whom, in the titles to their books, -Hobbes in the Elements "De Cive et de Corpore," and Felde and Puffendorf in their Elements of Jurisprudence, have followed. Elements are composed of two things, the explanation of terms or definitions, and of propositions or precepts, in a separate book. The definitions or explanations of judicial terms are to be treated without the intermingling of precepts or rules. This may be termed the divisions of Right, partitiones juris.

Leibnitz then proceeds to comment on the various arrangements of former works, and to censure them, from the Institutes of Justinian, down to the numerous German writers.1 Leibnitz censures the celebrated division of law into Persons, Things, and Actions. This division, originally published by Gaius, had been adopted in the Institutes of Justinian, and inextricably incorporated with the body of the Roman Law. It has been followed in modern times by Sir William Blackstone, and in the Code Napoléon. If it had always been interpreted according to the maxim of Weisembech,-omne jus redditur personis, de rebus, per actiones,-this doctrine might not have exercised such a deteriorating effect upon the development of Law; but its faulty nature will be best seen from the criticism of Leibnitz.

First, the division into persons, things, and actions, is superfluous; for actions arise as well from the rights of persons, as from the rights of things. And this division is drawn, not from matter of law, but from matter of fact; for persons and things are matters of fact, power and obligation terms of law; and a division of Jurisprudence ought to be taken from matter of law. 2

Leibnitz further censures the diversity of arrangement between the Code, Digest, and Institutes. A new method of arrangement would bring incredible advantages, if it were accurate; for, in the first place, a wonderful compendium of things to be learned would arise, whilst by general rules, at the same time, infinite special rules will be learned; and the genera being premised, we will gradually descend to the species.

1 Vol. iv. pp. 183, 184.

2 Vol. iv. sec. 10, p. 183.

To take an example,—what is the need of specially inculcating in one place that a minor, in another that a madman, in a third that one who is absent, requires a guardian of his property, when the general rule is manifest from the very principles of political science, that he who is not able to manage his own affairs requires a guardian ? 1

Leibnitz then proceeds to give his own definitions. Jurisprudence is the science of actions so far as they are termed just and unjust. But that is just or unjust which is publicly useful or injurious; publicly, that is, first, as to the world, or its ruler God; secondly, as to the human race; finally, as to the state. Hence Jurisprudence is divine, human, and civil. Jurisprudence should also be divided into as many parts as there are causes which produce rights and obligations. But the causes which produce rights and obligations are five:-1st. Nature, which gives the liberty and power of dealing with that which is the property of no one (res nullius). 2nd. Succession, by which the rights of the deceased are transferred to heirs. 3rd. Possession. 4th. Contract. 5th. Injury.

After some other definitions belonging to Didactic Jurisprudence, he proceeds to Historical Jurisprudence. Historical Jurisprudence is either internal or external. The internal history of law is that which surveys the laws of different states; for example, the works of Aristotle and Theophrastus, which have not descended to modern times. Leibnitz gives a complete list of historical works on the history of Law.3

Exegetical Jurisprudence is twofold-ex textu, or ad textum. The former is collected from various texts, not in the order of the texts; the latter is accommodated, karà móda, to the very texts themselves. The former pertains to the Philology of Law; the latter to the Commentaries on Law.*

The Philology of Law consists in the application of the sciences to Jurisprudence; and is divided into Legal Grammar, Didactics, Rhetoric, History, Ethico-Politics, Logico-Metaphysics,-in fine, Legal Physics. The most important division of Legal Physics is Medical Jurisprudence. All these he illustrates

with his own definitions; and gives the works of the principal authors on each branch.

In

Legal Grammar also requires juridical concordances. this the theologians have surpassed the jurists. It is inadvisable, however, to develope into the excessive bulk under which the theologians labour. Both theological and juridical concordances might be portable, if only the more remarkable places were taken note of, and in them only a somewhat unusual use of a word; for what is the need of collating things almost the same?

The interpretation of any text is real or textual. The real is that which elicits certain propositions from the law, and treats them absolutely, proving, and objecting, and solving objections, if it so seem fit. The textual interpretation is κατὰ πόδα, according to the words of the law; and is either total, for the whole law, or partial, for individual words. The total interpretation treats of the connection of the law with other laws, the author and history of the law, and the occasion upon which it was passed.1

Polemical Jurisprudence is so infinitely diffused, that it cannot be exhausted, for new cases daily arise. Meantime it must be the business of the Jurist to collect and decide the cases already ventilated; so that when he shall be carried to new regions, that is, meet with new cases, he may easily extricate himself by means of the magnet-natural law.

