O N GOVERNMENT; B EIN G An ExaminaTion of what is delivered, On the Subject of GOVERNMENT in General In the InTRoDUCTI1ON to * Sir William Blackſtone's COMMENTARIESs = o WITH A R EF ain K of IN WHICH IS GIVEN A CRITIQUE on Tux WORK AT LARGE, Y Rien ne recule plus le progres des connoiſſances, qu'un mauvais ouvrage d'un Auteur cẽlèbre: parce qu' avant d'inſtruire, il faut commencer par detromper.
MoxrESGVUIEV Eſprit des Loix, L. XXX. Ch. XV, 1 L£: Gert fa mn r ba EA N Printed for T. PayNz, at the Mews-Catez P. Ex ust v, oppoſite Southampton-Street in the Strand; and E. Bxooxs, in Bell-Yard, Temple-Bar, 6 M.DCC.LXXVI, 5 * Coe DOES, _ Al * PREFACE Motives of | the preſent feftion. In the natural world, in particular, every undertakinge TX age we live in is a buſy age; in which —— knowledge is rapidly advancing towards perthing teems with diſcovery and with improvement. The moſt diſtant and reconditexregions of the earth traverſed and explored—the all-vivifying and ſubtle element of the air ſo recently analyzed and made i known to us,—are ſtriking evidences, were all i 1 j others wanting, of this pleaſing truth, —_ | Correſpondent to diſcovery and improvement in the natural world, is reformation in the moral: it that which ſeems a common notion be, indeed, a true one, | that in the moral world there no longer remains any | matter for diſcovery. Perhaps, however, this may not be the caſe: perhaps among ſuch obſervations | as would be beſt calculated to ſerve as grounds for | reformation, are ſome which, being obſervations of | matters of fa& hitherto either incompletely noticed, | | or not at all, would, when produced, appear ca- | pable of bearing the name of diſcoveries: with ſo little method and preciſion have the conſequences | of | "A * Motives of the preſent undertaking.
If to this endeavour we ſhould fancy any Author, * P R F of this fundamental axiom, it is the greateſt happineſs of the greaigſt number that is the meaſure of right and wrong, been as yet developped.
Be this as it may, if there be room for making, and if there be uſe in publiſhing, diſcoveries in the natural world, ſurely there is not much leſs room for making, nor much leſs uſe in propoſing, refor- mation in the moral, If it be a matter of impor- tance and of uſe to us to be made acquainted with diſtant countries, ſurely it is not a matter of much .- leſs importance, nor of much leſs uſe to us, to be made better and be er acquainted with the chief means of living happily in our own: If it be of im- portancè and of ule to us to know the principles of the element we breathe, ſurely it is not of much leſs importance nor of much leſs uſe to comprehend the principles, and endeavour at the improvement of thoſe /aws, by which alone we breathe it in ſecurity.
eſpecially any Author cf great name, to be, and as far as could in ſuch caſe be expected, to avow himſelf a determined and perſevering enemy, what ſhould we ſay of him? We ſhould ſay that the intereſts of reformation, and through them the welfare of man- kind, were inſeparably connected with the downfall of his works: of a great part, at leaſt, of the eſteem and FRE FACE and influence, which theſe works might under Pu the preſent undertaking, whatever title have acquired. guch an enemy it has been my misfortune (and not mine only) to ſee, or fancy at leaſt I ſaw, in the Author of the celebrated COMMENTARIES on tze Laws of ENGLAND: an Author whoſe works have had beyond compariſon a more extenſive circulation, have obtained a greater ſhare of eſteem, of applauſe, and conſequently of influence (and that by a title on many grounds ſo indiſputable) than any other writer who on that ſubject has ever yet appeared, It is on this account that TI conceived, ſome time Hiſtory of its ſince, the deſign of pointing out ſome of what ap- peared to me the capital blemiſhes of that work, particularly this grand and fundamental one, the antipathy to reformation; or rather, indeed, of lay- ing open and expoſing the univerſal inaccuracy and confuſion which ſeemed to my apprehenſion to pervade the whole, For, indeed, ſuch an ungenerous antipathy ſeemed of itſelf enough to promiſe a ge- neral vein of obſcure and crooked reaſoning; from whence no clear and fterling knowledge could be derived; ſo intimate is the connexion between ſome of the gifts of the underſtanding, and ſome of the affections of the heart.
