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ADDENDA. - Marcus Tullius Cicero, Treatise on the Laws [51 BC]
The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws. Translated from the original, with Dissertations and Notes in Two Volumes. By Francis Barham, Esq. (London: Edmund Spettigue, 1841-42). Vol. 2.
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The Addenda to the foregoing translation of Cicero’s Treatise on Laws, will consist of extracts from various valuable works, tending to elucidate the several branches of jurisprudence.
From Mr. Williams’ excellent “Treatise on the Study and Practice of the Law,” we quote a few passages which relate to the law of God; the law of nature and nations; the canonical or ecclesiastical law; and the civil or municipal law.
Of the Law of God.
Concerning this Divine Law, the judicious Hooker thus writes:—“Of law, no less can be said than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power; both angels, and men, and creatures of what creation soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their common peace and joy.” This divine law is mainly to be studied in the revelation of God to the soul, and the Bible and biblical literature.—Vide Cudworth, Brocklesby, &c.
Of the Law of Nature and Nations.
Preparatory to the student’s entering on the study of the municipal laws of the realm, he should endeavour to obtain a general knowledge of ethics, the law of nations, and the civil and feudal law.
For general ethics, read Tully’s offices; and for exercising and disciplining the reasoning powers, Aristotle’s Ethics, Locke on the Human Understanding, Montesquieu’s Spirit of Laws, Paley’s Moral Philosophy, and the works of Stewart and Reid on the Mind, will be found of great advantage.
The Study of the law of nations is not only a useful introduction to the law of England, and an important branch of the education of those who are destined for the profession of the law, but it is also an interesting part of general study: according to Grotius, it is the parent of all municipal law—proavia juris civilis.—De Jure Belli ac Pacis, proleg. s. 16.)
For the study of the law of nations, which is partly founded on the law of nature, and partly positive, Lord Mansfield recommends the student to read Grotius, de Jure Belli ac Pacis, Puffendorff’s Law of Nature and Nations, with Barbeyrac’s notes, and Burlamaqui’s Droit Natural; and as these authors treat the same subjects in their books, he suggests, that they may be read together and compared. If the student should wish to obtain a masterly knowledge of this subject, the works of Wolfius, Vattel, Heineccius, Ward, Marten, and Dr. Paley’s Moral Philosophy, will be necessary.
“The reduction of the law of nations to a system,” says Sir James Mackintosh, (Discourse on the Study of the Law of Nature and Nations, p. 13), “was reserved for Grotius. It was by the advice of Lord Bacon and Peirsce, that he undertook this arduous task. He produced a work, which we now indeed justly deem imperfect; but which is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the genius and learning of one man. But so great is the uncertainty of posthumous reputation, and so liable is the fame even of the greatest men to be obscured by those new fashions of thinking and writing, which succeed each other so rapidly among polished nations, that Grotius, who filled so large a space in the eye of his contemporaries, is now perhaps known to some only by name. Yet, if we fairly estimate both his endowments and his virtues, we may justly consider him as one of the most memorable men who have done honour to modern times.”
At page 20 of the “Discourse,” Sir James states that the imperfect nature of Grotius’s work, is occasioned by his inconvenient and unscientific method, and his inversion of the natural order of the subject:—“That instead of searching for the original principles of the science in human nature, then applying them to the regulation of the conduct of individuals; and, lastly, employing them for the decision of those difficult and complicated questions that arise, with respect to the intercourse of nations; Grotius has chosen the reversed method. He begins with the consideration of the states of peace and war, and he examines original principles only occasionally and accidentally, as they grow out of the questions which he is called upon to decide. It is a necessary consequence of this disorderly method, which exhibits the elements of the science in the form of scattered digressions, that he seldom employs sufficient discussion on those fundamental truths, and never in the place where such a discussion would be most instructive to the reader.”
The work of Puffendorff is very prolix, and utterly void of all the attractions of composition; but it is a mine of principles of Public Law. His plan is superior to that of Grotius; by remedying which, he restored natural law to that superiority which belonged to it; and with great propriety, treated the law of nations as only one main branch of the parent stock. Without the genius of his master, and with very inferior learning, he has yet treated this subject with sound sense, with clear method, with extensive and accurate knowledge, and with a copiousness of detail sometimes indeed tedious, but always instructive and satisfactory.
“To the large work of Wolfius,” the same elegant writer observes, p. 31, “the observations which I have made on Puffendorff as a book for general use, apply with tenfold force. His abridger, Vattel, deserves, indeed, considerable praise. He is a very ingenious, clear, elegant, and useful writer. But he only considers one part of this extensive subject, namely, the law of nations, strictly so called; and I cannot help thinking, that, even in this department of the science, he has adopted some doubtful and dangerous principles, not to mention his constant deficiency in that fulness of example and illustration, which so much embellishes and strengthens reason. It is hardly necessary to take any notice of the text book of Heineccius, the best writer of elementary books with whom I am acquainted on any subject. Burlamaqui is an author of superior merit; but he confines himself too much to the general principles of morality and politics.”
Of the Canon or Ecclesiastical Law.
The necessity of an acquaintance with the canon law will appear to the student, when he considers that many points of antiquity, as well as of daily practice, are derived from it. The primitive institution of our terms, the custom of not going on with the business of terms, the term in the afternoon, the singular conceit of prohibiting jurors meat, drink, or candle–light, till they are agreed in their verdict, are all either the text, or by way of gloss on the Canon Law. (See Splem. Reliq. 89, 98.)
Many rules concerning the church, as to advowsons, patronage, rights of presentation; others with regard to matrimony, privilege of clergy, and concerning testaments, are derived from the same source. Instances enough might be soon produced to justify Chief Justice Vaughan, in saying (2 Vent. Rep. 11), that though the knowledge of the Canon Law be not an adequate subject, yet it is a subject in common.” (Eunomus, vol. 1, dial. 16).
The works to be particularly consulted on this subject by the student, are Dr. Burn’s Ecclesiastical Law, Hooker’s Laws of Ecclesiastical Polity, the Introductory Discourse to Bishop Gibson’s Codex Juris Ecclesiastici Anglicani; and Toller, Mirehouse, Ellis and Gwillim on Tithes. At his leisure he may consult Lindewood’s Provincial Constitutions of England; Ecton’s Liber Regis, vel Thesaurus Rerum Ecclesiasticarum: Brewster’s Collectanea Ecclesiastica, Ayliffe’s Paregon, and Cunningham’s Law of Simony. The inquisitive student may find an interesting inquiry into the Canon Law, as well as the Roman, in Dr. Robertson’s History of Charles the Fifth, vol. 1, p. 74 et seq., 381, and note 25.
Of the Civil Law.
“When you have laid a foundation in the moral law,” continues Lord Mansfield, “it will be time to look into those systems of positive law, that have prevailed in their turns. You will begin of course with the Roman or Civil laws; for the history of which, read Gravina’s elegant work De Ortu et Progressu Juris Civilis, and Fernier’s History of the Roman or Civil Law, then Dr. Halifax’s Analysis of the Civil Law, and Dr. Bever’s History of the Legal Polity of the Roman State; after which Justinian’s Institutes, with Vinnius’s Comment and Harris’s notes may be studied. In Dr. Taylor’s Elements of the Civil Law, and Dr. Brown’s Compendious View, the student will find much useful information and assistance. The Corpus Juris Civilis, by Gothofred, and the works of Domat, Ayliffe, and Wood, may be used at his leisure. In Mr. Gibbon’s Decline and Fall of the Roman Empire, may be found a beautiful and spirited sketch of the Civil Law. As to the nature and extent of the influence of the civil law on the jurisprudence of Great Britain, and the other modern states of Europe, see Duck’s treatise De Usu et Auctoritate Juris Civilis in Dominiis Principum Christianorum.
“The study of the civil law,” says the elegant author of Eunomus, “deserves, on many accounts, to be studied by the professors of our own. For the law of England often borrows the rules of the civil law, in the construction of wills and trusts; and in the calculations of the degrees of kindred, several important branches of our law are regulated by the civil and common laws.” Our Chancery proceedings are also founded on Roman jurisprudence; and the statute of the distribution of intestates’ effects is penned on the principles of one of the novels. Indeed it may be affirmed with safety, that as a collection of written reason, as a great body of principles, it has no rival, and is deserving, as a pattern, of being admired and consulted, even where it has no binding force. The man whose philosophic ambition aims at something beyond the skill of an able attorney; qui vult rerum cognoscere causas; who, with a scholar’s mind, wishes to know the rudiments and origin of the rules laid down for his instruction, ought to be a disciple of Justinian as well as of Coke.
By uniting the study of the civil law with that of the municipal law of England, the student will be enabled to observe that an infinite number of cases in our own law, are founded upon rules laid down in the Corpus Juris Civilis. “I have not the smallest scruple to assert,” says the learned Dr. Halifax, (Analysis of the Civil Law, pref. 22), “that the student who confines himself to the institutions of his own country, without joining to them any acquaintance with those of imperial Rome, will never arive at any considerable skill in the grounds and theory of his profession: though he may perhaps attain to a certain mechanical readiness in the forms and practical parts of the law, he will not be able to comprehend that enlarged and general idea of it, by which it is connected with the great system of universal jurisprudence; by the knowledge of which alone he will be qualified to become a master in this art, and be capable of applying it as an honourable means of subsistence for himself, and credit to his country.”
Also, the study of the civil law, as a science conversant with the great principles of justice and equity, cannot (as the same ingenious author observes), but be of the greatest importance and utility to the general scholar, as well as the lawyer. It is admirably calculated to furnish the minds of youth with universal and leading notions relating to natural and positive, to written and unwritten law; it instructs them in the various rights of persons, whether in a natural or civil capacity; the origin and rights of property; the grounds and reasons of testamentary and legal succession; the obligations arising from proper and improper contracts; the several species of civil injuries and crimes; together with the means of applying for and obtaining redress, and of bringing the guilty to condign punishment. It will be to entertain a very mean and disparaging opinion of the venerable monuments of ancient wisdom, contained in the body of the Roman Law, to regard the rules there laid down for the decision of controverted points, whether of a public or private nature, as the maxims of mere lawyers. These great masters of legislation, were as eminent for their skill in moral as in legal knowledge, and the sublimest notions, both in philosophy and religion, are inculcated in their writings. Accordingly we find them frequently called, among their other titles, juris divini et humani periti; and the very distinction of jurisprudence given by Ulpian (Dig. 1, 10), like that of sapientia by Cicero, (De Off. 1, 43), is divinarum atque humanarum rerum notitia. This affinity between the Study of Law and philosophy has impressed a remarkably scientifical cast upon the responses of the Roman sages? and a competent knowledge of their tenets and principles is absolutely necessary, in order to understand with exactness and taste, the allusions to Roman customs and manners, which abound in the Latin classic authors. To which must be added, what will still more recommend the science to the polite scholar, the purity of the language, in which the Pandects in particular are composed; which are held to be so perfect and elegant, in point of style, that the Latin tongue might be retrieved from them, were all other Latin authors lost.”
The authority which the Civil Law acquired on its adoption into the municipal polities of the modern nations of Europe, was various. The German emperors appear to have considered themselves as the successors to the Roman empire in the west, and their dominions as therefore subject to that system of law, by which the Romans were governed. Hence, in Germany, properly so called, in the southern parts of France, or what are called the Pays de Droit ecrit, and in several parts of Italy, which, at the time when the German emperors enjoyed the highest prosperity, were included under their dominion, the Roman Law is understood to be the common law of the country, to which the inhabitants, on the failure of their own municipal customs and regulations, are bound to submit. In other European countries, it is viewed in the light of a foreign system; which, however, from its intrinsic merit, is entitled to great attention and regard; and of which many particulars have been in a manner naturalized by long usage, or adopted by the positive will of the legislature. This is the case in Spain, in Portugal, in the northern parts, or what are called the Pays de Coutumes, in France, in Sweden, in Denmark, and in Scotland. In England, its operation is confined to the maritime, the military, and the ecclesiastical courts, as also those of the two Universities; or as it is used merely in argument to illustrate the doctrines, or delineate the principles of natural justice, independent of all positive institutions.—(Millar’s Hist. View. Eng. vol. 2, p. 322, &c.)
