Page images

wisely to try the yet unexhausted resources of prose. Only a great master can handle blank verse so as to give real pleasure to his readers. A versifier of very moderate pretensions may write it with ease, but no one will thank him for it. Blank verse, like other verse, presupposes and promises a certain sustained pitch of poetical elevation, and any descent from it is felt and resented at once. Prose, on the other hand, promises far less; and anything which it gives beyond its promise is accepted with pleasure and surprise. The indeterminate character of its rhythm, which does not require that emphasis should be placed on this or that word, much less on this or that syllable, allows to admit unhesitatingly words which, if introduced into blank verse at all, would be felt to be feeble and burdensome. The passage which we have just been examining supplies an instance in point. Virgil talks of Hecubam centumque nurus.' prose translation need not shrink from the word daughters-in-law,' nor from the use of many words which embarrass the writers of verse, and which, though essential to a lucid representation of the sense, add nothing to the poetical dignity of the passage. Thus a vigorous Latin line is turned by Mr. Singleton into two feeble lines of English :



qua est cælo pietas quæ talia curet'

'If any righteousness exist in heaven
Which may concern itself about the like.'

If the writer of rhythmical prose cannot be said to be free either from the temptation or from the compulsion to expand himself, he does himself and his author far less harm by yielding to them. No doubt, as Sydney Smith said, a prose style may often be greatly improved in vigour by striking out every other word from each sentence when written; but there are occasions where diffuseness is graceful, and a certain amount of surplusage may sometimes be admitted into harmonious prose for no better reason than to sustain the balance of clause against clause, and to bring out the general rhythmical effect. Brevity is of course the preferable extreme; but redundancy has its charms if a writer knows when to be redundant, as the readers of Mr. De Quincey and Mr. Ruskin are well aware. On the other hand, such rhythmical writing as Dr. Henry's, or Mr. Singleton's, where he is not actually metrical, has no real advantage that we can see over more recognised modes of composition. It gives up the benefits of association, no one in reading it being reminded of anything already existing in English, while the uniformity of its structure

Vol. 110.-No. 219.



imposes virtually as great a restraint on a writer as actual metre. Johnson advised poets who did not think themselves capable of astonishing, and hoped only to please, to condescend to rhyme. Translators who despair of imitating Virgil's diction, and are ambitious only of giving his meaning in a pleasing form, may reasonably be content with prose.

ART. IV.-1. Ancient Law: its Connection with the Early History of Society and its Relation to Modern Ideas. By Henry Sumner Maine. London, 1861.

2. The Province of Jurisprudence determined. (Second Edition.) By the late John Austin, Esq. London, 1861.

THE Letters of Camus,' written in 1775, prescribe the course of reading which was formerly thought necessary for a young French advocate. He was to begin with a series of works on the Law of Nature; he was then to devote four years to the study of Roman Law; next he was to gain a general acquaintance with the coutumes, ordonnances, and arrêts of his own country-a subject which need not, in the opinion of M. Camus, take him much more time than that which had preceded it; lastly, he would dip into Canon Law; and, thus prepared, might begin to think of entering into practice. So extensive a curriculum was never deemed requisite for an English lawyer, though Blackstone's opening lecture informs us that it had in his time become the fashion to seek at the Universities of Germany, Switzerland, and Holland some wider knowledge of the science of jurisprudence than could be obtained at home. Lord Colchester, according to his biographer, went for that purpose to Geneva, and there took his degree as a civilian. To come nearer to our own time, ViceChancellor Wood congratulates himself, we believe, on having pursued the same study at the same place, under the celebrated and unfortunate Rossi. So changed, however, for a quarter of a century at least, has been the general course of professional education, that a young and even a middle-aged barrister of the present day finds it hard to realise the fact that attendance on lectures at Geneva and a Swiss degree should have been thought. advisable by an English lawyer less than sixty years since.'

The progressive tendency of law and legal study in England to become thoroughly special and insular, can hardly be regarded, by any man whom it has not quite spoiled, without some regret. The vast monotonous labyrinth of technical learning surrounds him like a great city, whose confined and stony thoroughfares he

is compelled to thread till every turning is familiar, and from which he seems destined never to emerge. To get a bird's-eye view of that labyrinth, to look over and beyond it, becomes harder every day. Time was when Lincoln's Inn itself had nothing but scattered houses between it and the breezy hills of Hampstead. Now it is buried in the heart of a wilderness of dingy brick and mortar. The denizen of the streets has all around him the bustle and stir of active life, and the various play of human interests and passions; and so has the lawyer in practice. Business, success, the pleasures (which are great) of a laborious profession abounding in small excitements, engross his mind, and console him for the impossibility of acquiring comprehensive views and scientific knowledge. Yet there are occasions not a few, especially at the outset of his career, when the course of his pursuits momentarily raises him to a higher level and gives him glimpses of far-extending prospects and a boundless horizon.

