Слике страница
PDF
ePub

of our replication. Objectionable as the works referred to undoubtedly are, we can still see in them some useful, practical bearing on ordinary legal questions. In the discussion of one of those important cases where the file affords no precedent, and the advocate is compelled to search for principles in a train of comprehensive reasoning by analogy and induction, these elementary treatises suggest many a pregnant hint and many a striking illustration. For instance, we opened a little while ago, haphazard, Heineccius' Prælections on Puffendorf, de Officio hominis et civis, and read the sixth chapter, of which the title is de Officio quorumlibet erga quoslibet et de non lædendis aliis quite abstract enough in all conscience. In deducing the doctrine, with that systematic exactness for which these writers are distinguished, the author brings us in ♡ vii. to the very important question, whether a man can be a trespasser merely by assent ex post factoand decides it on unanswerable reasoning from his own premises, in the negative. Our common law books teach a different doctrine; but if the question be considered as open in our courts, we have no doubt of a judgment in favour of the view of it taken by Heineccius.* This is one out of many similar examples of obvious practical utility. But what does it signify in any imaginable legal discussion, whether we believe in the liberty or necessity of human actions ?-or whether utility or a moral sense or sympathy be the rule of approbation and blame? or whether corals and sponges be minerals or vegetables ?-or whether our species be properly associated by philosophers “with tbe Simia Troglodytes or Angola Ape; with the Simia Satyrus or Ourang-Outang; and with the Vespertilio Murinus or common bat?"--or whether, what is now the seat of honour, by the consent of all civilized nations, was, at some distant epoch, garnished with the brutish appendage which Lord Monboddo so gratuitously attaches to it?

But the works of the German writers are far from being models of perfection in this kind—very far indeed. The popularity and reputation which they enjoyed in the seventeenth and the earlier part of the last century, have left them entirely. Later writers have censured these treatises, and what is still worse, modern readers have suffered them to slumber undisturbed in the dust of their libraries, precisely for the very characteristics

* It may be remarked that the authorities cited to support the common law doc. trine, seem scarcely to warrant the rule as laid down in Digests and Indexes. Litt. p. 278, puts the case of a diseisin, which is not a bare trespass, but a mode of acquiring property—and there undoubtedly, the person for whose benefit the disseisin bas been made, becomes a disseisor by ratifying it. VOL. IV.-NO, 7.

8

in which they resemble the volume before us. What is important doctrine and salutary instruction in one age, may very well sink into truism in another.* These books were recommended at first by the sound principles of morality which they defend and inculcate, because the licentiousness of the times made it necessary to defend and inculcate sound principles of morality. The Homily was borne with-was even extolled-by those who fell asleep under it, in consideration of the influence which its truths were supposed to exercise over the ignorant and the reprobate. Mankind had been alarmed by Hobbes, Spinoza, and the rest of that “borrid crew" of libertines and atheists, and they were grateful to writers who stood up with the best intentions, and not altogether without effect, for the order of society and the dignity of human nature. Be this as it may, certain it is that this whole class of jurists-confounding as they do ethics, and casuistry with the rights and obligations which law defines, and which governments enforceare fallen into neglect and oblivion, nor do we think it at all probable, that, in this frivolous and folio-bating age, they stand much chance of resuscitation. It is difficult to fix and ascertain by any abstract description, the boundaries that separate mere scholastic theory and dissertation from the legitimate philosophy of law—from those general views which are perfectly consistent with the shrewdest practical skill, and which form the proud distinction between enlightened jurists and great advocates, “the glory of the bar," as Burke calls them, and the mob of narrow-minded, empirical, technical, nisi prius wranglers. But if we were required to point out the work in our language, which approaches more nearly than all others to the beau idéal of an elementary treatise in jurisprudence, combining the various requisites of theory and practice in the most perfect harmony, we should, without hesitation, name Bell's Commentaries on the Laws of Scotland.

We would not be understood as underrating the importance of natural law, properly defined. But that is not the natural law of Puffendorf and Burlamaqui. What we designate by that appellation is a sort of ideal standard of perfect theoretical justice, to which every code of laws ought to approximate as nearly as the circumstances of society will permit. We had occasion to remark in a former number of this Journal,t that in the progress of improvement there is a tendency in jurisprudence to what

Cicero says of common places-nondum tritis nostrorum hominum auribus nec erudita civitate tolerabiles. There is still some hope for us.

† Southern Review, No. 3. Art. III.

philosophers call a synchretismus. The general principles of equity and common sense which pervade all codes, and fortunately constitute the greater portion of them, become more firmly fixed, and more universally diffused. The technical rules-the arbitrary institutions—the eccentric and anomalous peculiarities of local custom or positive legislation are gradually exploded, while their place is supplied by forms and maxims more in harmony with the reason of a cultivated age. Thus feudal tenures are inconsistent with the idea of property and the faith of obligations in a commercial country, and they accordingly never existed in these states—have been utterly abolished by some nations, and are fast giving way in all. No man of coinmon capacity can compare the Book of Fiefs with the Pandects, and doubt for a moment that the principles of the latter were, in this respect, a nearer approach to the standard of natural law, that is to say, of reason not infected with the pre-established prejudices, or controlled by the policy, real or imaginary, of society. Let us take another example. By the law of the feud, the heir was not liable for any of the debts contracted by his immediate ancestor, because he took his estate not from him, but through him, from the original donor secundum formam doni. The Civil Law, before the time of Justinian, went into quite the other extreme. It made the heir, who once assumed the administration of an estate, responsible for all the debts of the testator, whether he had assets or no, upon the subtile fiction that he succeeded in omne jus defuncti.* Both these dispositions were manifest deviations from the standard of right reason or natural law, in compliance with arbitrary principles, and accordingly Justinian amended the one, and in the lapse of ages, positive legislation and judicial decision, have done much to explode or to modify the other. It is to this imaginary standard that Adam Smith alludes in a well known passage at the end of his Theory of Moral Sentiments. How much to be regretted is it that he did not execute the work of which he had conceived so happy an idea! What a glorious pendant would it have been to the Wealth of Nations !

