Nor do the views of Grotius appear always enlarged or just, even when he is pointing at the object described by Mr. Smith. The Roman system of Jurisprudence seems to have warped, in no inconsiderable degree, his notions on all questions connected with the theory of legislation, and to have diverted his attention from that philosophical idea of law, so well expressed by Cicero,-"Non a prætoris edicto, neque a Duodecim Tabulis, sed penitus ex intimâ philosophiâ, hauriendam juris disciplinam." In this idolatry, indeed, of the Roman law, he has not gone so far as some of his commentators, who have affirmed, that it is only a different name for the Law of Nature; but that his partiality for his professional pursuits has often led him to overlook the immense difference between the state of society in ancient and modern Europe, will not, I believe, be now disputed. It must, at the same time, be mentioned to his praise, that no writer appears to have been, in theory, more completely aware of the essential distinction between Natural and Municipal laws. In one of the paragraphs of his Prolegomena, he mentions it as a part of his general plan, to illustrate the Roman code, and to systematize those parts of it which have their origin in the Law of Nature. "The task," says he, "of moulding it into the form of a system, has been projected by many, but hitherto accomplished by none. Nor indeed was the thing possible, while so little attention was paid to the distinction between natural and positive institutions; for the former being every where the same, may be easily traced to a few general principles, while the latter, exhibiting different appearances at different times, and in different places, elude every attempt towards methodical arrangement, no less than the insulated facts which individual objects present to our external senses."

This passage of Grotius has given great offence to two of the most eminent of his commentators, Henry and Samuel de Cocceii, who have labored much to vindicate the Roman legislators against that indirect censure which the words of Grotius appear to convey. My chief object," says the latter of those writers, "was, by deducing the Roman law from its source in the nature of things, to reconcile Natural Jurisprudence with the civil code;

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and, at the same time, to correct the supposition implied in the foregoing passage of Grotius, which is indeed one of the most exceptionable to be found in his work. The remarks on this subject, scattered over the following commentary, the reader will find arranged in due order in my twelfth Preliminary Dissertation, the chief design of which is to systematize the whole Roman law, and to demonstrate its beautiful coincidence with the Law of Nature." In the execution of this design, Cocceii must, I think, be allowed to have contributed a very useful supplement to the jurisprudential labors of Grotius, the Dissertation in question being eminently distinguished by that distinct. and luminous method, the want of which renders the study of the treatise De Jure Belli et Pacis so peculiarly irksome and unsatisfactory.

The superstitious veneration for the Roman code expressed by such writers as the Cocceii, will appear less wonderful, when we attend to the influence of the same prejudice on the liberal and philosophical mind of Leibnitz; an author, who has not only gone so far as to compare the civil law (considered as a monument of human genius) with the remains of the Ancient Greek geometry; but has strongly intimated his dissent from the opinions of those who have represented its principles as being frequently at variance with the Law of Nature. In one very powerful paragraph, he expresses himself thus: "I have often said, that, after the writings of geometricians, there exists nothing which, in point of strength, subtilty, and depth, can be compared to the works of the Roman lawyers. And as it would be scarcely possible, from mere intrinsic evidence, to distinguish a demonstration of Euclid's from one of Archimedes or of Apollonius (the style of all of them appearing no less uniform than if Reason herself were speaking through their organs), so also the Roman lawyers all resemble each other like twin brothers; insomuch that, from the style alone of any particular opinion or argument, hardly any conjecture could be formed about its author. Nor are the traces of a refined and deeply meditated system of Natural Jurisprudence anywhere to be found more visible, or in greater abundance. And even in those cases where its principles are departed

from, either in compliance with a language consecrated by technical forms, or in consequence of new statutes, or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity that excites admiration. Nor are these deviations from the Law of Nature so frequent as is commonly apprehended."

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In the last sentence of this passage, Leibnitz had bably an eye to the works of Grotius and his followers; which, however narrow and timid in their views they may now appear, were, for a long time, regarded among civilians as savouring somewhat of theoretical innovation, and of political heresy.

