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to estimate the saving in costly and hazardous procedure which was effected by their introduction. The same spirit was also shown, and perhaps to a greater extent than we now have occasion to remember, in positive legislation ; for many of the statutes of the first half of the eighteenth century, whose operation has been superseded by later enactments, or has become too familiar a part of our common stock to be matter of express reference, were at the time considerable measures of law reform.

The peculiar character of English legal institutions was strong enough to subdue these new elements to itself. The ideas of a man of genius like Lord Mansfield were worked piecemeal into practice, but no definite theory was constructed by himself or by any one else, though in the reports and treatises of the last century one is puzzled by language which appears to assume that a complete system exists. There was a serious endeavour for lucidity and form, as against the gratuitous technicality and the literary clumsiness of the only existing legal classics. Blackstone's Commentaries were the outcome of this endeavour, and, all things considered, an admirable

Dr. Brunner has borne splendid witness to Blackstone's merit in his account of the sources of English law. But, both in the work of Blackstone's forerunner Hale and in his own, the arrangement is of the roughest kind, and the analysis of ideas is


1 In the introduction to Holtzendorff's Encyklopädie der Rechtswissenschaft, translated by Mr. Hastie, Edinburgh, 1888, but there is a still later edition of the original.

rudimentary. Their science is historical, but too self-contained and insular for the need of searching analysis to be felt. I I need not tell you how Bentham's vehement and often unfair criticism broke the spell that had fortified English jurisprudence as in an enchanted castle, nor of the work of the analytical method, enriched by wider and more enlightened historical research, in the hands of recent and living English authors. The history of the modern scientific movement in our legal studies is written in books which all students who aim at real knowledge must have in their hands and ought to be familiar with.

On the Continent the order of things has been quite different. Ethical speculation, as we just now said, has almost overshadowed jurisprudence, and has only within the last few generations been sufficiently tempered by positive and historical studies. Probably many reasons of more or less weight might be offered for this. First among them, I think, would come the peculiar position of Roman law during the middle ages.

In all the lands which had obeyed Rome, and were included in the nominal supremacy of the revived Western Empire, it acquired a prevalence and power not derived from the sanction of any distinct human authority. No such authority was for the time being strong enough to compete in men's esteem and reverence with the shadow of majesty that still clung to the relics of Roman dominion. Thus the Roman law was not merely taken as (what for many purposes and in many states it really was) a common


groundwork of institutions, ideas, and method, standing towards the actual rules of a given community somewhat in the same relation as in the Roman doctrine ius gentium to ius civile ; but it was conceived as having, by its intrinsic reasonableness, a kind of supreme and eminent virtue, and as claiming the universal allegiance of civilised mankind. If I may use a German term for which I cannot find a good English equivalent, its principles were accepted not as ordained by Cæsar, but as in themselves binding on the Rechtsbewusstsein of Christendom. They were part of the dispensation of Roman authority to which the champions of the Empire in their secular controversy with the Papacy did not hesitate to attribute an origin no less divine than that of the Church itself. Even in England (though not in English practice, for anything I know) this feeling left its mark. In the middle of the thirteenth century, just when our legal and judicial system was settling into its typical form, Bracton copied whole pages of the Bolognese glossator Azo. On the Continent, where there was no centralised and countervailing local authority, the Roman law dwarfed everything else. Yet the law of the Corpus Juris and the glossators was not the existing positive law of this or that place: the Roman law was said to be the common law of the Empire, but its effect was always taken as modified by the custom of the country or city. Stadtrecht bricht Landrecht, Landrecht bricht gemein Recht.” Thus the main object of study was not a system of actually enforced rules, but a type assumed by actual systems as their exemplar without corresponding in detail to any of them. Under such conditions it was inevitable that positive authority should be depreciated, and the method of reasoning, even for practical purposes, from an ideal fitness of things should be exalted, so that the distinction between laws actually administered and rules elaborated by the learned as in accordance with their assumed principles was almost lost sight of. This is not matter of conjecture, for elsewhere similar causes have had similar effects. In India the whole Hindu community acknowledges a kind of ideal Brahmanical law. To the Hindu population, broadly speaking, this is what the Roman law was to the mediaval Empire, and in the same kind of way it is largely modified by local, or rather tribal and even family customs. And English administrators and judges, honestly striving to do justice to Hindus according to their own law, have found grave difficulties in discerning the usage actually observed within their jurisdiction from that which native experts in Hindu law declared, on the authority of texts and commentators, as being the rule. The opinions of the Brahman Pandits have constantly tended to ignore particular customs, and it was a considerable time before English magistrates found that they were in

1 It is doubtful how far, if at all, the Hindu law books represent anything that ever really existed as positive law. The so-called code of Manu is not a code in either the Roman or the modern sense. Moreover the conflict between Brahmanical theories and local customs is aggravated by sacerdotal ambition. These matters, however, do not affect the limited comparison now made.

danger of imposing on great numbers of people rules which were in truth as foreign to them as English law itself. A still more interesting example is afforded by the United States. There the general foundation of English common law bears the same sort of relation to the positive laws of the several States of the Union that Roman law does to Continental jurisprudence. In every State it is less than the actual law of that State, but greater than the actual law of any other State. And along with this condition of things we find a marked tendency in American authors to take a Continental rather than an English view of the general theory of jurisprudence. Not only our positive and analytical method finds little favour with them, and their theoretical work is mostly akin to that of the German philosophical and historical schools, but they treat the common law itself as an ideal system to be worked out with great freedom of speculation and comparatively little regard to positive authority. Decided cases are treated by them not as settling questions but as offering new problems for criticism. There are even one or two American writers of great ability for whom, as for the German expounders of Naturrecht, legal science appears to consist in a perpetual flux of speculative ideas. It is also noticeable that the present generation of scientific American lawyers have shown a disposition for historical research and exposition which has already borne excellent fruit.

The prevalence of one or another method of jurisprudence depends in the first place, if the foregoing


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