THE

EDINBURGH LITERARY JOURNAL;

OR,

WEEKLY REGISTER OF CRITICISM AND BELLES LETTRES.

No. 88.

TO OUR READERS.

SATURDAY, JULY 17, 1830.

THE Proprietors of the EDINBURGH LITERARY JOURNAL having purchased the copyright of the Edinburgh Literary Gazette, that paper will be henceforth discontinued, and copies of to-day's JOUR

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to mankind, as at once selfish and rational creatures— as beings whose highest interest is to advance their own happiness, and whose understandings are capable of guiding and directing their wills by the power of motives. But here an important distinction is to be drawn. Man is not alone in the world. On the contrary, he is surrounded by creatures similarly constituted and similarly influenced with himself; he is placed in certain relations to those creatures, by which his absolute or natural liberty is, to a certain extent, abridged; and hence he is bound to respect their rights and their happiness, at the same time that he is entitled to resist all encroachments upon his own. There is room for usurpation upon neither side; while mutual concession is a necessary consequence of mutual dependence. The rule of morality, applicable to such cases, is therefore obvious and evident. It is lawful for every man to promote his own interest and happiness by every means not adverse to, or inconsistent with, the interest and happiness of other men-understanding by the terms interest and happiness, all that is

SAL are forwarded to all the subscribers to the Gazette, with an understanding that, unless intimation is received to the contrary, they will henceforth continue subscribers to the JOURNAL. The JOURNAL having already so extensive and well-established a circulation, it is probably unnecessary to mention to our new readers, that it has been supported from its outset by some of the ablest writers both in this and the sister country, and that it has now acquired a strong hold of the public mind, particularly in Scotland, where it was the first to introduce a regular system of weekly literary criticism, affording the earliest intelligence of new works of interest, and paying especial attention to all books published north of the Tweed. It has thus taken possession of ground not before occupied, and has met with success commensurate with the want which was felt of such a periodical. To the department of Miscellaneous Literature also, much attention has always been paid, and arrangements are at present in progress, by which it is expected that a still higher degree of interest will speedily be given to this and all the departments. Among other things it may be mentioned, that it is proposed ere long to increase the size of the JOURNAL, re-really and truly conducive to human welfare and imtaining the same shape, which is so well adapted to binding into handsome volumes, but adding, as has been done to-day, several pages to each Number. In short, nothing will be overlooked, either by the Proprietors or Editor, to secure a continuance of that support they have already received, and to render this periodical worthy of the name and of the exclusive privileges it enjoys, as the only Weekly Register of Criticism and Belles Lettres existing, or likely to exist, in Scotland.

AS CULTIVATED AND TAUGHT IN GERMANY. (We are happy to give a place to the following erudite and able article, on a subject of much interest to a considerable portion of our readers. It is from the pen of a writer well known in the literary world, who has not hitherto contributed to this Journal, but from whom we hope for occasional assistance in future.-ED.]

THE investigation of the laws which govern human actions has at all times been considered one of the most important objects of philosophy. That the greater part of those actions are the result of a judgment, on our part, by which we conclude that they must either conduce to our good, or enable us to avoid evil, is what cannot reasonably be doubted. Every man, as the Stoics observed, is committed by Providence to his own care, or, in other words, is intrusted with the special guardianship of his own interest and happiness; and these ends he is called upon to promote by all means in his power not inconsistent with the interest and happiness of other men. The first duty which he owes is to himself: the chief object of all his pursuits is, to procure the greatest possible amount of good, and to suffer the least possible amount of evil, Had the case, indeed, been otherwise, had human nature been differently constituted,-positive laws would have been of no avail, and rewards and punishments idle sanctions. These are addressed

provement. But, not to mention those internal movements which operate involuntarily, or at least without being preceded by any act of volition of which we are conscious, are there not some actions, it may be asked, which man wills from other motives than the advantage he expects to derive from them?

