■' ' ■ ' <,isl 
 
f\ Cornell University Library 
 
 , . g K 623.B78 1874 
 
 ^ Introduction to the study and use 
 
 3 1924 021 235 928 
 
 VALUABLE LAW WORKS 
 
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 Wharton's Law Lexicon, or Dictionary; of Jiirisprudence, 
 
 explaining the Technical Words and Phrases employed 'by the se4ra] Departments of 
 English Law, including the various legal terms used in oommercal business ; with an 
 explanatory as well as literal Translation of the Latin MaxiiJs contained in the 
 writings of the ancient and modern Commentator^. Sixth ifiition Eevised in 
 accordance with the Judicatdee Acts, by J. SHIRBSS WILL, *£ the Middle Temple, 
 Esq., Barrister-at-Law. Super-royal Suo. 1876, Price£2 2s.ploih. 
 
 Dart's Vendors and Purchasers.— A Treatise on the Law 
 
 and Practice relating to Tenders and Purchasers of Real Estate. By J. HENRY 
 DABT, of Lincoln's Inn, Esq., Barrister-at-Law, one of the Six Conveyancing 
 Counsel of the High Court of Chancery. Fifti, Edition. By the AUTHOR and 
 WILLIAM BARBER, of Lincoln's Inn, Esq., Bamster-at-Law. 2 vols. Royal &vo. 
 1876. Price £3 13s. 6d. doth. 
 
 Pollock's Principles of Contract at Law and in Equity; 
 
 being a Treatise on the General Principles relating, to the Validity of Agreements, 
 with a special view to the comparison of Law and Equity ; and with references to 
 the Indian Contract Act, and occasionally to American and Foreign i.aw. By 
 FREDERICK POLLOCK, of Lincohi's Inn, Esq.,' B»irister-at-Law. 8vo. 1876. 
 Price £1 4s. cloth. 
 
 Browne's (G.) Principles and Practice of the Court for 
 
 Divorce, &c. Third Edition. By GEORGE BROFV^NE, Esq., Barrister-at-Law. 
 Svo. 1876. Price £1 4s. cloth. 
 
 Leeming and Cross's General and Quarter Sessions of the 
 
 Peace. — Their Jurisdiction in other than Criminal matters. Second Edition By 
 HORATIO LLOYD, Esq., Recorder of Chester, Judge of County OourtB, and 
 Deputy-Chairman of Quarter Sessions, and H. F, THURLOW, of the Inner 
 Temple, Esq., Barrister-at-Law. 8to. 1876. Price £1 Is. cloth. 
 
 Thring's (H.) Joint Stock Companiles Law.— The Law 
 
 and Practice of Joint Stock and other Public Compsnies, including all the Statutes, 
 with Notes, a Collection of Precedents of Memoranda and Articles of Association, 
 and all the other forms required in Making, Administering, and Winding-up 
 Companies. By SIR HENRY THRING, K.C.B., the Parliamentary Counsel. 
 Third Edition, considerably enlarged, with all the Cases brought down to the present 
 time. By GERALD A. E. Fl'l ZGEEALD, of Lincoln's Inn, Esq., Barrister-at-Law, 
 and FeUow of St. John's College, Oxford. 12mo. 1875. Price 20s. doth. 
 
 Phillimore's Ecclesiastical Law — The Ecclesiastical Law 
 
 of the Church of England. With Supplement, containing Statutes and Cases to end 
 of 1875. By Sir ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches 
 Court of Canterbury; Member of Her Majesty's Most Honourable Privy Council. 
 2 vols. %vo. 1873-76. Price £3 7s. 6d. cloth. 
 
 *»* The Supplement may be had sepmutely. Price 4s. 6d. sewed. 
 
 Greenwood's Manual of Conveyancing. — A Manual of the 
 
 Practice of Conveyancing, showing the present Practice relating to the daily routine 
 of Conveyancing in Solicitors' Offices. To which are added Concise Common Forms 
 and Precedents in Conveyancing, Conditions of Sale, Conveyances, and all other 
 Assurances in constant use. Fourth Edition. ByH. N. CAPEL, Esq., LL.B. 8i;o 
 1876. Price 15s. doth. . m . . <-«. 
 
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 of Lincoln. Royal 8w, 1875. Frice £1 18s. cloth. 
 
 *' We cannot speak too highly of the great amount of well-arranged iarormation which is to be 
 found in this second book, it is a iHagazine of learning which the legal practitioner will find of 
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 treatise— he has greatly added to it." — Law Journal, March 27, 1875. 
 
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 " At present this is by far the best book upon the Law of Contraet possessed by the profession, 
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 Addison on Wrongs and their Eemedies ; being a Treatise 
 
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 Eoscoe's Nisi Prius.— A Digest of the Law of Evidence on 
 
 the Trial of Actions at Nisi Prius. Thirteenth Edition. By JOHN DAY, one of 
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INTRODUCTION 
 
 TO 
 
 THE STUDY AND USE OF THE 
 CIVIL LAW, 
 
 COMMENTARIES ON THE MODEM CIVIL LAW. 
 
 SIR GEOEGE BOWYER, Baronet, M.P., D.C.L., 
 
 APTHOB OF "commentaries OH THE OONSTITIJTIONAL LAW OP ENGLAND," " C0MMENTAEIS3 
 
 ON UNIVERSAL PUBLIC LAW," " READINSS BEFORE THE HONOURABLE SOCIETY 
 
 OF THE MIBBLB TEMPLE," &C. 
 
 LONDON : 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 fata ^eohsclltrs anb Jnblis^trs. 
 
 1874. 
 
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 Cornell 
 
 UNlVERSITYi 
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 BRADBURY, AGNEW, h CO., PKINTERS, WHITEFRIARS. 
 
