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Source: Introduction to 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.
A REVIEW of the HISTORY OF CICERO’S TREATISE ON THE LAWS.
Cicero’s Treatise on the Laws, which we now for the first time translate into the English language, was composed by its illustrious author in his fifty–sixth year, about two years after the publication of his Commonwealth, to which it forms a supplement.
In order to introduce it more familiarly to the reader’s acquaintance, we shall quote a few passages from Middleton, Morabin, and other authors who have criticized the work.
“Soon after the death of Clodius (says Middleton) Cicero seems to have written his Treatise on Laws, after the example of Plato, whom of all writers he most loved to imitate. For as Plato after he had written on government in general, drew up a body of laws adapted to that particular form of it which he had been delineating, so Cicero chose to deliver his political sentiments in the same method, not by translating Plato, but imitating his manner in the explication of them. This work being designed, then, as a supplement, or second volume to his other, upon the Commonwealth, was distributed probably as the other was, into six books, for we meet with some quotations among the ancients from the fourth and fifth, though there are but three now remaining, and those in some places imperfect. In the first of these he lays open the origin of laws, and the source of obligations, which he derives from the universal nature of things, or, as he explains it, from the consummate reason and will of the supreme God. In the other two books, he gives a body of laws, conformable to his own plan and idea of a well–ordered state. First, those which relate to religion, and the worship of the gods. Secondly, those which prescribe the duties and powers of the several magistrates, from which the peculiar form of each government is denominated. These laws are generally taken from the old constitution or custom of Rome, with some little variation and temperament, contrived to obviate the disorders to which that commonwealth was liable, and to give a stronger turn toward the aristocratic side. In the other books, which are lost, he treated, as he tells us, of the particular rights and privileges of the Roman people.” (Vide Middleton’s Life of Cicero).
A larger explanation of the history and nature of this work, is given by M. Morabin, its French translator. Morabin deserves the gratitude of all the lovers of Cicero, for he not only wrote a biography of him, almost equal in merit to Middleton’s, but translated his greatest works into his native language. His preface to the De Legibus is so just and comprehensive that we choose to translate it almost entire.
“This Treatise on Laws (says Morabin) composed by Cicero, is one of the most valuable monuments which antiquity has bequeathed to us. And if among those works of Tully, which the barbarous ravages of time have destroyed, we regret especially the loss of a large portion of his commonwealth, we must likewise feel disappointed that only three books of his laws still survive, which form the natural supplement to the admirable politics of the preceding masterpiece.
Cicero was not merely an orator and philosopher: he was also a statesman. Being perfectly acquainted with the interests of the Roman government, and conversant with all branches of natural, national, and civil law, he added to the grand speculations of jurisprudence a practical intimacy with public affairs, in which he was deeply engaged during the most critical periods.
Thus, we cannot doubt, that, as the students of eloquence emulated the rhetoric of this great master of oratory, so likewise did statesmen and lawyers derive from these his political and legal writings, maxims of inestimable value, inasmuch as they were adapted to prove, as St. Augustin expresses it, that all true state policy must be perfectly harmonious with the principles of justice.
The general design of Cicero’s books on the Commonwealth and the Laws is taken from those works of Plato which bear the same titles. But Cicero executed this design in a very original and yet practical manner, according to the lessons of his personal experience. Far from seeking to change the ancient Roman constitution, I conceive his main object was to reform the abuses of the new one.
In a period when the ambition of the nobles and the spirit of independence and faction among the people were hastening on that terrible tragedy whose last act could only terminate in the loss of liberty, Cicero depicted before the eyes of his fellow–citizens, the image of the Roman Commonwealth in its best conceivable state, when laws, morals, discipline, subordination, patriotism, justice, disinterestedness, frugality, and the other virtues were encouraged and patronized.
He therefore sought to convince all his fellow–citizens who retained the sentiment of national honour, that the integrity and excellence of the state, must consist in the integrity and excellence of their lives and manners. To feel convinced of this, it is only necessary to read a passage in the fifth book of his Commonwealth, which St. Augustine has preserved, in which Cicero after having quoted this verse of Ennius,
“The wealth of Rome in men and manners lies,”
“What remains to us of ancient manners and discipline? Alas! their traces are so much effaced, that they are not even to be recognized, where it is most desirable they should be practised. What shall we say of the men of our times? The true reason why our manners are corrupted, is because our men are degenerated. A strange predicament! in which we are impleaded in the court of conscience, and are obliged to exculpate ourselves as well as we can from the charge of being accomplices in those political abuses, which have left us little more than the phantom of our glorious commonwealth, the vain name and shadow of a blessing, whose reality we have long since lost.”