This question has occupied the attention of philosophers, ancient as well as modern: but we are not aware that, before the time of Grotius, disinterested actions had been resolved into two classes; the just, which are the result of certain laws, the knowledge of which constitutes a particular science called natural jurisprudence; and the good or the virtuous, which result from another description of laws, and form the object of the science of morals. The distribution in question was first promulgated in the celebrated treatise De Jure Belli et Pacis, published in 1625, when its illustrious author was living an exile in France; and although it is grounded on principles which we think altogether erroneous, and has, in fact, been rejected as such by subsequent enquirers, yet was it not only a great step made in advance of the barbarous philosophy of that age, but also a convenient form for arranging two distinct classes of phenomena, which it was of the greatest consequence to keep perfectly separate. Hence it was at first, and for a considerable period afterwards, received without challenge or dispute; for, as the sensation produced by the great work of Grotius was prodigious, and the authority which it almost immediately acquired unlimited, the learned were for some time much more occupied in studying its doctrines, and endeavouring to store their minds with the treasures of its boundless erudition, than in hunting out objections to the one, or trying to discover reasons for proving the inutility of the other. One thing is certain, however, that the treatise in question created the science of natural jurisprudence, and also produced its second greatest expositor. The first chair of natural law was erected at Heidelberg in 1661, and the first professor who occupied it was Puffendorf. Indeed, Grotius and Puffendorf are

to be considered as the fathers of this new science; and, had drawn their theories of natural law from the most n many parts of Europe, they are still regarded as its opposite sources. Grotius, for example, supports his poonly authoritative expounders. This observation, how-sitions, not by reasonings founded on the principles of ever, does not include Germany, which, since the days of human nature, or the immutable dictates of natural jusPuffendorf, has become, so to speak, the classic region of tice, but by quotations from the Old and New Testanatural law, and where the number of works which have ment, and the classical authors of antiquity, the opinions appeared on the subject would of themselves form a con- of modern philosophers, and not unfrequently also by siderable library. Philosophers, civilians, diplomatists, proofs and illustrations derived from history. Puffenand jurisconsults, all applied to this study with the greater dorf advanced a step farther, and adventured on a few ardour that the connexion of natural law with the sciences, psychological observations; but, in his great work, the which principally engaged their attention, was alike com- authority of authors is still the principal foundation upon mon and intimate: but, as might have been expected, which he rests his opinions. And, notwithstanding the each of these classes has given a different character and mathematical form into which he absurdly endeavoured to direction to the subject, although the influence of the phi- cast his disquisitions on the philosophy of mind, Wolf is losophers has proved by far the most decisive. This will not a whit more rigorous or exact than Grotius and be made sufficiently apparent by the following notices of Puffendorf; founding his precepts of natural law upon the history of the science in Germany since the time of such vague and variable elements as popular sentiments, Puffendorf. philosophical opinions, and historical documents. in the school of Kant, all this learned trifling was sternly rejected, and natural law became a science purely rational. The great problem which this school undertook to resolve was, That there exist, for every man, rules of conduct independent of his interest, absolute, universal, and exhibiting characters of certainty which belong only to truths discoverable à priori. Its principle, therefore, is pure reason; and hence, in the nomenclature of this school, the denomination of natural law (which, at the best, is exceedingly vague) has been replaced by that of philosophical law, or the philosophy of law, or, to use its own appropriate epithet, vernunftrecht, the law of reason. In the year 1792, Kant published his Metaphysical Principles of Morals, the first part of which contains the

But,

alluded. His notions of the origin of law, so far as we have been able to understand them, may be very shortly, and, we trust, intelligibly stated as follows.

