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A quick return, if life indulg'd defire,
Canft thou forget, how cheerful, how content
If there be any thing to which we can object in the conduct of this poem, it is, that Oberea fometimes forgets that fhe is an O'taheiteean. Her fentiments and ideas are frequently more European than is altogether confiftent with her character and fituation and yet, though we have thought it neceffary to start this objection, we muft, at the fame time, ingenuously confefs that we do not fee how it could easily have been avoided.
ART. VIII. The Speeches of Ifæus in Caufes concerning the Law of Succeffion to Property at Athens, with a prefatory Difcourfe, Notes critical and hiftorical, and a Commentary. By William Jones, Efq; Barrifter at Law, Fellow of University College, Oxford. 4to. ios. 6d. fewed. Dilly. 1779.
HESE Speeches make their appearance in an English drefs with every advantage of which they are fufceptible. Ifus was a lawyer, and he has here found a lawyer for his commentator: Ifæus was an orator, and he is fortunate in having a critic of confiderable reputation and talents for his tranf lator. In the profecution of his undertaking Mr. Jones fhews himself perfectly well qualified for this double office. To have refcued from the perplexity and ignorance of grammarians the
works of an author whom the difficulty of his forenfic terms has well nigh banished from the schools, implies no fmall praise. But this is only the fecondary aim of the prefent work: whatever may be thought of the general utility of philological refearches, Mr. Jones wishes to fhew that ancient literature may be applied to many valuable purposes beyond those intended at the school or the college.
There is no branch of learning' (he obferves in his prefatory difcourfe) from which a ftudent of the law may receive a more rational pleasure, or which feems more likely to prevent his being difgufted with the dry elements of a very complicated fcience, than the hiftory of the rules and ordinances by which nations, eminent for wisdom and illuftrious in arts, have regulated their civil polity: nor is this the only fruit that he may expect to reap from a general knowledge of foreign laws both ancient and modern; for, whilft he indulges the liberal curiofity of a fcholar in examining the customs and inftitutions of men, whofe works have yielded him the highest delight, and whofe actions have raised his admiration, he will feel the fatisfaction of a patriot in obferving the preference due in moft inftances to the laws of his own country above thofe of all other ftates; or, if his juft prospects in life give him hopes of becoming a legiflator, he may collect many ufeful hints, for the improvement even of that fabric which his ancestors have erected with infinite exertions of virtue and genius, but which, like all human fyftems, will ever advance nearer to perfection and ever fall fhort of it. In the courfe of his enquiries he will conftantly obferve a striking uniformity among all nations, whatever feas or mountains may feparate them, or how many ages foever may have elapfed between the periods of their exiftence, in thofe great and fundamental principles, which, being clearly deduced from natural reafon, are equally diffufed over all mankind, and are not fubject to alteration by any change of place or time; nor will he fail to remark as ftriking a diversity in thofe laws, which, proceeding merely from pofitive inftitution, are confequently as various as the wills and fancies of thofe who enact them fuch, among a thoufand, are the rules by which the poffef fions of a perfon deceased, whether folid and permanent, or incorporeal and fluctuating, are tranfmitted to his heirs, or fucceffors, and which could never have been fo capriciously diverfified, if they had been founded on pure reafon, instead of being left to the difcretion of every fociety, for whofe convenience they are calculated.'