— Ce 1% oY po roc OE In — 2 — Jenna: F : — = EC 4 FLO ACE: Hiſtory of it.
/ Tt is in this view then that I took in hand that = part of the firſt volume to which the Author has | 5 given the name of INTRODUCTION. It is in this.
part of the work that is contained whatever comes under the denomination of general principles. It is in this part of the work that are contained ſuch pre- liminary views as it ſeemed proper to him to give of certain objects real or imaginary, which he found connected with his ſubject Law by identity of name: two or three ſorts of Laws of Nature, the revealed Law, and a certain Law of Nations. It is in this part of the work that he has touched upon ſeveral topics which relate to all laws or inſtitu- tions [a] in general, or at Jeaſt to whole claſſes of ö inſtitutions without relating to any one more than to another. „ To ſpeak more particularly, it is in this part of his work that he has given a definition, ſuch as it is, of that whole branch of law which he had taken for his ſubject; that branch, which ſome, conſidering it as a main ſtock, would term Law without addition; and which he, to diſtinguiſh it from thoſe | [a] 1 add here the word inſtitutions, for the ſake of Ks including rules of Comm nen Law, as well as portions or #9 of Statute Law.
an, pencrty, enema gh TR: RE others its condivident. [5], terms law muni- 1 — of it. cipal:—an account, "ſack as it is, of the nature and origin a Natural Society the mother, and of Politi- cal Society the daughter, of Law municipal, duly begotten in the bed of Metaphor:—a diviſion, ſuch as it is, of a law, individually conſidered, into what he fancies to be its parts:z—an account, ſuch as it is, of the method to be taken for interpreting any law that may occur.
In regard to the Law of England in particular, it is here that he gives an account of the diviſion of it into its two branches (branches, however, that are no ways diſtinct in the purport of them, when once eſtabliſhed, but only in reſpect of the ſource from whence their eſtabliſhment took its riſe) the Statute or Written law, as it is called, and the Common or Tu- written: — an account of what are called General Cuſtoms, or inſtitutions in force throughout the whole empire, or at leaſt the whole nation;— of what are called Particular Cuſtoms, inſtitutions of local extent eſtabliſhed in particular diſtricts; and of ſuch adopted inſtitutions of a general extent, as are parcel of what are called the Civil and the Canon laws; all three in the character of ſo many branches * — of what is called the Common Lao. — in fine, a genevi Hiſtory of it. | ral account of Equity, that capricious and incomprehenſible miſtreſs of our fortunes, whoſe features neicher our Author, nor perhaps any one is well able to delineate;—of Equity, who having in the begin- ning been a rib of Zaw, but ſince in ſome dark age plucked from her ſide, when ſleeping, by the hands not ſo much of God as of enterprizing Judges, now g | | lords it over her parent ſiſter All this, I ſay, together with an account of the } different diſtricts of the empire over which different portions of the Law prevail, or over which the Law has different degrees of force, compoſes that part of our Author's work which he has ſtyled the INT Ro- DUCTION. His eloquent Diſcourſe on the ſtudy of the Law,” with which, as being a diſcourſe of R EEE r 3 ö | | the rhetorical kind rather than of the didactic, I propoſed not to intermeddle, prefaces the whole...It would have been in vain to have thought of travelling over the whole of ſo vaſt a work. My deſign, therefore, was to take ſuch a portion of it, . as might afford a fair and adequate ſpecimen of the character and complexion of the whole. For this j | purpoſe the part here marked out would, I thought, abundantly ſuffice, This, however narrow in extent, was the moſt conſpicuous, the moſt character- 1 85 iſtic * ESR TEES”; . LURE ST.
en E r iſtic part of our Author's work, and that which was ; 1 Hiſtory of it. moſt his own. The reſt was little more than com- " pilation. Purſuing my examination thus far, I ſhould purſue it, I thought, as far as was neceſ- ſary for my purpoſe: and I had little ſtomach to purſue a taſk at once ſo laborious and fo invidious any farther. If Hercules, according to the old pro- verb, is to be known 2x pede; much more, thought I, is he to be known ex capite.