About the year 1705, the celebrated jurisconsult Thomasius* attempted to establish natural law upon a new foundation, by distinguishing it more carefully than had been hitherto done, from the science of ethics. According to him, the former science admits only negative, but perfect duties; while the latter recognises positive, but imperfect rights. Thus the precept of Christian morality, Quod tibi NON vis fieri, alteri ne facias, is the fundamental principle of natural law; while the corresponding positive principle, Quod tibi vis fieri, et aliis facias, constitutes the basis of ethics. Again, negative but perfect duties may be enforced; and hence all law includes, as an essential element, the power of employing force against those who disregard or transgress its rules. But the science of ethics admits of no such auxiliary; for the idea of an im-developement of the theory of law to which we have just perfect right implies a moral, not a legal obligation; and hence there is no power by which respect to it can be enforced but the power of conscience alone. Such were the simple principles upon which Thomasius founded his system of natural law; a system which was well received at the time, and which, half a century later, was revived and adopted by Wolf, with such modifications as he deemed › requisite for accommodating it to the peculiar doctrines and tenets of his master Leibnitz. These doctrines and tenets are too well known to make it necessary to enter into any specification of them in this place but with reference to the modifications of the Thomasian system introduced by Wolf, we may observe, en passant, that they appear to have been more favourably received in France than in Germany; that his works have always been .much studied by the jurisconsults of the former country; and that his doctrines on the subject of natural law have been very ably and zealously illustrated by two French writers of our time-viz. in 1803, by M. Maffioli of Nancy, and in 1804, by M. Rayneval, both au›thors of considerable note; while even the distinguished author of the Cours de Droit Civil Français has been indebted to Wolf for the greater part of the philosophical reasonings with which his able and instructive work is interspersed. But neither the subtleties of Leibnitz, nor the expository reasonings of Wolf, appear to have made much impression in Germany; and both were destined to give way before the new system of natural law which arose in that country almost immediately after the publication of the philosophy of Kant.

.

The will of man is not alone determined by the desires inherent in his nature. There exists another principle of action, and that principle is reason. But reason is endowed with autonomy, that is, with a legislative power applicable to itself. The rules which it prescribes are, like itself, absolute and universal. Again, the object of the legislation of reason is either interior or exterior. In the former case there is morality; in the latter, legality; while, in both, the fundamental principle is, that categorical imperative which occupies so prominent a place in the philosophy of Kant. Reason enables us to discover an absolute rule, from which it is not permitted on any pretext whatever to deviate; and the formula of this rule is," Act in such a way that the principle of your action may become a general rule of conduct for all men." The exterior legislation, of reason, or natural law, is the union or aggregate of those conditions under which the will of man can act without violating the common law of liberty. Every action, therefore, is conformable to law, and consequently just, if it be compatible with the general law of liberty. But law necessarily implies constraint. This Kant attempts to prove by the following reasoning:-The opposition directed against an obstacle which hinders the performance of an action, belongs to the same principle as that action: the resistance opposed to every unjust action, is conformable to the law of general liberty: what is conformable to general liberty, is leThe predecessors of the philosopher of Koenigsberg gitimate and of natural right: ergo, resistance or con

*Four years previous to this, viz. in 1791, Thomasius bad greatly distinguished himself by an inaugural thesis, or dissertation De Crimine Magic, in which he attacked, with irresistible force of reasoning, the prevalent belief in witchcraft, and exposed, with a powerful and unsparing hand, those insane and murderous delusions which had conducted whole hecatombs of victims to the gibbet or the stake. This thesis, embodying the first formal attack on the creed and conduct of the dæmonologists, was publicly read in the University of Halle, which, to its infinite honour, greeted with applause the bold scepticism of the jurisconsult: and so well did the latter perform his task, that a century and a quarter have added nothing to the weight of the arguments, or the force of the reasonings, with which the fictions and phantasms of the popular belief were assailed in this masterly performance.

straint enters as an element into the complex idea of natural law. Liberty, according to Kant, is an innate or primitive right of man; and this right is the principle that pervades the whole of his philosophical theory of law.

Other authors of this school, however, have expressed, in a manner somewhat different, the fundamental principle of law. Heydenreich, for instance, has proposed the following formula :-" Every action is just when it does not violate in others the nature of man considered as a reasonable being;" and Schmalz takes as the basis of law the recognition of the dignity of man, or the idea of

humanity respected in our fellow-creatures.

tions have been alternately the objects of his commendation and censure; and it has been alleged, that material utility and physical pleasures appear to him the only motives calculated to influence the human will; the same objection, it will be remarked, which has been urged against the Utilitarian theory of our own venerable jurist, Mr Bentham. In fact, the banner of M. Hugo has not even been followed by the jurisconsults of the historical school, although they recognise him otherwise as one of their