The foregoing reflections are ingenious and folid; and the difcrimination between jurisprudence as a fcience and as an affemblage of local and merely pofitive regulations, is accurate. But we find little occafion to renew our acquaintance with this distinction in perusing the speeches of Ifæus; for they turn wholly on matters pofitivi juris, which fhed no light on the great and fundamental principles above alluded to. The laws of fucceffion to property are, in every country, the most complicated branch of its laws, and the leaft capable of being transferred, by analogical reafoning, to thofe of any other. The
caufes from which they take their original caft, and peculiar bent, as well as the progreffive variations they undergo, lie generally involved with a multitude of fortuitous circumstances which efcape the notice and mention of hiftory. But though the duty of a commentator neceffarily ties up Mr. Jones to the difcuffion of many minute queftions of Athenian antiquities, he fometimes makes an excurfion from his author into a more enlarged field, and difcovers a mind enriched with various knowledge, and capable of applying it with fkill. The narrow and injurious policy of the Athenian law, with respect to the rights and property of women, calls from him the following reflections:
Nothing can be conceived more cruel than the state of vaffalage in which women were kept by the polished Athenians, who might have boasted of their tutelar goddess Minerva, but had certainly no pretenfions on any account to the patronage of Venus. All unneceffary restraints upon love, which contributes fo largely to relieve the anxieties of a laborious life, and upon marriage, which conduces fo eminently to the peace and good order of fociety, are odious in the highest degree; yet at Athens, whence arts, laws, humanity, learning, and religion are faid to have fprung, a girl could not be legally united with the object of her affection, except by the confent of her zug or controller, who was either her father or her grandfire, her brother or her guardian: their domination over her was transferred to the husband, by whom she was ufually confined to the minute details of domeftic economy, and from whom the might in fome inftances be torn, for the fake of her fortune, by a fecond coufin, whom probably fhe detefted; nor was her dependence likely to ceafe; for we may collect from the fpeech on the eftate of Philoctemon, that even a widow was at the disposal of her nearest kinfman, either to be married by him, or to be given in marriage, according to his inclination or caprice. Yet more; a husband might bequeath his wife, like part of his eftate, to any man whom he chofe for his fucceffor; and the mother of Demofthenes was actually left by will to Aphobus, with a portion of eighty minas: the form of fuch a bequest is preferved in the firft fpeech against Stephanus, and runs thus:" This is the laft will of Pafio the Acharnean. "I give my wife Archippe to Phormio, with a fortune of one talent "in Peparrhethus, one talent in Attica, a houfe worth a hundred "minas, together with the female flaves, the ornaments of gold, " and whatever elfe may be in it." For all these hardships, which the Athenian women endured, a very poor compensation was made by the law of Solon, which ordered their husbands to fleep with them three times a month.
Whether the fairer, but weaker, part of our fpecies fhould, in well-ordered ftates, fucceed to an entire inheritance, and difpofe of it as their paffion or fancy prompts them, may admit of fome doubt; and we find on this point a remarkable diverfity in the laws of different nations, and of the fame nation in different ages; on which fubject Perizonius has written a learned differtation. The moft ancient fuit, perhaps, of which any account remains, was that infti
tuted by the five daughters of Zelophehad, who died without fons, for a poffeffion among the brethren of their father: they gained their caufe; and it was thenceforth a rule among the Jews, that " if a man died, having no fon, his inheritance thould go to his daughter;" but when it was remonstrated, that, if Mahla, Noa, Hagla, Milca, and Tirza, were to marry the fons of other tribes, their inheritance would be taken from the tribe of their father, the divine legiflator answered, Let the daughters of Zelophehad marry whom they think beft; only in the family of their father's tribe let them marry ; and if Solon had made no other reftriction, his ordinance would have been more conformable to nature and reafon; but the narrow policy of keeping an eftate confined in a fingle family can be juftified by no good principle whatever.
The Pagan Arabs, although divided into tribes, had no fuch reftraint upon their natural inclinations; for there is not a more common topic in their ancient elegiac poems than the feparation of two lovers by the removal of the tents belonging to their respective tribes, which were not connected, like thofe of the Hebrews and Greeks, by any regular bond of union, but feem to have been distinct and independent communities: as their inftitutions, indeed, were perfectly military, they excluded women, who were unable to ferve in their wars, from all right of fucceffion to property; but Mahomed, like another Juftinian, abolished this law of his countrymen, and ordained exprefsly, that females fhould have a determinate part of what their parents and kinsmen left, whether it were little or whether it were much, allowing a double portion to the males, on account, says he, of the advantages which God has given them over the other fex.
