CUSTOM AND LAWS COMPARED.

WHAT, say some, can give us a more contemptible idea of a large state, than to find it mostly governed by custom; to have few written laws, and no boundaries to mark the jurisdiction between the senate and the people? Among the number who speak in this manner is the great Montesquieu, who asserts that every nation is free in proportion to the number of its written laws, and seems to hint at a despotic and arbitrary conduct in the present King of Prussia, who has abridged the laws of his country into a very short compass.

As Tacitus and Montesquieu happen to differ in sentiment upon a subject of so much importance, (for the Roman expressly asserts that the state is generally vicious in proportion to the number of its laws,) it will not be amiss to examine it a little more minutely, and see whether a state which, like England, is burdened with a multiplicity of written laws, or which, like Switzerland, Geneva, and some other republics, is governed by custom and the determination of the judge, is best.

And to prove the superiority of custom to written law we shall at least find history conspiring. Custom, or the traditional observance of the practice of their forefathers, was what directed the Romans as well in their public as private determinations. Custom was appealed to in pronouncing sentence against a criminal, where part of the formulary was more majorum. So Sallust, speaking of the expulsion of Tarquin, says mutato more, and not lege mutatâ; and Virgil, pacisque imponere morem. So that, in those times of the empire in which the people retained their liberty, they were governed by custom; when they sank into oppression and tyranny, they were restrained by new laws, and the laws of tradition abolished.

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As getting the ancients on our side is half a victory, it will not be amiss to fortify the argument with an observation of Chrysostom's: "That the enslaved are the fittest to be governed by laws, and free men by custom." Custom partakes of the nature of parental injunction; it is kept by the people themselves, and

observed with a willing obedience. The observance of it must, therefore, be a mark of freedom; and coming originally to a state from the reverenced founders of its liberty, will be an encouragement and assistance to it in the defence of that blessing: but a conquered people, a nation of slaves, must pretend to none of this freedom, or these happy distinctions; having, by degeneracy, lost all right to their brave forefathers' free institutions, their masters will in policy take the forfeiture; and the fixing a conquest must be done by giving laws, which may every moment serve to remind the people enslaved of their conquerors; nothing being more dangerous than to trust a late subdued people with old customs, that presently upbraid their degeneracy, and provoke them to revolt.

The wisdom of the Roman republic in their veneration for custom, and backwardness to introduce a new law, was perhaps the cause of their long continuance, and of the virtues of which they have set the world so many examples. But to show in what that wisdom consists, it may be proper to observe, that the benefit of new written laws is merely confined to the consequences of their observance; but customary laws, keeping up a veneration for the founders, engage men in the imitation of their virtues as well as policy. To this may be ascribed the religious regard the Romans paid to their forefathers' memory, and their adhering for so many ages to the practice of the same virtues, which nothing contributed more to efface than the introduction of a voluminous body of new laws over the neck of venerable custom.

The simplicity, conciseness, and antiquity of custom gives an air of majesty and immutability that inspires awe and veneration; but new laws are too apt to be voluminous, perplexed, and indeterminate, whence must necessarily arise neglect, contempt, and ignorance.

As every human institution is subject to gross imperfections, so laws must neces sarily be liable to the same inconveniences, and their defects soon discovered. Thus, through the weakness of one part all the rest are liable to be brought into contempt.

But such weaknesses in a custom, for very obvious reasons, evade an examination; besides, a friendly prejudice always stands up in their favour.

But let us suppose a new law to be perfectly equitable and necessary; yet, if the procurers of it have betrayed a conduct that confesses by-ends and private motives, the disgust to the circumstances disposes us, unreasonably indeed, to an irreverence of the law itself; but we are indulgently blind to the most visible imperfections of an old custom. Though we perceive the defects ourselves, yet we remain persuaded that our wise forefathers had good reason for what they did; and though such motives no longer continue, the benefit will still go along with the observance, though we do not know how. It is thus the Roman lawyers speak: "Non omnium que a majoribus constituta sunt ratio reddi potest, et ideo rationes eorum quæ constituuntur inquiri non oportet, alioquin, multa ex his quæ certa sunt subvertuntur."

is not one, I believe, that at present appears in a more glaring and ridiculous light, than the pride and luxury of the middling class of people. Their eager desire of being seen in a sphere far above their capacities and circumstances is daily -nay, hourly-instanced by the prodigious numbers of mechanics who flock to the races, gaming tables, brothels, and all public diversions this fashionable town affords.

You shall see a grocer or a tallowchandler sneak from behind the counter, clap on a laced coat and a bag, fly to the E O table, throw away fifty pieces with some sharping man of quality; while his industrious wife is selling a pennyworth of sugar, or a pound of candles, to support her fashionable spouse in his extravagances.