As it is reason which distinguishes man from things, and makes him a person, others, again, have assumed this personality as the basis of natural law; that is to say, they hold that man is «torikùs, self-sufficient, and that he can never be treated as a simple mean, or instrument, for accomplishing au end proposed by one of his fellow-creatures. Kant and his disciples, however, equally maintain, that the rights of man, being inherent in his nature, accompany him through all the stages of his exist-most illustrious chiefs, and although his manner of conence; that he enjoys them even beyond the pale of society, it being the object of the social state merely to seeure and protect them; that these rights are inalienable and imprescriptible; and that man can no more be deprived of them than he can cease to be man, or be divest-history of ancient and modern legislation. ed of the character of humanity.

sidering natural law is altogether in the spirit of that school; for it is undoubtedly true, as M. Hugo asserts, that there is no other method of discovering the general laws of human societies, than by means of a comparative

Meanwhile, the study of natural law has not been altogether abandoned in Germany, where the philosophers, and even some of the jurisconsults, still continue to give their attention to the subject. Without adopting the doctrines of Hugo, both classes have gradually seceded from the systems of Thomasius and Kant. And the principle now generally received is, that natural law is only to be considered as a model, to which the positive laws of each country ought to approach as nearly as its customs and the actual state of knowledge will permit; in other words, natural law is to be viewed as a sort of abstract law, which stands to the different forms of positive legis

Such is a condensed abstract of the fundamental doctrines of this school. At first no one thought of enquiring what good or useful purpose these theories were likely to serve; and it was only after an attempt was made to apply them, that their intrinsic worthlessness became manifest. Difficulties now started up on all sides. The questions to be resolved were, whether natural could be modified or restrained by positive laws; and whether obedience was due to the latter, where disconform or opposed to the former. Some writers, including Reinhold, hesitated not to take the bull at once by the horns, and to answer these questions in the nega-lation in the same relation precisely as the principles of tive. According to them, the rules promulgated by le- | mechanical philosophy do to the various useful arts in which gislators are not to be considered as veritable laws, ex- these are applied. Among the jurisconsults who have cepting in so far as they are conformable to the principles attempted to rest the science on this new basis, may be of natural law; a dogma which appears to be perfectly con- mentioned M. Baumbach of Jena, and M. Falk, professor formable to the quibbling maxim so often repeated of late at Kiel, as well as author of an Encyclopedia of Law. years by the small fry of French jurisconsults, Il n'y a The former has ably demonstrated the radical defect of point de droit, contre le droit. But the great majority of the system of Kant, which is wholly unsusceptible of apauthors, whatever their theoretical views might have been, plication: while the latter, also rejecting this system, is, shrunk from the hopeless task of upholding the reason of nevertheless, of opinion, that there exist principles of law each individual against the legislative authority of a state, independent of all political sanction; that these princior encouraging a struggle, of which it was easy to foresee ples are nothing more than the expression of the relations the consequences, between power on the one hand, and a resulting from social life; and that from the fact of civil doubtful philosophy on the other. association, and the constitution of families, flow all the consequences from which the rules of law are derived. M. Falk published his theory in 1821; at which time a controversy arose between a philosopher of the name of Hegel, author of a work on Natural Law and the Science of Government, and the jurisconsults of the historical school, relative to this subject. Hugo pounced upon poor Hegel's book, which he criticised with great severity, but, it must be confessed, with more of sarcasm than of argument. Hegel, finding the laugh was against him, retorted with abuse. But the veteran of Gottingen was not to be discomposed by hard words coarsely applied. He replied in a tone of pleasantry, almost worthy of the venerable and jocose octogenarian of Queen Square; comparing poor Hegel to that Favorinus, who, in the third century, disputed with the jurisconsult Sextus respecting the Decemviral Constitutions, and talked of law en philosophe, that is, like a blockhead, who knew nothing at all about the matter.