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TO 
 
 THE EIGHT HONOUEABLE 
 
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 LORD CAIUNS, 
 
 LOED HIGH CHANCELLOE 
 
 OF 
 
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INTEODUCTION 
 
 TO THE 
 
 STUDY AND USE OF THE CIYIL LAWS, 
 
 AND TO 
 
 COMMENTAEIES ON THE MODEM CIVIL LAWS. 
 
 Since the publication of these Commentaries, the study and 
 cultivation of the Civil Law, and of what is termed Jurisprudence, 
 have increased in this country; and that development of legal 
 studies suggests important matters for mature consideration. 
 
 While English lawyers and judges confined themselves to the 
 vias antiquas of their own law, feebly assisted from European 
 sources, writers could only compile text-books, which were little 
 more than statements of Acts of Parliament and cases, and legal 
 science was restricted within the narrow bounds of practice. 
 
 The creation of lectureships of Civil Law and Jurisprudence in 
 the Inns of Court has opened a wider view of education, of study 
 and of knowledge. The old institution of Readers was no doubt 
 derived from the universities, and through them from Irnerius and 
 the school of Bologna. But the readings were always of the most 
 narrow, technical, and municipal description, and they had fallen 
 for some time into complete decay. To Blackstone is due the high 
 honour of suggesting a more liberal view of legal cultivation. His 
 commentaries are to be ascribed, not to the Inns of Court, but to the 
 University of Oxford, where the traditional recollection of Vacarius, 
 and the degree of Doctor, kept alive the idea of academic cultiva- 
 tion of Law and of the Roman Civil Law, though deprived of its 
 younger sister the Canon Law, which is universally acknowledged 
 by the learned to be a valuable part of the science of law. That 
 
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2 INTRODUCTION TO THE 
 
 idea has been revived in the Inns of Court by the institution of 
 lecturers. But it may be questioned whether that revival has been 
 as useful and as fruitful as it ought to have been. This subject 
 well deserves examination. 
 
 The Civil Law may be looked upon in two different aspects, which 
 must be distinguished one from the other, with reference to the mode 
 of studying and cultivating it, and the various uses to be derived 
 therefrom. 
 
 The Civil Law, in its positive and historical aspect, is the body of 
 laws of the greatest European nation of antiquity, whose history, 
 language, literature, and institutions, legal and political, are the 
 causes of a multitude of things which exist in modern Europe, and 
 necessary or useful for their full comprehension. Many things in the 
 writings of the ancients are unintelligible without the study of the 
 antiquities of the Roman Law. The fable of the discovery of the 
 Pandects at Amalphi has been exploded, and Savigni has shown, in 
 his History of the Roman Law in the Middle Ages, what an 
 immense power and influence it had over the origin and formation 
 of institutions, municipal, political, and judicial, of modern Europe. 
 Even the feudal system of Europe cannot be understood without 
 the Roman Law, as any one must see who looks into the Liber 
 Feudorum, or ihe JDigressio de Feudis, of Voet.* The Roman 
 Law is a necessary part of the general history of legislation, that is 
 to say, the laws by- which successive generations have been governed, 
 and the relations and affairs of mankind, both public and private, 
 regulated. For this use of the Roman Law a profound study of 
 texts is required, and the investigation of knowledge, historical, 
 antiquarian, and literary, whereby the meaning, objects, and spirit 
 of particular laws may be discovered, and ancient institutions and 
 usages explained. Such is the method of the modern German 
 historical school. It has its own value, which must not be under- 
 rated ; but its results comprise much which, like a dead language, 
 is of no utility for the business and interests of mankind in the 
 present day. In this method the moral reasons, the truth and 
 justice of the principles on which each law is based, and on which the 
 connexion of the laws with each other depends, are secondary to the 
 consideration ol' the law as a positive system established to govern a 
 particular ancient people, the reasons and the spirit of which are to 
 
 " Yoet ad Pandectas, lib. xxxviii. Digressio de Feudis. 
 
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STUDY AND USE OF THE CIVIL LAW. 3 
 
 be sought in the history, usages, and institutions of that people. 
 An example from the English Law will make this distinction clear. 
 The historical ground of the law of mortmain is, not that for a large 
 quantity of land to be withdrawn from commerce, and the common 
 uses and changes of mankind, is prejudicial to society, but that 
 vesting land in mortmain defeated the incidents of feudal tenure 
 and the interest of lords. So the historical reason and spirit of the 
 law against perpetuities is, that they tended to interfere with the 
 rights of the crown to forfeitures and escheat. Thus, in the laws of 
 all countries, the modern reason and policy of a law seems to be an 
 afterthought, and the law draws its origin and primary reason from 
 something very different, which can only be explained by history 
 and antiquarian research. This distinction is very important for 
 the purpose of studying the spirit of laws, and the classification of 
 the reasons on which the several sorts of laws are grounded. We 
 find an exemplification of the value of this distinction in the books 
 on the law of real property, such as Fearne. There we see a great 
 deal of difficulty caused, and complicated arguments and systems 
 based on the rule that there must always be a tenant of the freehold 
 to perform the feudal services to the lord. Yet those services had 
 been abolished by the statute of Charles II., which abolished 
 military tenures, and reduced all tenures (with unimportant excep- 
 tions), to the nominal and quasi emphytentical tenure of common 
 socage. Thus, the neglect of the distinction above indicated, caused 
 great injury to the law of real property and conveyancing. The 
 historical reason of the law ought to have been eliminated from 
 living law, and relegated to the province of history. But the 
 imperfect state of legal science prevented this. 
 
 We come now to the second aspect of the Civil Law. This is the 
 juridical and scientific aspect. Here the historical element must 
 not be neglected, for it is useful, and sometimes necessary, for the 
 explanation of texts, and also to determine the purely positive or 
 arbitrary part of the law. But that element occupies a secondary 
 and servile position. 
 