I was led into this reflection by an odd adventure which happened to me the other day at Epsom races, whither I went, not through any desire, I do assure you, of laying bets or winning thousands, but at the earnest request of a friend, who had long indulged the curiosity of seeing the sport, very natural for an Englishman. When we had arrived at the course, and had taken several turns to observe the different objects that made up this whimsical group, a figure suddenly darted by us, mounted and dressed in all the elegance of those polite gentry who come to show you they have a little money, and rather than pay their just debts at home, generously come abroad to bestow it on gamblers and pickpockets. As I had not an opportunity of viewing his face till his return, I gently walked after him, and met him as he came back, when, to my no small surprise, I beheld in this gay Narcissus the visage of Jack Varnish, an humble vendor of prints. Disgusted at the sight, I pulled my friend by the sleeve, pressed him to return home, telling him all the way, that I was so enraged at the fellow's impudence, that I was resolved never to lay out another penny with him.

And now, pray, sir, let me beg of you to give this a place in your paper, that Mr. Varnish may understand he mistakes the thing quite, if he imagines horse-racing commendable in a tradesman; and that

he who is revelling every night in the arms of a common strumpet (though blessed with an indulgent wife), when he ought to be minding his business, will never thrive in this world. He will find himself soon mistaken, his finances decrease, his friends shun him, customers fall off, and himself thrown into a gaol. I would earnestly recommend this adage to every mechanic in London, "Keep your shop, and your shop will keep you. A strict observance of these words will, I am sure, in time gain them estates. Industry is the road to wealth, and honesty to happiness; and he who strenuously endeavours to pursue them both may never fear the critic's lash or the sharp cries of penury and want.

SABINUS AND OLINDA.

IN a fair, rich, and flourishing country, whose cliffs are washed by the German ocean, lived Sabinus, a youth formed by nature to make a conquest wherever he thought proper; but the constancy of his disposition fixed him only with Olinda. He was indeed superior to her in fortune; but that defect on her side was so amply supplied by her merit, that none was thought more worthy of his regards than she. He loved her he was beloved by her; and in a short time, by joining hands publicly, they avowed the union of their hearts. But, alas! none, however fortunate, however happy, are exempt from the shafts of envy and the malignant effects of ungoverned appetite. How unsafe, how detestable, are they who have this fury for their guide! How certainly will it lead them from themselves, and plunge them in errors they would have shuddered at, even in apprehension! Ariana, a lady of many amiable qualities, very nearly allied to Sabinus, and highly esteemed by him, imagined herself slighted and injuriously treated since his marriage with Olinda. By incautiously suffering this jealousy to corrode in her breast, she began to give a loose to passion; she forgot those many virtues for which she had been so long and so justly applauded. Causeless suspicion and mistaken resentment betrayed her into all the gloom of discontent; she sighed without ceasing; the happiness of others gave her intolerable

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pain; she thought of nothing but revenge. How unlike what she was, -the cheerful, the prudent, the compassionate Ariana.

She continually laboured to disturb an union so firmly, so affectionately founded, and planned every scheme which she thought most likely to disturb it.

Fortune seemed willing to promote her unjust intentions: the circumstances of Sabinus had been long embarrassed by a tedious lawsuit, and the court determining the cause unexpectedly in favour of his opponent, it sank his fortune to the lowest pitch of penury from the highest affluence. From the nearness of relationship, Sabinus expected from Ariana those assistances his present situation required; but she was insensible to all his entreaties and the justice of every remonstrance, unless he first separated from Olinda, whom she regarded with detestation. Upon a compliance with her desires in this respect, she promised that her fortune, her interest, and her all should be at his command. Sabinus was shocked at the proposal; he loved his wife with inexpressible tenderness, and refused those offers with indignation which were to be purchased at so high a price. Ariana was no less displeased to find her offers rejected, and gave a loose to all that warmth which she had long endeavoured to suppress. Reproach generally produces recrimination; the quarrel rose to such a height, that Sabinus was marked for destruction, and the very next day, upon the strength of an old family debt, he was sent to gaol, with none but Olinda to comfort him in his miseries. In this mansion of distress they lived together with resignation, and even with comfort. She provided the frugal meal, and he read to her while employed in the little offices of domestic concern. Their fellow-prisoners admired their contentment, and whenever they had a desire of relaxing into mirth, and enjoying those little comforts that a prison affords, Sabinus and Olinda were sure to be of the party. Instead of reproaching each other for their mutual wretchedness, they both lightened it, by bearing each a share of the load imposed by Providence. Whenever Sabinus showed the least concern on his dear partner's account, she conjured

him by the love he bore her, by those tender ties which now united them for ever, not to discompose himself; that so long as his affection lasted, she defied all the ills of fortune and every loss of fame or friendship; that nothing could make her miserable but his seeming to want happiness; nothing pleased but his sympathising with her pleasure. A continuance in prison soon robbed them of the little they had left, and famine began to make its horrid appearance; yet still was neither found to murmur: they both looked upon their little boy, who, insensible of their or his own distress, was playing about the room, with inexpressible yet silent anguish, when a messenger came to inform them that Ariana was dead, and that her will in favour of a very distant relation, who was now in another country, might easily be procured and burnt, in which case all her large fortune would revert to him, as being the next heir at law.

