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even a servant, who has access to a young lady, might make such an impression upon her mind, by bestowing unmerited praise upon one of her admirers, and depreciating the good qualities of another, as that she might easily be induced by such influence to give a preference to the least deserving, or be inveigled into a miserable marriage with a necessitous adventurer. And therefore all such engagements our law has wisely declared to be absolutely null and void. Lord Thurlow, in his argument upon Resignation Bonds, in the House of Lords, declared to this effect ;-" That marriagebrokage bonds were not set aside, because they must be attended with fraud; for that certainly was not the case in Scott v. Hall, in Shower's Parliamentary Cases, which was a marriage betweenparties in every respect suitable to one another; . and the bond was not set aside on account of any particular mischief in that case, but professedly because such a practice was full of great inconvenience; and the policy of law ought to prevent it, because the practice was pravi exemplit."
The case is the same with regard to bargains to purchase any public office ; for though many of those contracts inight be agreeable to strict abstract justice, yet the universal permission of them would
be. + From a MS. Note.
be more injurious to society than the universal rejection. Lord Loughborough, speaking of one of them, observes," That this agreement resting on private contract and honour, may perhaps be fit to be executed by the parties, but can be only enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promises, but legal obligations are from their nature more circumscribed than moral duties *." It were endless to pursue this principle through all the branches of our jurisprudence in which it prevails. This will suffice to exhibit its nature and extent. It is, in truth, though it leads to different conclusions, the same principle of convenience and expediency, which is the only foundation of all the rules of private justice and abstract morality:Atque ipsa utilitas justi prope mater et æqui.t
But * Henry Blackstone's Reports, p. 327.
+ I have conversed with many pious divines, eminent preachers, and excellent classical and mathematical scholars, wbo have had the most erroneous notions of the usefulness and expediency of general laws, and of the science of moral and legal justice.
The errors they generally fall into, are the application of usefulness to the individual person, instead of benefit to all mankind; the application of usefulness of a single action, instead of the usefulness of the rule or law, to which all actions are to be conformable ; and the supposition that every individual is
• But those rules, which we learn by experience to be essential to the regulation of society, to distinguish them from the precepts of the moralists, we denominate sound policy, which is nothing more than another name for good government. And here I cannot forbear to mention, that it is the principle upon which Mahomet has prohibited all gaming, and the use of wine :-"They will ask thee concerning wine and games of hazard; say unto them, They are a great sin, but yet they are of utility to men, but the evil they cause is greater than the benefit they yield *." Though we do not find in the Korân that spirit of benevolencet which characterizes the Scriptures, yet in the legislation of the pretended prophet we frequently perceive the mind of a Hale or a Hardwicke.
to be his own judge, and the legislator of the rules of his own actions : for they might with as much propriety think that every one might be the framer of his own Acts of Parliament. Several of the first scholars of the age have approved of my explanation of this important subject, inserted in Christian's Charges, p. 316.
* Korận, chap. ii. ..
+ It is a striking sentiment of an elegant historian, Mr. Gibbon, “That benevolence is the foundation of justice; since we are forbid to injure those whom we are bound to assist.” Vol.V.p.215. This is far better expressed in the Scriptures :Love, or Benevolence, worketh no ill to his neighbour ; therefore love is the fulfilling of the Law. It was unfortunate to the
world, C 2
If we examine the laws of evidence, we shall soon discover that they are established upon this grand and fundamental principle of sound policy ; or that they are intended to be such as, (to use an expression of the mathematicians, that the sum of justice may be a maximum, or rather the sum of injustice a minimum. They are fixed at that delicate point, which is best calculated for the conviction of guilt, and the protection of innocence.
Two learned and celebrated foreigners, Montesquieu and Beccaria, have censured our laws; because in an accusation of every crime, except treason and perjury, the prisoner may be found guilty upon the testimony of one witness. “The witness who affirms, and the prisoner who denies,' say they, leave the proof in equilibrio ; ' and it is necessary to have another witness, to make the scale preponderate*'
I cannot world, and to his own reputation, that that historian should have been a disbeliever in the divine authority of a work which I have employed my feeble pen to prove is the voice of Infinite Wisdom, and is itself an everlasting miracle. See * Christian's Charges, p. 333.
* Les loix qui font périr un homme sur la déposition d'un seul témoin, sont fatales à la liberté. La raison en exige deux, parcequ'un témoin, qui affirme, et un accusé, qui nie, font un partage, et il faut un tiers pour le vuider.-Mont. l'Esprit des Loir, liv, xii. ch. 3.
Piu · I cannot forbear to pronounce, that this is an idle trifling conceit, and unworthy of those who are ambitious of the title of Philosophers. The Law of England is established upon more solid grounds. Melancholy and deplorable is the instance, when an innocent man falls a sacrifice to the laws; but long experience has shewn the wis- . dom of the rule, and has proved that it is founded upon the surest basis, the salus populi, or the safety of society.
The maxim, that it is better that a certain degree of guilt should escape, than that a proportion of innocence should suffer, has its limit. .
Even the cautious Lord Chief Justice Hale fixes it only at five to one; “ for it is better," says he, “ five guilty persons should escape unpunished, than one innocent person should die *.”.
Piu d'un testimonio e necessario, perche fin tanto che un asserisce, ed altro nega, niente v'è di certo, e prevale il diritto che ciascuno ha d'essere creduto innocente.—Bec. · These trifles please by their epigrammatic quaintness, and the neatness of the language in which they are expressed. If they deserved an answer, one might observe the balance is fallacious ; for between him who has all to gain and nothing to lose, and him who has nothing to gain but all to lose, both here and hereafter, the odds are wonderful indeed!
* P, C. vol. II. ch. 38.