Towards the close of the last century, M. Hugo, since so celebrated by his numerous works on jurisprudence, took the field as the declared opponent of the doctrines of natural law, then more or less in favour in Germany; and denouncing them as both philosophically useless and politically dangerous, produced a strong sensation among the esprits forts of that country. His attack was general and unsparing. He began with Thomasius, whose system he combated with great vigour in the first edition of bis Lehrbuch des Naturrechts; and, descending through the line of his successors, he levelled a naturalist at every onset. According to M. Hugo, there are no absolute rules of conduct for man in the social state. Every thing, on the contrary, is relative. Hence, rules the most various may be erected into laws, because the degree of civilisation, individual wants, and religious opinions, which afford the only ground and measure of such rules, are necessarily variable, and consequently different at different times. The positive law of a given period ought, there- But it is time we should draw these notices to a close. fore, to be considered as the expression, more or less exact, The general conclusion to which they lead is sufficiently of the wants of that period: and, upon the same princi- obvious, namely, that, notwithstanding so many different ́ple, he contends that almost all the institutions which, works and different systems, the philosophical study of · history informs us, existed among the nations of antiqui- law is still in its infancy, not only among the Germans, ty, were justified by the situation of those nations, and but among all other nations; and that this state of things adapted to the condition of the people who lived under is likely to continue, until some superior genius shall them. M. Hugo takes Montesquieu as his model, only arise to continue the work which Montesquieu began, and he restricts himself to considerations connected with pri- which that great man was only prevented from prosecu-vate law, to the exclusion of broader and more general ting further by the imperfect state of philosophical and views. Notwithstanding his acknowledged talents, how-physical knowledge at the period when he wrote. ever, M. Hugo's philosophical doctrines met with but an indifferent reception; while the ironical tone in which he treated the doctrines of his opponents raised up against him a whole host of enemies. He has also been accused, with some reason, of scepticism, seeing that all institu

Q. F. F. Q. S

sider the details-the ability which he has shown in filling up his general sketch.

We do not hesitate to say that we have found the work when subjected to this narrower scrutiny, extremely defective. Nor is this to be wondered at. The author is a young man-he has not, we believe, enjoyed the benefits of a very complete education-he is no lawyer, and has no practical knowledge of business (political or commercial) on a large scale. It was to be expected from these circumstances, that although we might find in his pages much graphic delineation, and much shrewd remark, (and, assuredly, we find both,) yet that there would be many omissions and mistakes. We willingly omit the invidious task of exposing the smaller errors, seeing that he will find plenty of good-natured friends to undertake it, the more especially as some of the errors are in matters so completely within the sphere of his observation, we wonder he could fall into them. We prefer adopting a more generous style of criticism, and pointing out, not so much his inaccurate details, as the fountain whence the main body of them flows. This fountain is twofold,-first, erroneous opinion, and se cond, jaundiced feeling.

First, of erroneous opinion. The author says of the manner in which he has collected his materials:“ It may be necessary to state that the line of procedure adopted in gleaning information, has been different from that usually pursued in making compilations. Unless it has been to the works of a few erudite lawyers, among whom Blackstone, that glorious pattern of style and sentiment,

Mr Chambers announces the aim of his work in these words:"The volume now introduced to public notice has been compiled with a view of furnishing, for the first time, to strangers and others, a connected comprehensive delineation of the chief institutions in Scotland, as well as the more prominent and peculiar laws and usages by which this northern kingdom is still distinguished from the other portions of the British empire, and more especially from England; and as such, to form a useful companion to the Picture of Scotland. While the latter publication adheres principally to a description of things of a tangible nature, the present may be best depicted as an attempt to expose the mechanism regulating society in its public relations. In other words, while the one presents a luminous picture of the body of the country, the other aspires to exhibit the soul with which it has been endow-stands pre-eminent," (fudge!)" scarcely any reference has ed." The reader will see from this introduction, that the author, with a good fraternal feeling, attempts to raise his work by connecting it with his brother's popular book, much in the way that we used, when younkers, to send scraps of paper, ycleped “messengers," whirling up the string to our soaring kite. Or, to use a more classical simile, he attaches himself to the old hero as the lesser Ajax to his bulkier compeer when discharging his shafts from behind the seven-fold shield of the latter. This last simile, however, will scarcely hold, for the weapon brandished by the junior is in this case more ponderous than that in the grasp of the senior. Thus discomfited, therefore, in our attempt to be brilliant, we proceed to criticise the book in plain prose.