The principles of decision are Reason drawn from Natural Law, and Analogy from certain Civil Law. For if we consider the matter accurately, all civil law is rather a matter of fact than of right; inasmuch as it is to be proved, not from the nature of things, but from history. For it is to be proved that the law was promulgated, that the custom was introduced; then it is to be proved that he who passed the law had acquired to himself the power of legislation.3

There are three grades of natural law,-the strict law, equity, piety,-jus strictum, æquitas, pietas ;-of which the latter is more perfect than the antecedent, and confirms it, and in case of opposition derogates from it. Strict or pure law descends 1 Vol. iv. sec. 64, p. 207. 2 Sec. 70.

3 Sec. 71.

from the definitions of terms, and is, weighed rightly, nothing more than the right of war and peace; for between person and person there is the right of peace only so long as the other has not begun war, or committed an injury; but between a person and a thing, because a thing does not possess reason, there is a perpetual right of war. It is permitted to a lion to tear a man in pieces, and to a mountain to crush a man in ruin; on the other hand, it is permitted to man to chain the lion, to pierce the mountain. But the victory of a person over a thing, and the captivity of a thing, is called possession. Possession, therefore, gives the right of a person over a thing by the right of war, provided the thing be the property of no person.

Leibnitz had scarcely published his "New Method of Jurisprudence," when he undertook the vast design of recasting the whole body of the Civil Law. Weighing all the faults which are attributed to the work of Tribonian, he considered that it lay with him to free it from all confusion. There was a threefold confusion:-of the works themselves, of the subject matter, and of the laws. The confusion of the works consists in this, that the Roman Law is comprehended in diverse codes; that the order of one code is different from the order of another; and this inconvenience must be met by removing the variety of works; whatever is contained in the Code, Novels, Institutes, and Digest, must be collected in one work; the different changes of the law are to be accurately separated, following the order of time; what is contained in the Institutes is to be accommodated to the order of the Digest, rather than vice versa. Leibnitz, approaching the confusion which occurs in matter, divides this into general, subalternate, and special. The confusion of laws consists partly in their dispersion, partly in their perturbation. The laws dispersed are those which are not contained under their proper titles; perturbation arises when they are arranged under their proper titles, indeed, but are not collocated in their proper order. For if the thing be the property of any person, it is no longer permitted to injure it, or take it away, any more than to kill the slaves of another, or to receive the runaways from another. If, therefore, one person

has injured another in his person or in his property, that gives to him the right which he had over a thing, or the right of war. There is also amongst the species of injury a pernicious deception, by which a damage is inflicted on the mind; hence arises the necessity of observing promises. Hence is patent a pure single precept of natural law,-To injure no one, lest there be given to him the right of war. To this pertains Commutative Justice, and Right, which Grotius terms Faculty.1

Equity or equality, that is, the ratio or proportion of two or more, consists in harmony or agreement:-Æquitas seu æqualitas, id est, duorum pluriumve ratio vel proportio, consistit in harmoniá seu congruentia. This requires that against him who has injured me I should not wage an internecine war, but seek for restitution; that arbitration should be employed; that imprudence should not be so much punished as fraud and malice; likewise, that crafty contracts should be nullified, and relief given to those who were deceived.2

The third principle of law is the will of a superior. But a superior is, in the first place, by nature,-God; and his will is either natural,—hence piety; or it is a law,-hence the divine positive law. Next, a superior exists by compact,-as man; whence arises the Civil Law. Piety, therefore, is the third grade of Natural Right, and gives to the rest perfection and effect; for God, as being omniscient and wise, confirms pure law and equity;-as omnipotent, executes it. Hence the good of the human race, nay, the glory and harmony of the world, coincide with the Divine will. From this principle, we should not injure even the brute creation. From this fundamental principle, no one should even injure himself,-for we ourselves are gods, to whom Omnipotence has given power over all things: hence that principle, Live honestly. And since strict law and equity want a physical sanction, God accomplishes, that whatever is publicly useful to the human race and the world, is also useful to individuals, and that everything honest is useful, and everything disgraceful injurious.3

Leibnitz then gives a lengthened course of legal study; and 1 Vol. iv. sec. 74, p. 213. 2 Sec. 75. 3 Vol. iv. sec. 76, p. 214.

VOL. I. NO. I.

D