“It might have been expected, (says Mr. Smith) that the reasonings of lawyers upon the different imperfections and improvements of the laws of different countries should have given occasion to an inquiry into what were the natural rules of justice, independent of all positive institution. It might have been expected that these reasonings should have led them to aim at

* Inst. lib. ii. tit. 19.9 6. So we may compare our Common Law with the Civil. e.g. in the power which they respectively give to parents of disinheriting their children.

establishing a system of what might properly be called natural jurisprudence, or a theory of the principles which ought to run through, and to be the foundation of the laws of all nations. But though the reasonings of lawyers did produce something of this kind, and though no man has treated, systematically, of the laws of any country, without intermixing in his work many observations of this sort, it was very late in the world before any such general system was thought of, or before the philosophy of laws was treated of by itself, and without regard to the particular institutions of any country.” This honour he ascribes to Grotius, with what justice, it is foreign from our present purpose to determine.

Considered in this point of view, natural law stands in very much the same relation to any particular municipal code, in which the imaginary state of nature, according to Mr. Hoffman's idea of it, as explained at pp. 78-80-stands towards the positive institutions of society. The analogy which he borrows in this connexion from Mr. Plowden, of the application of geometry to the subjects of mechanical philosophy, is eminently apposite and striking Motion, considered as a mathematical affection or property, is strictly susceptible of demonstration. Only assume the laws which determine its intensity and direction to be ascertained and uniform, and it becomes as much an object of pure science as number and quantity. A Newton or a La Place, by thus taking for granted a few fundamental principles of physics, might have gone on to deduce all their sublime conclusions without reference to the actual existence of the material world, and to have built up a theoretical “air-drawn" universe, as harmonious, as magnificent, as that of which their sound inductive philosophy has revealed and illustrated the mysterious laws. But the question, whether these speculative conclusions agreed with the phenomena of nature, would, after all, be one of fact, which could only be determined by experiment and observation, and it is this union of transcendental mathematics, in all their shadowy subtlety, and their endless concatenation of mutually dependent reasoning, with a patient and sober induction of facts, that constitutes the great triumph of modern science. So, animaginary code of laws may be formed and every possible variety of cases to which its principles would apply, be anticipated and decided, and a whole ideal corpus juris, with the responsa prudentum, and the equity of the prætor to explain and to temper its positive rules, be arranged and systematized, though few or none of its principles had ever been recognized in the practice of any nation. Suppose this fictitious code to be, in all respects, conformable to the dictates of right reason, and we have a perfect

system of natural law. Should any liberal despot, however, assign to our imaginary legislator a territory for his experiment in codification, as Dionysius, it is said, was willing to have done by Plato, the chance is, that very great changes would have to be made in it, in order to accommodate its principles to existing circumstances. In other words, the law of nature will inevitably be modified by the policy of society. We will only add on this part of the subject, that the remarks we have just made strikingly illustrate that analogy between jurisprudence and the exact sciences to which we adverted in a former article. It is plain that in any department of knowledge, founded altogether upon experiment and observation, such anticipated conclusions would be, in the last degree, absurd and fantastical.

Another fault which we find with Mr. Hoffman's manner of treating his subject is, his babit of marshalling a whole string of theories and opinions upon almost every point which he has occasion to discuss. We have not much objection to his doing so, (if he thinks even that necessary) in the case of writers of the first reputation and authority. But cui bono, disturb the slumbers of forgotten mediocrity, and trouble us with detailing things which every judicious reader will make it a point to forget as soon as possible ? Even in quoting from great men, there is a trifling, but when carried to such excess, a very disagreeable blemish in this volume. It is the cant with which Porson reproaches Travis. It consists in attaching an epithet to every name mentioned, and that not altogether in the discriminating Homeric fashion. Thus we have "Montesquieu's immortal work,” and “the illustrious author of the Spirit of Laws ;" “ the celebrated Francisco Suarez;" "the celebrated Locke;" “the illustrious Milton"; "that distinguished champion of the divine right of kings, Sir Robert Filmer.” (p. 378.) Fortemque liyam, fortemque Cloanthum. Some of these epithets remind one of the index-maker who excited such unextinguishable disgust in Dr. Johnson, by his “ Milton, Mr. John.”

Freely as we have felt ourselves bound to censure the imperfections of the volume under review, it gives us great pleasure to repeat, that in spite of these, it furnishes abundant evidence of Mr. Hoffman's ability as a lecturer on legal principles. We refer our readers for an example to the very judicious and philosophical remarks upon jurisdiction in Lect. vi. We will submit a long extract from this part of the work, in which the author lays down the true doctrine upon an importapt and somewhat litigated point of public law. We are induced to do this, not only because it is due to Mr. Hoffman to exhibit a specimen of his best manner, but also because the subject involved in

« ПретходнаНастави »