Among the early inhabitants of Rome, both males and females were permitted to inherit the poffeffions of their ancestors; and this appears to have been the law of the twelve tables, which were derived in part from the inftitutions of Solon; but the middle jurifprudence, departing from the old fimplicity fo favourable to legiflation, admitted fifters only to a fraternal inheritance, and rejected all other female relations from the agnatic fucceffion, as if they had been perfect strangers, till the Prætorian equity mitigated this rigour by degrees; and Juftinian, whofe benevolence in this refpect has been highly commended, reftored the Decemviral law, with fome additional directions of his own. The feudal law, like that of the old Arabians, and from the fame principle of military policy, generally excluded daughters, unless there had been a fpecial investiture of their father in favour of them; and it is almoft fuperfluous to mention the ftrictness of the Salic feudifts, who preferred one sex to the total exclufion of the other: our own laws obferve a medium between their severity and the latitude of the imperial conftitution.'
We haften to confider Mr. Jones in the capacity of a critic. Ifæus was the mafter of Demofthenes, and may be justly ftiled the true fountain of that eloquence which afterwards flowed with so impetuous a ftream. His ftrong and nervous diction peculiarly fitted him to excel in that mode of speaking which is called by fome of the ancient critics popular, and which alone feems to be calculated for real ftruggles in active life. Mr.
Jones is unwilling that he should be reprefented as the in tator of Lyfias, whofe compofitions were too foft and deli cate for the harshness of forenfic combats. Ifæus, fays he, took nature alone for his guide, and difcovered and pursued a new fpecies of eloquence, which Demofthenes carried to fuch perfection that no mortal will ever furpafs, nor perhaps equal him, until the fame habits of industry, and folidity of judg ment, fhall be found united in one perfon, with the fame fre of imagination and energy of language.' He proceeds to draw the following masterly comparison between his Author and Lyfias.
The true comparifon between Lyfias and Ifeus appears to be this purity, accuracy, propriety, concifenefs, perfpicuity (in the perfect mixture or rather union of which Hermogenes makes the popular flyle confift), were common to both of them in an equal de gree, and both poffeffed that roundness of expreflion, to which nothing could be added, and from which nothing could be removed without destroying its juftnefs and fymmetry; but the orations of Lyfias had all that fweet fimplicity, that exquifite grace, that clear nefs, and, as it were, tranfparency, which characterized the genuine Attic diction, and which may be more easily conceived than defined, admired than imitated; for it is analogous to gracefulness in motion, to melody in a series of founds, and to beauty in the most beautiful of all visible objects, the human form: the lineaments of Ifæus were more dignified and manly, and his graces rather thofe of Mars than of Adonis; for Dionyfius obferves, that his figures were stronger and more various, his compofition more forcible and impetuous, and that he furpaffed Lyfias in ardour and vehemence, as much as Lyhas ex celled him in fimple and natural charms. In refpect to the form and order of their fpeeches, there appears to have been infinite art in both those orators; but the critic reprefents the art of Lyfias as more fubtile and recondite, that of Ifæus as more easily discoverable: ac cording to him, there was hardly a fpeech of my author, which had not the appearance of being premeditated and moulded into a fashion the belt adapted to the purpofe of winning the minds of the jurymen, and of feducing their reafon, if he could not convince it; but this also we must take in great meafure upon truft, for fcarce any traces of this open and apparent art, with which both Ifæus and his pupil were reproached, are vifible to us in their compofitions, which breathe the fpirit of truth and juftice, and feem to have been dic tated by nothing more than a natural animation. We may argue, however, as long as we please: it is certain, that both Ifæus and Demofthenes had the reputation of being extremely fubtile advocates, a reputation by no means favourable at the bar, as it always dimi nishes and frequently deftroys the confidence of the jury, who, through a fear of being deluded, are apt to fufpect a foare in every argument of fuch a fpeaker: it is no lefs certain, that, in this refpect, the ancients allowed the fuperiority of Lyfias over all pleaders of caufes who ever exifted; for no artful arrangement appeared in his fpeeches, no formal divifions, no technical mode of reafoning; but he opened his cafe with a plainnefs that captivated his audience,