For the method of quoting the Civil and Canon Law, see Dr. Halifax’s Analysis of the Roman Civil Law, p. 2, and Dr. Taylor’s Elements of Civil Law, p. 24. See also Mr. Gibbon’s observations, (Decline and Fall of the Roman Empire, vol. 8, p. 2, n.) respecting the absurd mode of quoting the code, pandects, and the institutes which authority and custom support.
The general excellence of the rules of the Civil Law, and the justice of its decisions, have extorted from all the nations of Europe an acknowledgment of its pre–eminence. They have, in consequence, either adopted it as their own municipal law; or, where circumstances and events forbade so general an admission, they have in all cases, where their own laws were silent or imperfect, ascertained the dictates of natural equity, in the illustrations of this code. Nor are the sources of its utility yet exhausted. In every age, and every civilized country, it will furnish principles, which, modified and altered as the circumstances of the times may require, will greatly contribute to the real interests and advantages of society.
On the intimate connection of these two codes, let us (says the eloquent author of the Discourse on the Study of the Law of Nature and Nations, p. 59, n.) 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).
See 1 P. Wms. 10; Ibid. 267; Ibid. 104; Ibid. 405; Ibid. 441; Ibid. 542; Prec. in Chan. 694; 2 Atk. 115; 3 Ibid. 364; Wils. 135; Com. 738; 1 Burr. 1623; 1 Ves. 86; &c. &c.
Some of our earliest juridical writers, particularly Bracton and Thornton, have transcribed considerable passages from the Roman collections. This they did, according to Selden’s opinion, not because they thought any foreign code could bind the subject of this realm; but, in order that, where the laws of England were silent, they might confirm their own problematical or conjectural positions of natural reason, by the doctrine of the civilians; or, where both laws were consonant to each other, might, by such citation, illustrate and explain our municipal institutions.
Leibnitz, a great mathematician, as well as philosopher, declares (Oper. tom. 4, p. 254), that he knows nothing which approaches so near to the method and precision of geometry as the Roman law.
The student is recommended, prior to his commencing the study of the Civil Law, to read the thirty–third chapter of Fernier’s History of the Civil Law, which contains a method to be observed in studying this branch of legal science.
The Law of God.
The Law of God, or the Divine Law, in whatever degree united to the Law of Nature, is in some respects to be distinguished from it. The Law of God is the supreme spiritual fountain, out of which the stream of the natural and physical law flows. If the connection between this fountain and this stream is cut off, the latter becomes stagnant, corrupt, and contemptible. For this reason man must perpetually appeal to the divinity within him—the voice of God sounding in his conscience; otherwise his conscience itself becomes cauterized, and seared by the influences of physical things, and the abominations of time and sense. Hence, the holy scriptures perpetually speak of the Law of God, as far superior to the law of nature. “The law of the Lord, says the Psalmist, is perfect, converting the soul; blessed are they who walk in the law of the Lord. As for me, my delight is in the law of the Lord, and I meditate thereon day and night.” On the other hand, we are warned by the inspired writers not to give too much reverence to nature, however excellent in itself; because after all, it is but an external stream, a thing outwardly generated and born, a mere picture of the infinite reality. Though no one therefore values the law of nature more than we do, we would avoid taking it as our standard,—we would avoid a mere natural and physical morality; for, as the poet says, “he builds too low, who builds beneath the skies.”
Whether the Natural Law is common to God and Man.
Those authors, who search for the first pattern, says Puffendorff, or the original draft, of natural law in God himself, are divided into two parties. For some, placing the spring and fountain, as it were, of it in the divine will, do thence conclude, that inasmuch as that will is in the highest manner free, the law of nature may therefore be changed by God, or the contrary be commanded, as is the case and the condition of positive laws. Others affirm this natural law to be founded after such a manner in the essential holiness and justice of God, as to represent and express a kind of image or copy of those attributes. And hence, likewise, they say, proceeds the immutability of the law of nature: inasmuch as the divine justice and holiness are utterly incapable of change or alteration. Concerning the former of these opinions, we have this to remark, that it was indeed at first entirely free to the divine pleasure, to produce or not to produce an animal to whom the present law of nature should agree. But that since God Almighty hath been pleased to create man, a being not possibly to be preserved without the observation of this law, we have no manner of reason or colour to believe that he will either reverse or alter the law of nature, so long as he brings no change on human nature itself; and so long as the actions enjoined by this law, do by a natural consequence promote society, in which is contained all the temporal happiness of mankind; while the contrary actions do by as strong a necessity destroy that society; that is, so long as beneficence, kindness, fidelity, gratitude, and the like practices, shall have a power of engaging and of winning on men’s minds; and injuriousness, treachery, and ingratitude, a power of raising and provoking them. And therefore, supposing human nature and human affairs to be fixed and constant, the law of nature, though it owed its original institution to the free pleasure of God, remains firm and immovable; unlike to those divine positive laws, which depend in such a manner on the divine will, as not to seem so necessarily requisite to the good and safe condition of mankind in general. Besides, though this opinion be so far right, as it makes God the author of natural law, a truth which no man in his wits can doubt of; yet it still remains an uncertainty, by what means this divine will is to be known, and what tokens they are to evince, that God intended to comprehend such or such a thing under the law of nature. And the same inconvenience attends likewise on the latter opinion. For though no one can be guilty of such horrid impiety, as to assert that the law of nature contains anything in it repugnant to the divine holiness or justice; yet it would be very difficult to prove, that the same law is so exact a copy or resemblance of those attributes, that in what manner soever God Almighty is pleased to deal with his creatures, particularly with men, in the same manner the law of their nature commands men to deal with one another. Nor doth it appear how a right which is to obtain amongst persons by nature equal, can be copied from that transcendent right, which the Creator useth towards his own works; that is, how a law imposing a mutual obligation on men, can represent any image of omnipotency, which no laws, no obligations, can restrain. For that argument, drawn from scripture, about man’s being created in the image of God, is of no force as to the present case. For even those who confess that the image be lost, do yet acknowledge the sense of natural law to have still remained in man. Amongst ourselves we usually call him a holy or righteous person, who abstains from grosser sins, and regularly observes his duty: but yet, whoever framed a notion of the divine holiness by so unworthy a model? He, amongst men, is accounted just, who makes it his constant purpose and resolution to hurt no body, and to pay every one his due: but in God it is justice to destroy his creatures, even in the most grievous and painful manner. Neither can he so owe a person anything, as to be accused of doing an injury upon withholding it. If he hath been pleased to promise anything to mortals, he indeed performs it: not by virtue of such a promise they obtain a right against God; but because it would be some kind of derogation from his greatness and goodness to command men to expect any favour from him, and afterwards to frustrate their expectations. For he who breaks his promise, either wants power to perform it, or else through inconstancy or dishonesty fails from the engagement he had once well made, or else at the time of making his promise, he was ignorant how the state and condition of things would be, when it was afterwards to be fulfilled; all which cases imply some kind of failing and imperfection. Hence God cannot but observe his promises, and men ought not but to observe theirs: hence human promises turn into debts, but divine promises are made good out of pure favour. What rules the vindictive justice of God proceeds by, is far above our apprehension to discover; but thus much is certain, that they are not altogether conformable to the methods of human judicature. Arist. Ethic. Nicom. l. 10, c. 8. What kind of actions ought we to attribute to the gods? Shall we say they are just? But alas! it would seem most ridiculous to fancy, that they are concerned in driving bargains, in restoring loans, and the like performances, which we reckon honest amongst men. Shall we call them valiant and brave, able to endure hardships, and encounter dangers? Shall we pronounce them liberal? Who then shall be the object, or what the matter of the bounty? Certainly, we must not oppress them with the load of money or treasures. In like manner it would be an impertinent and troublesome commendation, to say they are temperate; in as much as they have no inordinate affections to govern and restrain. And thus, if we run through the whole train of human actions, we shall find them all so mean and contemptible, as to be infinitely unworthy of the heavenly natures.—Catull. ad Manl. 68, lin. 141.
From this consideration, that we ought not to admit any law common both to God and man, we may draw an easy answer to those instances, which some give of God’s dispensing with the law of nature, as when he commanded Abraham to kill his son, and the Israelites to rob the Egyptians of their vessels of silver and vessels of gold. For God, the supreme lord and disposer of all things, hath a much higher and fuller right over his creatures, than one man can have over another, who is by nature his equal. Therefore we cannot properly call it a dispensation of the law of nature, when a man by express command from heaven, executes God’s right upon other men, merely as his instrument.—Comp. Grot. l. 1, c. 1, s. 10, n. 6. None, I believe, can be so simple as to imagine that when the object is changed, or the circumstances varied, the law itself suffers alteration. When the creditor hath forgiven a debt, it loseth that name, and therefore is no longer comprehended under the law which enjoins payment. And as for the other instance, when the goods of a person who gave a thing in trust, are adjudged to the public treasury, neither the law is changed nor its object. For thus runs the law: He who receives a thing in trust, ought to restore it either to him who committed the thing (being his own) to his charge, or to him on whom the right descends. Now this law canot affect the thief, becanse the thing was not his own; nor to the former owner, who is supposed to be at present a banished man, because the propriety of all that was his passeth to the public.
But neither do the arguments which the author of the treatise de Principiis Justi et Decori produces, seem forcible enough to establish a twofold natural law, divine and human, which, supposing the present order of the world to continue, do fall in with one another. For inasmuch as all law implies obligation, and that again pre–supposes some external and superior principle, it doth not appear how we can without absurdity apply any such matter to God. And it is a like impropriety to say, that God is obliged by himself, or by his own essence. Nor will that text which he alleges, of Rom. i, 32, ever prove such a law to be in God. For since the Gentiles, from the dictates of their reason, were able to gather the knowledge of the law of nature, the next thing which they must infer, was, that God the legislator would not suffer the law to be violated without punishing the offender. Therefore, upon the violation of that law, there arises a right to God (if it be decent so to speak) of exacting punishment; or upon commission of the sin, God most justly executes what he before threatened. But who can conclude from hence, that God is obnoxious to law? What follows is an ambiguous expression, that the supreme right of God over his creatures is discovered by natural reason from those principles, which make the foundations of natural rights and equity amongst men. For if this only be the sense of it, that in many cases God doth proceed in the same manner in his dealings with men, as he would have them follow in their transactions with each other; it will easily pass without contradiction. For thus God, by the natural law, hath enjoined men to keep their promises, as he will firmly keep those which he makes himself. So he forbids human judges to condemn the innocent, declaring that he himself will acquit them in his own judgments. But if it be meant to assert that God hath no more right over his creatures than men are allowed to obtain over each other, there will be no need of more convincing arguments to make us believe, that the supreme lord and master hath no fuller right over his servants, than the servants have over their fellow–servants, with whom nature has set them on a level: or, to use Grotius’s terms, that the Jus Rectorium, and the Jus Æquatorium, the right of governors, and the right of equals, are exactly the same thing.
