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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 “horrid 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 casuiştry 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-hating 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, empiricat, 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 brudita 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 roles--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 na. tions, and are fast giving way in all. No man of common capa. city 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 pré-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 hin, 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 adıninistration 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. i. tit. 19.0 6. So we may compare our Common Law with the Civil. e.g. in the power which they respectively give to parents of disinberiting 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 sách 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 escribes to Grotius, with what justice, it is foreigu 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 geome-. try 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 ihe 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 habit 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 80, (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 trilling, 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 important 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
the citation, not only deserves, but stands very niuch in need of further illustration.
“The jurisdiction or sovereiguty of a state may exhibit itself in various forms, and may be exercised by various ministers.
One man or many may exert it over the rest, and over the territory which they inhabit. It seeins, then, to follow from this circumstance, and from the remarks just made on the nature of jurisdiction, that the change or dissolution of a government does not destroy this sovereiguty, and thereby reduce the members of the community to a state of nature. Hence, though the depository of its jurisdiction may be changed, the power itself resides in the nation at large : the taking of the sovereignty out of the hands of any particular person or persons, and even an utter upcertainty where particularly to place it, can have no other effect than to reduce the community to that situation in which it was before the jurisdiction was placed in special bands. For to the formation of a government two circumstances are requisite ; first, that a body of men shall unite to form a political society;" and secondly, that they shall have determined in what form it shall be ruled : hence the social compact, and the constitutional compact are two very distinct things. It appears, then, to be obvious that the dissolution of the government, which is the constitutional compact, cannot reduce the members to a state of nature, but merely to a state of social and civil union; in which case the soveteignty has reverted to that abstract entity called the state or nation. When an event of this kind happens therefore, as it did in Rome, on the expulsion of Tarquin ;, in England, on the decapitation of Charles ; in France, when they executed their king, and dissolved the government; and in the United States, when we absolved ourselves from all allegiance to the British throne and nation, and declared ourselves independent: in all these cases, I say, the members of those states were, indeed, no longer subject to the entire code regulating the political state, or form of government. Still they were not without law, but remained under the general obligations resulting from the nature, ends and necessities of civil society; and likewise subject to all the civil and criminal laws which were not necessarily involved in the downfall of the political state. In every case where such a dissolution occurs, the jurisdiction over the citizens at most results back to the source whence it came, and the collective body may either adopt a new and different constitution, or dissolve even the social compact also. · In such a case only would they be reduced to the supposed primeval state of man, and could then emerge from this state of nature only by uniting themselves to other communities, or by forming themselves into a new society, either primary or civil. You perceive, then, not only that a dissolution of the government leaves its members in a state of civil union, but that all the municipal or civil laws of that society remain in full operation, as far as they do not relate to the miere political state, which it was the design of the revolution to change. And though these civil laws may
have emanated from a particular form of government, and from a policy somewhat peculiar to such a form, the abolition of that fornı does not per se imply a repeal of those laws. The ultimate sovereignty of all societies