To all this may be added, as a defect still more important and radical in the systems of Natural Jurisprudence considered as models of universal legislation, that their authors reason concerning laws too abstractly, without specifying the particular circumstances of the society to which they mean that their conclusions should be applied. It is very justly observed by Mr. Bentham, that, "if there are any books of universal Jurisprudence, they must be looked for within very narrow limits." He certainly, however, carries this idea too far, when he asserts, that "to be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words; and that, to be strictly speaking universal, it must confine itself to terminology; that is, to an explanation of such words connected with law, as power, right, obligation, liberty, to which are words pretty exactly correspondent in all languages."* His expressions, too, are somewhat unguarded, when he calls the Law of Nature "an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws, sometimes to what law is, sometimes to what it ought to be." Nothing, indeed, can be † more exact and judicious than this description, when restricted to the Law of Nature, as commonly treated of by writers on Jurisprudence; but if extended to the Law

* Introduction to the Principles of Morals and Legislation, p. 323.

† Ibid. p. 327.

of Nature, as originally understood among ethical writers, it is impossible to assent to it without abandoning all the principles on which the science of morals ultimately rests. With these obvious, but, in my opinion, very essential limitations, I perfectly agree with Mr. Bentham, in considering an abstract code of laws as a thing equally unphilosophical in the design, and useless in the execution.

In stating these observations, I would not be understood to dispute the utility of turning the attention of students to a comparative view of the municipal institutions of different nations; but only to express my doubts whether this can be done with advantage, by referring these institutions to that abstract theory called the Law of Nature, as to a common standard. The code of some particular country must be fixed on as a groundwork for our speculations; and its laws studied, not as consequences of any abstract principles of justice, but in their connexion with the circumstances of the people among whom they originated. A comparison of these laws with the corresponding laws of other nations, considered also in their connexion with the circumstances whence they arose, would form a branch of study equally interesting and useful; not merely to those who have in view the profession of law, but to all who receive the advantages of a liberal education. In fixing on such a standard, the preference must undoubtedly be given to the Roman law, if for no other reason than this, that its technical language is more or less incorporated with all our municipal regulations in this part of the world: and the study of this language, as well as of the other technical parts of Jurisprudence (so revolting to the taste when considered as the arbitrary jargon of a philosophical theory), would possess sufficient attractions to excite the curiosity, when considered as a necessary passport to a knowledge of that system, which so long determined the rights of the greatest and most celebrated of nations.

"Universal grammar," says Dr. Lowth, "cannot be taught abstractedly; it must be done with reference to some language already known, in which the terms are to

be explained and the rules exemplified."* The same observation may be applied (and for reasons strikingly analogous) to the science of Natural or Universal Jurisprudence.

Of the truth of this last proposition Bacon seems to have been fully aware; and it was manifestly some ideas of the same kind which gave birth to Montesquieu's historical speculations with respect to the origin of laws, and the reference which they may be expected to bear, in different parts of the world, to the physical and moral circumstances of the nations among whom they have sprung up. During this long interval, it would be difficult to name any intermediate writer, by whom the important considerations just stated were duly attended to.

In touching formerly on some of Bacon's ideas concerning the philosophy of law, I quoted a few of the most prominent of those fortunate anticipations, so profusely scattered over his works, which, outstripping the ordinary march of human reason, associate his mind with the luminaries of the eighteenth century, rather than with his own contemporaries. These anticipations, as well as many others of a similar description, hazarded by his bold yet prophetic imagination, have often struck me as resembling the pierres d'attente jutting out from the corners of an ancient building, and inviting the fancy to complete what was left unfinished of the architect's design;-or the slight and broken sketches traced on the skirts of an - American map, to connect its chains of hills and branches of rivers with some future survey of the contiguous wilderness. Yielding to such impressions, and eager to pursue the rapid flight of his genius, let me abandon for a moment the order of time, while I pass from the Fontes Juris to the Spirit of Laws. To have a just conception of the comparatively limited views of Grotius, it is necessary to attend to what was planned by his immediate predecessor, and first executed (or rather first begun to be executed) by one of his remote successors.

The main object of the Spirit of Laws (it is necessary

* Preface to his English Grammar.