Neither must we let that assertion pass by uncensured, which the author of the same treatise lays down, page 52, that God ought necessarily to esteem the laws of nature as just, the order of the universe being established in the manner we now behold: and that he cannot but own every deviation from them to be indecent and unjust. For without doubt those imperious terms, God ought necessarily, are very unsuitable to the majesty of an omnipotent legislator. Nor is here any necessity to be discovered in the case, except such as owes its original merely to the divine pleasure. The reason which he subjoins is not strong enough to maintain his first position; “All things, (says he,) which our thoughts can imagine, have always some kind of χέσις or relation, arising from the intrinsic nature of the thing, and which cannot be separated from the thing without offering violence to reason. For this nature, and this adhering relation, things have not from themselves, but from the free–will of God; and the decrees of his will cannot properly be called his own law. Thus, the reason why amongst men one benefit obliges to the return of another; why violation of covenants, inhumanity, pride, slander, can never be allowable, is, because God hath given man a sociable nature, and as long as that nature remains unaltered, those things which are agreeable to it must be good and honest, and those which are repugnant to it uncomely and unlawful. But who can hence infer, either that there is but one law, common to God and men, or that things are indued with any χέσις or habitude, independent from the divine disposal?
The obligation of the Law of Nature is from God.
But to make these dictates of reason obtain the power and the dignity of laws, it is necessary to call in a much higher principle to our assistance. For although the usefulness and expediency of them be clearly apparent, yet this bare consideration could never bring so strong a tie on men’s minds, but that they would recede from these rules, whenever a man was pleased either to neglect his own advantage, or to pursue it by some different means, which he judged more proper, and more likely to succeed. Neither can the will of any person be so strongly bound by his own bare resolution, as to hinder him from acting quite contrary whenever the humour takes him. And although we should suppose many persons standing in a natural liberty, and combining to keep these precepts, yet the force of them could then last no longer than the agreement from whence they derived it. Nor would the obligation then only cease, when all the consenting parties should please to alter their minds; (as is now the manner of receding from mutual covenants by common consent;) but even during the general agreement, the power of obliging would be wanting to the compact: inasmuch as we suppose, that dictate of reason, which commands us to stand to our bargains and promises, not yet to have obtained the authority of a law; and therefore it is at every one’s pleasure to renounce the covenant, whether the other persons concerned are willing or not. Lastly, the mere force of human command seems insufficient to invest these dictates with the power of obligation. For since no such command could take place otherwise than by the intervention of covenants, and since covenants owe all their strength to some law, it doth not appear how there could arise any human sovereignty capable of obligations, unless the dictates of reason were beforehand received for laws. Or should we grant the fancy of some, that human government depends only on human consent, and then make these rational duties be enjoined the subjects like other laws; yet even thus they would obtain no more power than positive constitutions, which depend on the will of the legislator, both as to their original and their duration. It is therefore on all accounts to be concluded and to be maintained, that the obligation of natural law proceeds from God himself, the great Creator and supreme Governor of mankind; who, by virtue of his sovereignty, hath bound men to the observation of it. And thus much may be demonstrated by the sole light of natural reason. Here then we lay it down as a granted truth, that God Almighty is the Creator and Governor of the world, since it hath been shown with so much evidence by wise and learned men, and since no person of sense and understanding ever called it in question. Now this supreme being having so formed and disposed the nature of things and of mankind, as to make a sociable life necessary to our subsistence and preservation; and having on this account indued us with a mind capable of entertaining such notions as conduce to this end, and having insinuated these notions into our understandings by the movement of natural things, derived from him the first mover; and likewise most clearly represented to us their necessary connexion and their truth: hence it follows, that it is the will of God man should frame his life according to that disposition and method which he seems peculiarly to have assigned him, above the life of brutes. And since this cannot otherwise be achieved and compassed, than by the observance of natural law, it must be supposed that God hath laid an obligation on man to obey this law, as a means not arising from human invention, or changable at human pleasure, but expressly ordained by God himself for the accomplishment of this design. For when any sovereign enjoins his subject the pursuit of such an end, he is at the same time supposed to oblige him to make use of those means, without which the end cannot be attained. Nor is this the only proof of man’s being obliged to a social life by the command of God, that as the condition of mankind stands at present, we could not support and secure ourselves unless this persuasion were firmly rooted in our minds; and that by order of the divine providence it so falls out, that by a natural consequence our happiness flows from such actions as are agreeable to the law of nature, and our misery from such as are repugnant to it. But it is farther confirmed by this consideration, that in no other animal there is discoverable any sense of religion, or any fear of a deity. To which may be added, that tender sense of conscience inherent in the minds of men that are not corrupted and debauched with vice; by which they are convinced, that to sin against nature’s law, is to offend Him, who hath a sovereign power over men’s souls, and who is to be feared, even when we do not apprehend any danger from human punishment.
The laws of nature would have a full power of binding men, although God Almighty had never proposed them anew in his revealed word. For man was under obligation to obey his creator, by what means soever he was pleased to convey to him the knowledge of his will. Nor was there any absolute necessity of a particular revelation to make a rational creature sensible of his subjection to the supreme author and governor of things. No one will deny but that those persons who were not acquainted with the holy scriptures, did yet sin against the law of nature: which we could not affirm, did this law derive its force from the promulgation made of it in the sacred writings. On this account we can by no means admit of that notion started by Hobbes, “Since those laws, (says he,) which we call natural, are nothing else but certain conclusions apprehended by reason, concerning things to be done and things to be omitted; and since law, in a proper sense, is only the speech of him, who by virtue of his right commands men to execute or to abstain from some performances; therefore they are not laws as they proceed from nature, but only as they are enacted by God in scripture.” For we do not take it to be essential to a law, that it be conveyed to the subject’s notice in the form and manner of a proposition; but we reckon it sufficient that the will of the sovereign be gathered and understood any way, whether by internal suggestion of the mind, or from the contemplation of our state and condition, and of the nature of those affairs and transactions which are to engage our life. And indeed he himself acknowledges as much, in another part of the same work, where he observes, that the laws of God are declared three ways; first by the tacit dictates of right reason, &c. Besides, the laws of nature as they are deduced by ratiocination, cannot be apprehended otherwise than in the manner of propositions, and therefore in this respect they may be allowed to bear that name. But as in civil laws it matters not, whether they be promulgated in writing, or vivà voce; so the divine law is of equal obligation, whether it is discovered to men either by God himself in a visible shape, and with the resemblance of a human voice, or by holy men, peculiarly inspired from heaven; or whether, lastly, it be worked out by natural reason, from the contemplation of human condition. For reason, properly speaking, is not the law of nature itself, but the means, upon a right application of which that law is to be discovered. Nor doth the manner and the method of promulgating a law belong to its inward essence and constitution. Farther, although it seem a more clear and a more compendious way of revealing one’s will to another, to force it upon his senses by express words and speeches: yet, that is likewise reckoned to be sufficiently revealed, which we must unavoidably discover if we make use of the occasion offered, and keep the way that we are put into. And thus man, who by the bounty of his creator, enjoys the faculty of comprehending both his own and other men’s actions; and of judging whether or no they are agreeable to human nature, cannot but take occasion, (supposing there are more men in the world besides himself) to observe and consider how some of those actions do really thus agree with the inclination and with the condition of mankind.
Although to render a law obligatory there is a necessity of making it known to the subject; and although to deduce the law of nature from the suggestions of reason, and to apprehend its foundation, and its necessary connexion with the state of humanity, be not the gift of every person; yet hence it can neither be pretended that this law doth not oblige all men, or that it may not be said to be known by the light of reason. For to give a law a binding force, a popular and simple knowledge is sufficient; nor is an artificial demonstration and deduction absolutely requisite to this purpose. And although it is very probable that the chief heads of natural law were expressly delivered by God Almighty to the first mortals, and were from them communicated to others by custom and institution; yet the knowledge of that law may nevertheless be stiled natural, inasmuch as the necessary truth and certainty of it may be drawn from the use of natural reason. At the same time, because those propositions which represent to us the law of nature, are insinuated into men’s minds from the contemplation of the nature of things; on that account they are justly attributed and referred to God, the author of nature.
The wisest of the old Heathens acknowledged the authority of natural law, and derived it rightly from God. Thus Plutarch Ταυτόν ἐστι τὸ ἕπεσϑαι ϑεῳ̑, καὶ τὸ πέιϑεσϑαι λόγῳ. To follow God and to obey reason is the same thing. But Tully hath left the most noble testimony for our purpose, as it is cited out of his books de Republicâ by Lactantius: “There is indeed (says he) a law agreeable to nature, and no other than right reason, made known to all men, constant and perpetual; which calls us to duty by commands, and deters us from sin by threats; and whose commands and threats are neither of them in vain to the good, though they may seem of little force to the wicked. This law we are neither allowed to disannual, nor to diminish; nor is it possible it should be totally reversed; the senate or the people cannot free us from its authority. Nor do we need any other explainer or interpreter of it besides ourselves. Nor will it be different at Rome and at Athens, now and hereafter; but will eternally and unchangeably affect all persons in all places: God himself appearing the universal master, the universal king. It is he who is the inventor, the expounder, the enactor of this law; which whosoever shall refuse to obey, shall fly and loath his own person, and renounce his title to humanity; and shall thus undergo the severest penalties, though he escape everything else which falls under our common name and notion of punishment?” Sophocles speaks very honourably on the same subject, in his first Œdipus, act 3d, p. 187. Ed. H. Steph.
Mr. Selden, in his discussion of this point, hath shown, that although the Gentiles did acknowledge the chief heads of natural law to be sometimes violated through the corrupt manners of men; and to be (as it were) oppressed and stifled by wicked ordinances and constitutions; yet they were at the same time fully persuaded that their τὸ ἀυτοδίκαιον, or, what was really just and fit to be done, did by order of the gods perpetually remain the same, and hold the same force of obligation. Whence arose that common opinion amongst them of the punishment of wicked men in another state, when they had been guilty of any monstrous offences against the law of nature. And since they thus believed the gods to be the avengers of its violation, we may take it for granted, that they thought them too the authors and founders of its authority. On the other hand, such of them as had any sense of any virtue, did as fairly suppose, that good men exercising piety never failed of the peculiar countenance and consideration of Heaven. Thus Jamblichus: we must take this therefore for a certain truth, that nothing properly evil shall happen to a good man, either in this life or after it. Nor are the affairs and concerns of such a person neglected by the immortal deities. And Euripides says, “good men do at last obtain what their virtue hath deserved: but evil men shall never arrive at any tolerable degree of happiness.” But Mr. Selden farther shews it to have been a constant opinion amongst the primitive christians, that in the interval betwixt the creation and the publication of the decalogue, those natural and universal laws were given to mankind, which were afterwards inserted in the Mosaical constitutions. Hence was drawn that most excellent observation of St. Chrysostom, that to the commandments about the honouring of parents, about murder, about adultery, and about theft, God was therefore pleased to add no reason, because those duties were already well known and understood, as being main points of the law natural; whereas to the ordinance concerning the sabbath–day, a reason of the precept was designedly affixed, upon account of its being positive and arbitrary. To conclude, all legislators have believed that their laws, of what kind soever, would derive the greatest strength and authority from the succours of religion: As appears from their solemn custom of ushering in all their constitutions with the worship of the gods.
Of the Establishment of the Law of Nature.
It is well worth our while to treat more distinctly and more carefully concerning the sanction of the law of nature. And to this purpose, besides what we have formerly delivered about the sanction of laws in general, we will first of all observe, that the goods and evils which happen to man, may be both divided into three ranks or classes. And as for the goods, some of them proceed, either from the free and liberal donation of the creator, or from the voluntary benevolence of other men, or from the industry of the acquirers, to which industry they determined themselves by their own free choice. And it is plain, that this first sort are not owing to the observation of the laws. Other goods there are which flow, by a natural consequence, from some actions which the laws command: the Creator having been pleased to assign to such and such performances of the laws such perpetual and natural effects, productive of the good and profit of mankind. And these are those which Dr. Cumberland calls natural rewards. A third kind of goods proceed from some certain actions, either by the pleasure of the legislator, or by the covenant and agreement of men; of which the former are called, κατ’ ἑξοχὴν, rewards, or arbitrary returns, the latter, more properly, wages. In the same manner may evils be divided. Some of them follow the very nature and condition of men; (if we abstract the first cause and original of that condition;) or they happen without the particular default of him who suffers them, which we may, in a sound sense, call fatal evils, opposing the word fate, not to the divine disposal, but to the peculiar faultiness of the person on whom these evils light. Others do, by natural consequence and connexion, proceed from sins; which are by some authors termed natural punishments. Lastly, others there are which arise from sins, by the peculiar determination and disposal of the legislator beyond the manner of natural effects; in which the quality, the manner, the place, and time of the evil, depend on the legislator’s pleasure. And these are what we would properly call punishments, or (in a looser sense of the word) arbitrary punishments.
