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racter and tendency of the movement. The Bill in Equity, and the Declaration at Law, must be melted down and fused into one distinct statement, and that this will require the greatest care and nicest discrimination is obvious. But that such a thing may be successfully accomplished, I see no reason to doubt, and accomplished, too, simply by the adaptation of the existing forms."
A very able exposition of the doctrines of international law concludes this excellent chapter.
The remaining portion of Lord Mackenzie's book, and by far the larger part of it, although subordinate, as he himself tells us, to its general design, is occupied with his statement of the laws of France, England, and Scotland, viewed comparatively with those of Rome, which we need not say would afford ample materials for lengthened observations ; but our space will not admit of any prolonged notice of what, after all, is merely a condensed and well-expressed exposition of what must be, more or less, familiar to our professional readers. We will therefore only note one or two particulars. And, in passing along, our eye has caught the following definition of slavery, taken from the Pandects : “ Constitutio juris gentium quæ quis dominio alieno contra naturam subjicitur” (D. 1.5,4, I. 1,3,2)-a definition which, without expressing any warlike devotion to the Federal cause in America, we recommend to the Confederates. On the subject of the law of marriage, Lord Mackenzie shows that the Roman law prohibited marriage with a deceased wife's sister. He says: “ Under Constantine, who abrogated the ancient law, marriage was prohibited with the widow of a deceased brother, and the sister of a deceased wife.” He here refers to the Theodosian code. But what will Lord Shaftesbury and Exeter Hall say, when, in stating the English law of marriage, Lord Mackenzie reminds us that the Council of Trent has, to this day, left its mark on the Church of England! We hear it often argued by sticklers for the essential catholicity of our church, as distinguished
* Law and Equity-The difficulties and prospects of their fusion, pp. 19, 20.
from that of Rome, that, because the English church had no bishops to represent her at the Council, the decrees of the latter were never binding on us. The learned author, however, cites the judgment of the House of Lords in the case of The Queen v. Millis, in 1844, to show that after the Decree of the Council of Trent, the ecclesiastical law of England required the presence of a clergyman at a marriage; contrary to the opinion of Lord Stowell, who, in the Dalrymple case, laid it down that prior to the Marriage Act of George II., the law of England, as the Scotch law does at the present day, allowed marriage by words of present consent, without the presence of a clergyman or any religious ceremony. But on the law of marriage in Scotland we need not here dwell ; we all know it, and regret its condition. We sincerely hope that the Yelverton case will be the last of its causes celèbres. We have indeed heard with much satisfaction that the judgment of the House of Lords in that case is to be followed by a Royal Commission to inquire into the law of marriage in the three kingdoms, with a view to its assimilation. We are glad to observe that this assimilation has, to a great extent, been already accomplished in regard to the property of the wife, and some matters of procedure in suits of divorce. This has been done by an Act passed in 1861, the 24 & 25 Vict., c. 86 (erroneously given by Lord Mackenzie's printer as c. 84), which applies to Scotland many of the provisions contained in the previous English Acts of the 20 & 21 Vict., c. 57, and the 21 & 22 Vict., c. 108, and we hope that, on this account, married women in Scotland will experience no inconvenience, as Lord Mackenzie's readers might imagine they would, for he concludes his interesting chapter on this subject with the following expression of his opinion :
“ Though recent legislation has materially improved the position of wives, it must still be acknowledged that much remains to be done to soften the rigour of the common law as to conjugal relations in both ends of the island, and more particularly in England.”
We feel tempted still further to engage attention to the
contents of this carefully-written work, and we could, indeed, with pleasure find our way quietly through its pages, but our space will not admit of any lengthened review of many of the chapters which follow those we have noticed. For this we may have other opportunities, when we discuss, as we hope to do, those legal reforms and amendments which are needed for a substantial assimilation of the general law of the United Kingdom, the want of which is, we may say, daily felt to be not only an evil in itself, but practically a great social and commercial inconvenience.