The reader may very reasonably expect to find this same spirit of high–toned patriotism, which is so conspicuous in Cicero’s Commonwealth, prevalent in his Treatise on Laws, which we now translate for the public benefit. Indeed the main object of these books, is to prove that justice and law are the only secure foundations of all rational societies.
In the First Book, Cicero endeavours to establish the correct principles of that justice and law whose names are vulgarly employed to signify the regulations of legislators, and the decisions of judges; and which, understood in this current popular sense, do not impress the mind with that sublime veneration, which justice and law in their higher relations necessarily inspire.
Cicero therefore insists in his present treatise, that both justice and law derive their origin from God himself; that they have therefore an eternal and immutable morality; that they are institutions of universal nature, or rather nature itself; the bond of affinity that attaches all moral beings to the gods, and the main–spring of that sociality which binds men to each other; the principle which elicits gratitude to our Creator, and sympathy for our fellow–creatures, the invariable rule of all equity, honour, and happiness; the universal light common to all men, which at once irradiates the reason of the philosopher, and which reveals to the unstudious multitude, the loveliness of the virtues which constitute the honest man and the good citizen.
In the first part of the Second Book, Cicero discusses those laws which concern religion, the worship of God, the sacred festivals, ministrations, and ceremonials. In the second, he illustrates them, and shews their wisdom and propriety.
He pursues the same order in the Third Book, which treats of the laws respecting public rights, the duties of magistrates, their authorities, powers, functions, and personal qualities.
A fragment quoted from the Fifth Book of Cicero’s laws by Macrobius, convinces us that we have lost at least two of these books of laws. I say at least two, for from the manner in which the interlocutors employ the time, and the distribution of days in their dialogue, it appears highly probable that the original work was composed in six books, answerable to those of the Commonwealth. This, however, is merely a conjecture, and we have still to determine, whether the following fragment is quoted from the beginning or end of a book. The words are these.
“Would it not be more agreeable, since the sun has only just past his meridian line, and these young shrubs do not yet afford sufficient shadow to protect us from his beams,—would it not be more agreeable that we should descend to the banks of the Liris, and conclude our conversation under the elm trees?”
But beside this loss, which is irreparable, the first of those books which are extant, is interrupted by lacunes and gaps in three or four places, and there is a gap in the Third Book which absorbs the expositions of more than half the magisterial laws therein discussed.
Besides this misfortune, whether the MSS. were corrupted from which the editions of these books on the Laws were printed, or whether they wanted the last polish of Cicero’s hand,—for they were probably posthumous publications,—they contain many passages which appear unfinished and broken. This circumstance, added to the difficulty of the subject–matter, has deterred scholars from attempting to translate this treatise De Legibus, and very few versions of it exist in modern languages.
This fact, which I could not suppress, and which I cannot confess without trembling, would have altogether deterred me from this perilous undertaking, if I had looked merely to the difficulties of the case. But I did not stay to consider all the objections that might be urged, and, entirely occupied by the pleasure of giving the first translation of a work of Cicero in my native language, I was more gratified at finding that no one had undertaken my task before me, than if some ingenious scholar had forstalled my labours, and left me nothing but the honour of following him, with the treacherous hope of a better success.
I therefore set about studying the first book, and translated it with a rapidity which fortified my former resolution. In the Second Book, however, the thorns began to make their appearance among the roses; and although encouraged by those to whom I showed my first essay, though sustained by the Commentary of Turnebus, so recommended by Scioppius and Casaubon, I should undoubtedly have stopped half way, had I not reflected that it was better to continue my work, even at the risk of never publishing it, in case my learned friends should think it unworthy, than abandon a labour which would then be labour lost, and for which no one would give me credit.
What occasions still further embarassment to a translator of Cicero’s Laws, is the use of certain terms referring to certain customs, which being exceedingly remote from our own, have no equivalents in our language, and which cannot be well expressed in the technical phrases of scholars, whose erudition and researches have not yet precisely determined the ideas we should attach to some of the words in the original.
A man’s life is by no means long enough to read all the books, essays, and dissertations that have been composed on these points of criticism. But I thought that though many of these difficult passages occur, especially in the Second and Third Books, there yet remain so many pieces of eloquence, so many grand sentiments, so many fine maxims, which may benefit persons of all ranks and orders, both in respect of public laws and private manners, that after having won the recommendations of those whose opinions I most prized, I might risk the imprimatur.
