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Thus, the first and second chapters cover somewhat less than a hundred pages. The former treats of “the nature of man,” the latter “of man in a state of nature.” As far as utilitywe use the word in its most comprehensive acceptation-is concerned, it would puzzle Jeremy Bentham himself to settle their comparative pretensions. Of the former we have already furnished several specimens. If these bave not satisfied our readers, we recommend to them the perusal of the whole chapter, but especially the discourse about articulate sounds and the surprising case of the dog that could pronounce every letter in the alphabet except three, as stated at p. 40. So those who doubt whether the intellectual capacity of man be greater than that of the brutes, will find it rigorously demonstrated at p. 38, and if any of our readers are unfortunate enough never to have regaled themselves with the famous logomachy about the freedom of the will in its thousand forms of essay or folio, he may promise himself a sufficient gratification of his curiosity by reading from p. 45 to p. 61. In treating of the state of nature, of course the question whether it be a state of war is revived, and that old sinner, Hobbes, reprobated with a suitable degree of pious fervour. Then "it is immaterial (as we heartily agree it is) whether the state of nature ever had an actual existence or not,” (p. 78) for, as it is quaintly remarked, (p. 84) “if this perfect state ever existed for a short time, it was broken by the very first pair of human entities," since even in paradise, the peace of a family could scarcely be preserved without certain "rules and regulations.” Nay, “Mr. Plowden," it seems, considers it as incontrovertible "that the only individual who can be said in any sense to have existed in a state of nature, was Adam before the formation of his wife.” He was afraid to venture any further, we opine, lest the falling out of the very first man with the
appear to countenance in some degree the impious notions of Hobbes. It may not be amiss to remark, however, that Mr. Hoffınan takes a distinction upon this subject which is well worthy of consideration, viz. "that Eve also was in that state during the instant of time before she was subjected to the authority and law of her husband." He even entertains serious doubts whether the marital rights at-, tached at all before the expulsion from paradise, when this plague was probably for the first time inflicted upon the fair sinner by way of penalty for her presumptuous curiosity. And at p. 93, we come finally to the conclusion that this same state of nature “had in one sense an existence for scarcely a moment; not longer than while the first pair of human beings were deliberating, if, indeed, they did deliberate, whether they should yield
to the instinct within them and rush into the first embrace.” We shall not be expected to pursue the subject any further. Suffice it to add, that the account of what passed in that primordial state of society, is as precise and satisfactory as can be expected, considering how very scanty the materials are that remain for writing its history.
We object in the same way to the whole of the fifth lecture " on civil government,” as dealing altogether in vague and inapplicable generalities. And so of other parts of the book. Thus in the eighth lecture "on the laws of nature applied to men as individuals whether in a state of nature or of society and government,” Mr. Hoffman has given the greatest possible latitude to his own speculations, at the very moment that he censures others for a similar excess. Thus he very justly remarks that it is surprising how Puffendorf“ should have relapsed into all those extremely refined ethical disquisitions which confound the morals of the schoolmen with the positive, diplomatic and natural laws and institutions of nations," notwithstanding the excellent model which Grotius had left to his successors in these studies. Yet he proceeds straightway to retail all the theoretical opinions—the idle and absurd imaginations—the delirantium somnia—which the "seething brains" of Rabbis and visionaries have conceived. For instance, “that curious topic of casuistical jurisprudents,”* whether deity is subject to the laws of nature a question not much more absurd, to be sure, nor more idle, than the analogous one among the civilians, whether the despotism of the Cæsars ought to do homage to the laws which it created and changed at will. So too that very philosophic notion of the Talmudists, that God delivered orally to Adam, and subsequently to Noah and his sons "the whole of the law of nature, embraced in seven short and energetic precepts, now of universal obligation"--a little code considered by them as the matrix of the entire body of natural and moral law. Thence we are transported from theory to theory, from fiction lo fiction, until we find ourselves in the midst of those shocking narratives of human depravity"—the fee-faw-fum of misunderstood or apocryphal history and of the horror-breathing figments of travellers—with which it is so easy to embellish a book of the sketches of man." How at Babylon every woman had to prostitute herself once in her life, which gives occasion to our author to say that Herodotus was the father of lies, and to quote Cicero to prove it, p. 338—how among the Sabæans a single
* This word, as Mr. Randolph expresses it, does not belong to the language that we speak.
wife served a whole family, as Diodorus Siculus testifiethhow Zoroaster allowed parents and children to intermarry, and none but the offspring of such a union could belong to the order of the Magi-how the Spartans cast their infant children into a “murder-hole” on Mount Taygetus-how incest was enjoined by Moses and Solon, which leads very naturally to the inquiry whether incest is malum prohibitum or malum in se, “a controversy not yet settled among casuists,” (p. 339) and into which Mr. Hoffman does not choose to enter minutely, although he pursues it through many pages—how “the accomplished Cato" lent his wife to Hortensius, as was the custom among the Romans, "in order to improve the breed”-how the Tartars according to Hakluyt, have a strange custom among them, "for that when any man's father deceaseth, he [the father ?] assembleth all his kindred and they eat him," p. 343—how, according to Picart, the people of Java used to sell their old men to the Anthropophagi-how the cannibals of Ireland were accustomed to serve up as a rare delicacy (oh! most direful refinement of gastronomy !) the mammæ of women-how the Brazilians, with palates less exquisite, but equally perverted, fattened their prisoners to feast on them-how the widows of African kings had to poison themselves on the demise of their lords-how the Mexicans adored an idol formed from every known seed, kneaded together with the blood of infants-and how there would be no end to this catalogue of ludicrous horrors, if the author did not stop short in mercy to his reader, who has already supped full of them. The remarks of Mr. Hoffman upon these monstrosities, are very judicious. They are somewhat in the spirit of Hume's Dialogue, in which Palamedes, one of the interlocutors, endeavours to reconcile many apparently irregular and anomalous usages and customs, to the great leading principles of reason and morality, and to shew that they furnish no inference whatever against the universality of what is called the law of nature, or the standard of right and wrong.