Thus much being premised, we proceed to remark, that although the Omnipotent Creator might, by virtue of his sovereign right, have required our obedience, without making any good fruit proceed thence to our own advantage: yet it hath pleased his infinite goodness so to order and constitute the nature of things and of mankind, that by a kind of natural connexion some goods should attend the observance, and some evils the transgression, of nature’s laws. Thus a constant obedience is followed by serenity and security of conscience, joined with a good and certain assurance; by a good frame and a settled tranquility of mind; by the preservation of the body from many evils, not fatal: besides an infinite number of advantages, which may be obtained by the mutual benevolence and good offices of other men. On the other hand, from the violation of the same laws, arise by a natural connexion, disquiet of conscience, disturbance and degeneracy of mind, destruction of the body, and numberless evils, which may be occasioned by the withdrawing of other mens’ assistance, or by the violence of their provoked revenge.
Now although these rewards, and these punishments, are by some imagined not to proceed with certainty enough from good and evil actions; because many persons in return for benefits receive only hatred, envy, or injury; whilst others on the contrary do securely enjoy the fruits of their wickedness, without molestation or punishment; whence we cannot be infallibly assured beforehand, that our good deeds will be equally repaid by other men; (though the fruit which arises in ourselves from such honest practices is not capable of hindrance or of interruption:) yet thus much is beyond dispute, that more advantages most surely and certainly follow from good and just proceedings, than we can in reason expect from the opposite vices. And although the whole train of those goods do not attend on such a conscientious behaviour, as in the nature of things they were disposed to do, yet we have a fair probability that many of them will not disappoint us; at least that we shall obtain a greater share than we could have hoped for from a course of dishonesty and wickedness. And so by this means we provide much better for our own security, and have much fairer grounds to hope that others will, in their turn, be alike ready to promote our interests and concerns; than if, laying aside all regard to our neighbours, we directed everything towards our own private advantage; and therefore infinitely better than if, by the exercise of violence or of deceit, we endeavoured to make our own gains and profits out of the losses of other men. By this way of reckoning therefore it appears, that the value of that reward which will follow a good action, doth, all things rightly considered, exceed the gain of the opposite illegal practice.
We desire it should be well observed, that whilst we are here treating about the natural effects of good and of evil actions, we do not by any means reckon amongst these effects, those kind of goods which we but now ranked in the first class, and which our own prudence and industry either cannot obtain, or cannot avoid. Such things both may, and generally do happen alike to virtuous and to vicious men. Thus a wicked person may by the gift of nature, possess a vigorous and a healthy body, while perhaps a man of honesty and piety, labours under a weak and crazy constitution. And thus death lays hold promiscuously on the just and on the vile. But the only goods we here allude to are such as it is in the power of human reason to provide for us; and which do therefore, in some measure, depend upon our own act. Now although some part of those goods which we intend by the observance of the law of nature to obtain from other men, has a dependance on their kindness and on their probity, and so is not absolutely in our own power; yet, forasmuch as in all probability they have the same end and design with ourselves, we have at least fair reason to hope for and to expect such good usage and retribution from them, though we cannot give ourselves an infallible assurance of it before it comes. Scarce any man hath met with so many enemies in the world, as not to own himself indebted to some benefactors. And we see that the evils which men procure to one another, have never been able to prevail to the utter ruin and destruction of the human race: which is a plain evidence, that good actions have oftener attained their just end and reward than they have failed and been disappointed of it. On the other side, although a person who neglects or disobeys the law of nature, may sometimes, by an unaccountable concourse of external causes, receive a whole flood of goods and benefits from other men; yet because in this case those effects are, with regard to him, merely contingent, and do very seldom fall out in such a manner, we may conclude, that nature and reason did not prescribe, much less command, the means by which he attained, only casually, to such an end. Reason, on the contrary, most clearly shews us, that we take a much more probable way to happiness, by acting on a settled design, and by applying the best means we can to the gaining of our purpose, than if we should throw aside all counsel and forecast, and permit ourselves to be driven at random by the blind guidance of chance. But this point is indeed as clear as anything in nature, and hath been made out to full advantage by Dr. Cumberland.
There remains therefore this only question farther, whether or no, besides the natural effects of evil actions, and besides those which arise from the sanction of civil laws, there are still others in reserve appointed by God’s free pleasure, and to be inflicted by virtue of his sovereign prerogative; or whether God hath not added to the sanction of the laws of nature some arbitrary punishment; especially since it is apparent, that the natural consequences and effects of evil actions are frequently interrupted, and that the wickedness of many men seems to turn to their gain and advantage. Now what the scripture hath declared in this matter, is plain and beyond all dispute. But waiving that authority, the affirmative side of the question may be defended from several considerations: As from that most ancient and most universal tradition, concerning a certain revenging divinity, and the pains after death. Of which opinion we have two fair instances in the cases of Jonah and of St. Paul; (Jonah i, 7; Acts xxviii, 1, &c.) for there being no natural connexion and consequence either between Jonah’s crime and the tempest, or between the fact of murder and the biting of the viper, the people who were present at both accidents immediately supposed that God Almighty did thus extraordinarily interpose his hand to punish some heinous wickedness. Moreover, it being most certain that it is the divine pleasure those laws should be obeyed, and not less manifest that the natural effects of them may be (partly at least) eluded; it is highly probable, that God will find some other way of punishing such offenders: especially since the gnawings of conscience, and the want of quiet and security, which constantly attend evil men, do not always rise to such an afflicting degree, as to seem a sufficient plague and penalty for their crimes. But because whatever arguments we can alledge a priori, will not amount to a demonstration, but only to a high probability; and because this arbitrary punishment presupposes some positive determination of the divine will, which we can hardly come to a knowledge of without a particular revelation; and since our induction and our experience are at present imperfect, we can scarce avoid confessing, that to those who see only by the light of natural reason, this controversy must still appear in some measure dark and obscure.
The Ecclesiastical Law of England (says Dr. Burn) is compounded of these four main ingredients; the civil law, the canon law, the common law, and the statute law. And from these, digested in their proper rank and subordination to draw out one uniform law of the church, is the purport of his book on this subject.
Where these laws do interfere and cross each other, the order of preference is this: The civil law submitteth to the canon law; both of these to the common law; and all the three to the statute law.
So that from any one or more of these, without all of them together, or from all of these together, without attending to their comparative obligation; it is not possible to exhibit any distinct prospect of the English ecclesiastical constitution.
I. By the civil law is meant, the law of the ancient Romans; which had its foundation in the Grecian republics, and received continual improvements in the Roman state during the space of upwards of a thousand years, and did not expire at last even with the empire itself.
For the distinct knowledge whereof, it is to be remembered, that after the abolishing of the regal government at Rome, and the establishment of the republic, they sent three men into Greece, to collect the laws of the Athenian and other Grecian states; and from these were compiled and digested by ten commissioners, well known by the name of the Decemviri, the laws of the Twelve Tables (so called from their being engraved on twelve tables of brass), which were the first and principal foundation of the Roman law.
To the Twelve Tables were added the Responsa Prudentum, or interpretation of the lawyers; who accommodated the same to the use and practice of their courts. And this was denominated, in contradistinction to the laws of the Twelve Tables, the jus non scriptum, or unwritten law; and having no other name, began then to be called the civil law; and is that which is styled by Justinian the jurisprudentia media, because it came in between the laws of the Twelve Tables and the Imperial constitutions.
Next to these were the Leges, or laws, emphatically so called; because they were enacted by the whole body of the people, reckoning both the nobility and commonalty together; and this was particularly, when a new case happened that was not provided for by the former laws. The consuls on this occasion caused the people to be assembled together, and informing them what the case was, and asking their opinions, that is, putting it to the vote, they decided the same according to the rules of equity as the matter appeared to them; and this decision being made, was ever afterwards in the like cases observed as a law. For after the abolition of the regal government, the magistracy was lodged with the people; one principal branch whereof is the power of making laws.
Afterwards, the common people multiplying, upon some differences with the nobility, retired and separated themselves from the nobility for some time; and during this secession, they enacted laws of their own, which were called Plebiscita, and upon a reconciliation with the nobility afterwards, it was agreed and consented to, that these also should have the force of law, and be obligatory upon the whole Roman people, the nobility as well as others.
But on the daily increase of the Roman state, it appearing almost impossible to assemble the whole body of the people, at least without some tumult and commotion; it was thought expedient, whenever a new case arose, to trust the senate with this power. And when any new law was made by them, it was styled senatus–consultum, or a decree of the senate; and was, in like manner as the plebiscita, incorporated into the Roman civil law.
Furthermore, when the consuls were abroad in the wars, to the end that the city might not be destitute of governors during their absence, the people created for themselves two officers, called prætors, and these had power given to them, of adding to, or supplying and correcting the civil law of the Twelve Tables; and were wont to propound certain edicts, which, being approved by the people, were incorporated into the civil law, and were called jus prætorium, or the prætorian edicts.
Also the Ædiles curules in some cases did establish laws; but as their office, so also their edicts, were but for the year; and therefore at first they were called annual edicts, until the time of the Cornelian law, which made them perpetual, and thenceforth they were called perpetual edicts. These were digested and put into order by Salvius Julianus, under the emperor Adrian, and illustrated by the commentaries of the Roman lawyers.
These were the component parts of the Roman civil law, whilst their state continued republican. After the government was transferred into the hands of the emperors, two other branches were added, to wit, the constitutiones principum, or imperial constitutions, and the responsa prudentum, or answers of the lawyers.
For after the administration was by the lex regia granted by the people to Augustus; whatsoever the emperor ordained by his epistle, or commanded by his edict or proclamation, or decreed on the cognizance of any matter coming before him in judgment, had the force of a law, under the style and title of an imperial constitution. And these constitutions were sometimes called placita principum; because they were such as the prince or emperor was pleased to ordain according to his discretion.
Next to the imperial constitutions, were the responsa prudentum under the emperors. The responsa prudentum during the times of the republic were delivered without the sanction of public authority, and made part (as was said) of the jus non scriptum. But under the emperors after Augustus, no person was suffered to deliver answers concerning the law, but those to whom the emperors gave commission; and to their answers the judges were obliged to conform. And these do constitute a part of the us scriptum, or written law.
The imperial constitutions aforesaid, in the space of five hundred years, from Augustus to Justinian, grew to so immense a bulk, that the lawyer Gregorius thought fit to make a digest thereof, from the time of Adrian, or (as others say) of Augustus, down to the reign of Dioclesian; and this he did by his own private authority, and from him the Gregorian code had its name and original.
The second code which we read of, was that of Hermogenes, who lived in the age of the Constantines; wherein were comprized all the imperial constitutions of Claudius, Aurelius, Probus, Carus, Carinus, and that vast number of constitutions made by Dioclesian and Maximian.
The next code was that of the emperor Theodosius the younger, who caused the same to be compiled after the manner of the foregoing codes; containing the constitutions of the emperors from the time of Constantine down to Theodosius’s own reign; and this collection from him was called the Theodosian code.
But in these three codes there was nevertheless so much confusion, contradiction, and superfluity, that Justinian judged a revisal and correction thereof to he very necessary.
And therefore from these three codes of the imperial constitutions, and also from such new constitutions as had been made and published after the compiling of the Theodosian code, the emperor Justinian caused a new code to he compiled, which from him was denominated the Justinian code. Which code he afterwards caused to be revised and corrected in many particulars, and re–published; and that code we have now extant at this day.