The fields of study immediately adjacent to Law are History and Ethics, each of which, indeed, may be so extended as to include a great portion of it; while Law itself embraces a vast region, the domain of Comparative Jurisprudence, of which English Law forms a small province. Whether it is necessary or useful for the student of English Law to stray into these wider pastures, and how far, and why, are questions of no little practical interest. That a man may, without taking this trouble, make himself an excellent practitioner, and even a good second-rate judge, is undeniable; but to teach, to legislate, to exercise well the highest functions of the judicial office-nay, to become an advocate of the first class-something more is wanted than goes to make a mere practitioner. And the narrow system of study to which men intending to practise are now generally confined has led, as Mr. Roundell Palmer, himself an eminent and successful advocate, has lately declared, to a perceptible decline of legal learning in the profession, to greater uncertainty in the decisions of courts, and to greater feebleness and more frequent failures in legislation.

The study of Jurisprudence has always, in fact, oscillated between History and Ethics; sometimes borrowing its complexion chiefly from the one, sometimes from the other. And as Ethics have become merged in metaphysics-moral in mental philosophy -a new branch of science has arisen, which has become tolerably familiar, in Germany at least, under the name of the philosophy of law. The historical school, which has long enjoyed a real though not undisputed supremacy in Europe, dates practically from the fall of the first French empire, the controversy between I 2


Savigny and Thibaut, and the publication by the former of his short treatise On the Vocation of our Age for Legislation and Jurisprudence,' which was translated into English by Mr. Hayward. Savigny taught that the law, like the language, of every people is a part of its growth, an expression of its genius and character, wrought out by the same influences, reflecting the same history, moulded and accommodated, with a rougher or a nicer adaptation, to the wants and habits of the nation from whose cradle it springs. It follows that, to comprehend it, we must trace it (as he insisted) historically; that by the historical method alone we can accurately disengage principles from details, and determine the value of each part in relation to the whole.

In England the study of law has always been mainly historical, but historical in the narrowest possible sense. The student has been obliged to familiarise himself in some degree with the successive accretions by which the irregular mass has grown. He is exhorted to fill up his odd moments with a manual written in the reign of Edward IV. (an eminent conveyancer, now dead, used, as he told his pupils, to repeat Littleton to himself as he walked along the Strand); he is acquainted with the whole family of obsolete tenures, and can recite the pedigree of an estate tail. But he is rarely taught to connect his knowledge of these things with the general history of his country, and his range is practically bounded by the Norman Conquest and the Four Seas. Beyond these limits, all is a terra incognita to him. This arises, among other more obvious causes, from the real difficulty which is found in penetrating backwards beyond a certain pointa difficulty which does not exist to the same degree in any continental country. A great chasm separates the infancy of English law from any earlier system to which its parentage may be assigned. The traces of Roman jurisprudence in Anglo-Saxon England are faint and few, and with the Norman lawyers it early became a point of honour not to acknowledge any direct connexion with it; while the codes of Elfred and Cnut are to Bracton what the fossil remains of extinct species are to the earliest known ancestors of the present inhabitants of the globe.

To the English student, therefore, a good English book on the subject which Mr. Maine has chosen is really new; for Mr. Spence's treatise, though rich in information, is unscientific, and, from its bulk, almost unreadable; while Mr. Reeves's History, the composition of a painstaking and very well-read English lawyer, has the fatal defect of being intolerably dry. But the interest of Mr. Maine's book is far from being confined to the English or to the professional reader; and on the continent, where



the subject, though still entangled and obscure, is not new, its remarkable merits can hardly fail to secure for its author a distinguished rank among the jurists of his day.

For the difficulty which has been mentioned above as attaching in a peculiar degree to English law extends also, more or less, to the whole law of modern Europe. To trace that law upward to its source is to explore a wide and majestic river, fed by many affluents, whose higher waters dwindle into little rivulets struggling through rocks and hiding in thickets, and whose springs are lost in remote and inaccessible solitudes. The great bulk of it is undoubtedly Roman law, more or less pure, which in all the countries where it was established outlived the fall of the Western Empire, and has preserved an unbroken existence, though altered and coloured by time. Again, the same element may be detected in many institutions once deemed wholly Teutonic; and it seems to have largely infused itself into the Barbarian customs which, before the fall of the Empire, had grown up in German forests, but in the neighbourhood of Roman civilisation. And there is a residue, of unascertained amount, which is purely barbarian—that is, not derived at all from Rome. The first of these factors may be identified pretty easily; but to separate the two latter and to determine how much of any barbarian code or cluster of usages was really borrowed, consciously or unconsciously, from Rome, is a difficult task, and the results hitherto obtained are not very satisfactory. But neither the Imperial city, where Tacitus wrote, nor the German village, of which he has left us the only trustworthy description, is the terminus of the explorer's journey. It is possible to travel much further back-further than the Twelve Tables-further than their Greek models-further than those primitive customs of the Italian peoples, of which vestiges survive in the early Roman Jus Prætorium; it is possible to trace back some at least of the rudimentary ideas which lie at the roots of Roman and German law to the earliest infancy of our race, before the fathers of the Indo-European nations left their ancient seats in Asia.

There is a striking resemblance between these inquiries and those which have been pursued of late years into the origin and relations of language. Mr. Max Müller will hunt a word all over Europe, strip it of the many disguises it has put on, cut it to the quick, dissect it with the neat firm hand of an accomplished operator, and finally, after using it to establish relations of affinity among a dozen different tongues, hold it up to the world convicted of being pure Sanskrit. A jurist may take, for example, the law of inheritance, and treat it in much the same way; though his data are commonly more obscure and his results more open to


« PreviousContinue »