 Under this ajspect, the corpus of Civil Law is a juridical compi- 
 lation, which contains the whole substance of the science of jurispru- 
 dence. It comprises the doctrines, principles and rules and laws 
 constituting the knowledge of justice and injustice, which is 
 correctly called jurisprudence. For Ulpian, says: — " Jurisprudence is 
 
 B 2 
 
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4 INTRODUCTION TO THE 
 
 the knowledge of things human and divine, the science of justice 
 and injustice," (Pand. Ub. 1. tit. 1. L. 10. §. 2). And Cujacius, 
 commenting on this law, shews that it means that jurisprudence is 
 t^e wisdom which by the investigation of things, both human and 
 divine, determines the rules of justice.^ This very law exemplifies 
 the distinction between the historical and the juridical view or 
 aspect of law. For the part of this text which refers to things 
 divine, may no doubt be explained by the public law of the Romans, 
 for Ulpian says : " jus publicum in sacerdotibus in sacris et in 
 magiatratibus condstit."" But it must also be understood as 
 teaching that jurisprudence, even temporal, is derived not only from 
 human nature and human affairs taken by themselves, but from the 
 obligatory force of natural law, which is a divine law, springing 
 from the will and authority of God, who has enabled us to judge and 
 discriminate between right and wrong — between justice and injustice. 
 And thence arises the connexion between law and theology, though 
 each has a separate province. 
 
 The juridical view of the Roman Law, or the scientific aspect, 
 presents it to us as a great mine of jurisprudence, and teaches its use 
 for the regulation of human affairs, and the determination of all 
 questions between man and man. This way of studying the Roman 
 Law is calculated to produce great practical results, and it has a 
 bearing on all legislation and law reforms in this country. But it 
 is not in accordance with the peculiarities of the English Law, nor 
 with the habits of mind and way of thinking of English lawyers. 
 And this is one reason of the sterility of the study of the Roman 
 Law and Jurisprudence in the Inns of Court. Its sterility cannot 
 be denied ; for in more than twenty years it has not produced one 
 civilian or jurist, and it is unable to shew one book or any contribu- 
 tion to legal literature. Still less can it point out that it has done 
 anything for Law Reform, or the improvement of the law of this 
 country. This is discouraging. It is not much like the school of 
 Bologna, the parent of all universities, and of the Modern Civil Law, 
 The results of that school are so great, that it is difficult to limit all 
 that modern Europe owes to it, as the commencement of the academic 
 teaching of jurisprudence, out of which the laws of the whole con- 
 
 b Cujac. Op. torn 7, col. 54. 
 
 ' Voet ad Pand., lib. i. tit. i. § 4, 7. L. 1, § 2, ff. de just, et jur. 
 
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STUDY AND USE OF THE CIVIL LAW. 
 
 tinent of Europe were formed. But there is no indication that the 
 cultivation of the Civil Law in the Inns of Court has produced, or is 
 likely to produce, any result practically useful either to the legal 
 science or to the improvement of the English Law. The learned and 
 able lecturers in the Inns of Court are not to be blamed for this.'' 
 They have taught the Civil Law as their brethren teach the English 
 Law, and according to a method in conformity with the ideas of 
 English lawyers ; and for this purpose the German historical 
 school of writers have been used, and the Civil Law has been con- 
 sidered chiefly under the historical aspect, and as a system of 
 positive law. It has, no doubt, become an important part of legal 
 education, but it has brought forth no fruit. It has not enlarged 
 men's minds, so as to enable them to see what is defective or wanting 
 in English Law; and, therefore, it has shed no light on the fusion of 
 law and equity, and the making of a code or a digest, the use and 
 abuse of case law or precedents, and other important questions of 
 law reform. 
 
 Before the institution of lecturers in the Inns of Court, we had 
 writers on what in this country is called jurisprudence. The chief 
 of these writers are Bentham and Austen. The former was a man 
 of original thought, but not learned. He was like a man writing on 
 astronomy without having studied the discoveries of Galileo and 
 Newton. He is a purely theoretical writer, and more a philanthro- 
 pist and a philosopher than a lawyer, but some of his ideas of law 
 were in advance of the English lawyers of his day. Austen differs 
 from Bentham. He was appointed to teach what was called juris- 
 prudence, as distinguished from Law, in the New University of 
 London, in 1826", and he studied German law books at Bonn. But 
 his studies seem to have been confined to the modern German writers 
 and philosophers. His book, called the "Province of Jurisprudence 
 Determined," shows an imperfect knowledge of the Civil Law. Of 
 this it is sufficient to cite a proof in p. 133 of vol. iii, in which he 
 gives a definition of quasi contracts, which only includes negotiorurn 
 gestio, one of the five obligations quasi ex contractu, and in the next 
 
 d In the first place, they are not sufficiently remunerated to enable them to make 
 the office of a law professor the object of their lives, and the cultivation of the 
 Civil Law their sole profession. Therefore they have not been able to strike out a 
 method of their own, and they have been obliged to adapt themselves to the pre- 
 valent, and somewhat naixow, opinions and views regarding legal studies. 
 
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6 INTRODUCTION TO THE 
 
 page he seeks to enlarge it by another deEnition applicable to 
 solutio indebiti. He never saw the error of Trebonian's adoption of 
 the term quasi contractus, derived from Gajus,- which I have 
 briefly pointed out in the eleventh chapter in these Commentaries 
 on Modern Civil Law. Yet that error has produced important 
 political effects, by introducing a false theory into Public Law; ^of 
 which we see a striking instance in Kousseau's " Contrat Social " \ 
 The solution of the difficulty is to be found in Domat's "Traite des 
 Loix." He shews that it is necessary that men should be bound 
 legally without their consent, by the eflFect of the law either acting 
 by itself or operating on some act of their own, and constituting an 
 obligation not quasi ex contractu, for the word contract implies 
 consent or agreement, but independently of any consent expressed or 
 implied. 
 
