Imágenes de páginas

Lond. 1641, in 4to. dedicated by the translator to Sir Paul Pindar, knight., to whom, in his epistle, he promiseth something that shall be his own invention, that is, to publish something of his own writing; but whether he was as good as his word I know not.”

Of the five younger children of Matthew Gentilis nothing remarkable is known; but Scipio, the next brother to Aubrey, who has been mentioned before as removed from Wittenburg to Leyden, distinguished himself as a professor of the civil law, successively in the universities of Heidelberg and Altdorf. He was particularly eminent for the union of classical studies with learning in his profession, and his works, which have been collected together and published at Padua, in six quarto volumes, show that he had singular address in illustrating law by polite literature.

In 1612 he married a gentlewoman of Lucca, the daughter of Cæsar Calandrini, and had by her a son and a daughter. He died in 1616. His widow suffered severe losses during the wars in Germany; and in the year 1635 we find a letter written by Vossius to Archbishop Laud, expressing a hope that something could be done for the son, so as to enable him to finish his education either in Oxford or at Cambridge, and trusting that the memory of Aubrey might be of service to his nephew. But the event of this application is not recorded (though a private letter from Vossius to Laud's secretary shows that Vossius begged the application itself might be considered as rather a work of supererogation upon his part), nor do any further traces appear of the family.

ART. VII.-The Province of Jurisprudence Defined. By

John Austin, Esq., Barrister at Law. 8vo. London. 1832.

We hail the appearance of this work with peculiar satisfaction. An attempt, even, to treat the subject of law systematically as a science, is something so new and unheard-of in this country, that, when we consider the vast importance of the subject, in the present age of legal movement (for reformation we can hardly call it), we cannot help looking upon the publication of the present work almost as an era in the history of English jurisprudence. Whilst the sister science, legislation, has received a considerable share of attention, and we can boast of treatises (if we may include in that number the works of our countryman, Mr. Bentham, as they have issued from the pen of the late M. Dumont) of superlative merit, and which leave little to be accomplished in this department of philosophy, it seems not to have occurred to our English jurists that general jurisprudence-law in the abstract, and considered apart from all existing systems—could itself be the subject matter of a science. We have accordingly, we believe, with the exception only of a few fragments of Mr. Bentham, and an occasional article in the Encyclopædias, not a single English treatise on the philosophy of law. We have, it is true, histories of our law and treatises upon particular branches of it, of great ability, and one work at least, we mean Sir W. Blackstone's Commentaries, in which the whole field of English law is treated with considerable claims to the merit of scientific arrangement (so far as the task of exposition goes); but in all of these, the subject is viewed with reference only to the existing system of English jurisprudence; and, with the exception of the last, their authors pretend to no higher aim than that of expounding the principles of the existing laws applicable to the immediate subject in hand. The work of Sir W. Blackstone, indeed, is one of far higher pretensions : there is a parade of philosophy throughout it, and an occasional use of the nomenclature of the foreign jurists, which give to the commentaries an air of being something more than a mere exposition of the law of England. But these we regard merely as the blemishes of a work, in other respects of very extraordinary merit; for the nomenclature which he has borrowed, and often misapplied, serves rather to obscure than elucidate the divisions of his subject; and his philosophy seldom carries him farther than to cite or to devise ingenious reasons why every thing that is, however anomalous or absurd, is best. Blackstone has, in this respect, achieved for the law and constitution of England, what Montesquieu had done before him for all governments : the great aim of both seems to have been, to show that in every case the existing institutions are the best possible for the circumstances of the country, and that all change is therefore to be deprecated. The great merit of Sir W. Blackstone's work, as an exposition of the law of England, we should be the last persons to question : of its comprehensiveness and accuracy, those only will speak lightly who have not taken the trouble to examine it in detail, or who have not had occasion, practically, to avail themselves of the vast stores of legal information which it contains. But, save as a work of practical utility, its merits are wholly of a negative character. From the disposition of its author, constantly and indiscriminately to panegyrise and uphold whatever he finds established, it is infinitely more calculated to retard than to advance the science of the law. rejoice, therefore, at the appearance of a work professing to treat philosophically of the nature of law. It seems to hold out the assurance that this science is beginning, at length, to receive some share of attention ; and, until this shall be the case, we are satisfied


that all hope of an effectual reform of our legal system is vain. Feeling confident, too, as we do, that the time is not far distant when the disjointed and patchwork codification which has been going on for the last half dozen years must give place to more systematic measures, it is impossible to estimate the importance of the dissemination of sound and accurate notions of law, more especially among those who, directly or indirectly, may be called upon to take part in the great work.

