Page images

have been lost in the lapse of ages. If language portrays the national intellect, law, originating as it must do in popular manners and customs, exhibits their moral tendencies; and in the comparative examination of these systems of law, especially in the smaller states and remote by-corners of the world, we should probably find traces of the persistence of ancient manners and customs, which, by their strange peculiarity, connect their inhabitants with those of widely distant tribes.

To the legislator and statesman they are still more practically valuable. The object of all law should be to provide a rule to meet some need or requirement of mankind. After a careful analysis and examination of the constitution of human nature, with its wants and motives, the next available source of information will be found in the judicial and legislative records of our race; and the comparative study of these systems of law will enable him the better to fathom the great questions which human wants present to be resolved by the sciences of social economy and law-making.

But if the comparison of the laws of different nations further the pursuits of the ethnologist and legislator, how much more do they assist the scientific jurist, and advance jurisprudence, as the notitia rerum divinarum et humanarum. The laws of different nations have never been studied on any enlarged scale, and the inductive philosophy has never been applied to them to discover either the ultimate source and foundation of law, or for distinguishing those principles of law which are temporary and local from those which are universal and immutable. Orators have gladly availed themselves of glowing appeals in general terms to the eternal and immutable laws of justice; and poets have delighted to refer to those unwritten and imperishable laws of the gods which live not yesterday or to-day only, but for ever.

But though mankind has a consciousness that there are such laws, philosophers as well as lawyers have

? European languages, derived in part from Rome, have been traced to their parent stem in Asia, and an eminent member of the historic school of law, -M. Laboulaye, Professeur de Législation comparée au Collège de France, in his essay “On the Historic Method in Jurisprudence, and its Future," points out the remarkable features of resemblance or identity which exist between the early Roman and the Hindu laws.

found themselves overwhelmed with such multitudes of apparently conflicting rules, that they have doubted whether there are any such universal, eternal, immutable principles. The volumes before us go far towards enabling the philosophic jurist to examine successfully and conclusively the question. It is true these volumes do not contain the judicial and legislative records of the whole world. It did not enter into the author's plan to include that fountain of modern law, the Roman system, in the work; and the laws of the ancient nations of Asia, China, India, and Palestine, are wholly beyond the author's scope. But enough remains for an extensive and highly interesting study. Starting on the common principles of logical method, the individual and prominent differences which present themselves must be separated from features common to other systems; these again abstracted, until, by successful generalizations, those rules and principles which are common to all are arrived at; and again these must be analyzed into such as simply meet the wants of the constitution of man as a physical or moral being, such as are simply an expression of the necessary relations of legal notions, and such as are the intellectual principles and axioms of all reasoning. We shall thus have before us what is peculiar to each system, and a wide field for study is opened, to trace what of these peculiarities arise from or have been modified by the stamp of character affecting a race, by the mixture of races, by the local geographical and physical conformation of the countries which have affected that character, by the modifications which have been produced by the forms of governments and the political organization of the people, the public intelligence and virtue, or by the influence which the constitution of the courts of judicature has exercised over the mass of laws and customs before them. And fragments of old laws and customs will probably be found existing in one country, which are inconsistent and inexplicable in reference to the rest of the laws and customs existing in that country, but which, as in the enigmas of philology, are accounted for, connected together, and rendered consistent by laws existing elsewhere, and of which the supposed anomaly forms an appropriate portion. What can be more inconsistent and anomalous than the three systems of descent of lands which exist among us: the Common Law, which casts the whole on the eldest son; Borough English Law, which gives it to the youngest; and Gavelkind, which gives it to them all equally. But if we might trace the whole back to Asia, we might discover a system, where, the land being considered the common property of the whole family—parents and children—all the survivors, on the death of any one of them, naturally continue in possession; or the children, as each attained majority, had his share partitioned off, to enable him to commence a new family; and the younger, being left with the parent, on his death succeeded to all that remained; or the eldest, being manager, and having more active duties to perform as representing the family, gradually acquired the right to be deemed sole owner.

