are those by which a property already settled passes from one man to another. The original method of acquiring property is occupancy.1 The following chapters upon Rights over other Men's Property, upon the Transfer of Property, upon Wills and Testaments, upon Successions to Persons who die intestate, and upon Prescription, are open to the critiques usually passed upon the jurists of the Middle Ages,-that their works consist of mere extracts from the Roman law, stripped of its details. So of the fifth book, which is mainly conversant with contracts, it may be said that the greater portion of it is extracted from the Pandects. A great portion of the substance of it necessarily occupies a place in the text-books upon contracts in all civilized countries. In the sixth book, chapters follow on Matrimony, on the Paternal Power, and on the Relation of Master and Servant. The seventh book treats of Government. The true and leading cause why the fathers of families would consent to resign up their natural liberty and to form a commonwealth, was thereby to guard themselves against those injuries which one man was in danger of sustaining from another; for as nothing next to Almighty God can be more beneficial to man than man himself, so nothing is able to work him greater mischief. And for redress of those evils which men, at the suggestion of depraved nature, delight to bring upon each other, they had recourse to themselves as the surest defence, by joining together in one body, and erecting a civil society. Sovereignty is the result of those covenants by which the public body was first united. The chapters on the Form of Government, the Duties and Power of the Sovereign, are scarcely of any importance at the present day. The concluding chapters of this immense dissertation are upon the Right of War, Treaties, Compacts of Sovereigns, and the Changes and Dissolution of the Commonwealth. Grotius had derived the origin of government from the natural sociableness of mankind. Puffendorf concluded that 1 Chap. 6, secs. 1—14. 2 Book vii. chap. 3, sec. 1. the real cause was experience of the injuries which one man might inflict upon another. He considered that civil society must have been constituted first by a covenant of a number of men, each with each, to form a commonwealth, and to be bound by the majority,-in which primary covenant they must be unanimous; that is, every dissentient would retain his natural liberty; next, by a resolution or decree of the majority, that certain rulers shall govern the rest; and lastly, by a second covenant between these rulers and the rest, one promising to take care of the public weal, and the other to obey lawful commands. This sovereignty is founded on these covenants, and is not conferred, except indirectly, like every other human power, by God.1 Punishment is defined as an evil inflicted by authority upon view of antecedent transgression. Punishments ought to be measured according to the object of the crime, the injury to the commonwealth, and the malice of the delinquent; hence offences against God should be deemed the most criminal; and next, such as disturb the state; then, whatever affect life, the peace or honour of families, private property or reputation. He concludes by establishing a great truth,-that no man can be justly punished for the offence of another, not even a community for the acts of their forefathers.2 It will thus be seen that Puffendorf attempted to reconcile the opinions of Hobbes and Grotius, and discussed natural law as a separate question, independent of the obligations of revealed religion or positive civil law. The philosophers of the Theological School became, in consequence, his enemies, particularly Alberti and Zentgrave. Puffendorf maintained as well the principle of sociability which Grotius had started, as the principle of selfishness described by Hobbes: from both he deduces the social compact, and the laws of morality and jurisprudence. He does not discriminate between natural and moral right, yet he may be said to have laid the foundations of a universal philosophy of practice. LEIBNITZ3 has been compared by Gibbon to those conquerors 1 Book vii. chap. 3. VOL. I. NO. I. 2 Book viii. chap. 3. 3 b. 1646, d. 1716. C whose empire has been lost in the ambition of universal conquest. He might have said with Faust : "Habe nun, ach! Philosophie, Und leider! auch Theologie, Durchaus studirt, mit heissem Bemühn." Amongst his numerous attainments, he comprised both the philosophy of universal jurisprudence and the details of practical law. Yet he left no complete works on the subject, and the scattered fragments of his doctrines are found amongst his pamphlets and letters. Gottfried Wilhelm Leibnitz was born at Leipsic, on the 23rd of June, 1646. His father was Professor of Moral Philosophy at the University of Leipsic; his mother was the daughter of a Professor of Law. From his earliest youth he applied himself with assiduity to a lengthened course of study. He read in succession the classic poets, orators, historians, and jurists; nor did he neglect the exact sciences, or theology. In the present brief notice we must confine ourselves to the discussion of his works on Politics and Jurisprudence. When John Casimir, King of Poland, had abdicated the crown, in 1668, Philip, Count Palatine of Neuburg, was one of the candidates. Leibnitz, then only twenty-two