A reader who has leisure to bestow upon such inquiries, cannot do better than refer to and meditate upon that most admirable essay of the first of British philosophers ; but what have such inquiries to do with the elements of jurisprudence, properly so called ?
In a word, we do not recollect ever to have met with a more striking exemplification, than is furnished by this volume, of the remark that American writers and speakers begin always at the very beginning
Primâque ab origine mundi
We grieve that Mr. Hoffman has given the sanction of his example to this crying sin against good taste and common sense, which is, indeed, becoming an intolerable public nuisance. Such total want of all unity of purpose-of all simplicity and directness in the conduct and execution of things that have some pretension to be considered as works of art-at least, of designit is, we verily believe, impossible to match in the productions of any other people under the sun. It is almost inconceivable in a nation, more. remarkable, perhaps, than any other, for promptitude, sagacity and address in the management of affairs. That arch-puritan, Oliver Cromwell, would seem to be the type and model of the country. Call upon an American for action, and you are sure to find him ready, skilful, decided and efficient. The common instruments of his art are too clumsy-its processes too operose for his active genius, which is immediately laid under contribution for some labour-saving contrivance. Hence the patent-office—that great repository of Jonathan's practical cleverness—is already overcharged with its fruits. But call upon him for a specification of these very plans—for the rationale of his simplest operations, and you get out of him nothing but rigmarole or rhetoric. Fluit lutulentus—There is no end to his obscure and undistinguishing volubility. You are allowed no credit for any information on the subject of your inquiry. You must hear the wbole story out, which is detailed, with dreadful circumstantiality, on the true epic plan of interpolating into the matter in hand, a retrospective narration beginning at the origin of things, This vicious and disgustful redundancy besets us every where. Our compositions-our speeches, are the very reverse of Attic. We stand in most distressing need of the lima labor.. Some of our recent state papers, which, to the scandal of the age, have been beld up as models in their way, are a disgrace upon the country by their fustian and wire-drawn prolixity. We have ourselves listened to the arguments of eminent counsel in the Supreme Court of the United States, who seemed to have forgotten entirely that the Judges of that high tribunal ought to be presurned to have read Blackstone's Commentaries at least once in their lives. Congressional harangues—but the very name of them is enough, and we gladly dismiss the topic to return to Mr. Hoffman's book.
We are aware that the example of Puffendorf and other writers of the same school, especially in Germany,, may be relied on as warranting the form and scope of the work before us. To this plea, we in the first place demur generally; and, secondly, we reply, that, admitting it to bave any validity at all, it is inap plicable to the facts of the principal case. To begin with the
of our replication. Objectionable as the works referred to undoubtedly are, we can still see in them some useful, practical bearing on ordinary legal questions. In the discussion of one of those important cases where the file affords no precedent, and the advocate is compelled to search for principles in a train of comprehensive reasoning by analogy and induction, these elementary treatises suggest many a pregnant hint and many a striking illustration. For instance, we opened a little while ago, haphazard, Heineccius' Prælections on Puffendorf, de Officio hominis et civis, and read the sixth chapter, of which the title is de Officio quorumlibet erga quoslibet et de non lædendis aliis quite abstract enough in all conscience. In deducing the doctrine, with that systematic exactness for which these writers are distinguished, the author brings us in 9 vii. to the very important question, whether a man can be a trespasser merely by assent er post facto—and decides it on unanswerable reasoning from his own premises, in the negative.. Our common law books teach a different doctrine; but if the question be considered as open in our courts, we have no doubt of a judgment in favour of the view of it taken by Heineccius.* This is one out of many similar examples of obyious practical utility. But what does it signify in any imaginable legal discussion, whether we believe in the liberty or necessity of human actions ?-or whether utility or a moral sense or sympathy be the rule of approbation and blame? or whether corals and sponges be minerals or vegetables ?-or whether our species be properly associated by pbilosophers" with the Simia Troglodytes or Angola Ape; with the Simia Satyrus or Ourang-Outang; and with the Vespertilio Murinus or common bat?"-or whether, what is now the seat of honour, by the consent of all civilized nations, was, at some distant epoch, garnished with the brutish appendage which Lord Monboddo so gratuitously attaches to it?
But the works of the German writers are far from being models of perfection in this kind-very far indeed. The popularity and reputation which they enjoyed in the seventeenth and the earlier part of the last century, have left them entirely. Later writers have censured these treatises, and what is still worse, modern readers have suffered them to slumber undisturbed in the dust of their libraries, precisely for the very characteristics
It may be remarked that the authorities cited to support the common law doc. trine, seem scarcely to warrant the rule as laid down in Digests and Indexes. Litt. p. 278, puts the case of a diseisin, which is not a bare trespass, but a mode of acquir. ing property—and there undoubtedly, the person for whose benefit the disseisin has been made, becomes a disseisor by ratifying it. VOL. IV.-NO, 7.