For the present we content ourselves with recommending those who desire to make themselves acquainted with the Roman, French, English, and Scottish law, on the subject to which we have referred, and many others—such as Guardianship; Law of Corporations; Law of Property ; Law of Prescription or Limitation ; the Law of Obligations and Contract; the Law of Succession and Inheritance; the Law of Actions, and suits, and procedure in General—to consult the learned lord's book, assuring them, that whatever their professional experience and learning, they will not only find themselves interested but instructed, and thereby better and wiser lawyers than they were before. As we have before observed, there is an air of remarkable simplicity and plainness in Lord Mackenzie's style, which, to the superficial reader, might seem to be the perfunctory exercise of the careless and over-confident writer; but the discriminating student will, after the thoughtful perusal of what is to be found in this work, be enabled to appreciate that which we have called simplicity and plainness, but which is truly the clear and condensed expression of the most conscientiously elaborated learning.
We are unwilling, however, to conclude this article, without noticing Lord Mackenzie's last chapter on the Roman Bar, in which, having regard to the present condition of the profession in this country, there are some very suggestive observations.
It would appear that, according to the original Roman idea,
there was no "remuneration :" that is, in plain terms, no fees were allowed to counsel. But " after the ancient institutions were modified, and law became a complicated and difficult science, presents of various kinds were given by clients to those persons who devoted themselves to pleading. This practice having been regarded as an abuse, a law was passed by the Tribune Cincius, B.C. 204, prohibiting any one from taking money or gifts for pleading causes; but as this law imposed no penalty on those who contravened its injunotions, it was little observed, and the opinion gained ground that advocates, who required to devote their time to the special studies of their profession, were entitled to receive some recompense for their services."
It is certainly not a little amusing to observe the quiet and rather sly way in which the learned lord speaks of “ the opinion gaining ground,” that men who have to keep body and soul together, and move in the society of gentlemen, and be gentlemen themselves, should be “ remunerated” for their services in a profession to which they devote all their time! The opinion, in fact, gained ground considerably, and the fees became excessive. Lord Mackenzie's remarks on this subject are so interesting that we must give another quotation. He says :
“ Before the overthrow of the Republic it was quite common to give large fees to advocates. M. Licinius Crassus, whose fortune is said to have exceeded three millions sterling, exacted exorbitant sums from his clients, and the same charge has been made against P. Clodius and C. Curio. Cicero himself, who lost no opportunity of boasting of his respect for the Cincian law, and who is represented by his enthusiastic admirers as a model of disinterestedness, is strongly suspected of not having always put in practice the principles which he professed. There are many reasons for believing that the sum of a million of sesterces (about £8,000), which he received from Publius Sylla, then under impeachment, and which was employed by Cicero in the purchase of a house, was neither more nor less than the fee given for his forensic services, though it was
VOL. XV.-NO. XXIX.
disguised, according to common practice, under the form of a secret loan. Another mode of rewarding members of the bar was by legacies left to them by clients in their testaments. These bequests were considered honourable when they were not obtained by fraud or under influence, and Cicero boasted that he had received in this form sums amounting to upwards of twenty millions of sesterces, equal to about £166,666."
The Emperor Augustus tried to put a stop to all this by a senatus consultum, which revived the ancient discipline, and which actually declared that advocates convicted of having received remuneration from their clients, should be compelled to refund the amount fourfold! It is of course not surprising that this extravagant regulation utterly failed.
The practice of giving fees prevailed, and was at length admitted as a right, which, by the way, if we rightly understand the judgment in Kennedy v. Broun, it is not in this country. The honorarium is not a right, but a mere sanction to accept and retain a fee when given; and we cannot bring ourselves to see that this is a satisfactory state of things for the English Bar. According to the information we have received, it is not only eminently unsatisfactory and practically inconvenient, but it is fraught with the most injurious consequences to the best interests of the public. The Common Pleas, in Kennedy v. Broun, took too much for granted, and the learned judgment of the Chief Justice put himself and his court very much in the position of extolling a theory at the expense of the fact. The truth is, that unless a change takes place by
. the actual adoption of the only practice that is consistent with Chief Justice Erle's theory, the system will prove too much for the working men of the profession, and, if it be carried much further in the present direction, it may destroy the Bar altogether. As it is, its effect is exceedingly discouraging and depressing. Barristers are often observed to be not so anxious for business as might be expected, and the “ briefless barrister may even cease to be a term of reproach.
Lord Mackenzie gives an account of the course of study for,