After which he caused in like manner the responsa prudentum, consisting of some hundred volumes of the writings of the Roman lawyers, to be digested and abridged; and this he called the digest or pandect, as containing all the decisions collected from the questions and resolutions of the ancient Roman lawyers.
And from this digest or pandect, and likewise from his own code and other commentaries of the ancient lawyers, he caused also his book of Institutes to be compiled, which containeth the elements of the Roman law, written in an elegant and easy flowing style.
Last of all he published his novels, which novels (novellæ) were new constitutions made by Justinian himself, after the publication of the other books; and these are sometimes called the authentics, to distinguish them from some other publications of constitutions of the succeeding emperors, which are not respected as of much authority. And generally, the whole civil law in use at this day, is comprised in those four books of Justinian; the Code, the Digest, the Institute, and the Novels.
The greatest part of this island was governed wholly by the civil law for about three hundred and sixty years, from Claudius to Honorius; during which time, some of the most eminent Roman lawyers, as Papinian, Paulus, and Ulpian, whose opinions and decisions are collected in the body of the civil law, did sit in the seat of judgment in this nation. But after the declension of the Roman empire, the Saxon, Danish, and Norman customs took place.
Nevertheless, in after times, the same law again came to be of great repute within this kingdom; particularly during all the time from the reign of king Stephen to the reign of king Edward the third, both inclusive. During which period, and at other times according as the study of the civil law prevailed, the judges and professors of the common law had frequent recourse to it, in cases where the common law was either totally silent or defective. And thus we see in the most ancient books of the common law, as Bracton, Thornton, and Fleta, that the authors thereof have transcribed, one after another, in many places, the very words of Justinian’s institute.
And there are some particular matters in which the civil law hath always been, and still is allowed to be, the only law in England, whereby they are to be decided; and the courts of justice which have cognizance of those matters, do proceed therein according to the rules and forms of the civil law.
Thus in the High Court of Admiralty (which was established about the time of king Edward the first), all causes civil and maritime are to be decided according to the civil law, and the maritime customs.
Thus in the Court of Honour or Chivalry, the Lord High Constable and Earl Marshal, who are the judges thereof, are to proceed according to the civil law, as being the most proper law for deciding all controversies arising upon contracts made in foreign countries, deeds of arms, and of war out of the realm, and things that pertain to war within the realm, and other matters whereof that court hath the proper cognizance.
So also in the two Universities; the courts which are there held for determining suits to which the scholars or members of the universities are parties, do proceed according to the rules of the civil law.
The Courts of Equity also are in many things conformable to the rules of the civil law; of which the chief is, the High Court of Chancery. There suits are commenced by petition or bill; witnesses privately examined, and nothing is there determined by a jury of twelve men, but all the decisions are made by the Chancellor. And almost all the Chancellors, from Becket to Wolsey, that is to say, from the age next after the conquest until the age of the reformation, comprehending almost the whole time of the pope’s domination within this realm, were ecclesiastics, well skilled in the Roman laws.
And, finally, in all the ecclesiastical courts within this kingdom, although the canon law is the foundation of their proceedings, yet the canon law being in a great measure founded upon the civil law, and so interwoven with it in many branches thereof, that there is no understanding the canon law rightly without being very well versed in the civil law; the knowledge thereof is therefore absolutely necessary for the dispatch of all causes of ecclesiastical cognizance. And the civil law not only serves to explain the canon law; but, by the practice of all ecclesiastical courts, it is allowed to come in aid of and to supply the canon law, in cases which are there omitted. And how necessary and useful the civil law is in this respect, doth evidently appear from the commentaries of Lindwood and of John de Athon, upon the provincial and legatine constitutions.
II. The Canon law sprang up out of the ruins of the Roman empire, and from the power of the Roman pontiffs. When the seat of the empire was removed to Constantinople, many of the European princes and states fell off from the dominion of the emperors, and Italy amongst the rest. And the bishops of Rome, having been generally had in esteem as presiding in the capital city of the empire, began to set up for themselves, and by degrees acquired a temporal dominion in Italy, and a spiritual dominion throughout Italy and almost all the rest of Europe.
And thereupon the several princes and states, did willingly receive into the body of their own laws, the canons of councils, the writings of the holy fathers, and the decrees and constitutions of popes.
Concerning the canons of councils, it was established by Justinian himself, that the canons of the councils of Nice and of Constantinople, of the first council of Ephesus, and of the council of Chalcedon, should be observed for laws; and that their decrees, as to matters of faith and doctrine, should be esteemed even as the holy scriptures.
After Justinian, the authority of canons made in general or provincial councils, and of the writings of the fathers, still prevailed; and the decision of ecclesiastical controversies, which could not be drawn from the councils and the fathers, was sought for from the Roman pontiffs, who want answers to those that consulted them, in like manner as the Roman emperors; and their determinations were called rescripts and decretal epistles, and obtained the force of laws.
More particularly, of the canon law there are two principal parts, the decrees and the decretals.
The Decrees are ecclesiastical constitutions, made by the pope and cardinals, at no man’s suit. These were first collected by Ivo, in the year 1114. And afterwards polished and perfected by Gratian, a monk of Bononia, in the year 1149.
The Decretals are canonical epistles written by the popes alone, or by the pope and cardinals, at the instance or suit of some one or more, for the ordering and determining of some matter in controversy; and have the authority of a law in themselves.
Of the Decretals there are three volumes. The first collected by order of Gregory the ninth, about the year 1231. The second by Boniface the eighth, about the year 1298. The third made by pope Clement the fifth, and from him called the Clementines, and published by him about the year 1308.
To these may be added the Extravagants of John the twenty second, and of some other bishops of Rome, whose authors or collectors are not known, and are as novel constitutions unto the rest.
So that the popes did the same in the church, which Justinian did in the empire; they took order to have Gratian’s decrees published in the manner of the Pandect; the decretal epistles, like as the Code; the extravagants, in the nature of Justinian’s Novels; and that nothing might be wanting, Paul the fourth ordered an institute of the canon law to be written by John Lancellot, which was added to the body of the canon law, printed at Rome under Gregory the thirteenth.
There were also as many commentators on the canon, as on the civil law.
And thus both the civil and the canon laws became in some considerable degree received throughout all christendom; affording mutual help and ornament to each other.
And the rule in interpreting them was this: If a case happened, which was either not at all determined in the civil law, or not expressly, but doubtfully and obscurely, and the same was plainly and clearly delivered in the canon law: the decision thereof was taken from the canon law: and on the contrary, where in the canon law there was no direction, or the same was ambiguously or obscurely expressed, the decision thereof was taken from the civil law: and if in any case the civil and canon laws did interfere, and were contrary to each other, the civil law was to be observed in the civil law courts, and the canon law in the canon law courts; the civil law within the emperor’s dominions, and the canon law within the pope’s dominions. And in the courts of civil law, where a matter of canon law cognizance came in question, the same was there determined according to the rules of the canon law; and in the courts of canon law, where a matter of civil law cognizance came in question, the same was determined according to the rules of the civil law.
And particularly, that the canon law in many instances was received here in England, appeareth clearly from hence; namely, for that very many of the decretal epistles of the popes are directed hither, upon controversies arising in this nation.
Besides the foreign canon law, we have our legatine and provincial constitutions.
The legatine constitutions were made and published within this realm in the times of Otho, legate of Gregory the ninth: and of Othobon (afterwards pope Adrian the fifth), who was legate here to Clement the fourth. And these are illustrated by the learned comment of John de Athon.
These legatine constitutions did extend equally to both provinces, having been made in national synods or councils, held here by the respective legates.
The provincial constitutions were made in convocation in the times of the several Archbishops of Canterbury, from Stephen Langton to Henry Chichely; containing the constitutions of those two archbishops, and of these several archbishops intermediate, to wit, Richard Wethershed, Edmund of Abingdon, Boniface, John Peccham, Robert Winchelsey, Walter Reynold, Simon Mepham, John Stratford, Simon Islepe, Simon Langham, Simon of Sudbury, and Thomas Arundel. These were collected and adorned with the learned gloss of William Lindwood, official of the court of Canterbury, and afterwards bishop of St David’s in the reign of king Henry the fifth. Which constitutions, although made only for the province of Canterbury, yet were received also by the province of York in convocation, in the year 1463.
There were other constitutions of divers prelates, both before and after; but these which have been mentioned, having been introduced to public notice by the two learned canonists above–named, have been principally regarded.
The Civil Law.
In former times, (says Dr. W. Strahan), when the Civil Law was more universally known and studied here in England than it is at present, the judges and professors of the common law had frequent recourse to it in cases where the common law was either totally silent or defective. Thus, we see, in the most ancient books of the common law, as Bracton, Thornton, and Fleta, that the authors thereof have transcribed, one after another, in many places, the very words of Justinian’s institutes. And sometimes the judges upon the bench, in delivering their opinions, have quoted the rules of the civil law as the foundation of their opinions; which Mr. Selden, in his dissertation on Fleta, has clearly demonstrated from the annals of those times. So that the sages of the law in those days were sensible of the good use that might be made of the reason of the civil law, in aid and subserviency to the common law of the land, as other nations make use of it at this day.
And besides this general advantage that is to be reaped from the study of the civil law, we are not to look upon it altogether as a foreign commodity with respect to this island; some of the particular laws thereof having been enacted for deciding controversies which arose here in England, and bearing date from this country. The greatest part of this island was governed wholly by the civil law for the space of about three hundred and sixty years; to wit, from the reign of the emperor Claudius, to that of Honorius; during which time some of the most eminent among the Roman lawyers, as Papinian, Paulus, and Ulpian, whose opinions and decisions are collected in the body of the civil law, sat in the seat of judgment here in England, and distributed justice to the inhabitants. But after the declension of the Roman empire, the Saxon, Danish, and Norman customs took place in the island, according as the said nations became masters of us, every one being fond of introducing their own customs.
Having elsewhere mentioned the several courts where the civil law is allowed to be not only of use, but of force and authority here in England, by virtue of the sanction which it has, not from the Roman emperors, the first authors thereof, but from our own kings, who have since received it as law in certain matters; I must beg leave to consider how far the reason and equity thereof may be of service in other courts where it has not the force and authority of law. And I cannot but think that in all courts of equity, where the rigour of the common law is to be mitigated by the rules of equity, the knowledge of the civil law must be of great service. For, as I have already observed, it is there, and no where else, that we have the fullest and most perfect collection of the general rules of natural reason and equity, applied to all the various transactions and intercourses between man and man. If therefore one were to judge what is just and equitable in a cause depending between parties, would it not be a great help towards forming a right judgment therein, to enquire into the general rules of equity touching the said matter, which have been laid down and established by the most eminent lawyers that ever lived in any age, and to see how they have applied them in the like cases? Can it be imagined, that the reasonings of those great men upon cases of the like nature, will not give great light, and contribute very much towards forming an equitable decision in matters which are to be determined upon the principles of equity, and not according to the rigour of the law. How far therefore these rules of equity, which are collected in the body of the civil law, may be useful in the High Court of Chancery, whose proceedings are according to equity, is what I humbly submit to the great wisdom and experience of the learned judges, and others who are best acquainted with the practice of those Courts.
And if this knowledge of the rules of reason and equity can be of service in the Inferior Courts of Equity, it cannot be less useful and necessary in the Supreme Court of Equity of the kingdom, which is that of the lords assembled in parliament. It is to that high tribunal that the subjects have recourse, in order to obtain an equitable redress of the grievances which they pretend to have had done them by the Inferior Courts. And the lords who compose that august assembly, and who are the supreme judges of the property of the subject, cannot be supposed, by reason of their high rank and quality, and their frequent avocations upon account of the weightier matters of government to apply themselves to that minute study of the law which is expected from other judges. And therefore seeing they have frequent occasions to act in a judicial capacity, it is the more necessary that they should be acquainted, at least with the general rules of reason and equity, which may help to guide them in the judgments which they give in matters of private property that come before them.