In theſe views it was that I proceeded as far as the middle of the definition of Law municipal, It was there I found, not without ſurprize, the digreſ- | ſion which makes the ſubject of the preſent eſſay. { This threw me at firſt into no ſmall perplexity. To give no account of it at all;—to paſs wholly ſub filentio, ſo large, and in itſelf ſo material a part of the work I was examining, would ſeem ſtrange - the ſame time I ſaw no poſſibility of entering into an examination of a paſſage ſo anomalous, without cutting in pieces the thread of the diſcourſe. Under | this doubt! determined at any rate, for the preſent, | to pals it by; the rather as I could not perceive any | connexion that it had with any thing that came before or after. I did ſo; and continuing my examination of the definition from which it digrefled, I travelled on |' to the end of the Introduction. It then became ne- a 4 cellary Wks 1 V ky 2 r Bl 7 5 Cot ob by CUTE En R n ae * — — ceſſary to come to ſome definitive reſolution con- Hiſtory of it. | | cerning this excentric part of it: and the reſult was, that being loth to leave the enterprize I had begun in this reſpect imperfect, I ſat down to give what I intended ſhould be a very ſlight and general ſurvey of it. The farther, however, I proceeded in Examining it, the more confuſed and unſatisfactory it appeared to me: and the greater difficulty I found . | in knowing what to make of it, the more words it coſt me, I found, to ſay ſo. In this way, and by theſe means it was that the preſent Eſſay grew to the bulk in which the Reader fees it. When it was 4 nearly completed, it occurred to me, that as the digreflion itſelf which I was examining was per- fectly diſtinct from, and unconnected with the text from which it ſtarts, ſo was, or ſo at leaſt might be, the critique on that digreſſion, from the critigae on the text. The former was by much too large to be engrafted into the latter: and ſince if it accom- panied it at all, it could only be in the ſhape of an Appendix, there ſeemed no reaſon why the ſame publication ſhould include them both. To the for— r ; mer, therefore, as being the leaſt, J determined to Wo give that finiſh which I was able, and which I thought was neceſſary: and to publiſh it in this de- — — e e ö tached manner, as the firſt, if not the only part of a work, .
o 1 2 * We ATI 2 r 1 A N r r 2 Cee pgs Ii ee work, the principal and remaining part of which may poſſibly ſee the light ſome time or other, under ſome ſuch title as that of 4 CoMMENT on the C COMMENT ARIES,” In the mean time that J may ſtand more fully - juſtified, or excuſed at leaſt, in an enterprize to moſt perhaps ſo extraordinary, and to many doubtleſs ſo unacceptable, it may be of uſe to endeayour to ſtate with ſome degree of preciſion, the grounds of that war which, for the intereſts of true ſcience, and of liberal improvement, I think myſelf bound to wage againſt this work. I ſhall therefore proceed to mark out and diſtinguiſh thoſe points of view in which it ſeems principally reprehenſible, not forgetting thoſe in which it ſeems ſtill entitled to our approbation and applauſe.
There are two characters, one or other of which every man who finds any thing to ſay on the ſubject of Law, may be ſaid to take upon him;—that of the Expoſitor, and that of the Cenſor. To the province of the Expoſitor it belongs to explain to us what, as he ſuppoſes, the Law is: to that of the Cenſor, to obſerve to us what he thinks it ought to be, The former, therefore, is principally occupied in ſtating, or in enquiring after fas: [c] the latter, In * In * le] In practice, the queſtion of Law has commonly been ſpoken of as oppoſed to that of fa# - but this | diſtindion Hiſtory of it.
, The buſineſs of the Cenſor diſtinguiſhed from that of the Expoſitor.
— Eno r ſu Wha A ws " — = _ nc, W I. r. Dee 6 * x The buſineſs of the Cer/or diſtinguiſhed from that of the Expo/itor.