 K Austen had studied Suarez de Legibus and Domat's " Traits des 
 Loix," he would have found the solution of all his difficulties, and a 
 clear system of legal knowledge, embracing his entire subject. For 
 want of that guidance his works consist of diffuse treatises, contain- 
 ing theories, often confused, which have little or no bearing on prac- 
 tical law, but which are supposed to be what, in this country, is called 
 jurisprudence. He had studied the Civil Law simply with a view 
 to the duties of his professorship, and he had not made it a long and 
 solid study, embracing the great works of the sixteenth and seven- 
 teenth centuries. 
 
 These two writers have exercised an influence over the legal 
 studies in the Inns of Court, which has not had any tendency to 
 correct the deficiencies of the historical and antiquarian methods. 
 They have given rise to what is called in this country jurisprudence, 
 which consists of the theories and reflections of acute and ingenious 
 minds, without sufficient knowledge of the results arrived at before 
 them, and necessarily, therefore, crude and imperfect. This juris- 
 prudence has no relation to the historical method of Civil Law 
 study, and is still less productive of useful practical results. It may 
 be philosophy, but it is not law, though Austen describes juris- 
 prudence as "the philosophy of law." This is very different from 
 
 " Pand. lib. xliv. tit. xiv. § 2. De Obligat. et Action, L. 5, § 1. 
 ' See my Commentaries on Uuivereal Public Law, pp. 55, 56, 57. Rousseau's 
 Contrat Social, chap. iv. 
 
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STUDY AND USE OF THE CIVIL LAW. 7 
 
 the definition of Ulpian, already referred to.s That definition is 
 sufficiently comprehensive to include the whole science of law. For 
 he does not only say that jurisprudence is. the science of justice 
 and injustice, but he also includes the knowledge of things human 
 and divine. By those words he refers to the Divine Natural Law 
 and Ecclesiastical Law, and he also means all the legal relations of 
 men in human life, which depend not only on justice and injustice, 
 but on a multitude of positive and arbitrary laws based on various 
 reasons, and intended for various purposes. 
 
 To this definition we may add the celebrated three precepts of 
 UJpian — Juris prcecepta hcec sunt : honeste vivere, neminem Icedere 
 suum cuiqiie tribuere — on which Savigny makes the following 
 comment : — " Honeste vivere is the maintenance of the moral dignity 
 " of the individual regarding his exterior acts ; neminem Icedere is 
 " the respect of other men as persons, or the recognition of all the 
 " vested rights of our fellow-creatures. But are these truly rules 
 " of law ? Though these precepts, except the first, appear to be 
 " rules of law, they are in reality principles of morality qualified to be 
 " the foundations of rules of law. Thus, the third precept is evidently 
 " the moral law of justice which is identical with the aggregate of 
 '' vested rights. And this is the reason why justice is usually 
 " defined to be voluntas suum cuique tribuendi. It is also evident 
 " that several of the most important rules of law are derived from the 
 " second precept. But the first precept, in which this characteristic 
 " seems doubtful, is nevertheless the source of more than one rule of 
 " law, and it is, therefore, a veeA juris prceceptuni in the sense under- 
 " stood by Ulpian. In fact, from this principle flow all the laws 
 " protecting ioni mores and repressing the turpe. To it are also 
 " attached the numerous rules of law which regard sincerity and 
 " honesty as characters inherent in contracts ; thus, also, the extensive 
 " influence exercised by dolus over matters of private law. It 
 " may be said of these last rules that they appertain at the same time 
 " to be first and second precept, for each of them, taken by itself, 
 " serves as a justification of them. Thus the three precepts of Ulpian 
 " are not rules of law but general principles, calculated to create for 
 " the rules of law so many categories. But those categories can never 
 " be taken as the basis of a classification of law. 
 
 s Jurispriidentia est divinarum atque humananun renim notitia ; justi atque 
 injusti sciuntia. L. 10 § De Just, et .Jiir. 
 
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IXTROBUCTION TO THE 
 
 " If it is sought to class the three precepts according to their 
 " cEsence, the first must be placed at the head as the most profound 
 " and as comprehending the germ of the two others. The second 
 " has an exterior character, which shows itself still more in the third. 
 " Thus these two last may be observed independently of the 
 " morality of the agent. If we look at the three precepts as to 
 " their importance to law, the relation becomes precisely reversed, 
 " for the third is the most fertile source of rules ; then the second, 
 " and then the first. And this results from the nature of law 
 " which is called upon to govern the external relations of common 
 " life." ^ 
 
 Savigny is so much a follower of the historical school that he 
 depreciates the classification under the three heads of persons, 
 things, and actions, because it cannot be traced to a period more 
 remote than that of Gajus; but in the passage just cited he exem- 
 plifies the uses to be derived from the Roman Law, when its texts 
 are considered with scientific analysis. The three precepts are 
 principles of moral philosophy rather than rules of law, and yet to 
 them may be traced the whole science of jurisprudence, rightly 
 understood, by means of which every question that can arise between 
 man and man, in the affairs of human life, can be justly and usefully 
 settled. 
 
 The reader will now see the real and useful method and principle 
 of the study of the Roman Civil Law. We must seek in it, above 
 all things, the profound reason and wonderful common sense of 
 which it is a rich and, apparently, inexhaustible mine. That great 
 judge. Lord Justice Bruce, used to say that the decisions in the 
 Pandects were such as any acute, sound, wise, practical men would, 
 after mature consideration, come to by the use of that most 
 uncommon thing — common sense. Yet common sense is disparaged 
 by lawyers as opposed to learning. And so, when Lord Coke says, 
 that the Common Law of England is the perfection of reason, he 
 qualifies the assertion by adding, that the reason of the law is not 
 ordinary reason, but a reason to be acquired only by a long course 
 of study of ancient records, authorities, and precedents. Thus we 
 have known lawyers in Parliament, and in Westminster Hall, rely 
 and decide on grounds and arguments, the absurdity of which 
 
 *■ S;ivigiiy's Traito du Droit Romain, torn, i, pp. 402-3-4. 
 