Into the principles of legislation our author does not consider it within the province of the jurist to inquire. His business is with the science of law in the abstract-with that which necessarily belong to law as it obtains in all civilised communities—with the principles and distinctions which every system of law inevitably involves—with the sources of law-its modes of operation—the subjects about which it is conversant-its various departments ;-and all this without regard to the goodness or badness of the law, or its perfect or imperfect adaptation to what ought to be the end in view. The consideration of what ought to be law is the business of legislation, which is a branch of ethics quite distinct from the science of jurisprudence. If we may be pardoned a simile, we would say that jurisprudence is to legislation what the science of chemistry is to the science of medicine ; the one deals with necessary properties, the other with their application to a proposed end. Fortunately, as we have observed, the science of legislation has not been left without able expounders. Indeed, the great principles which ought to guide the legislator in his course are now beginning to be generally admitted; the difficulty is in the application. So complicated is the system of law prevailing in every community which has attained to any degree of civilisationand especially in this countryso numerous its departments, so multifarious its objects, that any attempt to reduce the whole, upon any given principle, into a system at once consistent and comprehensive, has always

been looked upon as little more than the dream of a visionary. Though seeing and fully admitting the imperfections and absurdity of particular parts of the prevailing system, and the inadequacy of the whole to the end in view, yet, unable to see his way to any general reform of the whole system, and observing the frequent mischief, and, still more frequently, the doubtful advantage resulting from partial attempts at improvement, again and again has the legislator, with the best intentions, been driven to abandon the task of legal reformation in despair. The difficulties, it must be admitted, are great; and in the almost total absence of the cultivation of the science of jurisprudence in this country, it is no wonder they have been considered insuperable. Laws being the mechanism with which the legislator is to work out a proposed end, how is it possible, without a thorough knowledge

of their nature and properties—without, in short, a complete mastery of the whole rationale of law-how is it possible for the legislator, however well disposed, however sound his principles of legislation, to construct a perfect system of laws for any country?

The work before us consists of an Outline of a course of lectures on General Jurisprudence, and of the first six lectures of the course. We are informed, in the preface, that these lectures comprise ten of the course, as originally delivered at the London University, and which the author has thrown into six, for the more convenient distribution of his subject. These are devoted to an attempt to determine the province of jurisprudence. What was his immediate object in publishing this portion of his lectures he does not tell us ; nor whether it is his intention to proceed with the publication of the whole course. We trust it is so.

Such a work would be of inestimable value. The present lectures, however, form a complete work of themselves on one, and that a very interesting, branch of the subject; and we welcome with pleasure these first-fruits* of the London University.

The Outline, which is prefixed by way of introduction to the lectures, contains an analytical view of the whole science of law-an analysis of the considerations which enter into the examination of every system of law, good or bad-of that, in short, which is common, and necessarily belongs to each. It presents to us, at one view, the whole subject matter of the science of law in all its extent; its sources, and its various departments and subdivisions. This we consider by far the most important and valuable part of the present publication. To perfect it must have cost its author years of study and research. It is a masterpiece of analysis: and whether we have the good fortune to see the “Outline” filled up by the same hand or not, it is there to guide and abridge the labour of those who, in future, shall cultivate the same field. It was our first intention to give some account of the Outline-to analyse the analysis

and to contrast it with the somewhat more simple and less technical, but, to our view, impracticable, system of jurisprudence suggested by Mr. Mill, in his ingenious essay in the supplement to the Encyclopædia Britannica, and which may be regarded as a compendium of the views of Mr. Bentham on this subject. But we found it would be quite impossible, within the limits to which we are confined, and consistently with our design of giving some account of the body of the work itself, to accomplish this object, or to give any adequate notion of our author's scheme of jurisprudence as indicated in the outline. Indeed, when we state that the Outline itself occupies upwards of eighty octavo pages, although strictly confined to an exposition of the scope of the proposed course of lectures, it will at once appear how impracticable must have been the attempt. We shall content ourselves, therefore, with this passing notice of it, and proceed to give some account of that part of the course which is published.

* First-fruits we meap in any department of science, for which a University was peculiarly wanted in the metropolis. We are far from denying that works of great merit on the elementary branches of knowledge, and on some branches of medical science, have issued from her press.

This consists, as we have said, of six lectures : and their object is to determine the province of jurisprudence. The author thus states the purpose of this branch of his course at the beginning of the first lecture :

“The matter of jurisprudence is positive law: law, simply and strictly so called : or law set by political superiors to political inferiors. But positive law (or law, simply and strictly so called) is often confounded with objects to which it is related by resemblance, and with objects to which it is related in the way of analogy: with objects which are also signified, properly and improperly, by the large and vague expression lar. To obviate the difficulties springing from that confusion, I begin my projected course with determining the province of jurisprudence, or with distinguishing the matter of jurisprudence from those various related objects: trying to define the subject of which I intend to treat, before I endeavour to analyse its numerous and complicated parts." p. 1.

The term law, in the largest sense in which it is properly used, comprises, according to our author, two main divisions : laws set by God to his human creatures, and laws set by men to men. The latter division he subdivides into two branches: laws set by political superiors to persons in a state of subjection to them, and laws set by men, not being political superiors, to other men. The former of these branches or subdivisions forms the appropriate subject of jurisprudence.

'he sentiments or opinions of men concerning human conduct, which, from the close analogy they bear to laws properly so called, are frequently improperly styled laws, under such phrases as the moral law,” “ the law set by public opinion,” the 5 law or rules of honour," and the like, our author treats as a branch of morality only. And to the same head he refers that branch or subdivision of human laws, properly so called, which consists of laws set by men not being political superiors.

All of these laws, as well those properly as those improperly so called, have in them, it will be observed, this property in common, viz. that all of them are set, or are assumed to be set, by, intelligent and rational beings to intelligent and rational beings; and by this property or characteristic they are broadly distinguished from the numerous class of cases in which, by a mere metaphor, the name of law is given to the uniformity which is observed in the phenomena of inanimate nature, or the habits of the

« AnteriorContinuar »