Imagens das páginas

libations in dishonour of English lawyers. We trust the first of these divisions will attract the attention it deserves, of that portion of our readers who take any interest in such subjects. If

·lar application of it. But he did not ascend to the principle of exclu'sion itself, and perceive that generically, it was pregnant with nothing

but mischief. The mind of Mr Burke was not a generalizing mind. It rested upon individual cases; had little native propensity to ascend

any higher, and seldom did so, unless when impelled by unusual cir* cumstances.'

Surely, to infer that Burke saw particulars only, from the fact, that, in a Report to the House of Commons for a special purpose, he confined his attention to the particular obstacles by which the management of the Impeachment was impeded, is a counter instance of a kind of generalization rather more rapid than is to be desired. Would it not be more just to wonder that, being once in his life brought from his ordi. nary political avocations, into contact with the positive forms of a legal trial, he saw so completely, and exposed so powerfully, the evil of the rules which were on that occasion interposed against the discovery of truth? There are one or two remarkable passages to the same effect, in his correspondence with Dr Laurence. Had we been called upon to mention a mind in which we should be more at a loss whether to admire most its omnigenous materials, or the beautiful arrangement by which their dependence on general principles, as well as their points of connexion with each other, was preserved, what name could have presented itself to us so soon as that of Burke? His great oratorical defect, except as prolocutor for a senate of philosophers, was that he generalized too much, and that facts lost their graphic and personal identity, by becoming principles and maxims whilst passing through his mind.

Mr Mill, junior, is not likely to have funderrated the importance of the trust confided to him by Mr Bentham, in the editorship of the present volumes; yet, unless they were persuaded, upon Hindoo principles, that he was born of a legal caste, and that therefore talents of this description must be hereditary ; or unless they took the fiction, by which every Englishman is supposed to be acquainted with the law, for a reality, we think that both parties would have exercised a sounder discretion-the one in not reposing, the other in not accepting, such a charge. Considering that Mr Bentham's own experience of the law of England must have been long suspended, and can have been at best only an acquaintance with principles rather than details, an accurate knowledge of this despised part of jurisprudence became an indispensable qualification on the part of his assistant-the groom, to whom a colt, so naturally wild, and so peculiarly circumstanced, was made over to be physicked, broken in, and got ready for the fair. If it were likely that a pamphlet might be compiled of the minor inaccuracies of the original, there could be no object in leaving more than a given portion of them uncorrected ; and it was surely quite unnecessary to add supplemental errors in the

it is scarcely possible to exaggerate its importance, it would be no less difficult than foolish to treat the other seriously. None but the ladies, the church, and other slave-holders, (tante animis cælestibus iræ,) are so sore and susceptible, as to wish to keep

notes. The prior appearance of the French abridgment had rendered the criticisms upon the English practice the most important part of the immediate publication. We wish Mr Mill had recollected that, upon some subjects, our knowledge cannot be instinctive, but acquired. An unfortunate neglect of this distinction leads to wicked inferences and disclosures : For, the reason by which Quinctilian explains a certain contemporary philosophy that affected to disdain eloquence, &c., is equally applicable to critics upon any law so positive as that of England. Phim losophia simulari potest, eloquentia non potest. However, suppose it to be decided that the advantages of tolerable information, for some reason or other, must be waived, the reader might hope to find some indemnity for lack of knowledge, in the diffidence by which it is prudent and becoming, even where not natural, that ignorance should seek its protection. A truce to his superior's sign-painting abuse of the English law, and those who practise it, might have been reasonably expected on the part of one, who must otherwise be consenting to call names on credit, as much as the parrot from its cage. As it is, no such compensation is obtained. The cannon's roar in the text is, throughout, ludicrously accompanied by a discharge of the editor's pocket-pistol in the note. The deep growl that mutters from above, is followed by a snap and a snarl from below; so that, in the place of any instructive commentary, or even reproof, there is a long reproachful howl, which reminds one of nothing philosophical and scholastic-except possibly it may be the accompaniment with which a litter of young Cynics used to attend the lectures at Diogenes's Tub.