It is somewhat singular, that one of the great advocates of the philosophic theory of law, as opposed to the historic school in Germany,M. Gans,-appeals to the Hindu code of Menu, the Vedas, and Puranas, as well as the laws of the Hebrews, Greeks, and Romans, in support of his side of the question in his general history of the law of succession.

We confidently refer the reader, of whichever of the classes we have specified he may be, to the volumes before us for a fund of interest and information of its kind unequalled by any existing work. We cannot conclude without one word as to our own system of law, and its want of systematic arrangement and scientific expression. It has been said, that duly to correct the English system, there will be wanted the learning of Serjeant Hill to collect the materials of a purely professional kind (the most important materials after all),—the philsophical genius of Lord Mansfield to deduce from them liberal and comprehensive rules,—the logic and the caution of Lord Eldon to trace the consequences of the rules to their remotest fibres, and to fix, in one of his exact parentheses, the limits and the exceptions by which particular rules ought to be guarded.

We cannot expect to find these varied powers and acquirements in any one individual. But unfortunately, though they exist more or less united or separately in different individuals, their minds are not directed to any such object. The intellects of our great lawyers are not tempted to the task. The prizes which success at the Bar offers (the Ermine and the Woolsack) are sufficient to attract all attention to the engrossing pursuits of practice, and, with a few splendid exceptions, our matured lawyers devote but little time to the culture of professional literature. The attention of the Profession ought to be enticed to the subject. If, in any excitement of the popular mind, England were compelled to proceed to systematic law-making, her jurists would be found wholly unprepared adequately to perform the task. The sums expended by Russia, the prizes awarded by Prussia, afford our Government precedents which should not be lost. Why should not England have a less crude legal phraseology? a scientific institute of its law? a digest of those liberal and really philosophic principles on which her laws are based, which, though not a code in the sense of an exclusive and original authority, would be accessible to all ? And also a digest of cases and authorities, legal and equitable. If the Government were to obtain a vote of 50,0001. or 100,0001., or twice as much, and provide for its fair and proper distribution in several prizes of adequate amount, for the best outlines or institutes of principles of English law, expressed in the purest English, and digests of the whole law in subdivided portions, the attention of the Profession would be directed to the subject; it would be money well laid out, and in the course of a few years England might be furnished with a systematic and scientific statement of its laws which would surpass anything any other nation of the world could produce; and being then in a tangible shape, it could be modified and adapted to her colonies and dependencies as circumstances rendered necessary.



THE reform to which we wish in the following pages to

social consequence to that large body of the people known as the labouring or industrious classes of the community. The subject, indeed, is rather dry, and, we are afraid, also a little uninteresting; but its importance, we feel assured, will enlist sympathy, and command attention.

The situation or social position of the poor—and by that word we mean the labouring population-is by no means so deficient in the means of happiness and comfort as many are led to believe. Comparatively speaking, they would have in their power almost the same means of acquiring independence as the middle classes of society, if only the same advantages were afforded them. The mechanics,” says Lord Byron, “and working classes who can maintain their families, are, in my opinion, the happiest body of men. Poverty is wretchedness; but it is, perhaps, to be preferred to the heartless, unmeaning dissipation of the higher orders.” “I have heard it said,” remarks a popular author, " that if the face of happiness can anywhere be seen, it is in the summer evening of a country village; where, after the labours of the day, each man at his door, with his children, amongst his neighbours, feels his frame and his heart at rest, everything about him pleased and pleasing, and a delight and complacency in his sensations far beyond what either luxury or diversion can afford. The rich want this, and they want what they must never have.And again: "I have no propensity," says the same eminent writer, 3 “to envy any one, least of all the rich and great ; but if I were disposed to this weakness, the subject of my envy would be, a healthy

| Last Days of Lord Byron. By W. Parry. 1825. Page 205. 2 Paley, Reasons for Contentment. Works, vol. ii. p. 523, ed. 1838. 3 Ibid. p. 524.



« PreviousContinue »