The latter alone our Author's, - "KEENE EL. in diſcuſſing reaſons. - The Expoſitor, keeping within his ſphere, has no concern with any other faculties of the mind than the apprehenſion, the memory, and the judgment: the latter, in virtue of thoſe ſenti- ments of pleaſure or diſpleaſure which he finds oc- caſion to annex to the objects under his review, holds ſome intercourſe with the Sections. That which is Law, is, in different countries, widely dif- ferent: while that which ought zo be, is in all coun- tries to a great degree the ſame, The Expoſſter, therefore, 1s always the citizen of this or that par- ticular country: the Cenſor is, or ought to be the citizen of the world. To the Expopitor it belongs to ſhew what the Legiſſator and his underworkman the Judge have done already: to the Cenſor it be- longs to ſuggeſt what the Legiſlator ought to do in future, To the Cenſor, in ſhort, it belongs to zeach that ſcience, which when by change of hands con- verted into an art, the LEGISLATOR prattiſes. Let us now return to our Author. Of theſe two perfectly diſtinguiſhable functions, the latter alone — diſtinction is an accidental one. That a Law com- manding or prohibiting ſuch a rt of action, has been eſtabliſhed, is as much a fa#, as that an zndi vi- dual action of that ſort has been committed. The eſtabliſhment of a Law may be ſpoken of as a fa#, at leaſt for the purpoſe of diftinguiſhing it from any con- ſideration that may be offered as a reaſon for ſuch Law.
= 5 The latter to diſcharge. His profeſſed object was to explain to alone our „ [ia lex Archer is that which it tell neceſſarily within his province us what the Laws of England were, « {cripta 2/1,” was the only motto which he ſtood engaged to keep in view, The work of cenſure (for to this word, in default of any other, I find it ne- ceſſary to give a neutral ſenſe) the work of cenſure, , n So. Le By es ny wn = mu * —— — 1 k Fg EY ales as it may be ſtyled, or, in a certain ſenſe, of criticiſin, — was to him but a parergon—a work of ſupereroga- tion: a work, indeed, which, if aptly executed, could not but be of great ornament to the princi- pal one, and of great inſtruction as well as enter- tainment to the Reader, but from which our Author, as well as thoſe that had gone before him on —— the ſame line, might, without being chargeable with any deficiency, have ſtood excuſed: a work which, when ſuperadded to the principal, would lay the Author under additional obligations, and impoſe on him new duties: which, notwithſtanding whatever elſe it might differ in from the principal one, agrees with it in this, that it ought to be executed with impartiality, or not at all.
If, on the one hand, a haſty and undiſcrimi- Laws ought nating condemner of what is eſtabliſhed, may ex- to be ſcruti- = poſe himſelf to contempt; on the other hand, a 3 bigotted or corrupt defender of the works of power, becomes guilty, in a manner, of the abuſes which he ſupports: oy 8 Wor ET INT Ee 8 Laws ought to be ſcruti- nized with freedom.
EX.
ſupports: the more ſo if, by oblique glances and ſophiſtical gloſſes, he ſtudies to guard from reproach, or recommend to favour, what he knows not how, and dares not attempt, to juſtify. To a man who contents himſelf with ſimply ſtating an inſtitution as he thinks it is, no ſhare, it is plain, can juſtly be to him any ſhare) of whatever reproach, any more than of whatever applauſe the inſtitution may be thought to merit. But if not content with this humbler function, he takes upon him to give reaſons in behalf of it, reaſons whether made or found by him, it is far otherwiſe. Every falſe and ſophiſtical reaſon that he contributes to circulate, he himſelf is chargeable with: nor ought he to be holden guilt- leſs even of ſuch as, in a work where fact not rea- ſon is the queſtion, he delivers as from other writers without cenſure, By officiouſly adopting them he makes them his own, though delivered under the names of the reſpective Authors: not much leſs than if delivered under his own. For the very idea of a reaſon betokens approbation: ſo that to deliver a remark under that character, and that without cenſure, is to adopt it. A man will ſcarcely, there- fore, without ſome note of diſapprobation, be the inſtrument of introducing, in the guiſe of a reaſon, an CE EE. —-V—-¼ at eli conn ee —— attributed (nor