And if we consider the said body in their legislative capacity, as having under their direction the arduous matters of state, and especially such as regard the intercourse between us and other countries; the knowledge of the law of nations, which is built upon the civil law, is absolutely necessary in deliberations of this kind, that no resolutions may be taken in such matters but what are agreeable to the principles of the law of all nations. And it was upon this account, that, according to the ancient custom and usage of parliament, the Masters of Chancery, who formerly were civilians, were summoned, with the judges of the realm, to give their assistance and attendance in the Upper House of Parliament. For as the judges of the realm were to give their counsel and advice, when required, in matters which depended on the laws of the land; so the Masters of Chancery, who were skilled in the civil law, and the law of nations, were often consulted in matters which depended on those laws.
There is likewise another court, where I humbly conceive that the knowledge of the civil law may be of service for determining matters that come before it; and that is, the King’s Privy Council; which is a court of justice in some respects, as it is in others a council with which his Majesty is graciously pleased to advise and consult in matters relating to the public. It is a court of justice, wherein his Majesty is pleased finally to determine some matters of private property; as particularly, all matters of prizes taken from an enemy in time of war; in which the appeal lies from the High Court of Admiralty to the king in council. And these causes are to be judged by no other law but the civil and maritime law. The Privy Council is likewise a court of justice for the final determination of all appeals that come from the English plantations in America, from the isles of Jersey and Guernsey, and other places. In all which causes the rules of equity collected in the body of the civil law, must be of service to judge of the equity of the sentences which are complained of; but more especially in the causes which come from the isles of Jersey and Guernsey, where the proceedings in their courts of judicature have a great conformity with the civil law. And the customs of Normandy, which are the law by which those islands are governed, are not only illustrated and explained by the civil law, but many times the aid of the civil law is there invocated as a rule for deciding cases which are not expressly regulated by their own customs, as appears from the commentaries of Rouille, Terrien, and others, on the said customs.
Having seen in what cases the civil law may be useful, if not necessary, for determining some matters that come before the Privy Council as a court of justice; I must beg leave to consider how far it may be useful in the other matters that come under the deliberation of that august assembly, as a council to his Majesty for the affairs of state. It is by their counsel and advice that his Majesty steers the helm of the government. It is there that all treaties of peace and commerce with foreign states and potentates are examined and considered. As to what regards the internal policy of the state, for maintaining peace and quiet in society, for procuring plenty of all things necessary to human life, for encouraging manufactures within ourselves, and promoting a beneficial trade with our neighbours; although all these things depend in a great measure on the frame and constitution of our own government, on the soil and climate of the country on its situation for trade, and on the natural temper and disposition of the inhabitants; yet in order to improve these to the best advantage, I cannot but think that it may be of service to know what laws the Romans, the greatest and most flourishing commonwealth that ever was, thought fit to enact for promoting trade and manufactures within themselves, and for the government of their colonies in foreign parts, to preserve them in a due subjection, and to make them useful and subservient to the seat of the empire from which they derived their origin, and to which they owed their protection; all which laws are collected in the body of the civil law, and may be usefully applied by us on many occasions.
But as to what concerns the outward policy of the state, that is, the intercourse which it must have with other states and princes, I humbly conceive that the knowledge of the civil law must be of singular use in all transactions of that kind. For the civil law being in so great esteem and veneration among all other nations, that they make it the rule and standard of equity in all cases which are not expressly provided for by their own particular laws and customs, what more effectual arguments can be used to obtain justice from them in an amicable way, than those which are founded on the principles and maxims of the civil law? It is arguing with them upon their own principles, from maxims of their own law, and the law of all nations, which is the most effectual way to convince them by reason. And it was in consideration of this, that our ancestors, in their great wisdom, thought proper to employ generally in all negotiations with foreign courts, and in treaties of peace and commerce, persons who were well skilled in the civil law, and law of nations. And although it was necessary on some occasions, and more particularly at solemn congresses for treating of peace, for the greater lustre and splendour of the embassy, to employ persons of the first rank and quality; yet, to ease them of the great weight of affairs, they were always accompanied by some person of an inferior rank, who being versed in the study of the civil law, and law of nations, might be aiding and assisting in the conferences which were to be held for settling and adjusting the respective interests of the several princes and states concerned. And this we see is the constant practice of all other nations at this day, who in their embassies for treaties of peace employ always at least one person who has been bred to the law; although this is the less necessary in foreign countries, where all the nobility in their studies at the university go through a regular course of the study of the civil law, and law of nations; by which means they lay such a foundation, as to be able afterwards from the principles thereof to assert and defend the interests of their country, whenever their prince is pleased to employ them in affairs of that kind.
In matters of intercourse between one nation and another, we have no other law to go by but the law of nations. And this law of nations is chiefly grounded on the rules and maxims of equity which are laid down in the civil law, and which have been received by most nations as the rules of justice between one nation and another. So that to understand the law of nations thoroughly, and to be able to comprehend the reasoning of the authors who treat thereof, it is absolately necessary to have some knowledge of the civil law, as one may easily perceive by looking into Grotius, Puffendorf, and other authors who have written on that subject.
Among other advantages which may be reaped from the study of the civil law, I must not omit to take notice how serviceable it may be in the government of the English plantations. For if we consider them with respect to the trade and commerce which they drive in Negroes, the civil law furnishes them with an ample detail of rules for regulating that commerce, both as to the buying and selling of slaves, as a merchandise, the property which their masters have in them, and the redress which the slaves ought to have in case of any cruel or barbarous usage from their masters. If we view the said colonies with regard to their own government within themselves; the civil law supplies us with many precedents of excellent laws made by the Roman emperors, for securing the inhabitants of their colonies against the oppressions and extortions of their governors. If we consider the said colonies with respect to their settlements, and the intercourses which they are obliged to have with the neighbouring nations, it is by the principles of the civil law, and the law of nations, that they must assert and maintain their rights and privileges.
And I must observe here in relation to the English colonies upon the continent of America, that there is a very great affinity between them and the colonies of the Spaniards, and other nations, who have made settlements among the Indians in those parts. For the grants made by our kings of tracts of land in that country, for the planting of colonies, and making settlements therein, appear to have been made in imitation of the grants made by the kings of Spain to the proprietors of lands in the Spanish colonies, upon the very same conditions, and in consideration of the same services to be performed by the grantees. So that the government of the Spanish colonies, and the rights of the proprietors of lands therein, depending chiefly on the rules of the civil and feudal laws; as may be seen by the learned treatise of Solorzanus, De Indiarum Jure, the knowledge of the said laws must be of service likewise for determining any controversies that may arise touching the duties, or forfeitures, of the proprietors of lands in our English colonies.
I have made these few remarks, only to shew in what particulars the civil law is, and may be of use here in England, and how we may reap the same advantages from it which other nations do, without any danger to our own municipal laws. Our ancestors were so sensible of the great importance thereof, both in private and public affairs, that, besides the public professors established in the universities for teaching this science, and who have salaries allotted them by the beneficence of our princes, many of the private founders of Colleges have in their endowments set apart particular fellowships, as an encouragement to persons to study it.
on the REFORMATION OF JURISPRUDENCE.
The Deity and his will are the sole original sources of just authority, legislation, and government. From these are derived all legitimate subordinations among men; by these, they continue to subsist, and into these they must be ultimately resolved.
Divine law, revealed, and natural, written and unwritten, has enjoined it upon kings and governors, both ecclesiastical and civil, as one of their primary duties, not only to improve their own talents and capacities to their utmost capability, but to extend the blessings of profound and varied instruction through all classes of the community. And this, upon the assurance that useful knowledge would be both refined and augmented in exact proportion to the number of its true and sedulous students. Hence the legitimate monarchs and directors of nations have not only endeavoured to regulate the institutions of church and state in such a manner that their respective officers may receive fresh accessions of individual and social intelligence, but they have also provided universities, colleges, and schools, wherein each succeeding generation may progressively take advantage of the experience accumulated by their predecessors. And this, in the descending scale of age and rank, through all the gradations of society.
We say, the decending scale of age; for, politically considered, every man is entitled to precedence according to priority of birth and seniority of years. The elder members of the Commonwealth, who came into the world earlier, possess a relative and comparative priority over their juniors, who came into the world later. And thus, if we consider the races of men according to their respective genera and species, the parent stocks must necessarily rank higher than the derivative offspring; and the elder branches of kindred sway the younger. By this doctrine, the whole system of lenial and collateral descents is governed, from the royal family downwards, as well as the whole system of national education, whose end is to provide the commonwealth with loyal and serviceable subjects.
The case, however, is reversed, if we consider man independent of his relations to society; as a member to a body, or a part to a whole; for when thus beheld, as a segregate and abstract individual, we find that his oldest years are in fact his youngest; and vice versa. It was this reflection, which tempted Wordsworth to say, “the boy is father to the man;” and this reflection must enter largely into every system of individual education, where the formation of sound character, the great end of all education, is philosophically attended to.
The religious and philosophical governors of church and state have therefore been especially careful to institute universities and colleges, beneath ecclesiastical superintendance, in the neighbourhood of capital cities; well knowing that such institutions were necessary to provide proper officers for the various service of the commonwealth; and to give consistency and efficacy to all the scholastic establishments scattered over the face of the country.
It would be altogether foreign to our purpose on the present occasion, to occupy your attention with a history of the various collegiate bodies established over Europe; a detail of the comparative merits or demerits of their internal economy. Suffice it to say, that the most venerable and serviceable of these institutions have usually been placed under the superintendance of illustrious divines, who always endeavoured (till of late years) to connect religion with all secular sciences and polite accomplishments, to reduce the whole mass of moral, intellectual, and sentimental accomplishments into one harmonious system, and to make them all subservient to the cause of loyalty and patriotic usefulness. Such colleges were fairly termed universities, for they embraced the universal cyclopædia of sacred and profane literature, ancient and modern. In these, a youth might enjoy the privilege of accomplishing himself in all things that could become a scholar and a gentlemen. He might traverse the broad firmament of science, where so numberless are the stars that to the eye “they make all but one galaxy;” he might fathom all the depths and shoals of philosophy, and catch bright glimpses of her heaps of pearl, inestimable jems, unvalued jewels; and he might accumulate sympathies, glorious and full of gratulation, from all the noblest spirits that ever visited the earth.
Many of the modern colleges, however, have wilfully and widely receded from the ancient pattern. Several of them have thus forfeited their right to the name “University,” however they may choose to usurp it. Those, certainly, can have no just claim to it, which reject religion from the course of their discipline; that forget to instruct their pupils in those mighty principles of eternal and immutable morality which sway the majestic universe of angels and men, and knit into one loyal commonwealth all serviceable spirits dispersed through the nature of things. Neither can those lay claim to it, which omit a deep and capacious study of natural and national jurisprudence,—that study which so gloriously unfolds and aggrandises the human mind, and prepares us perpetually to ameliorate the laws of our country: that study, which is so infamously neglected in Great Britain, and for want of which, our island is fast becoming a political Babel.
Believe us, it is no small loss, to lose our mental congeniality with the devotion of the mighty dead, and the loyalty of our renowned ancestry. If we lose it, we lose the glory of our name and our birthright; we lose that noble sympathy for departed greatness which forms the “soul’s calm sunshine;” we lose the key which unlocks all mysteries, and enables a man to become “not one, but all mankind’s epitome.”