As respects this study of Public Law, the time we take in learning it is well spent, and no good reason can be alleged to excuse us from attending to it. We know that in the commerce of civil life, in the management of military affairs, at the bar, the court, and the mart, whether we play an active part on the stage of life, or whether we are mere spectators, this knowledge of public law is pre–eminently important and serviceable.
The most casual glance at society will convince us that the majority of false measures and mistaken points of honour, without reckoning the erroneous ideas and reasonings which disgrace those who use them, and fatigue those who listen to them, are owing to voluntary ignorance of those great principles of law, which belong not merely to one particular profession, but affect the interests of all.
Imperfect therefore as this Treatise of Cicero on the Laws may seem, I am persuaded that it is still a very important work, which may give rise to the most seasonable reflections.
The First Book, which is full of the sublimest religion and morality, treats of the origin and essence of law, its causes, its objects, and its operations. It demonstrates the obligation which is imposed on every individual, to obey its injunctions, and to contribute his appropriate part to the general good of the society of which he is a member. Cicero tells him that the respect he owes to law, is not a mere human decency, but that the Author of nature has invested just laws with so much of his divine authority, that we cannot neglect or violate them without injuring and insulting the Deity, nor without contradicting our moral conscience, which no good man can fail to consult, and which no bad man can oppose without feeling remorse and compunction. He shows us that all the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits. Lastly, he informs us that penal laws have been invented only to restrain those whose love of justice is not sufficient to keep them within reasonable bounds. And he concludes, by depicting the character of the wise man, who illustrates these propositions in his life and conduct.
In the Second Book, which treats of religious worship, he discovers an infinity of facts, which serve to undeceive us on the false ideas which are entertained respecting the religion of the ancients. Cicero proves that they also believed and worshipped one true God in all his wonderful Theophanies and developements, and that the astonishing multiplicity of divinities which they venerated, was originally the product of a pious fear, but augmented and often corrupted by the interest of certain parties. The religion therefore of the ancient philosophers and sages, was only one form of the true theology, and it excites our admiration by showing us how frequently the grand doctrines of revelation are confirmed by the mythology of the heathens. Thus the great chain of divine truth, was preserved entire, even in the midst of that confusion of gods, sacrifices, festivals, and religious ceremonials, so generally idle, ridiculous, or profane.
The translation of the Third Book, is rather a disappointing task, owing to the great lacune which has deprived us of the explanations of a part of the laws which relate to public order.
Notwithstanding these defects, we conceive that Cicero’s Treatise on Laws may be advantageously placed in the hands of young students. Those who conduct the education of young people have often been censured for not more extensively instructing them in those practical sciences which hold the closest connection with real life and business. For want of this, as Petronius Arbiter justly observes, “our students think themselves transported into another planet, when they draw their first breath in the world we live in.”
We shall add to this preface of Morabin’s the critical notice of this work on Laws, contained in the “Cyclopædia Metropolitana:” “In Cicero’s Treatise de Legibus (say the editors), which was written two years later than his Commonwealth, and shortly after the murder of Clodius, he represents himself as explaining to his brother Quintus and Atticus, in their walks through the woods of Arpinum, the nature and origin of the laws, and their actual state in Rome and other countries. Law, he pronounces to be the perfection of reason, the eternal mind, the divine energy, which, while it pervades and unites the whole universe, associates gods and men by the most intimate resemblance of reason and virtue; and still more closely men with men, by the participation of common faculties and affections. He then proves at length that justice is not merely created by civil institutions from the power of conscience, the imperfections of human law, the moral sense, and the disinterestedness of virtue. He next proceeds to unfold the principles, first of religious law, under the heads of divine worship, the observance of festivals and games, the office of priests, augurs, and heralds, the punishment of sacrilege and perjury, the consecration of lands and the rights of sepulchres. Secondly, he proceeds to the investigation of the civil law, which gives him an opportunity of noticing the respective relations of magistrates and citizens.
The splendid panegyrics which Cicero has here pronounced on divine law and universal justice, have given rise to many eulogies, scarcely less eloquent, with which the greatest divines, philosophers, and lawyers have adorned their works. A few of these are worth quoting, as they may serve to elevate our ideas of the importance of the subject, and induce us to study the topics of jurisprudence with more ardour and perseverance.