Mr Bentham, like some other fathers, evidently prefers the pleasure of multiplying his ideas to that of clothing or providing for them. But surely there were staid matrons to be found; and a man who wilfully leaves his brats with a nursery girl, can scarcely be astonished should he find that they are not washed and combed, holes darned, and heads scrutinized, as accurately as might be desired. The neglected state of these tomes, too often resembles that of the huge and splendid foundling of some Brobdignag parish, scrambling after its broken go-cart. Not a single unsightliness seems to have been removed. This is possibly done all on system, and these excrescences may be beauties in some eyes; for not only is Mr Bentham their great intellectual banker, whose note of hand is safer than vulgar gold; he is the very Adam of human reasonthe propositus for whom the world has waited these odd six thousand years, and with whom the pedigree of common sense is now about to be giu. A note informs us that Mr Bentham invented the distinction between laws substantive and adjective. It is likely enough that he first hit upon these quaint and apposite designations. But surely few men before his time ever brought trover or assumpsit out of a mere abstract love

knight-errants, or literary bullies, (the Don Quixotes, the Southeys, and M'Quirks,) whose oath of office it is to resent all disparagement to their sex or order.

Some notice, however, must be taken of this, though the potter's share in Nebuchadnezzar's image; both from the ample space which it has pleased the author so to occupy, and because, generally, this mode of dealing with the most grave didactic subjects, is one of the characteristic features of the prophet and his sect. Some, doubtless, will be disgusted-and more, simply fatigued, by such indiscriminate, fanatical, and interminable abuse. But the real mischief is the occasion that it affords the

for forms of actions. Mr Mill has appended to the fifth volume, a Sketch of the Regulations on Evidence in the new Belgic civil code, to which Mr Humphreys had previously drawn so much attention ; and he cone cludes by averring its superiority over the other Continental modifica*tions of the Roman law. The time was when it would have been deemed necessary for a person who compared two objects, to be acquainted with them both. According to modern improvements, it appears you need know neither. Not only is a dispensation granted from the necessity of consulting all the modifications mentioned in this proposition, but a reference to a form of it so little recondite as the Code Napoleon, seems more trouble than their creed imposes upon the students of the a priori school. Considering that this Code was so recently the law of Belgium, we were not surprised to find, on comparing them, that this part of the new Belgic law is little more than a transcript of the French original. Most of the few alterations, indeed, are for the worse. The preconstituted evidence-which is selected for particular praise-is as old as the edict of Moulins, the original of subsequent corresponding regulations under the law of Scotland, and the Statute of Frauds—according to Mr Bentham, not improperly so called. As respects the Belgic code itself,, it has been despatched, although so great a favourite, with as little ceremony. A principal, we might say the principal, object of Mr Bentham's work, is to throw down all exclusions. According to him, therefore, the merit of any system must mainly depend upon the small number of them which it admits. But, strange to say, instead of inquiring the meaning of the words (reproche-and als getugee gewrakt) there applied to witnesses, a point involving the very issue, Mr Mill, junior, as if he were a commentator dealing with a lost language, has contented himself with suggesting what he conceives to be a probable interpretation. It would have put an end to his panegyric, would he, in default of living testimony, have only condescended to open Pothier's admirable Commentary on this part of the Civil Law, 403, Sur la qualité des témoins, et des reproches, qu'on peut proposer contre leurs personnes, pour faire réjeter leur déposition. We submit, that if this were the way in which the Admirable Crichton entered the lists, de omni scibili, he had an easy business of it; he would bave answered More's famous problem ou replevin, as readily as any other.

