerable influence on the welfare of their country. To them a knowledge of Public Law must be an object of the first importance, whether they look forward to the degree of estimation in which they would wish to be held in their respective counties, or listen to the voice of honourable ambition, which calls them to add lustre to their names, by defending the rights and augmenting the happiness of their fellow-men. With the view of being serviceable to this class of Students, and, at the same time, with the conviction that a knowledge of Public Law is essential to a just and liberal conception<xliii> of the rules of the Municipal Code, Mr. Millar paid very particular attention to the course of Lectures on Government; introducing whatever disquisitions, connected with his subject, he thought likely to awaken curiosity, or illustrate the general principles of his theory. Hence he indulged himself in many speculations on Manners, on National Character, Literature, and the Fine Arts, which, though arising naturally from his subject, and intimately related to it, both by their influence on the theory of Government, and their tendency to illustrate the general progress of improvement in man, might, in some points of view, be considered as digressions.
The order which Mr. Millar had followed in his Lectures on Jurisprudence was not, in its full extent, applicable to the subject of Government. In private rights, a very considerable uniformity may be traced in the regulations of all countries, arrived at the same stage of improvement. The same associations, and the same obvious views of utility, suggest to all very similar laws; and though, indeed, many diversities, and some contrarieties may be observed, yet the general rule is always apparent, and the exceptions may usually be traced, by a short investigation, to a few circumstances peculiar to those countries in which they have occurred.<xliv>
But, in looking to the governments that have existed in the world, little of a similar uniformity appears. So many circumstances, besides the gradual improvement of mankind, have influenced the distribution of political power, and these circumstances are so various in their nature, so complicated in their mutual relations, that, on a cursory view, every thing seems irregular and anomalous; and it is only by a careful survey of the history of each nation, that the causes of its particular institutions can be discovered.
In treating of Jurisprudence, the most convenient and most philosophical arrangement was, to state the origin and history of each several right, explaining, as they occurred, the most remarkable deviations from the general rules. But, had the same method been followed in the Lectures on Government, the digressions to the circumstances, and institutions, of particular nations, must have been so frequent, and so minute, that, all traces of uniform principle being lost, the course would have appeared a series of partial and unconnected disquisitions.
Influenced, as is probable, by such considerations, Mr. Millar divided the course of Lectures on Government into three parts.<xlv>
I. He began with what Mr. Stewart has called a theoretical or conjectural history of government,* tracing its natural progress, according to the gradual civilization of mankind. In this part of his course, he noticed the modifications arising from circumstances of extensive influence; from the fertility of the soil; the extent and population of the state; the condition of surrounding nations; the exposure to attack; the facility of making great or permanent conquests: But he treated the subject generally, without any farther reference to the history of particular nations than was necessary to explain and illustrate his system.
The different conditions in which mankind have been discovered, Mr. Millar, with other authors, divided into four;