Thus, from one brilliant passage in this book of Laws, has Hooker derived that well–known exordium in his Ecclesiastical Polity, which is indisputably the finest specimen of his eloquence. “Of Law no less can be said, than that her seat is the bosom of God, and her voice the harmony of the universe. All things in heaven and earth do her homage, the very least as feeling her care, and 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.” Similar panegyrics on Law, are found in Cumberland’s Law of Nature and Nations, Cudworth’s Treatise on Eternal and Immatable Morality, and in the imperishable works of the immortal Selden.
This subject (says Williams) has been treated with much dignity by a writer who is admired by all mankind for his eloquence, but who is, if possible, still more admired by all competent judges for his philosophy. I allude to Burke, of whom I may justly say that he was “gravissimus et dicendi et intelligendi auctor et magister;” and I cannot refuse myself the gratification of quoting his words. “The science of jurisprudence (says he) is the pride of the human intellect; for, with all its defects, redundancies, and errors, it is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns.” Dr. Johnson’s reply to a person who was foolishly abusing the profession of the law, was, “Do you presume, sir, to find fault with that study which is the last effort of human intelligence acting upon human experience?”
“Law (says Sir W. Blackstone) is a science which distinguishes the criterions of right and wrong; which teaches us to establish the one, and prevent, punish, and redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart. A science which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community.”
“The science of jurisprudence (says Sir James Mackintosh, in his discourse on the study of the law of Nature and Nations) is certainly the most honourable occupation of the understanding, because it is most immediately subservient to the general safety and comfort. There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence; where we 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.”
Granting the justice of these remarks, we cannot help lamenting that the science of jurisprudence or universal law, properly so called, should be so little studied in our British state at present. When we look into the history of literature, we find the times have been, in which men of the most consummate genius devoted that genius with the most ardent perseverance and the most mathematical precision, to the study of jurisprudence in its very loftiest and widest bearings. They hesitated not, through many years of incessant labour, like Grotius abroad and Selden at home, to study the vast system of moral obligations. In order to make themselves jurisconsults worthy of the name, they studied the divine laws handed down in Scripture, and developed in the ecclesiastical policy, ancient and modern. They studied the law of nature and nations, as explained by its oriental and classical commentators. They studied the civil laws of all states and commonwealths, and by a kind of comparative analysis, elicited the spirit of laws among all peoples, and confirmed just regulations by examples derived from the catholic experience of men in all ages and countries, and defeated the blunders of legislation, by showing their pernicious consequences, under every variety of circumstance.
Such men still appear occasionally in Europe and America. A few such may still grace the colleges, and the inns of court, or the open walks of literature; but their number has certainly become deplorably limited. We scarcely ever can find the man, now–a–days, who has studied jurisprudence in its loftier and broader relations,—a man who, like Grotius, Selden, Montesquieu, or Sir W. Jones, can establish the doctrines of a sage and philosophical legislation, by an overwhelming accumulation of testimonies and facts, calculated to inspire confidence and ensure success. In consequence we meet with few who rise to those syncretic and universal maxims of equity and law, which throw a moral radiance through the long current of decisions, simplify the legal economy in its most important branches, and disperse the technical abuses that profane the sanctuary of Themis.
Such men are valuable in proportion to their rarity. They deserve the best patronage and promotion that the state can give them; for they are the true prophets and oracles of jurisprudence—and they can speak with the force and precision of science, while others are proceeding through the perilous bye–paths of quackery, pretence, and hap–hazard.
But such men are not encouraged, and consequently their number is insignificant. Legal philosophy is slighted and unrewarded; while legal practice, however erroneous, is profusely paid for. The consequence is so plain and palpable that it has struck most of the Italian, German, and French writers on the subject. They say “Britain has no jurists, but she has lawyers in abundance.” (See Filangieri, Savigny, Pastoret, Constant, Guizot, Sismondi, and Chateaubriand, &c.)
This dangerous tendency of the age to sacrifice the higher doctrines of political and legal philosophy,—such as most tend to develope the national mind and national resources,—to a merely secular practice, which will take any form and impression for the sake of interest and emolument, is too much noted. These lower studies (says the author of the Natural History of Enthusiasm) fall in marvellously well with the frigid timidity of the times, and the love of practical utility. But that kind of discretion which can sacrifice truth for the sake of lucre, is always short–sighted and fraught with peril.
We do sincerely believe that a sound knowledge of jurisprudence is quite as necessary as a familiarity with the practice of our courts, for all those who would truly deserve the name of legal reformers. And we more strenuously insist on this indispensable combination of theory and practice in relation to legal reforms, because it affords us the only hope of those ameliorations which have become of the utmost importance to the welfare of the British empire.