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even be that his matter-of-fact publisher might not altogether like the result of the incident! Some of their lordships, no doubt, would get over the difficulty jauntily enough; and we have in our eye more than one learned personage
whose nonchalant ingenuity would not, in the case supposed, readily fail him. On the other hand, the weight of such authorship is naturally greater than would be allowed to the exposition of ordinary and irresponsible members of the profession; and therefore, unless a judge writes not only well, that is, like a scholar and a gentleman, but also with precise accuracy, he may unconsciously involve the community, among whom he proposes his book to circulate, in a certain measure of embarrassment, and even of injury. There are curiously constituted idiosyncrasies who delight in litigation, and who are never happy except when they are in contention with their fellow men. And such disputants nothing can deter or discourage. But the great majority of people are peacefully inclined, and would accept the dictum of a book in preference to the opinion of its judicial author given after much argument and cost.
It is, in truth, not easy to discriminate as to the possible anomalies of judicial authorship, and perhaps it would be better for judges not to write books at all. But there is
reason why, when they do essay such labours, their works should not be fairly considered, and every reasonable testimony borne to their worth.
Nor need we speculate on the possibility of a judge writing a bad book, and certainly with Lord Mackenzie's “ Studies” and “Comparative Views” in our hands, we have no difficulty of the kind; and so far from being troubled, in his case, with the fancied embarrassments of such literature, we feel thankful that the duties of a puisne judge in the Court of Session can be so suitably and beneficially relieved. With a due allowance for the natural prevalence throughout its pages of Scotch legal idiom, the work must be regarded by the well-read English lawyer as one of great merit. Its literary
qualities, too, are not inconsiderable, although we believe it is the first attempt of the kind Lord Mackenzie has made.
At the Bar, Mr. Thomas Mackenzie was long known as a hard-working, largely employed, and successful lawyer ; and when, towards the latter portion of his forensic experience, his professional industry became tempered with a certain quiet indulgence in party politics, he offended no one, while he commended himself to the notice of his adopted political leaders. His demonstrations, indeed, in this behalf must have been very welcome, for, with the exception of the late Lord-Advocate Rutherfurd, the Whig Bar of the period was not remarkable in Scotland for its learning or ability. It was not, then, to be wondered that, according to the course of promotion in fashion in that country, Mr. Mackenzie, after passing the bench of the County Court, as Sheriff of Ross and Cromarty, received his silk gown as Solicitor-General, and, with the appointment, his official claim to further elevation—a claim that was ere long recognised by his appointment to the puisne judgeship, which enables him to add the prefix “ Lord” to the title-page of his book.
His lordship appears to have applied himself to his selfimposed task with all the calm knowledge and self-possession of the ripe legal scholar, and his measured language is characterised by a directness and simplicity admirably calculated for his purpose.
In fact, it is but justice to say that the work throughout bears the most remarkable testimony to the literary refinement induced by the studious examination of legal science. In his preface he tells us that his main object was to exhibit the principles of the Roman law-a study which, he asserts, “has made great progress on the Continent of Europe, and especially in Germany and France;” but he truly observes that,
“In this country we have certainly not kept pace with our continental neighbours, but it is gratifying to observe that a strong desire has been recently manifested in professional circles to raise the standard of legal education by devoting more attention to Roman
law and general jurisprudence. This has led to the establishment of new chairs in some of our Universities, and of readerships by the Inns of Court in London, while it has called forth from English writers a considerable number of works on Roman law of various degrees of merit, but calculated in the whole to enrich our legal literature.”
Of his own juridical mission as a writer, he thus speaks :
“Without trenching on the ground already occupied by these authors, a good elementary book in English is still much wanted, giving a clear, simple, and accurate view of the general principles of the Roman law, with so much of its history as is necessary for a correct knowledge of the system.
"In the present work I have endeavoured to give a concise exposition of the leading doctrines of the Roman law, as it existed when it reached the highest development in the age of Justinian ; and great pains have been taken to simplify the subject as much as possible, by a systematic arrangement, by avoiding all abstruse inquiries of an antiquarian character, and by confining myself to such matters as appeared to be useful and instructive.
