doubt. And as Professor Müller has shown how philology may be made to throw a new and curious light on other departments of literature and science, Mr. Maine has done a similar service to law. His book is in substance an essay on the growth and development of law-an essay rather than a treatise-indicating and illustrating by examples the true method of inquiry, but dwelling chiefly on the connexion between the law of Rome and that of modern Europe. It is disfigured by some defects of arrangement, and here and there by statements which

appear to us too large and confident for the reasoning they rest on; and we hope to be pardoned for suggesting that Mr. Maine would write more agreeably were he less thoroughly convinced that, except the great Roman lawyers, everybody has always and everywhere been wrong; but it is the work of an acute and original mind, embodying the results of much thought and study, and expressed in singularly terse, clear, intelligible English.

Law begins, according to Mr. Maine, in the isolated and arbitrary judgments of a patriarchal ruler or sovereign, delivered as circumstances call for them, and claiming to be dictated by direct inspiration. A succession of such judgments generates traditional rules or customs, which, as the kingly authority decays, and is replaced by an era of aristocracies,' are found to be in the possession of a privileged class. At some stage of growth, earlier or later—a difference which is of great practical importance this jus non scriptum loses its traditional character, and becomes recorded in codes. In the language of Homer, these judgments are Oéμores; and Homer does us the great service of actually picturing a state of society in which there is no such thing as law, and we have only traces of the growth of a traditional custom. It is hardly worth while to question the accuracy of this account, but it appears to us rather too large and positive. There is nothing, for instance, in Homer, frequent as is his use of the word themistes, which proves that every sentence was supposed or pretended to be inspired, and it is a doubtful inference at best from the connexion of the word with Themis, the summoner of Olympus. It is remarkable, indeed, that in the only description given us in Homer of a civil trial-a description to which Mr. Maine elsewhere refers-the judgment is not the inspired utterance of a chief or king, but the deliberate decision of a circle of elders, who form a sort of court in the marketplace, the best expounder of the case receiving (as Mr. Maine construes the passage, though this again is doubtful) the deposit as a reward. And the lexicographers, who, like Liddell and Scott and Dr. W. Smith, interpret themis, when it stands for a judgment, as involving the notion of an existing customary law,

have perhaps something to say for themselves. A like observation applies to the assertion that arbitrary judgments precede and beget customs. No doubt this has often been so. The case of the daughters of Zelophehad, which appears in the Pentateuch as introducing inheritance by females into Hebrew law, with its attendant restriction that the heiress should marry within her tribe, is a good instance of a decision founding a rule. It is easy to imagine a state of society in which judgments stand in place of laws, and in the East especially this might last long. The legendary Deioces, the just man of his village, deciding cases secundum arbitrium boni viri, might long fulfil this purpose sufficiently for a primitive Oriental community; and to this day a judge who, like the Cadi of the Arabian Nights, is always ready to do prompt rough justice, unfettered by rule or precedent, satisfies, it is said, the natives of India much better than a regular judicature administering the most orthodox code of law. But of such a phase of society we have few glimpses. Even among savage or half-savage races it has generally disappeared, if it ever existed. In a Kafir kraal there seems to be as great a respect for traditional precedent and established judicial usage as in Westminster Hall; and the same thing is observable in Mr. Dasent's interesting sketch (in the Story of Burnt Njal) of the administration of justice among the old Norse settlers in Iceland. In old legal records it is often very hard to distinguish whether what is recorded is a judgment or a custom recognised or not recognised judicially, or merely an opinion of the compiler-a confusion of which the Rooles d'Oleron, the earliest monument of the maritime law of modern Europe, furnish a convenient instance; and in the existing Anglo-Saxon codes judgments, customs, and laws regularly enacted appear to be often blended together. Customs, it is obvious, may grow up and virtually become law, and that not only in primitive times, with little help from judicial decisions. In ascertaining, for instance, the rights and duties of a copyholder, or (before the Conquest) of the Saxon cottier tenant, or of an old German village-community, or (to take a more important example) in establishing the custom of primogeniture, or even in creating private ownership in land, sentences judicial or quasi-judicial had probably a very subordi

nate share.

The age of kings was succeeded by an age of aristocracies, who were the privileged keepers of customary law :

'With these differences, that in the East aristocracies became religious, in the West civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches

of

of the Indo-European family of nations. The important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. They seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence.' —pp. 11, 12.

Propositions possibly true, but surely of immense breadth compared with the amount of evidence that can be brought to bear upon them, and the first of which disposes, with a stroke of the pen, of a question which in Germany has been the theme of a voluminous and we believe still unsettled controversy—the existence among the Barbarian tribes of any aristocracy at all.