would any one think of attributing SGG 3 3 FE an argument which he does not really wiſh to ſee approved. Some method or other he will take to waſh his hands of it: ſome method or other he will take to let men ſee that what he means to be underſtood to do, is merely to report the judgment of another, not to pais one of his own. Upon that other then he will lay the blame: at leaſt he will take care to repel it from himſelf, If he omits to do this, the moſt favourable cauſe that can be aſ- ſigned to the omiſſion is indifference: indifference to the public welfare—that indifference which is itſelf a crime, It is wonderful how forward ſome have been to look upon it as a kind of preſumption and ingratitude, and rebellion, and cruelty, and I know not what beſides, not to alledge only, nor to own, but to ſuffer any one ſo much as to imagine, that an old- eſtabliſhed law could in any reſpect be a fit object of condemnation, Whether it has been a kind of perſonification that has been the cauſe of this, as if the Law were a living creature, or whether it has been the mechanical veneration for antiquity, or what other deluſion of the fancy, I ſhall not here enquire. For my part, I know not for what good reaſon it is that the merit of juſtifying a law when right ſhould have been thought greater, than that of cen- ſuring it when wrong. Under a government of Laws, r N DD COTE FR: = hh 1 xiii Laws ought to be ſcrutinized with freedom.
EE yur — — TP — r io AC rr arte 4 W Farm GD - . REES a oy TERS — * 3 4 be - X1V —— Laws ought to be ſcrutt- nized with freedom, x FRE FAC Py Laws, what is the motto of a good citizen? To oz punctually; ts cenſure freely.
Thus much is certain; that a ſyſtem that is never to be cenſured, will never be improved: that if no- thing is ever to be found fault with, nothing will ever be mended: and that a reſolution to juſtify every thing at any rate, and to diſapprove of no- thing, is a reſolution which, purſued in future, muſt ſtand as an effectual bar to all the additional happi- neſs we can ever hope for; purſued hitherto would have robbed us of that ſhare of happineſs which we enjoy already.
Nor is a diſpoſition to find ““ every thing as it * ſhould be,” leſs at variance with itſelf, than with reaſon and utility. 'The common-place arguments in which it vents itſelf juſtify not what is eſtabliſhed, in effect any more than they condemn it: ſince whatever now is eſtabliſhment, once was innovation, Precipitate cenſure, caſt on a political inſtitu- tion, does but recoil on the head of him who caſts it. From ſuch an attack it is not the inſtitution What a man ſays againſt it either makes impreſſion or makes itſelf, if well grounded, that can ſuffer.
none. If nqne, it is juſt as if nothing had been ſaid about the matter: if it does make an impreſſion, it naturally calls up ſome one or other in de- FE; fence, or Hes 6 CLOS < n is. CCC 5 PR EF A V E Gnce, For if the inſtitution is in truth a beneficial one to the community in general, it cannot but have given an intereſt in its preſervation to a num- ber of individuals. By their induſtry, then, the rea- ſons on which it is grounded are brought to light: from the obſervation of which thoſe who acquieſced in it before upon truſt, now embrace it upon con- viction. Cenſure, therefore, though ill-founded, has no other effect upon an inſtitution than to bring it to that teſt, by which the value of thoſe, in- deed, on which prejudice alone has ſtamped a currency, is cried down, but by which the credit of thoſe of ſterling utility is confirmed.
Nor is it by any means from paſſion and ill-hu- mour, that cenſure, paſſed upon legal inſtitutions, is apt to take its birth, When it is from paſſion and i- humour that men ſpeak, it is with men that they are in ill humour, not with laws: it is men, not laws, that are the but of “ arrogance.“ T4] Spleen and [d] Arrogance;ꝰ our Author calls it e utmoſt arro- « gance*, to cenſure what has, at leaſt, a better ** chance to be right, than the ſingular notions of any particular man:“ meaning thereby certain eccle- ſiaſtical inſtitutions. Vibrating, as it ſhould ſeem, be- tween paſſion and diſcretion, he has thought it neceſ- fary, indeed, to inſert in the ſentence that, which being inſerted, ONE 4 Ro Laws ought to be ſcruti- nized with . Xv Laws ought to be ſcruti- nized with freedom.
