Chapter 5

Leibnitz; a great mathematician as well as philosopher, declares that he knows nothing which approaches so near to the method and precision of geometry as the Roman law.--_Op._ tom. iv. p. 254.

[9] Proavia juris civilis.--_De Jur. Bell. ac Pac. Proleg._ § 16.

[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv.

[11] Grot. Jur. Bell. et Pac. Proleg. § 40.

[12] I do not mean to impeach the soundness of any part of Puffendorff's reasoning founded on moral entities. It may be explained in a manner consistent with the most just philosophy. He used, as every writer must do, the scientific language of his own time. I only assert that, to those who are unacquainted with ancient systems, his philosophical vocabulary is obsolete and unintelligible.

[13] I cannot prevail on myself to pass over this subject without paying my humble tribute to the memory of Sir W. Jones, who has laboured so successfully in Oriental literature, whose fine genius, pure taste, unwearied industry, unrivalled and almost prodigious variety of acquirements, not to speak of his amiable manners and spotless integrity, must fill every one who cultivates or admires letters with reverence, tinged with a melancholy which the recollection of his recent death is so well adapted to inspire. I hope I shall be pardoned if I add my applause to the genius and learning of Mr. Maurice, who treads in the steps of his illustrious friend, and who has bewailed his death in a strain of genuine and beautiful poetry, not unworthy of happier periods of our English literature.

[14] Especially those chapters of the third book, entitled, _Temperamentum circa Captivos_, &c. &c.

[15] Natura enim juris explicanda est nobis, _eaque ab hominis repetenda naturâ_.--_Cic. de Leg._ lib i. c. 5.

[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum perducta natura.--_Cic. de Leg._ lib. i. c. 8.

[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p. xxxiii.

[18] Bacon, Dign. and Adv. of Learn. book ii.

[19] See on this subject an incomparable fragment of the first book of Cicero's Economics, which is too long for insertion here, but which, if it be closely examined, may perhaps dispel the illusion of those gentlemen, who have so strangely taken it for granted, that Cicero was incapable of exact reasoning.

[20] This progress is traced with great accuracy in some beautiful lines of Lucretius:

---- Mulier conjuncta viro concessit in unum, castaque privatæ veneris connubia læta cognita sunt, prolemque ex se vidère coortam: TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT. ---- puerisque parentum Blanditiis facile ingenium fregere superbum. _Tunc et amicitiam coeperunt jungere_ habentes Finitima inter se, nec lædere nec violare. Et pueros commendârunt muliebreque sêclum Vocibus et gestu cum balbè significarent IMBECILLORUM ESSE ÆQUUM MISERIER OMNIUM.

_Lucret._ lib. v. 1. 1010-22.

[21] The introduction to the first book of Aristotle's Politics is the best demonstration of the necessity of political society to the well-being, and indeed to the very being, of man, with which I am acquainted. Having shewn the circumstances which render man necessarily a social being, he justly concludes, "[Greek: Kai oti anthropos physei politikon zôon.]"--_Arist. de Rep._ lib. i.

The same scheme of philosophy is admirably pursued in the short, but invaluable fragment of the sixth book of Polybius, which describes the history and revolutions of government.

[22] To the weight of these great names let me add the opinion of two illustrious men of the present age, as both their opinions are combined by one of them in the following passage: "He (Mr. Fox) always thought any of the simple unbalanced governments bad; simple monarchy, simple aristocracy, simple democracy; he held them all imperfect or vicious, all were bad by themselves; the composition alone was good. These had been always his principles, in which he agreed with his friend, Mr. Burke."--_Mr. Fox on the Army Estimates_, 9th Feb. 1790.

In speaking of both these illustrious men, whose names I here join, as they will be joined in fame by posterity, which will forget their temporary differences in the recollection of their genius and their friendship, I do not entertain the vain imagination that I can add to their glory by any thing that I can say. But it is a gratification to me to give utterance to my feelings; to express the profound veneration with which I am filled for the memory of the one, and the warm affection which I cherish for the other, whom no one ever heard in public without admiration, or knew in private life without loving.

[23] _Privilege_, in Roman jurisprudence, means the _exemption_ of one individual from the operation of a law. Political privileges, in the sense in which I employ the terms, mean those rights of the subjects of a free state, which are deemed so essential to the well-being of the commonwealth, that they are _excepted_ from the ordinary discretion of the magistrate, and guarded by the same fundamental laws which secure his authority.

[24] See an admirable passage on this subject in Dr. Smith's Theory of Moral Sentiments, vol. ii. pp. 101-112, in which the true doctrine of reformation is laid down with singular ability by that eloquent and philosophical writer.--See also Mr. Burke's Speech on Economical Reform; and Sir M. Hale on the Amendment of Laws, in the collection of my learned and most excellent friend, Mr. Hargrave, p. 248.

[25] Pour former un gouvernement modéré, il faut combiner les puissances, les régler, les tempérer, les faire agir, donner pour ainsi dire un lest à l'une pour la mettre en état de résister à une autre, c'est un chef-d'oeuvre de législation que le hasard fait rarement, et que rarement on laisse faire à la prudence. Un gouvernement despotique au contraire saute pour ainsi dire aux yeux; il est uniforme partout: comme il ne faut que des passions pour l'établir tout le monde est bon pour cela.--_Montesquieu, de l'Esprit des Loix_, liv. v. c. 14.

[26] Lord Bacon, Essay xxiv. Of Innovations.

[27] The reader will perceive that I allude to MONTESQUIEU, whom I never name without reverence, though I shall presume, with humility, to criticise his account of a government which he only saw at a distance.

[28] This principle is expressed by a writer of a very different character from these two great philosophers; a writer, "_qu'on n'appellera plus philosophe, mais qu'on appellera le plus éloquent des sophistes_," with great force, and, as his manner is, with some exaggeration.

Il n'y a point de principes abstraits dans la politique. C'est une science des calculs, des combinaisons, et des exceptions, selon les lieux, les tems, et les circonstances.--_Lettre de Rousseau au Marquis de Mirabeau_.

The second proposition is true; but the first is not a just inference from it.

[29] The casuistical subtleties are not perhaps greater than the subtleties of lawyers;_ but the latter are innocent, and even necessary_.--HUME's _Essays_, vol. ii. p. 558.

[30] "Law," said Dr. Johnson, "is the science in which the greatest powers of understanding are applied to the greatest number of facts." Nobody, who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.

[31] Burke's Works, vol. iii. p. 134.

[32] On the intimate connexion of these two codes, let us hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:--"Inasmuch _as the laws of all nations are doubtless raised out of the ruins of the civil law_, as all governments are sprung out of the ruins of the Roman empire, it must be owned _that the principles of our law are borrowed from the civil law_, therefore grounded upon the same reason in many things."--12 _Mod._ 482.

FINIS.

J. MOYES, TOOK'S COURT, CHANCERY LANE.