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STUDY AND USE OF THE CIVIL LAW. 9 
 
 they would themselves have perceived at once, if those arguments 
 or reasons were applied to the ordinary affairs of life. The law of 
 England is chiefly historical, being based on precedents. The judges 
 in our time have been, and are, striving to do justice, by endeavour- 
 ing to extricate themselves from the errors of their predecessors, 
 and even of Parliament, and from the consequences of dead law. 
 But that process has produced an extent of arbitrary judicial power, 
 of which the civilized world has no other example. Thus the genius 
 of the English Law and that of the Civil Law are different in 
 principle. No man, and no number of men living, could invent the 
 science of common sense contained in the Civil Law, any more than 
 they could invent any other great science, which requires ages to be 
 brought to perfection. Yet the results of the Civil Law, and its 
 solution of practical questions, commend themselves to the reason 
 of mankind, so that they appear quite easy ; and any sensible, clever 
 man of business, may say — this is precisely the opinion which I 
 should have come to myself. 
 
 These reflections are intended to give the key to the study of the 
 Civil Roman Law for the practical purpiree of modern life and 
 society, and they partly explain the words. Modern Civil Law, used 
 in the frontispiece of these commentaries — that is to say, the Civil 
 Law with reference to its use in our times and in the future. 
 
 But the words Modern Civil Law have another meaning also, 
 which requires full consideration. 
 
 The Roman Law had gone through several phases of development 
 before the days of Justinian — some of which bear a remarkable 
 analogy to the history of the Eiiglish Law — though the latter has 
 not yet reached that stage of development which the former attained 
 in the reign of Hadrian, when the Perpetual Edict was compiled by 
 Salvius Julianus, a .code so important that it was termed Edictum 
 Perpetuum by the Emperors Diocletian and Maximian, and com- 
 mented upon by Furius Antheanus, Pomponius, Callistratus, Paulus, 
 and other jurisconsulti.^ 
 
 The story of the revival of the Roman Civil Law, by the discovery 
 of the Pandect of Amalphi, is rejected by the learned, and Savigny 
 has shown that the Roman Civil Law and its institutions were never 
 
 i Terrasson's Histoire de la Jurisprudence Eomaine, pp. 258, 259. Panzirolus de 
 Claris Leguin Interpretibus, p. 12. 
 
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10 INTRODUCTION TO THE 
 
 extinguished. But for a considerable time they were barren. That 
 law had great importance for the present, and an enormous value 
 for the future. The Koman municipal institutions — especially in 
 Italy (from which all others are derived) — contributed much to 
 preserve the Civil Law. But it wanted the academic and scientific 
 element. For the state of society was not sufficiently advanced, as 
 regards commerce and business of all kinds, to give the law that 
 practical life which springs from the wants of raanliind. Then came 
 the school of Bologna, commenced by Irnerius, the first of the 
 glossators. It prepared for that augmentation of legal knowledge 
 which the gradual and progressive improvement of human society 
 rendered necessary. The Irnerian glossators were mere expounders 
 and expositors of the text of the law, and they were succeeded by 
 the school of Accursius, who adopted a more enlarged and free 
 method of interpretation. The third school was that of Bartolus 
 (born 1313), the first who commented copiously on the Civil Law, 
 and applied to jurisprudence the method and philosophy of Aris- 
 totle. He was the most learned man of his day, and his authority 
 was unbounded. "We come now to the fourth school, that of Alciatus, 
 a lawyer and statesman, who held high ofi&ces under the Emperor 
 Charles V., and Francis L, king of France, and died in 1500. He 
 brought to bear on the interpretation and development of legal texts 
 and doctrines very profound learning, and accomplished and highly 
 cultivated scholarship. He was the founder of what has been termed 
 the Erudita jurisprudentia, which opened a new era in the pro- 
 gress of law. But his fame is overshadowed by that of his successor, 
 Cujacius, who is acknowledged to be the greatest of all commen- 
 tators. Cujacius was a giant in all that constitutes a great lawyer, 
 a great legal writer, and a profound and accomplished scholar. 
 His works were a wonderful step in advance, and prepared the way 
 for the subsequent high development and progress of legal science 
 and legislation. To enumerate those who came after him in aU 
 
 parts of the Continent — in France, Italy, Spain, and Germany 
 
 would be too long a task. In France he was succeeded by Domat, 
 D'Aguesseau, Pothier, and a multitude of eminent juridical writers 
 and judges, whose reputation extends as far as science and civilisa- 
 tion ; and in the sixteenth and seventeenth centuries Germany 
 produced Voet, Vinnius, Bynkershoek, Heineccius, and a splendid 
 series of great masters of jurisprudence. In the mean while 
 
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STUDY AND USE OP THE CIVIL LAW. 11 
 
 Grrotius built on the foundation laid about the year 1550 by Albe- 
 ricus Gentilis, the new fabric of International Law ; Public Law 
 in all its branches was assidiously studied in Germany; Puflfendorf 
 further extended and developed the. system of Grotius ; and legal 
 science reached a very high pitch of polished and cultivated great- 
 ness and completeness in the eighteenth century. Then, with the 
 Code Napoleon, commenced the era of Codes, which constituted a 
 new phase of legal progress. I say nothing of the Canonists, who 
 undoubtedly contributed much to the improvement of legal 
 science. 
 
