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Julius Cæsar, “ must have laid the foundation of that juridicai learning, which, in the reign of Augustus, had made him esteemed the first lawyer of his age."*
Note 15, p. 33. To the really superficial, who at the same time are really venal, and to such persons only, would I apply the animated language of a great writer. “Little does the peace of society require the aid of those lessons which teach men to accept of any thing as a reason, and to yield the same abject and indiscriminating homage to the laws here which is paid to the despot elsewhere. The fruits of such tuition are visible enough in the character of that race of men who have always occupied too large a space in the circle of the profession—a passive and enervate race, ready to swallow any thing, and to acquiesce in any thing—with intellects incapable of distinguishing right from wrong, and with affections alike indifferent to either-insensible, short-sighted, obstinate-lethargic, yet liable to be driven into convulsions by false terrors-deaf to the voice of reason and public utilityobsequious only to the whisper of interest, and to the beck of power.”+
I do not agree with the writer of the foregoing paragraph, when in a moment of controversial ardour he seems to think that a large space in the circle of the profession has always been occupied by a race of men to whom laziness, shortsightedness, obstinacy, credulity, and venality are to be imputed. But when I consider how much the rights of individuals, and the welfare of the community, depend upon the profession to which he alludes, I hold that a very small space occupied by a very small number of such persons as he describes is too large for the public good. May we nerer see the day when it can be justly said of our own country, “ nec quicquam publicæ mercis tam venale fuit, quam advocatorum perfidia." I
* Vid. Cic. Ep. lib. vii. and Middleton's Life of Cicero, vol. ii. p. 108, and Gravina, vol. i. p. 84. + See Preface to a Fragment on Government, p. xviii.
Tacit. Annal. lib. xi. par. 2.
Note 16, p. 33.
The usefulness which I assign to laws, the reverence which I feel for them, and the obedience which I would pry to them, are not incompatible with any of the foregoing observations upon certain peculiarities in the political speeches of the persons by whom they are administered. But they who hold, as I do, the indissoluble connection between good laws and good morals, will reflect on the importance of the following observation : “ Exéδον γαρ τα πολλά των νομίμων τα από της όλης αρετής προσταττόμενά εστι καθ' εκάστην γαρ αρετήν προστάττει ξήν, και καθ' εκάστην μοχθηρίαν κωλύει ο νόμος. **
With exceptions, many, I confess, and serious, to the criminal code of this country, both in its provisions and even its administration, I should generally adopt the language of Dr. Johnson, that “ laws,” enacted for the protection of property and life, " are the last result of human wisdom, founded upon human experience for the benefit of mankind.” While they are unrepealed by the authority of the state, a good man will inculcate obedience to them, not only “ for wrath, but for conscience' sake,” and balancing general against particular convenience, he will carry his own personal submission nearly to the extent for which Socrates pleads with the most impressive eloquence in the wellknown dialogue with Crito. Whatsoever disproportion he may see between crimes and punishments, and whatsoever measures he may employ to lessen that disproportion by the force of argument, he will yet remember that jurisprudence is seldom at direct and unqualified variance with morality, that every crime forbidden produces some mischief to society, and that every punishment inflicted confers some security.
I believe this reasoning to be exact, and I trust that your conduct and iny own will be strictly conformable to it. I cannot, however, dissemble from you, that my humanity shudders, and my sense of justice recoils at the recollection of certain “ things as they are,"' in a country which boasts of its freedom, its generosity, and its unrivalled progress in useful knowledge. If those boasts be, as I think they are, well-founded, the lenient
* Aristot. Ethic. ad Niomach. lib. v. cap. 2.
and equitable expedients for which many wise and good men * have pleaded again and again, might be proposed with the greater safety and the surer result. If that knowledge be real, how can it be better employed than in teaching men to view the physical evil of punishment, not less than the physical evil of erimes, as a real deduction from the general stock of happiness in calculating, so far as our limited insight into motives will permit us, the share that is to be assigned to infirmity, as well as malignity, in unlawful action in substituting, as other nations have done successfully, the restraints of shame for the dread of death-in presenting to common minds, distinctly and forcibly, the gradations of guilt by correspondent gradations of rigourand in lessening the temptations to greater offences, when the commission of thein seems to facilitate escape from equal penalties denounced against the less ? If the summum jus be the summa injuria in the transactions of individuals, who are condemned for yielding to the suggestions of the selfish and malignant passions, is it not possible that a state, armed as it ought to be with irresistible power, and governed, as the judicial concerns of it must be, by frail and fallible men, may sometimes step beyond the bounds of real necessity in the sanction it affixes even to the most wholesome laws ? May not the rulers of it be now and then actuated by the secret love of that power which is more precious as it is more exempt from controul, and which, as self-delusion is always ready to suggest to the possessor, is most salutary when it is most extensive ? May not the very absence of corruption and venality in the administration of public justice decoy men into a delusive sort of self-complacency, and may not the very consciousness of impartiality in adherence to a known and fixed rule make them insensible, or at least inattentive, to the suggestions of compassion ?