But so it is; Tempora mutantur et nos mutamur in illis. From the bosom of antique devotion and patriotism (heu pietas heu prisca fides) has sprung up in modern times a mighty schism of thorough bred and absolute secularians; who, casting aside whatever was deemed pure and transcendent in the innate philosophy of men, and bursting all the ties that bound our ancestry to the intelligible universe of invisibles, have confined their eager and impetuous energies to physical relations alone; and thus having dethroned the great God of our faith, exalted in his stead the idols of Mammon and Materialism. Alas! they have lost sight of that prime truth, which pervades all religion and philosophy, that the things which are seen are temporal, while the things which are not seen are eternal, (invisibilia non decipiunt, visibilia plenissima falsitatis). And consequently, they have fallen away into a temporary apostacy from the diviner principles of our nature, for nothing seperates men so widely from the great community of free minds as the sacrifice of moral cultivation to secular passion.
One of the first who contemplated the full extent and perilousness of this portentous schism was our illustrious statesman Burke. He was not only the best political philosopher of his day, but the terrible sagacity which informs the poet’s heart was all his own. He possessed the vision, and the faculty divine, in a larger measure than any British orator. Like some of the renowned lawgivers of antiquity, Burke was not only a legislator but a prophet. The profound verity of his arguments was long concealed beneath the dazzling environment of his eloquence. The intensity of conviction excited by the former was too long eclipsed by the intensity of admiration enkindled by the latter. But posterity has had more leisure to examine, and more experience to prove; and the celebrated passage, in which Burke gives his view of that revolutionary schism of which we speak, has often been repeated with veneration by his patriotic followers.
The age of chivalry, (says Burke) is gone; that of sophists, economists, and calculators has commenced; and the glory of Europe is extinguished for ever. Never, never more shall we behold that generous loyalty to rank and sex, that proud submission, that dignified obedience, that subordination of the heart, which kept alive, even in servitude itself, the spirit of exalted freedom. The unbought grace of life,—the cheap defence of nations,—the nurse of manly sentiment and heroic enterprize, is gone. It is gone:—that sensibility of principle,—that chastity of honour, which felt a stain like a wound; which inspired courage while it mitigated ferocity; which enobled whatever it touched, and under which, vice itself lost half its evil, by losing all its grossness.
But now, all is to be changed. All the pleasing illusions which made power gentle, and obedience liberal; which harmonized the different shades of life; and which, by a bland assimilation, incorporated into politics the sentiments which beautify and soften private society, are to be dissolved by this new conquering empire of light and reason. All the decent drapery of life is to be rudely torn off. All the superadded ideas furnished from the wardrobe of a moral imagination, which the heart owns and the understanding ratifies, as necessary to cover the defects of our naked, shivering nature, and to raise it to dignity in our own estimation, are to be exploded as a ridiculous, absurd, and antiquated fashion.
In this essay all that can be expected of us is to define the proper sphere of Jurisprudence, to show its connection with other sciences; and to trace its applications to the present conditions of society.
We have said that Divinity and Theological Philosophy are the parents of Jurisprudence; and if this intimate relation be lost sight of, both sciences will suffer detriment. Divinity itself is nothing else than Divine Jurisprudence, or the Law of God, as displayed in the government and redemption of souls. Hence, the Old Testament is denominated the law of faith and works; and the New, the law of faith and love. The one especially applying itself to the moral and intellectual faculties that occupy the spaces of philosophic research, and the other, to all the affections of the heart, the sentiments and feelings, that have their outgoings in universal benevolence.
Most of our readers are probably aware that one of the eldest titles of the divine mind or intelligence was “the Just.” The attribute of justice and right law, has in both the covenants been expressly given to Jehovah and our Saviour. In the classics, no epithet is more frequently ascribed to Jove, than that of the “just judging;” and thus, most of the male and female divinities, that regulated justice and law, are the immediate sons and daughters of Jupiter.
Hence, we discover the reason why Moses, the legislator of the Jews, is so often represented as a personification and image of the Judge of all the earth. In the ancient world the theocratic legislators of the nations were supposed to be paternal representatives, and vicegerents of the unseen Deity of Justice. In many instances, their names appear to be alike significant of that eternal lawgiver, whose prototypes they were, and whose way they were destined to make ready. Justice was with them a living and inspiring presence, an informing divinity, who sat beside them in the judgment seat, and noted their words in the book of fate. All its regulations were full of the vital energies of truth, and from it proceeded, in dazzling and interminable succession, the long series of beautiful dependences, which are called the laws of philosophy, and science, and art.
These ancient legislators seem generally to have adopted the practice of associating the transcendental ranges of jurisprudence with the system of initiations, and their symbolic mysteries. That this was the case in the Mosaic institutions, we have the testimony of universal tradition: the New Testament itself puts the question beyond a doubt. Throughout the whole law, there existed a spiritual and intellectual signification, of which the literal description was symbolic and emblematical. The discovery of this spiritual and ideal meaning, was the chief employment of the schools of the prophets, and gave rise to the initiatory rites of the Cabalistic Essenes and Rabins, with which the oriental and western initiations so closely correspond.
The sublime kind of jurisdprudence which was involved in the mysteries of initiations was a selection of those principles of theologic and mythologic science, which immediately related to the divine origin and lapsed condition of souls, and the inherent elements of moral obligation in that degree of liberty of action allowed in this fallen state. Thus the jurisprudence taught in the mysteries, ran parallel with the great scheme of religion: from this it derived all its dignity, and the main part of its interest and utility.
That these great principles of truth are common to the religion and jurisprudence of every ancient nation, may easily be proved by a comparison of the various codes of laws. All alike begin with the manifestation of the divine nature, the genesis or theogony of the various divinities that preside over destiny, the conflict of good and evil spirits, the recovery of souls loyal to the former, and the ruin of those that adhere to the latter. A large portion of this primitive jurisprudence may yet be restored by a careful comparison of the several ancient codes, and that traditional knowledge of the mysteries which has survived the revolutions of society.
Some curious instances of the extent of signification, which was once vouchsafed to jurisprudence, yet remain.
Thus, says Philo, in his Commentary on Genesis, Moses’s law beginneth with the creation of the world, the world harmonizing with the law, and the law with the world. A man of the law being, therefore a cosmopolite, or citizen of the world, ordereth his actions according to the directive will of nature, governing the universe of things. Thus, says Eusebius, the ancients supposed the universe to be one great city, placed under the authority of the divine law, which was the common property of gods, archangels, angels, demons, genii, heroes, and men and animals. Who is not elevated, says Cicero, and possessed with reverence and fear, when God, and the genii about him and above him, inspectors and rectors, are in his thoughts? And on the other side, who contemneth not avarice, and divesteth himself of sordid cares, when he encompasseth himself with the world as his city and country? We have not enclosed ourselves, says Seneca, with the walls of one city, but with a generous greatness of mind, have enlarged ourselves to the whole world’s commerce, to give more room for the exercise of virtue.
By degrees, however, the term Jurisprudence has assumed a more definite signification; and if we were now asked for a definition, we should call it “the science of the divine law, as applied to the ecclesiastical or canon law, the law of nature and nations, politically considered, and the civil and criminal laws of particular states.” It will thus appear to bear directly on all moral metaphysics, as well as on political economy; and it will frequently touch on the physical sciences so far as they are connected with legislative institutions. And, thus the study of jurisprudence gives us possession of the legitimate key which unlocks the mysteries of divine and human discipline.
We cannot be surprised that so exalted and so extensive a science should have received the eulogies of the most eminent men of all ages. The science of Jurisprudence (says Burke) is the pride of human intellect, which with all its defects, redundancies, and errors, is the collected reason of ages, combining the principle of original justice with the infinite variety of human concerns. There is not, in my opinion, (says Sir James Mackintosh) in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence,—where we may contemplate the cautious and unwearied exertions of a succession of wise men, through a long course of ages withdrawing every case as it arises from the dangerous power of discretion, and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting, within the narrowest possible limits, the domain of brutal force and arbitrary will.
In this essay, we can only just allude to the names of the authors who have best illustrated the various branches of jurisprudence, to whose works we refer the student. The divine law contained in the scripture, that primary source of all jurisprudence, confirmed by the natural conscience, reason, and affection of men, has been very largely unfolded by many writers. It has engaged the traditional and cabalistic lore of the rabinical doctors, the philosophic subtlety of Philo, and the historical diligence of Josephus. The Christian fathers, especially Origen, Augustine, Gregory, Chrysostom, and Dionysius, have lent it many valuable illustrations. Nor are the Gnostical and Platonic writers, whose doctrines are so widely scattered over the Eastern world, devoid of useful exposition. In modern times, many excellent commentators have endeavoured to collect the scattered lights of Biblical interpretation, and to reconcile the figurative language of scripture with the concurrent mythology and political philosophy of the primitive legislators. Not to mention the professed commentators, whose works may be found in Horne’s critical introduction to the study of the scriptures, and the numerous classed catalogues, it may suffice to cite the names of Menochius, Selden, Spencer, Leydecker, Cunæus, Conringius, Hottinger, Lipsius, Godwin, Michaelis, Pastoret, and Lowman.
But every year enables us to extend a more enlarged and philosohic system of interpretation, with regard to the law and policy of the Hebrews. We are learning to expand and diversify the symbolic terms and metaphors in which they are conveyed, in order to reconcile them with the new discoveries of ancient institutions in general. And we believe the time is not far distant, when, escaping from the literal tramels of scholastic expositors, and the licentious neologigism of conceited sceptics, we shall behold the majestic lineaments of divine jurisprudence evolved from the pages of revelation, and reduced to a beautiful harmony with the scattered elements of truth.
We cannot leave this department of our subject, without noticing a few of the illustrious men who have striven to blend the sacred laws of the bible and the fathers with the laws of ecclesiastical and national policy and civic economy in general. Such were Bossuet, Menochius, Buddeus, Burnet, Baxter, Hall, Whiston, Croxal, Malby, Grave, Bates, Bathurst, Milton, Lawson, Bathurst and Yates.
The first applications of divine jurisprudence are to be found in the goverment of the church. In this, consists the chief value of the ecclesiastical or canon law, that it forms the connecting medium between sacred and secular legislation, and affords us much useful instruction relative to the secret history of political revolutions. There are many distinguished writers on the ecclesiastical laws, as Budeus, Fleury, Hooker, Disney, Gibson, Ayliffe, Ecton, and Burn. But the Ecclesiastical laws have been shamefully neglected in Great Britain, to which we may partly impute the disorders in church policy and popular morality. The critical positions in which the church has been placed, have often revived this study, and the enquiries at present set afloat will probably awaken public attention.
The next application of jurisprudence, is to the law of nature and nations. This forms the deep and inexhaustible lake and reservoir from which all the streams of law spring forth and divide themselves. This science has always been a special favourite among free peoples. The oriental and classical worlds have rivalled one another in composing philosophical treatises on this majestic subject. Almost all the great writers of antiquity have more or less illustrated the law of nature and nations. It flourished in all the periods of light and liberty, but its very existence became problematical during the long eclipse of the dark ages.
At length, however, the genius of divine religion re–appeared among men, and with her, as her constant associate, the genius of jurisprudence. The causes of this sudden revival are too profound and complex to be even touched upon in this brief sketch. But so it was. The law of nature and nations arose with a glorious resurrection, and the rights of war and peace were known and read of all men.
The reduction of the law of nations to a system (says Sir James Mackintosh, in his celebrated discourse on the Law of Nature and Nations), was reserved for Grotius. It was by the advice of Lord Bacon and Peiresc, that he undertook this arduous task. He produced a work which we now indeed justly deem imperfect, but which is perhaps the most complete that the world has yet owned, in so early a stage of the progress of any science, to the genius and learning of one man.
The fervent interest that was thus awakened for the law of nature and nations, has never been allowed to languish. For many years past, Italy, Germany, France, and Great Britain, have been prolific of talented men who have emulously devoted their talents to the completion of this enobling science. The terrible revolutions of empires, and the immence accumulations of art, have alike adorned it with the most brilliant illustrations, and wherever it borrows the voice of patriotism or eloquence, all men confess its charms. Some of the principal authors who have best advanced this study, are Grotius, Cumberland, Puffendorf, Wolfius, Vatel, Bodin, More, Harington, Sidney, Barclay, Clarenden, Burlamaqui, Falangieri, Bielfield, Real, Bentham, Constant, Savigny, and Lerminier.