 The result of this rapid historical sketch is to show that the 
 Civil Law, as we have it now, is not the produce of any one period, 
 nor of any one country. During eight centuries, and by the inde- 
 fatigable labours of the most learned, acute, and profound legal 
 thinkers of all countries in Europe, the Civil Law has passed through 
 a process of minute analysis and progressive cultivation. Thereby 
 the true interpretation of the texts of the Civil Law has been 
 obtained, and the written reason, the justice, and the common 
 sense contained in those texts, have been reduced to a scientific 
 system. That system may be properly described as the Modem 
 Civil Law. It is the Civil Law as used for practical purposes 
 throughout the civHized world. It constitutes, in the form of 
 Codes, or otherwise, the body of European Law, both public and 
 private, and exercises great authority even in International Law, 
 because it is mainly based on pure reason and justice,'' and also 
 because nations cannot refuse to respect, in matters arising between 
 each other, those rules which they observe in their own countries. 
 Such are the views of practical use with which these Commen- 
 taries on the Modern Civil Law have been written, and the reasons 
 why the term Modern Civil Law has been adopted. 
 
 The laws of a nation cannot be brought to perfection, nor, 
 indeed, to a high state of completeness and progress, without two 
 things — the practice of the Courts ; that is to say, the actual 
 administration of justice, and theoretical and scientific cultiva- 
 tion by academical teaching and by commentators. This is well 
 explained by Savigny. He shows that the success of the first 
 school of glossators was owing to the combination of practical 
 
 "^ Grot. (Barbeyrac) Droit de la Guerre et de la Paix. Disc. Prelim, § 54, 55. 
 
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12 INTRODUCTION TO THE 
 
 with theoretical science. He observes, that the distinction between 
 legal theory and practice may be traced to those times ; and that 
 the life and death of both depends on the spirit which governs 
 that distinction and the division between those two branches of 
 science. Considered in a purely theoretical point of view, the 
 glossators might have derived nothing from their labours beyond 
 intellectual exercise; but the active part which they took in judicial 
 and political affairs saved them from that danger. When, in the 
 middle of the thirteenth century, the scientific spirit of legal 
 studies was extinguished, the progress of science became impos- 
 sible, and it fell into a sterile condition. This shows how important 
 the science of law must be to its practice.' 
 
 Thus, the practical and the theoretical processes each supply a 
 necessary element for the progress and improvement of the law. 
 But, to do so, they must have a certain relation with each other. 
 Thus, if the academical teachers and the writers are too abstract 
 and metaphysical, or encumbered or overlaid with history and 
 antiquities, that relation does not exist, and their labours are sterile 
 and unimportant, or, perhaps, useless, or even prejudicial. Practice 
 will gradually extinguish them, because it is a necessity, and 
 because it brings gain. The science and the scientific study of true 
 jurisprudence must be brought to bear on the actual business of 
 life, and on the laws and obligations by which human society is 
 regulated, and on which it is constructed. Science shows by 
 analysis the different sorts of laMS, their nature, the classes into 
 which they are divided, their various uses, and their application to 
 every case that may arise, and to all the wants and interests of civil 
 life. Science shows the correct interpretation of laws, and all the 
 consequences to which they lead, so as to decide rightly every case 
 within their meaning, or within the principle on which they are 
 grounded ; and in this practice and science concur, assisting each 
 other. But practice does not supply scientific analysis and classifi- 
 cation. This subject deserves consideration, because it will show a 
 deficiency in the study of the Civil Law in this country, and help to 
 discover the advantages which we may derive from the adoption of 
 a different method. 
 
 I have fully explained the subject in my Commentaries on 
 
 I Savigny Hiat. ilu Droit, Rom. torn, iii, chap. xli. 
 
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STUDY AND USE OF THE C^LVIL LAW. 13 
 
 Universal Public Law, and more briefly treat it in these Commentaries 
 (p. 36-7-8). We must now look at it under a somewhat different 
 aspect. 
 
 In order to understand completely and usefully that multitude 
 of laws, principles, and doctrines which constitute the Civil Law, it 
 is necessary to distinguish the various sorts of laws and rules -which 
 it contains, and their uses, from which their spirit may be seen, 
 together with their application and the consequences which flow 
 from them. 
 
 The most useful scientific analysis of laws with these views is 
 that which comprehends them all within two classes. One is the 
 laws which are immutable, and the other those which are arbi- 
 trary.™ Without a correct and analytic knowledge of this classifi- 
 cation, the spirit of laws cannot be understood. 
 
 Domat, who wrote under the eye of the great Chancellor 
 D'Aguessean, deduces his system of human society from the two 
 fundamental laws, the obligation to love God and love our fellow 
 creatures, and from these laws he derives all others. Those two 
 primary laws have a remarkable analogy with the three precepts 
 of Ulpian, which comprehend the same principles. Immutable laws 
 are called so because they are naturally so just, always and every- 
 where, that they cannot be changed without violating justice, 
 whereas arbitrary laws are those which a lawful authority can 
 establish, change, and abolish, according to circumstances. These 
 immutable or natural laws are necessary consequences of the two 
 primary laws, and so essential to the engagements or obligations 
 which form the order of society, that they could not be altered 
 without injuring or destroying the foundations of that order. But 
 arbitrary laws are those which may be differently established, 
 changed, or even abolished, without violating the spirit of the two 
 primary laws, and without wounding the principles of the order 
 of society." 
 
 Perhaps it may be argued that immutable laws, that is to say, 
 natural laws, should be sufiicient for the purposes of mankind, 
 because no others are necessary consequences of the two primary 
 
 ■" Domat's Loix Civiles. Trait6 des Loix. Suarez de Leg. lib. i, chap, iii, § 6, 7. 
 Pand. lib. i. tit. i, ix. 
 
 " Domat. Traits des Loix, chap, -xi., § 1. ' Sees, full exposition of the subject in 
 my Commentaries on Universal Public Law. 
 