When the philosophy of ethics has been called down, as was said of the Socratici t sermones, from the sky # to the earthwhen the principles of it, in the language of Bacon, “ have been brought home to men's business and men's bosoms"-when the
* Viz. Sir Thomas More, Erasmus, Johnson, Beccaria, Eden, Dagge, Voltaire, &c. + Horace, od. 19. lib. iii.
Cicer. Academ. Quæst. lib. i. section 4.
rugged and austere rules of law in civil questions have been occasionally mitigated by corrective maxims drawn from equitywhen our prisons by their goodly appearance display the munificence, if not the humanity of the country—when the miseries of the persons confined in them are in many respects alleviated, and when the ruthless and “steeled jailor is converted into a gentle provost, the friend of men"*-why do persons who upon other occasions shrink from palpable injustice and palpable crueltywhy, let me ask, in the exercise of their good sense and their benevolence for the welfare of their countrymen, do they stop short at the very point where life is to be taken away? All the information I have been able to collect from writers upon jurisprudence both foreign and domestic, ancient and modern-all the conversations I have holden with persons, whether of common or uncommon sagacity-all the dangers either to the morals of individuals, or to the safety of the community, or to the authority of the laws themselves, wbich I have been able to trace as consequences of that uncertainty which makes even the sharpest statutes “their perch, not their terror, to the birds of prey"+-consequences which must inevitably arise, when the head and the heart forbid the execution of a sentence which the lips are compelled to pronounce—all these considerations forci. bly convince me that some change is practicable, and therefore desirable. Why then are we left to deplore in some of our older laws, the savage ferocity of barbarous ages, and in many of our new ones the cool, but undistinguishing and unrelenting jealousy, with which selfishness guards every avenue against encroachment upon its well-earned or ill-earned stores ? Why do we in practice lose sight of Beccaria's observation, that “though the interest of commerce and property should be secured, commerce and property are not the ultimate end of the social compact, but the means of obtaining that end; and that to expose all the members of society to cruel Jaws in order to preserve them from evils necessarily occasioned by the infinite combinations which result from the actual state of political societies, would be to make the end subservient to the means, a paralogism in all sciences, and particularly in politics?"* I admit the danger of many political reforms, which have been recommended by arguments rather specious than solid : I admit the indirect efficacy of political events and political measures in correcting political abuses, while laws unrepealed remain, and in truth ought to remain, undisturbed by the interposition of private judgment, and the influence of local and temporary circumstances; and upon this very property of stability I should ground the necessity of the utmost possible precaution in enacting them : I admit the danger of sweeping alterations in that code which provides for the security and the transfer of property in all its various modes : I admit that the increase of those variations, arising from the increased means of accumulation and the increased diversities of enjoyment, may call for new regulations : but on the subject of our penal code, and upon this only, I must, in common with many other calm and reflect. ing observers, wish for the "una litura." +
* Measure for Measure.
Do not suppose, dear Sir, that for one hour I would leave the public without effectual protection, or that I forget a custom recorded of the Persians, among whom the laws upon the death of their sovereign were suspended for the space of five days, in order to mark the necessity of resuming and enforcing them. No—that litura should be instantaneously followed by a wellconsidered system of jurisprudence, in the preparation of which professional men, such as have been tried and approved amongst us, should sustain the part of assessors to sages such as I could name, and to the provisions of which we might upon the best ground apply the best definition of law I ever read : “Noñs ävey ορέξεως πάς ο νόμος εστί.”
I hope, dear Sir, that neither you nor any other intelligent man will put a captious interpretation upon my use of the emphatical phrase "una litura.” I have employed it with much deliberation. I do not mean by it that any of the offences,
* Vide note to chap. xxxiv. ed. iv.
Emendare Libros ; una litura potest.”—MARTIAL.
Vide Stobæus, p. 294, and Sextus Einpiricus, adv. Mathemat. p. 70.
♡ Aristot. de Republica, lib. iii, cap. 16.