This volume is quite unique in its execution, and all but original in its design. There is no work in existence, so far as we know, which professes, as this does, to introduce the stranger into the public and domestic life of a country to put a clew into his hand, with which he may safely thread the mazy labyrinth of its social relations, and carry back with him to his home,--not disconnected phenomena, which he must piece together for himself, at the risk of committing a thousand ludicrous blunders, but a thorough and systematic notion of the nation's domestic course of life. The mere power of projecting such a work gives us a favourable opinion of Mr Chambers's intellect. And this presumption is confirmed by a glance at the heads of the chapters. The author commences with a brief sketch of the Government of Scotland before the Union, and of the changes induced upon it by that great political transaction. Out of the state into which society was then thrown, he evolves all the peculiarities of our Scottish institutions, and proceeds to explain these, in as far as they are to be found in our courts of justice -in our commercial arrangements-in our church and educational establishments-in the marriage and game laws--in the constitutions of our burghs-and in our societies for the encouragement of literature, science, and art. The reader, who has given any attention to the structure of society in any country, will easily perceive that a pretty complete portrait of a nation's peculiarities may be given under these different heads. Bestowing, therefore, our unqualified approbation upon the plan and general outline of Mr Chambers's work, we turn to con

been had to the evidence of printed books, and, except when absolutely necessary, oral and visual testimony have been used in preference. By expiscating intelligence in this way, and simply using his own humble powers of observation, he has brought together a mass of fresh information on a number of topics, which, though sometimes partaking as much of the hue of fireside gossip, as of the discussions of an institutional annotator, may, nevertheless, be not only amusing, but beneficial, in illu❤ minating the main subjects under review." Now, passing over the very obvious objection to this plan,—that he who writes from the store of his own observations alone, without consulting what others have published on the sub ject before him, is apt to expatiate on the novelty and interest of a subject familiar to many as their A B C,→→→ there is a serious objection to a system of book-making, not quite so original as Mr Chambers flatters himself, for it is the fashionable one of the day. Before the era of letters in a country, oral communication is the only source of information, but it is quickly superseded when they are introduced. Nay, in a country where education is so widely diffused as in ours, the topics of the most unlearned gossips are frequently derived from books through the medium of those who can read. A schoolboy reads the stall edition of Wallace, and relates to his grand-dame what he remembers of it. This mangled tale, still further disfigured by her dulness of apprehension, is repeated by the old crone to a storm-sted traveller, and is immediately published as a genuine legend, instinct with life and poetry, and far superior to any thing that has been handed down to us through the deadening medium of paper and ink. This is indeed like the dog in the fable, leaving the substance to grasp at the shadow. The fallacy becomes still more contemptible when it assumes the form of preferring the easy communication made by a gentleman over his wine and walnuts, to that which he has prepared for the public examination, with the fear of friends and foes before his eyes. The truth is, that the people who gravely announce the superiority of knowledge gained in the course of conversation over that derived from books, have no distinct notion of what they are say ing. They identify it somehow or other with that which ascribes the superiority to practical over theoretical knowledge, with which it has not the most distant connexion,

this sect. He hates innovation, and calls for change. He The Undying One, and other Poems. By the Honourregrets the gradual decay of old Scottish customs and inColburn and Bentley. stitutions, but regrets also that they were not abrogated at once by the Union ;-he is attached to oligarchy, but laments that the burgh system is opened ;—he thinks the body of the Scotch good Christians, but considers their church inadequate, unorthodox, and not apostolical;-he thinks them better trained than their Southern neighbours, but not so moral ;-he disapproves of our marriage laws, but thinks the facility it affords to divorce" fortunate;"—he disapproves of expending the incomes of the royal burghs in "treats," but is indignant that the Court of Session no longer allows its macers to swallow half a landed-proprietor's estate at one huge feed, before they admit him to be the owner of it. In short, Mr William Chambers is a very " particular fellow," and will not be pleased at any thing.