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14 INTRODUCTION TO THE 
 
 laws on which the order of society is founded. But, as we see in the 
 whole economy of the world, that some things are given to man, 
 while others are left to be devised by his invention, and executed 
 by his skill, so it is with laws also. And a mutable addition or 
 supplement to immutable lavrs is required, commanding or for- 
 bidding certain things beyond what is commanded and forbidden 
 by immutable law. But this will appear clearly by examining the 
 nature and uses of positive, that is to say, arbitrary laws. 
 
 Two general causes have rendered necessary the use of positive 
 or arbitrary laws in human society, and those causes show the 
 division of those laws into two classes, which must be carefully 
 distinguished from each other. 
 
 St. Thomas Aquinas observes that tbere are two modes whereby 
 a law may be deduced from natural law. One is by way of conclu- 
 sion from a general principle of natural law, and the other is by 
 way of determination (per modum determinationis), because the law 
 of nature commands something generally, as, for instance, that 
 imposts are to be paid and crimes punished. A nd, from that general 
 precept, it follows that the amount of the impost, and the specific 
 nature of the punishment, must be determined by the legislator by 
 an arbitrary law.° This is the first of the two causes of arbitrary 
 law. That cause is the necessity of regulating certain difficulties in 
 the application of immutable laws, where the difficulty is such that 
 it can only be provided for by a law, and yet no immutable law 
 regulates it.P A few examples will show the nature of those diffi- 
 culties, and of this sort or class of arbitrary laws. 
 
 It is an immutable law (belonging to secondary natural law) that 
 whoever is the absolute owner of anything, should remain so until 
 he voluntarily divests himself of his property, or it is alienated from 
 him by some just and lawful means.i And it is another immutable 
 law that possessors should not always be in danger of being dis- 
 turbed, and that he who has possessed for a long time should be 
 held to be the owner, because men are naturally careful not to give 
 up what belongs to them, and no one should, without proof, be 
 presumed an usurper."' 
 
 ° Suarez de Legib. lib. iii. cbap. xxi. § 10. 
 
 P Domat Loix Civ. Trait des Loix, chap. xi. § 6. 
 
 1 L. 11. S. de Reg. Jur. Petri Fabri Comment, ad tit. de Reg. Jur. L. 11. 
 
 ■" Febeus de Reg. Jur. Canon, tit. iii, reg. ii, pp. 45, 46. 
 
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STUDY AND USE OF THE CTVTL LAW. 15 
 
 If, as Domat says, the first of these laws is too much extended, 
 which requires that no man should be deprived of his right to 
 property except by a good title, it will follow that whoever can 
 show that he, or those through whom he claims, have been owners 
 of the property, though for more than a century they have been out 
 of possession, will recover it from the possessor, unless the latter 
 can prove a good title, which divested the right of the former 
 owner. If, on the contrary, the rule which presumes possessors to 
 be owners be too far extended, those who are not in possession will 
 be unjustly deprived of their right. 
 
 It is evident that the conflict which would be produced by those 
 two laws, one of which would reinstate the former owner to the 
 prejudice of the old possessor, while the other would maintain the 
 new possessor against the true proprietor, requires regulation by an 
 arbitrary law, providing that those who are not possessors, but claim 
 as owners, be required to prove their right within a certain time ; 
 and that, after the lapse of such time, possessors, who have not been 
 disturbed, be maintained. And this is done by arbitrary laws, 
 which regulate the time required for prescription and limitations of 
 action.^ The spirit of those laws is well explained by Pufendorf, 
 who says, that, as the institution of property has been introduced 
 for the peace of mankind, it follows that, after a certain time, bond 
 fide possessors ought to have an incontestable right to what they 
 hold ; and this prescription in itself, and separate from the precise 
 time limited by law, is a dependance and a consequence of the law 
 of property.* 
 
 Another illustration of the subject may be useful. 
 
 "It is an immutable law," says Domat, " that persons, who have 
 not yet sufficient use of their reason, for want of age, knowledge, and 
 experience, should not have the management of their property and 
 affairs ; and that, after they acquire those qualifications, they should 
 have such management. But, as nature does not give to all, at the 
 same age, the full reason required for that purpose, the use of this 
 law has rendered necessary that of an arbitrary law, making a rule 
 for all cases. Thus the laws of some countries have left to fathers 
 the power to decide to what age their children shall be under the 
 guidance of a guardian, while others have determined the age 
 
 s Domat Loix'Civ. Traite des Loix, chap, xi, § 9. 
 
 t Piifend. Droit <ie la Nature et des Oens. L. 4, chap, xii, § 9, 11. 
 
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16 IXTRODUCTIOX TO THE 
 
 below which persons are in the state called minority, after the 
 expiration of which they reach that of majority." The justice of an 
 arbitrary law, determining the age of majority, must consist in its 
 adopting a fair medium, and establishing a rule which will be 
 correct in the great number of cases. To these sort of laws those 
 texts in the Pandects apply, which say that laws should be made 
 for cases which commonly occur. Kam ad ea potius debet apian 
 jus quoe frequentei', ei facile quam quce perraro eveniunt. 
 
 It is necessary to observe that, in these and similar examples of 
 arbitrary laws, which are consequences of immutable laws, each of 
 these arbitrary laws has two characters, which must be seen and 
 distinguished one from the other, and which make them double 
 laws, or two laws in one. For a part of that which they prescribe 
 is of natural law, and the remainder is arbitrary. Thus the law 
 determining the age of majority contains two dispositions. One 
 provides that persons incompetent for want of maturitj' and expe- 
 rience, shall not be entrusted with power which they would exercise 
 in a manner dangerous to themselves and their families, and to the 
 interests of society ; and the other limits the ages of minority. So 
 a law, establishing some tax or impost, contains in like manner two 
 dispositions. One requires the payment of those supplies, without 
 which civil government and society cannot be supported.^ And the 
 other determines the particular amount required, and the sources 
 from which it is to be raised. The same distinction is to be observed 
 ia criminal laws establishing punishments for acts forbidden by 
 immutable laws. In each of these examples of double laws, the first 
 is an immutable, and the second is an arbitrary law. 
 