FR E A FE.
and turbulence may indeed prompt men to quarrel with living individuals: but when they make com- plaint of the dead letter of the Law, the work of departed lawgivers, againſt whom no perſonal anti— pathy = — inſerted, turns it into nothing: After the word “ cen- „ ſure,“ “with contempt” he adds,“ and rudeneſs:“ as if there needed a profeſſor to inform us, that to treat any thing with contempt and rudeneſs is arrogance, * Indecency,” he had already called it, “to ſet up „private judgment in oppoſition to public:“ and this without reſtriction, qualification, or reſerve. This was in the firſt tranſport of a holy zeal, before diſcretion had come in to his aſſiſtance. This paſſage the Doctors.Prie///y * and Furneaux +, who, in quality of Diſſenting Miniſters, and champions of dil. ſenting opinions, ſaw themſelves particularly attacked in it, have not ſuffered to paſs unnoticed: any more than has the celebrated Author of the“ Remarks en „ the Ads of the 13th Parliament t, who found it adverſe to his enterprize, for the ſame reaſon that it is hoſtile to every other liberal plan of political diſcuſſion. | My edition of the Commentaries happens to be the firſt: ſince the above paragraph was written J have been directed to a later. In this later edition the paſ- ſage about ©* indecency” is, like the other about“ arro- * oance,” explained away into nothing. What we are now told is, that ** to ſet up private judgment in * See Remarks, &c. + See Letters to Mr, Juſtice Blackſtone, 1791, Second Edition, IIn the Preface, & [wiruleni r xvii pathy can have ſubſiſted, it is always from the ob- == — ſervation, or from the belief at leaſt, of ſome real to be ſcruti- nized with freedom, grievance. The Law is no man's enemy: the Law is no man's rival. Aſk the clamorous and unruly multitude—it is never the Law itſelf that is in the wrong: It is always ſome wicked interpreter of the Law that has corrupted and abuſed it [e]. Thus e ſoirulent and factious] oppoſition to public authority”? (he might have added—or to private either) is “ inde- „ cency.” [See the 5th Edit. 8vo.' p. 50, as in the iſ.) This we owe, I think, to Dr. Furneaux. The Doctors Furneaux and Prieſtly, under whoſe well-ap- plied correction our Author has ſmarted ſo ſeverely, have a good deal to anſwer for: They have been the means of his adding a good deal of this kind of rhe- torical lumber to the plentifuk ſtock there was of it before. One paſſage, indeed, a paſſage deep-tinctured with religious gall, they have been the means of clear- ing away entirely *: and in this, at leaſt, they have done good ſervice, They have made him ſophiſticate: they have made him even expunge: but all the Doc- tors in the world, I doubt, would not bring him to confeflion, See his Anſwer to Dr, Prieſtly.
[e] There is only one way in which cenſure, caſt upon the Laws, has a greater tendency to do harm than good; and that is when it ſets itſelf to conteſt their validity; I mean, when abandoning the queſtion, of expediency, it ſets itſelf to conteſt the right. But " p * CIR):. VID Fas 3 R e N . 5 * 3 3 * See Furneaux, Letter VII.
b this 7 45 4 F * 4 7 4 xvlii Laws ought to be ſcrutinized with freedom.
n C .
Thus deſtitute of foundation are the terrors, or pretended terrors, of thoſe who ſhudder at the Idea of a free cenſure of eſtabliſhed inſtitutions. 80 little does the peace of ſociety require the aid of thoſe leſſons which teach men to accept of an thing as a reaſon, and to yield the ſame abject and indiſcriminating homage to the Laws here, which is paid to the deſpot elſewhere. The fruits of ſuch tuition are viſible enough in the character of that race of men who have always occupied too large a ſpace in the circle of the profeſſion: A paſ- ſive and enervate race, ready to ſwallow any thing, and to acquieſce in any thing: with intellects in- capable of diſtinguiſhing right from wrong, and with affections alike indifferent to either: inſenſible, ſhort-ſighted, obſtinate: lethargic, yet — this 15 an attack to which old-eftabliſhed Laws are not ſo liable. As this is the laſt though but too common reſource of paſſion and 1ll-humour; and what men ſcarce think of betaking themſelves to, unleſs irritated by perſonal competitions, it is that to which recent Laws are moſt expoſed. I ſpeak of what are Ulled Written Laws: for as to unwritten inſtitutions, as there is no ſuch thing as any certain ſymbol by which their autbority is atteſted, heir validity, how deeply rooted ſoever, is what we ſee challenged without remorſe, 4 radical weakneſs, interwoven into the very conſtitu— tion of all zawritten Law.