years of age, was employed by him to write a treatise in his favour, under the nom de guerre of Georgius Ulicovius. In the previous year he had published a treatise entitled, "Cesarini Furstenerii de Jure Suprematus ac Legationis Principum Germaniæ." This was written in reference to the ceremonial difficulties attending the treaty of Nimeguen. A difficulty had been raised as to the free Princes of the Empire who were not electors; and there was a reluctance to grant to their ministers the same titles and the same honours as to those of the Princes of Italy. In this political tract Leibnitz advanced an idea in reference to the imperial dignity which could not but displease other monarchs. He asserted that all Christian states, at least those of the West, were only one body, of which the Pope is the spiritual head, and the Emperor the temporal head; that there pertains to both one and the other a certain universal juris diction; that the Emperor is the General, the Defender, the Advocate of the Church, principally against the infidels; that hence come the titles of Sacred Majesty and Holy Empire; and that, although all this did not exist by divine. right, yet it is a species of political system formed by the consent of the nations. From this he draws favourable consequences for the free Princes of Germany, who hold no more from the Emperor than other kings ought to hold. The next work upon which Leibnitz was employed was the "History of the House of Brunswick." In order to collect the necessary materials, the Princes sent him to travel over the entire of Germany. He obeyed their directions, visited all the ancient abbeys, examined the tombs and other antiquities. Thence he proceeded to Italy, where the marquises of Tuscany, of Liguria, and D'Este, sprung from the same origin with the Princes of Brunswick, possessed their principalities. He returned from this journey in 1690. Leibnitz had made an abundant collection, more abundant than was necessary for the history of Brunswick. From this superfluity he made an ample selection, of which he published the first volume in folio in 1693, under the title of "Codex Juris Gentium Diplomaticus." To this volume he prefixed a well-written and wellconsidered Preface. In the present sketch we cannot consider the other philosophical labours of Leibnitz, in which he rivalled Newton, confuted Bayle. He lived a flourishing and honourable life, having enjoyed the respect of the learned world of Europe, and substantial tokens of the regard of its crowned heads, in the shape of pensions from the Emperor, the Czar, and the King of England. His memory was extraordinary. It was his custom to make extracts from all that he read, and to add on the paper his own reflections. This writing seemed all that was necessary to engrave the subject on his memory for ever. He was always ready to answer questions on every matter; and William III. of England used to call him his walking dictionary. He conducted always an immense correspondence. It pleased him to enter into the labours and projects of all the savans of Europe. And all who wrote to him were certain of a reply. Leibnitz died in Hanover, in 1716. We shall now proceed to analyze some of his works on Jurisprudence. In 1667 Leibnitz published the short treatise entitled, "Methodi Novæ discendæ docendæque Jurisprudentiæ." He was then only twenty-two years of age; but the work exhibits vast erudition and originality. The first part is on education in general; the second on Jurisprudence alone. We consider it so important, yet so little known, that we shall give a very brief abstract of its contents. He defines jurisprudence to be the Science of Right,1 on some case or fact being proposed. When we attempt the method of treating it, we must do two things; first, delineate in idea the perfect jurisconsult, and whatever pertains to his perfection, as Cicero has done in his books "De Oratore;" secondly, point out the method of arriving at perfection; as Plato has in his books on the Republic put forward the perfect idea; but in his dialogues on the Laws, has laid down what any one might accomplish. Whatever pertains to the erudition of the perfect jurisconsult may be divided, like theology, into the didactic or positive part, containing those things which are expressly extant in authentic books, and belong to acknowledged Right; the historical, which treats of the origin, authors, changes, and abrogations of the laws; the exegetical, which interprets the authentic books themselves; and the polemical or controversial, which determines by reason and analogy unsettled cases in the laws. Of these the didactical and polemical are properly the parts of Jurisprudence, but the historical and exegetical only "requisitæ." The latter are theoretical, the former practical. The example of the division is with reason transferred from Theology to Jurisprudence, because there is an extraordinary resemblance between the faculties. Each has a twofold origin; partly reason, whence spring natural theology and jurisprudence; partly Scripture, or some authentic book, the former containing Divine laws, the latter human laws.3 Didactic Jurisprudence may not inaptly be termed by the name of Elements, in imitation of the Elements of Euclid, 1 Scientia juris. We have used the edition of Leibnitz by Dutens: Geneva, 1768. 3 Id. vol. iv. P. 181. 2 Works, vol. iv. p. 180. |