FOOTNOTES
[1]“Syllabus of Lectures on the Law of England, to be delivered in Lincoln's-Inn Hall by M. Nolan, Esq.” London, 1796. [Back to text]
[2] I have not been deterred by some petty incongruity of metaphor from quoting this noble sentence. Mr. Hume had, perhaps, this sentence in his recollection, when he wrote a remarkable passage of his works. See Hume's Essays, vol. ii. p. 352. ed. Lond. 1788. [Back to text]
[3] The learned reader is aware that the "jus naturæ" and "jus gentium" of the Roman lawyers are phrases of very different import from the modern phrases, "law of nature" and "law of nations." "Jus naturale," says Ulpian, "est quod natura omnia animalia docuit." D. I. I. I. 3. "Quod naturalis ratio inter omnes homines constituit, id que apud omnes peræque custoditur vocaturque jus gentium." D. I. I. 9. But they sometimes neglect this subtle distinction—"Jure naturali quod appellatur jus gentium." I. 2. I. II. Jus feciale was the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." Off. I. II. Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive de Jure inter Gentes." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, "Droit entre les Gens," (Œuvres, tom. ii. p. 337.) in which he has been followed by a late ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 324. Perhaps these learned writers do employ a phrase which expresses the subject of this law with more accuracy than our common language; but I doubt whether innovations in the terms of science always repay us by their superior precision for the uncertainty and confusion which the change occasions. [Back to text]
[4] This remark is suggested by an objection of Vattel, which is more specious than solid. See his Prelim. § 6. [Back to text]
[5] "Est quidem vera lex, recta ratio, naturæ congruens, diffusa in omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando à fraude deterreat, quæ tamen neque probos frustra jubet aut vetat, neque improbos jubendo aut vetando movet. Huic legi neque obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec verò aut per senatum aut per populum solvi hac lege possumus. Neque est quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex et sempiterna, et immortalis continebit, unusque erit communis quasi magister et imperator omnium Deus. Ille legis hujus inventor, disceptator, lator, cui qui non parebit ipse se fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas p[oe]nas etiamsi cætera supplicia quæ putantur effugerit."—Fragm. lib. iii. Cicer. de Republ. apud Lactant.
It is impossible to read such precious fragments without deploring the loss of a work which, for the benefit of all generations, should have been immortal. [Back to text]
[6] "Age verò urbibus constitutis ut fidem colere et justitiam retinere discerent et aliis parere suâ voluntate consuescerent, ac non modò labores excipiendos communis commodi causâ sed etiam vitam amittendam existimarent; qui tandem fieri potuit nisi homines ea quæ ratione invenissent eloquentiâ persuadere potuissent."—Cic. de Inv. Rhet. lib. i. in proëm. [Back to text]
[7]Δικαἱωματα των πολεμων [Back to text]
[8] Cujacius, Brissonius, Hottomannus, &c. &c.—Vide Gravina Orig. Jur. Civil. pp. 132-38. edit. Lips. 1737.
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. [Back to text]
[9] Proavia juris civilis.—De Jur. Bell. ac Pac. Proleg. § 16. [Back to text]
[10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv. [Back to text]
[11] Grot. Jur. Bell. et Pac. Proleg. § 40. [Back to text]
[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. [Back to text]
[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. [Back to text]
[14] Especially those chapters of the third book, entitled, Temperamentum circa Captivos, &c. &c. [Back to text]
[15] Natura enim juris explicanda est nobis, eaque ab hominis repetenda naturâ.—Cic. de Leg. lib i. c. 5. [Back to text]
[16] Est autem virtus nihil aliud quam in se perfecta atque ad summum perducta natura.—Cic. de Leg. lib. i. c. 8. [Back to text]
[17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p. xxxiii. [Back to text]
[18] Bacon, Dign. and Adv. of Learn. book ii. [Back to text]
[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. [Back to text]
[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 cœpit.
—— puerisque parentum
Blanditiis facile ingenium fregere superbum.
Tunc et amicitiam cœperunt 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.
[Back to text]
[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, "Και ὁτι Φυσει ανθρωπος πολιτικον ζωον "—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. [Back to text]
[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. [Back to text]
[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. [Back to text]
[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. [Back to text]
[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'[oe]uvre 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. [Back to text]
[26] Lord Bacon, Essay xxiv. Of Innovations. [Back to text]
[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. [Back to text]
[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. [Back to text]
[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. [Back to text]
[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. [Back to text]
[31] Burke's Works, vol. iii. p. 134. [Back to text]
[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. [Back to text]