liable _ 83 x 2 SE i!!!! 38?ʃ * r ages Ne ee Bo r f DE Ee; RR e E . 2 ͤ „ ae EE ñ ỹ]ů ẽ dd SC STR e dd LE OL LNST r F $a tg 3222 I CE TO SR ENTS IEG big 5...d rad REED 1 a a CSC ESD 9 25 8 CEN TWEEN "A E liable to be driven into convulſions by falſe terrors: deaf to the voice of reaſon and public utility: obſequious only to the whiſper of intereſt, and to the beck of power.
This head of miſchief, perhaps, is no more than X1X- Laws ought: to be ſcrutifreedom.
what may ſeem included under the former. For why is it an evil to a country that the minds of thoſe who have the Law under their management ſhould be thus enfeebled?
them impotent to every enterprize of improvement.
It is becauſe it finds Not that a race of lawyers and politicians of this encrvate breed is much leſs dangerous to the duration of that ſhare of felicity which the State poſſeſſes at any given period, than it is mortal to its chance of attaining to a greater. If the deſigns of a Miniſter are inimical to his coun- try, what is the man of all others for him to make an inſtrument of or a dupe? Of all men, ſurely none ſo fit as that ſort of man who is ever on his knees before the footſtool of Authority, and who, when thoſe above him, or before him, have pro- nounced, thinks it a crime to have an opinion of his own.
Thoſe who duly conſider upon what flight and trivial circumſtances, even in the happieſt times, the adoption or rejection of a Law fo often turns; circumitances "nized with XX mw — Laws ought to be ſcruti- nized with freedom.
2 oe ri + 1 7 4 o E. circumſtances, with which the utility of it has ng imaginable coal who conſider the de- ſolate and abject ſtate of the human intellect, during the periods in which ſo great a part of the {till ſubſiſt- ing maſs of inſtitutions had their birth—thoſe who conſider the backwardneſs there is in moſt men, unleſs when ſpurred by perſonal intereſts or reſentments, to run a-tilt againſt the Coloſſus of au— thority—thoſe, I ſay, who give theſe conſiderations their due weight, will not be quite ſo zealous, per- haps, as our Author has been to terrify men from ſetting up what is now © private judgment,” againſt | what once was public:“ V] nor to thunder down the barſh epithet of “ arrogance ” on thoſe, who, with whatever ſucceſs, are occupied in bring- ing rude eſtabliſhments to the teſt of poliſhed reaſon. They will rather do what they can to cheriſh a diſpoſition at once ſo uſeful and fo rare: [g which L/] See note [4].
[ge] One may well ſay rare. It is a matter of fact about which there can be no diſpute. The truth of it may be ſeen in the multitude of Expeſfitors which the Juriſprudence of every nation furniſhed, ere it afforded a fingle Cenſer. When Beccaria came, he was re. ceived by the intelligent as an Angel from heave1 would be by the faithful, He may be ſtyled the fa- ther of Cerforial Juriſprudence, Monteſquicu's was 2 | work NA of rg a * AN EN AS Vo EE EIS 67-0 I COTE which is ſo little connected with the cauſes that make popular diſcontentments dangerous, and which finds ſo little aliment in thoſe propenſities that govern the multitude of men. They will not be for giving ſuch a turn to their diſcourſes as to beſpeak the whole of a man's favour for the defenders of what is eſtabliſhed: nor all his reſentment-for the aſſailants, They will acknowledge that if. there be ſome inſtitutions which it is“ arrogance" to attack, there may be others which 1t 1s effrontery to defend. TouRREIL [+] has defended torture: torture eſta- bliſhed by the“ public judgment“ of ſo many en- BECCARIA (“ indecent” and Beccaria!) has condemned it. Of lightened nations.