gainsayers, of mistrusting and discountenancing so eccentric an understanding. Our own admiration of Mr Bentham's achievements in philosophical analysis is too sincere not to listen thankfully to all oracles delivered by himself, in whatever unworthy mixture they may happen to be conveyed. But his bow is not for every hand; and it is with very different feelings that we take up most of the second-hand preparations of his prophetic matter, where we too often find nothing Delphic, but the mephitic steam. They bring us only Alexander's wry neck; the bald head of Cæsar, without his laurels. Because nature has its Harrogate waters, and baths of medicated mud, it does not follow that there must be something healing in mere ordure and rotten eggs. Even if the fine arts, and the graceful accomplishments of the understanding, should not be (what they so often assure us they are) at enmity with the useful part of it, it might, nevertheless, be difficult to show in what respect the forms of strict reasoning are to be gainers, by substituting the flowers of Billingsgate for those of Parnassus, along the banks of their logic lane. It is a great mistake to forget that Mr Bentham's privilege must ever be personal to himself--that by which every inventor is entitled to be heard on his own terms. There is no denying, too, that he throws his dirt, as Virgil his manure, with the hand of a master; and his caricatures are almost always heightened by a comic raciness, worthy to shake the sides of Rabelais or Swift. The latter wag would not be the less amused, at finding set down, through five earnest and passionate volumes, endless permutations and combinations of that famous ironical chapter, in which, after the fashion of wits and travellers, Lemuel Gulliver so delightfully enlightens his four-legged host upon English law.

Minds of this kind are as necessary to carry one across such subjects, as camels to pass the Desert; and if they choose to perch a monkey also on their back, the pilgrim ought not to complain. For ourselves, whilst we were towing in such goodly company against the stream, along the wearisome, but need'ful length,' of this elaborate question, we confess that we were often sighing after some more direct assistance for a reader, analogous to that power of steam which has lately shortened a voyage up the Mississippi from eighty-five days to five. Who can wonder, then, that during the drudgery of a composition of this description, the author himself should have required farther encouragement, than that noble, but distant light, which must surely be ever present to the eyes of the creator of a science, as the Pharos of his labours ? So far from quarrelling, therefore-think as we may of their appositeness or good taste-with whatever

venerable buffooneries' he could devise to enliven the task of twenty years, a gentle reader will only smile at the humorous relaxations with which the Achillean Jurist has made himself his own Thersites. The auto-portrait they present has reminded us of the Homeric picture given of the great Condè, * rolling like a war-horse on the grass, to cool himself during the pause in the battle of St Antoine. The novelty of these grotesque interludes must come with as sudden a surprise upon readers accustomed to the mechanical regularity and decorum of modern controversy, as a similar recreation would have startled the armies of Waterloo, if enacted by their leaders on the back-ground of either camp. Meanwhile, we should like to bespeak as much interest and forbearance as the public have to spare, for the flighty touchiness and hostility with which our excitable octogenarian sallies forth against the giants and windmills of English jurisprudence, its judges, and its bar, with their books of pernicious magic—the law's grim-gribber. They need only just look upon themselves for the time being, as accompanying and humouring Don Quixote on one of his fantastic expeditions.

The principle and nucleus of every gibe and illustration are made to consist in the assumption, that fee-gathering is the real foundation on which the laws of England have been framed ! According to this great central idea, (to which and from which every ray of light and every line converge,) it is supposed that the ends of Judicature are throughout in direct opposition to the ends of Justice. Accordingly, in every instance where the practice of the English law is found at variance with his own scheme of evidence, a triumphant shout ascends, on the imagined verification of a theory with which all the successive phenomena are thus shown so beautifully to accord. A considerable part of the fifth volume is taken up with a humorous outline and application of this test to our general system ; and contains a rapid sketch of the twelve principal devices of iniquity, by which the abuses that distinguish Technical from Natural procedure are secured. His grand arguments and illustrations are of this nature; and substantially as follows. The ends of judicial procedure have in all grave discussions been assumed to be identical with those of justice. Considering the leaders in this concert, the assumption is natural enough; but parallel experience

* M. le Prince étoit tellement fondu de sueur, et etouffé dans ses armes, qu'il fut contraint de se faire désarmer et débotter, et de se jeter tout nud sur l'herbe d'un pré, où il se tourna et vautra comme les chevaux qui se veulent délasser; puis il se fit s'habiller et armer, et retour. na au combat !

« AnteriorContinuar »