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A proposal of so base a nature filled our unhappy couple with horror; they ordered the messenger immediately out of the room, and, falling upon each other's neck, indulged an agony of sorrow, for now even all hopes of relief were banished. The messenger who made the proposal, however, was only a spy sent by Ariana to sound the dispositions of a man she at once loved and persecuted. This lady, though warped by wrong passions, was naturally kind, judicious, and friendly. She found that all her attempts to shake the constancy or the integrity of Sabinus were ineffectual; she had therefore begun to reflect, and to wonder how she could so long and so unprovoked injure such uncommon fortitude and affection.

happiness with Olinda, and both were happy in the friendship and assistance of Ariana, who, dying soon after, left them in possession of a large estate, and in her last moments confessed, that virtue was the only path to true glory; and that, however innocence may for a time be depressed, a steady perseverance will in time lead it to a certain victory.

She had, from the next room, herself heard the reception given to the messenger, and could not avoid feeling all the force of superior virtue: she therefore reassumed her former goodness of heart; she came into the room with tears in her eyes, and acknowledged the severity of her former treatment. She bestowed her first care in providing them all the necessary supplies, and acknowledged them as the most deserving heirs of her fortune. From this moment Sabinus enjoyed an uninterrupted

THE SENTIMENTS OF A FRENCHMAN ON THE TEMPER OF THE ENGLISH.

NOTHING is so uncommon among the English as that easy affability, that instant method of acquaintance, or that cheerfulness of disposition, which make in France the charm of every society. Yet in this gloomy reserve they seem to pride themselves, and think themselves less happy if obliged to be more social. One may assert, without wronging them, that they do not study the method of going through life with pleasure and tranquillity like the French. Might not this be a proof that they are not so much philosophers as they imagine? Philosophy is no more than the art of making ourselves happy; that is, of seeking pleasure in regularity, and reconciling what we owe to society with what is due to ourselves.

and convert to an early habit this sense of joy in children. Seneca places it in the first rank of good things. Certain it is, at least, that gaiety may be a concomitant of all sorts of virtue, but that there are some vices with which it is incompatible.

As to him who laughs at everything, and him who laughs at nothing, neither of them has sound judgment. All the difference I find between them is, that the last is constantly the most unhappy. Those who speak against cheerfulness prove nothing else but that they were born melancholic, and that, in their hearts, they rather envy than condemn that levity they affect to despise.

The Spectator, whose constant object was the good of mankind in general, and of his own nation in particular, should, according to his own principles, place cheerfulness among the most desirable qualities; and, probably, whenever he contradicts himself in this particular, it is only to conform to the tempers of the people whom he addresses. He asserts that gaiety is one great obstacle to the prudent conduct of women. But are those of a melancholy temper, as the English women generally are, less subject to the foibles of love? I am acquainted with some doctors in this science, to whose judgment I would more willingly refer than to his. And perhaps, in reality, persons naturally of a gay temper are too easily taken off by different objects to give themselves up to all the excesses of this passion.

Mr. Hobbes, a celebrated philosopher of his nation, maintains that laughing proceeds from our pride alone. This is only a paradox, if asserted of laughing in general, and only argues that misanthropical disposition for which he was remarkable.

To bring the causes he assigns for laughing under suspicion it is sufficient to remark, that proud people are commonly those who laugh least. Gravity is the inseparable companion of pride. To say that a man is vain, because the humour of a writer, or the buffooneries of an harlequin, excite his laughter, would be advancing a great absurdity. We

should distinguish between laughter inspired by joy and that which arises from mockery. The malicious sneer is improperly called laughter. It must be owned, that pride is the parent of such laughter as this: but this is, in itself, vicious; whereas the other sort has nothing in its principles or effects that deserves condemnation. We find this amiable in others, and is it unhappiness to feel a disposition towards it in ourselves?

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When I see an Englishman laugh, I fancy I rather see him hunting after joy than having caught it; and this is more particularly remarkable in their women, whose tempers are inclined to melancholy. A laugh leaves no more traces on their countenance than a flash of lightning on the face of the heavens. The most laughing air is instantly succeeded by the most gloomy. One would be apt to think that their souls open with difficulty to joy, or, at least, that joy is not pleased with its habitation there.

In regard to fine raillery, it must be allowed that it is not natural to the English, and, therefore, those who endeavour at it make but an ill figure. Some of their authors have candidly confessed, that pleasantry is quite foreign to their character; but, according to the reason they give, they lose nothing by this confession. Bishop Sprat gives the following one: "The English," says he, “have too much bravery to submit to be derided, and too much virtue and honour to mock others."

No. VIII.-Saturday, November 24, 1759

ON DECEIT AND FALSEHOOD.

THE following account is so judiciously conceived, that I am convinced the reader will be more pleased with it than with anything of mine; so I shall make no apology for this new publication:

To the Author of the Bee. SIR,-Deceit and falsehood have ever been an overmatch for truth, and followed and admired by the majority of mankind. If we inquire after the reason of this, we shall find it in our own imaginations, which are amused and entertained with the perpetual novelty and variety that