&« arrogant” theſe two whoſe lot among men would one chooſe rather, — the Apologiſt's or the Cenſor's?
Natural Philoſophy. ] A Frenc 2. works had like celebrity, and in many reſpects much us e.
He wage 2 Demoſt-.
known to moſt advantage by a tranſlation of henes, He is no forgotten.
work of the mixed kind. Before Monteſquieu all was unmixed barbariſm. Grotius and PuRendort were to Cenſorial Juriſprudence what the Schoolmen were to.
uriſt of the laſt age, whoſe the ſame ſort of merits as our Author's.
A, e le.
Ae Arm uu Ae 242; XX1 —— Laws ought to be ſcruti- nized with freedom, dat k, W non * 4 PR 7 Mb a 8 9 xxii Our Author why attacked in the cha- racter of an Expoſitor.
FTE a CE Of a piece with the diſcernment which enables x man to perceive, and with the courage which ena- bles him to avow, the defects of a ſyſtem of inſti. tutions, is that accuracy of conception which en. ables him to give a clear account of it. No won- der then, in a treatiſe partly of the expoſitory claſs, and partly of the cenſorial, that if the latter department is filled with imbecillity, ſymp- toms of kindred weakneſs ſhould characterize the former.; The former department, however, of our Au— thor's work, is what, on its own account merely, I ſhould ſcarce have found myſelf diſpoſed to inter- meddle with, The buſineſs of ſimple expoſition is a harveſt in which there ſeemed no likelihood of there being any want of labourers: and into which therefore I had little ambition to thruſt my ſickle, At any rate, had I ſat down to make a report of it in this character alone, it would have been with feelings very different from thoſe of which I now am conſcious, and in a tone very different from that which I perceive myſelf to have aſſumed. In determining what conduct to obſerve reſpecting it, I ſhould have conſidered whether the taint of error ſeemed to confine itſelf it to parts, or to diffuſe itſclf through r xxlii through the whole. In the latter caſe, the leaſt Gar i invidious, and conſidering the bulk of the work, the why attacked in the Characmoſt beneficial courſe would have been to have ter of an.
taken no notice of it at all, but to have ſat down Vlter.
and tried to give a better. If not the whole in general, but ſcattered poſitions only had appeared exceptionable, I ſhould have fat down to rectify thoſe poſitions with the ſame apathy with which they were advanced. To fall in an adverſe way upon a work ſimply expoſitory, it that were all there were of it, would have been alike ungenerous and unneceſfary, In the involuntary errors of the undlerſtanding there can be little to excite, or at leaſt to juſtify, reſentment, That which alone, in a manner, calls for rigid cenſure, is the ſiniſter bias of the affeftions. If then I may {till continue to mention as ſeparate, parts which in the work itſelf are ſo intimately, and, indeed, unciſtinguiſhably blended, it is the cenfortal part alone that has drawn from me that fort of animadverſion I have been led to beſtow indiſcriminately on the whole. To lay open, and if poſſible ſupply, the imperfections of the other, is an operation that might indeed of itſelf do ſervice; ' but that which I thought would do {till more ſervice, was the weakening the authority of is.
Under the ſanction of a great name every ſtring b 4 of * 3 — — % tt AW hf; 2 —. — och po i pales de x neee LEG) Bn RF Pr Rs tw . 4 tht og ODS 2g Jah 2 4 } * x: * 7 1 1 a4 rn Fn enn M+# m Fad: it "0. TICS 0": r — 5 xxiv Our Author why attacked in the charac- ter of an Expoſi or · .
of words however unmeaning, every opinion how. ever erroneous, will have a certain currency. Re. putation adds weight to ſentiments from whence ng part of it aroſe, and which had they ſtood alone might have drawn nothing, perhaps, but contempt, Popular fame enters not into nice diſtinctions. Merit in one department of letters affords a natural, and in a manner irrecuſable preſumption of merit in another, eſpecially if the two departments be ſuch between which there 1s apparently a cloſe alliance,