The era of codes comes next, upon which Mr. Maine has some just and striking remarks. After this epoch,' he proceeds, there is an end to what may be called the spontaneous development of law. All changes made in it are made deliberately and from without, from a conscious desire of improvement or of compassing objects other than those aimed at in primitive times.' Considering what an early code is how vast a proportion of the field of social life, which law in a maturer state covers, it leaves untouched —we cannot but suspect that this statement also is open to considerable qualification. It is not quite clear of what codes Mr. Maine is speaking, nor whether he would admit a comparison, for instance, between the earlier and later Anglo-Saxon laws, or between the code of Howel dda and those of Northern and Western Wales. It is certainly true, however, that the improvement of law is not at first, and that it afterwards becomes, a conscious and deliberate process; and that the change takes place, roughly speaking, when a community becomes aware that it has a law-a body, not of customs only, but of rules, capable of expression and alteration, and binding till altered.

What, then, are the agencies by which this improvement is wrought, and law, in its maturer state, is made to keep pace with, or at least not to lag very far behind, the continual advance of social necessities and social opinion? Mr. Maine enumerates three-Legal Fictions, Equity, and Legislation. They occur, we are told, invariably in the same historical order, except that two of them may sometimes be found operating together, and that there are legal systems which have escaped the influence of one or other of them. A fiction signifies, with Mr. Maine, 'any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.' Such devices are particularly congenial to the infancy of society; they satisfy the desire for improvement which is never quite wanting, at the same

time that they do not offend the superstitious disrelish for change which is always present.' They are invaluable in their day, but only mischievous when their day is past. By Equity is meant any body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally, by virtue of a superior sanctity inherent in them, to supersede the civil law. Taking the law of Rome as a type, we have a good sketch of the manner in which these various instrumentalities there succeeded each other, and are enabled to compare it with the legal history of our own country, which, though differing materially from that of Rome, has a striking general resemblance to it. The one begins with a code, the other has never had one; England has a voluminous case-law, built up by judicial decisions -Rome had something analogous to it, composed of the 'opinions of counsel;' the chief common-law judge was there the same person as the chief judge in Equity-here the offices are distinct. But the very existence in both of a case-law, or something answering to it, and of jurisdictions legal and equitable, side by side with each other, furnishes two important features of similarity. And as at Rome a time arrived when Equity seems to have spent its energies and exhausted its power of growth-when the moral principles originally adopted had been carried to all. their legitimate consequences, and the system founded on them became as rigid and unexpansive as the common law itself, so it has been, or so it is sure to be, in England. At Rome this point was reached in the reign of Alexander Severus; with us, Mr. Maine thinks, in the Chancellorship of Lord Eldon. What followed at Rome we know; and, if the parallel holds, we must look hereafter for the improvement of our law exclusively or almost exclusively to direct legislation.

But here it may be asked whether one important instrument for the expansion and amelioration of the law has not been left out — judicial interpretation. The reader may be surprised, perhaps, to find that this ranks with Mr. Maine merely as a legal fiction, and is indeed his selected sample of the class. For it is a fiction, he says, to affirm that the judges do not alter the law, when they alter it every day.

'When a group of facts come before an English Court for adjudication, the whole course of the discussion between the judge and the advocates assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or

acumen

acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed. A clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring.'

And, as a fiction, its day is over. Here we cannot but ask what it is which Mr. Maine wishes to get rid of the mode of judicial interpretation practised in our courts, or the view which is taken of it. If the former, we do not agree with him; if the latter, he is hardly accurate in his list of agencies; for the judicial application of acknowledged legal principles to particular cases is certainly an improving agency, and a very powerful one, apart from the view which regards it rigorously as merely bringing to light latent portions of an inexhaustible store of positive law. To show how the engine works, we may take two branches of law which have received important additions in our own day-the law relating to the separate property of married women, and that which prohibits perpetuities. In a little brown duodecimo, which contains the jottings of that famous lawyer William Tothill, Esquire,' there is the following entry, of the date of James I.:

6

'Fleshward contra Jackson. Money given to a feme covert for her maintenance, because her husband is an unthrift; the husband pretends the money to be his, but the Court ordered that the money should be at her disposal.'

This decision seems to have been the germ of one of the most copious and precise chapters of English law, by which an entirely new species of property has been created, modified, protected, and controlled. Again, out of the vague proposition that the policy of our law does not permit property in the hands of an individual to be made inalienable, to the first appearance of which no exact date can be assigned, has been spun by degrees the whole doctrine of 'perpetuities.' No one but a lawyer can understand how this is done, but to him it is easy. At every step there is something to spin out of; and the leading assump tion that governs and controls the whole process is simply this

that