“At the outset, I have introduced an historical sketch of the sources of the Roman law, and the political changes in the government, from the foundation of Rome to the accession of Justinian ; of the legislative
; works of that Emperor, in the middle of the sixth century, when all the existing laws and imperial constitutions were revised and consolidated; of the fate of Justinian's legislation in the East and West; and, lastly, of the revival of the study of the Roman law in Europe in the twelfth century, and the progress of this department of knowledge from that epoch down to the present time."
The learned lord proceeds to observe:
“ To this exposition, which is my chief design, I have added a subordinate one, by drawing some comparisons, more or less important, between the Roman system and the laws of France, England, and Scotland ; and, although these illustrations are imperfect and compressed within narrow limits, it is hoped they will prove more interesting to the general reader than if I had followed the example of many previous writers on Roman law, by entering into minute technical details regarding ancient institutions and usages, which have little or no bearing on modern jurisprudence.”
These quotations from the preface sufficiently explain the character and scope of the work, and were we to add that the design is, for the most part, well executed, we might say enough to induce the profession to give the book a place in their libraries, assuring them that they might with signal benefit and instruction frequently consult its well-considered statements. But it would not be fair to the learned lord or to our readers thus to stop short, and we shall therefore briefly note a few of the numerous points which attracted our attention.
Lord Mackenzie begins with the early condition of jurisprudence among the Romans, and it might, perhaps, be said that he only wants the upper portion of the fresco in Lincoln's Inn Hall to reach the Mosaic primæval! And the works he has laid under contribution show, at least, great reading; and it increases our value of his labours thus to know that his own work, as the generic result, has been composed after the anxious study of the writings of so many others. He gives a list of about 120 authors, and they are, with one or two exceptions, worthy of all respect at the hands of any professor of the law. But we do not approve of “Compendiums," “ Translations," and the like, as authorities to be made use of by a judge. The authorities, however, that he has consulted on the Roman law appear to have been well selected, and with the light they gave him, he considered that system under three periods, all distinguished, as he tells us, by important changes in the political constitution of Rome. Ist. From the founda
. tion of the city to the promulgation of the Twelve Tables, extending over a period of about 300 years ; 2nd. From the Twelve Tables to the establishment of the empire under Augustus, in the year 722, after the foundation of Rome; 3rd. From the time of Augustus to the accession of Justinian, A.D. 527.
With the exception of fragments and traditions respecting it, the law of the Twelve Tables has been lost; but Lord Mackenzie notices a few of those of its regulations which are known, such as the following :-“Insolvent debtors were treated with great severity. They were liable to be seized and imprisoned by their creditors, and after being kept loaded in chains for sixty days, might be sold into foreign slavery." The law of torts was not more liberal, for it was enacted that, “ in bodily injuries the barbarous principle of retaliation was followed—an eye for an eye, a limb for a limb." As for the law of libel, how would journals and newspapers of the present day like the following regulation :-“ Any one who wrote lampoons or libels on his neighbours was liable to be deprived of civil rights." But these, though very rude and coarse beginnings, contain a sufficiently enlightened recognition of the elements of jurisprudence on the subjects referred to.
Lord Mackenzie is of opinion that the scientific elaboration of law did not commence until the age of Cicero; and, in exhibiting the process of development which was applied to jurisprudence, our author justly pays a tribute to the system which, notwithstanding the wickedness and incapacity of the actual rulers, produced good and wise laws. He says : “ Some
“ constitutions by the worst Emperors, such as Nero, Domitian, Commodus, and Caracalla, are remarkable for their prudence and wisdom, which is to be attributed solely to the laudable custom of making laws with the advice of the most famous civilians in the council of State.” Perhaps, however, a not less remarkable, though it be a negative, testimony to jurisprudence, is suggested by the learned author's notice of a period when other influences of an adverse and corrupting character prevailed. And more than one of the present powers of the earth, Transatlantic not less than European, might read a lesson in the following:
“ After the death of Alexander Severus, A.D. 235, the Roman Empire, formerly so powerful, but already much enfeebled, showed manifest symptoms of rapid decay.
Government was transformed into a military despotism ; confusion and anarchy pre