The next application of jurisprudence, is extended to the civil and municipal laws of individual states. In this department also, the accumulations of literary research are vast and diversified. The laws and policy of the ancient Asiatic nations, have received many beautiful illustrations from the translations of oriental scholars. Those of Greece and Rome are most elaborately laid open to the legal student, and their curious and intricate combinations with the Gothic and the Celtic jurisprudence, and the laws of the barbarians generally, are matters of familiar inquiry. What a magnificent field of research is thus thrown open to jurisprudence! This illimitable seience teaches us to become cosmopolites of the universe, and naturalizes us in every empire and every principality, by a kind of intellectual ubiquity. We seem to take possession of all ages and all nations. Syria and Egypt, Persia, India and China, Greece, and her matchless islands, Rome, Germany, Gaul, and the peninsula, are equally tributary to our science; and when we return from our long and triumphant march through all foreign kingdoms, we return laden with all the spoils of experience, and devote them to the glory and illumination of our native Britain. The authors who have illustrated these topies are so well known that it is superfluous to cite them. It is enough to mention the names of Gravina, Terrasson, Fernier, Halifax, Bever, Taylor, Domat, Ayliffe, Wood, Pastoret, Barret, Heeren, Ward, Montesquieu, La Croix, De Lolme, Pezron, Jones, Dumont, Sismondi, and Flintoff.
Such is the dignity and vastness of the high science of jurisprudence. We have endeavoured, as amply as the present occasion permits, to display its moral transcendency and the extensiveness of its historical relations. And if what we have advanced be true, none can fail to perceive how necessarily the study of jurisprudence must precede the profitable cultivation of national laws and political constitutions. On the new and fascinating speculations of political economy it also bears with peculiar force of adaptation; and, in fact, there is scarcely a branch of human philosophy or art to which it does not lend illustration, and from which it does not receive embellishment.
Men of the soundest judgments, men of the most gifted genius, men to whom we owe the glories of our church and state and all the blessings of our liberty, have alike consented to extol this solemn and sublime, this pure and beautiful science. They have left us their oracular sentence, that “in proportion as the science of law flourishes in a country, will that country be virtuous, free, and happy;” and their words have been verified by the experience of ages. Wherever we see men building on the sure foundations of divine and moral jurisprudence, we may predict with certainty that the legislative policy of such men will be honourable, consistent, and prosperous; and wherever we see men despising the profound and elaborate processes of jurisprudence, from which all wisdom is extracted, and rushing with reckless and impious haste on the post of political power, their schemes which commence in folly, will assuredly end in confusion.
Such is the irreversible rule, confirmed by a thousand examples, with which you are all familiar. The deep and devoted study of jurisprudence, is the sole legitimate pathway to political honours. It forms that universal precedent by which all political documents must be attested and examined. It is the only authentic pasport which can give us undisputed licence to range through the ample territories of civic and social chrestomathics.
If painful experience had not convinced us of the fact, it would appear well nigh impossible, that in the present advanced period of human history, christian patriots and sound philosophic jurists should be so very few and so much sequestered, and that too in a nation which undoubtedly contains more pious and learned men than any other. The cause of this strange anomaly must be sought either in the want of that moral courage which obeys the dictates of conscience with heroic determination, or a want of intellectual power to discern the proper methods of blending the different relations of truth.
In our parliament, however, other causes of this alarming deficiency are easily discoverable. The notorious popular error which sometimes impregnates the atmosphere of St. Stephen’s, that a member’s individual character as a christian gentleman may be sacrificed with impunity at the altar of political expediency. The preposterous absurdity of cashiering men, who by long processes of studious research and philosophic experience have fitted themselves for the leading offices of state, and of introducing a perperual alternation of unprincipled time–servers, into the very penetralia of legislation.
Jurisprudence is a vast and majestic science, having its roots deep–buried in theology, and interlacing its branches with all metaphysical and physical learning. How arduous and complicated must that science be which undertakes to regulate the economy of mighty nations, will be felt by those who have been called on to apply its doctrines to the common offices of society. Long years of laborious investigation are required to initiate us in its solemn mysteries; how then is it possible for the unfledged witlings of spurious and upstart popularity to touch its delicate machinery without impairing it? Alas! the world is conducted with so little of practical philosophy, that as little would inevitably bankrupt any private establishment whatsoever.
One of the most astounding proofs of the desperate ignorance of jurisprudence among many of our legislators, will be manifest to any one who considers the question of the union between religion and law, which they are now seeking to dissolve. Every lawgiver whose code has established the foundations of a state,—every author whose writings have enlarged its prosperity,—every patriot whose name is remembered with veneration,—have all alike indissolubly connected religion with the law, which depends on it. They felt that religion and morality formed the very elements of national existence, and the opposite vices, the very elements of national destruction. They knew that “righteousness alone exalteth a nation, and sin is the disgrace of any people.”
Now the main error by which our parliament has of late years deviated into evil, results from the utter confusion of this principle of ancient religion and law, of church and state, with certain formal abuses that have gathered round it. We conccive this reckless confounding between the use and abuse of union, between our ecclcsiastical and civil constitutions, has already done infinite mischief. It has more than any other cause degraded the Britons, from a church–loving, pious, loyal, and happy people, into a reprobate crowd of radical democrats and agitators. The dignified integrity, the manly plain sense, the Crassa Minerva, the jovial good fellowship of our buried ancestry, are forgotten, and nothing is to be heard but that eager controversy and recrimination which lead to every thing but virtue, or charity, or happiness.
It is, therefore, with peculiar jealousy that we regard the contest which has so long been carried on between that party of venerable and prudent statesmen who would preserve the essential advantages of our political institutions, by modifying their external formalities; and the great majority of those who are called demagogues whose hearts have been seduced, from loyalty and patriotism, who have lost their first love of our envied and unrivalled constitutions, and seek after the idle phantasies of false and ignorant speculators.
Our politicians may believe us when we assert, that there is in the providential government of the world, a golden mean, a just medium, which can never be neglected without injury. This medium lies between the divine element of religion, (for it is the theologic philosophy of jurisprudence) and the infinite variety of secular interests. If, when the religious principle is exalted above all the humanites of philosophy, it degenerates into enthusiasm or fanaticism; on the other hand, when degraded to too low a station, it loses its vital and consolatory efficacy, till seeking to recover its just ascendancy, it throws mankind into a state of confusion terrible to anticipate.
We have now a little breathing–time in our political voyage of discovery, to consider our latitude and longitude, and take observations in our whereabout. A pretty whereabout it is; a kind of half–way station between constitution and revolution. Change alone remains unchanged; disorder is regularly organized; nothing is fixed but mutability; old establishments half down, new ones half up; we seem to have realized the perfections of Milton’s limbo.
Our learned professors of political alchemy have cast our gold into the crucible of decomposition; and we are waiting with impatience for the solution of the grand problem. Shall we find the glittering ore restored from the furnace with rich and gorgeous increase, or will the residuum prove nothing at all but a mass of sulpher and cinders? Non constat,—time will show.
As political writers are at present eager to discover some general yet practicable system of political economy, we shall take the liberty of presenting our views on the subject. The plan we are about to propose will be considered too simple or too sweeping to be sound. Like all great and important truths, it is simple, but it will be found to agree with the established principle of finance, it will furnish the kingdom with one plain intelligible and equable system of taxation, and it will receive attestation from a comparison of innumerable details found in the treatises on the revenue. It will bear equally on all orders of society, and amazingly facilitate our domestic and foreign commerce.
If the extreme simplicity of this plan should not at once condemn it in the eyes of our modern financiers, we could prove its truth by documents in our hands. We could show by a variety of proofs that by thus distributing the weight of taxation in exact proportion to the public means of supporting it, the revenue, so far from declining, would actually increase and flourish. A new spring and energy would thus be given to agricultural, manufacturing, and commercial interests, and, accompanied with the distribution of waste lands, would procure much useful employment for the poor in home industry, naval commerce, and colonial intercourse.
We entertain a strong conviction that a universal ad valorem duty proportionably on all things now liable to ecclesiastical or civil rates, be they tithes, customs, excise duties, or general taxes, would be far preferable to the present modes of impost. Never till this is done, will our tithe laws, our corn laws, and other branches of our financial system work well. A universal ad valorem taxation is the system best confirmed by the authority of the scriptures and the greatest jurisprudential writers. If it were necessary or desirable, we could prove this argument by a great amount of statistical facts. The time is not very distant, when a great reform of our revenue laws will be imperatively demanded, and when this proposition will be acted on to a degree which some of our cotemporaries scarcely imagine possible.
Another branch of our legal reform, will consist in the introduction of an improved industrial or philergic system. Industry houses must be substituted in lieu of the present system of workhouses or poor houses. In these, the work test, as it is called, will be established on the Biblical rule, “if any man refuses to work, neither shall he eat.” But the present workouse test, namely, that able–bodied men shall receive the wages of idleness, provided they choose to immure themselves in union workhouses, is fraught with mischief. This is a truth of the utmost importance, which has lately been announced in the ablest of European journals by a member of parliament. I think (says he) in a certain parish it was suspected that a class of men was trying to live idly on the parish funds. The simple remedy of a well conducted stone yard, on the principle of fair work and moderate pay, reduced the number of claimants from 800 to 20 within a very short period. Even under the old law, though in some parishes the badly managed gravel pit became a real nuisance from want of plan and system, many instances may be quoted of a successful application of the work test, by a few able and energetic individuals. And in the new system, an assistant commissioner has discovered, that a work test may work efficiently. See Times, Dec. 15, 1841.
E. Spettigue, Printer, 67, Chancery Lane.
Opinions of the Press on CICERO’S POLITICAL WORKS.
“It has been a heavy reproach to our literature, that we have hitherto had no translation of these two master works of him, who was not less distinguished as the first orator of Rome, than as her most profound of political philosophers. This appears to be the more remarkable, and the less creditable, when we revert to the extraordinary excitement of surprise and exultation, which, as with a shock of moral electricity, broke upon all the scholars and men of education of European connection or sympathies, when the discovery by the illustrious Mai of the greater portion of the long–lost treatise of the Republic was made known. Among the many remarkable occurrence by which this century has been signalized, the partial recovery from a seemingly valueless Vatican palimpsest of this invaluable record of the antique times, was, and will, no doubt, continue to be deemed one of the most remarkable. It would be vain to dispatiate here on the merit and importance long since recorded, and now again universally recognized of this essay, in which the ever–agitated question of the best form of political institutions, is deliberately and deeply treated of, by one whose intellect ranked among the highest of those, by which mankind has at any period been politically influenced, and who was familiar as the air wherein he breathed, with the working of those old repnblican systems, of which the memory has descended to these far distant ages, to rule us with their enduring prestige. It is but necessary to refer to the mode in which Mr. Barham has acquitted himself in the execution of his delicate task, and this appears highly creditable to his scholarship. His long introductory review of the history of Cicero’s Commonwealth, in which considerable extracts are made from the preface of Mai, is in itself a literary paper of no ordinary interest, manifesting much erudite research and criticism, becoming a man of sound dispassionate judgment. In the translation, he has aimed at giving a free but accurate version of the classic text, being as literal as was, in fact, consistent with the common vernacular style of expression. In a word, the spirit and vigour of an original composition are happily infused into this work. And it commends itself, by its consistent intelligent tone on topics, where obscurity would be promptly felt, to the appreheusion of its readers.”—Morning Herald, Jan. 11.
Of this noble text–book of Political and Civil Law, the Cyclopædia Britannica says, “This is the most valuable contribution to classical literature which has appeared in modern times.”
See also the Quarterly and Edinburgh Reviews.