 We come now to the second cause of arbitrary laws, which shows 
 a distinct class of those laws. The second cause consists in the 
 invention of certain arbitrary artificial institutions, which have 
 been deemed beneficial to society. Such are feudal tenures, entails, 
 settlements, and various professions, trades, and modes of social 
 life. Of the same nature are different forms of government and 
 
 " L. 5, fif de Legib ; and see L. 3, 4, 6 ; and 64, ff de Eeg. Jur. 
 
 " Snarez de Leg., L. 3, chap, xxi, § lO A, p. 289. Grotius Droit de la G., L. 1 
 chap, iii, § 6 ; and L. 1, chap, i, § 6. Pufendorf, Droit de la Nat. et des Gens' 
 L. 7, chap, iv, § 7. Zallinger Inst. Jur. Nat. et Eccless Publ. torn., 1 lib. iii, 
 chap. viL 
 
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STUDY AND USE OF THE CIVIL LAW. 17 
 
 political institutious, as republics, kingdoms, parliaments, senates, 
 and other assemblies and courts of various forms and sorts. And 
 even International law has to deal with institutions of this artificial 
 sort, such as factories, free ports, and other establishments for foreign 
 trade, fortified places, and the like. These things, though they have 
 certain relations with International law, are arbitrary matters regu- 
 lated by Municipal law. 
 
 All these various institutions and matters are regulated by a vast 
 detail of laws of the same nature as themselves. Thus we see in 
 human society the use of two sorts of matters. For there are some 
 so natural and essential to the most common wants, that they have 
 always been more or less in use everywhere, and seem pointed out 
 by nature. Such are sale, exchange, letting and hiring, deposit, loans 
 and divers other contracts, — wardships, succession, and other things/ 
 And we also find the use of invented artificial things. But evep. 
 these have their foundation in some principle of the order of society. 
 Thus the feudal system was founded not only on the freedom of men 
 to make agreements, but on the public advantage of securing the 
 defence of the kingdom. So settlements are intended to secure the 
 maintenance of families. And again, different forms of civil polity, 
 parliaments, and councils, are intended for the good government and 
 peace of the community to which they belong. 
 
 Domat observes, that though it may seem that these artificial 
 matters should be regulated solely by arbitrary laws, they notwith- 
 standing have several immutable laws. And on the other hand these 
 matters, which may be called natural, are governed not only by 
 natural and immutable laws but also by arbitrary laws. Thus in the 
 feudal system it is an immutable law that the conditions on which 
 the land was granted and is held ought to be faithfully observed by 
 the tenant. Thus in the matter of guardianships which is natural, 
 the precise mode in which the guardian is to pass his accounts, and 
 the authority to which he is amenable, are determined by arbitrary 
 laws. These examples sufiice to show that in all these matters, 
 natural and artificial, immutable and arbitrary laws are mingled 
 together. But in natural matters there ai-e comparatively few arbi- 
 trary laws, of which there is an infinite number in matters artificially 
 invented.^ 
 
 ' L. V. S. De Ju8t. et Jur. 
 
 ' Domat, Loix Civ., Traite des Loix, ch. xi. § 11—16. 
 
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18 INTRODUCTION TO THE 
 
 Arbitrary laws are of two sorts or classes according to the two 
 causes which establish them. The first consists of arbitrary laws 
 which are the consequences of natural laws (as, for instance, those 
 which define the age of majority and the limitation of actions), and 
 the second is of those invented to regulate artificial and arbitrary 
 matters, such as the law of entail and of remainders and settlements. 
 
 The characteristics of the justice and authority of natural or immu- 
 table and of arbitrary laws appear from the distinction between 
 them, and from the reflections already made on both. And as laws 
 derive from their justice and their authority, the power which they 
 ought to have over our reason, it is important to consider and dis- 
 tinguish what is the justice and authority of natural laws, and what 
 the justice and authority of arbitrary laws. 
 
 The former being essential to the two primary fundamental laws 
 and the engagements arising from them, they are just in every place 
 and at all times. But the latter are not essential to those founda- 
 tions of the order of society, and therefore they may be altered or 
 abolished without injuring it, and the justice of those laws consists 
 in the particular utility of establishing them. 
 
 The universal authority of all laws consists in the Divine order 
 which subjects men to their observance ; but there is a difference 
 between the authority of the two classes of laws, which we are com- 
 paring. Natural laws have the natural authority of justice over our 
 reason ; but as some men have not the capacity to see them clearly, or 
 the rectitude to obey them, the authority of temporal powers gives to 
 them another force independent of the approbation of men, compelling 
 obedience to their precepts. On the other hand, the authority of 
 arbitrary laws consists only in the force given to them by those who 
 have power to make laws, and the ordinance of God commanding 
 obedience to temporal government. 
 
 The difference between the justice and authority of natural laws, 
 and that of arbitrary laws, leads to the conclusion that the former 
 being naturally known to man by the use of reason, are morally 
 obligatory without any publication, but the latter take effect only 
 from the time of their promulgation.* 
 
 Though natural or immutable laws are essentially just and cannot 
 be changed, it does not follow that they are subject to no exception. 
 Suarez explains this proposition thus : Natural laws require no dis- 
 ° Domat, Loix Civ., Traitt' ties Loix, cli. xi. § 20. 
 
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STUDY AND USE OF THE CIVIL LAW. 19 
 
 pensations or equitable construction in the nature of a dispensation, 
 because they contain an intrinsic principle of justice and morality ; 
 or because the precepts of this sort of law are necessary propositions, 
 which are inferred from natural principles, and those propositions 
 cannot in any particular instance fail or be false.^ Thus Domat says, 
 that as laws derive their justice and authority from their relation 
 to the order of society and the spirit of the two first laws, it follows 
 that when that order and spirit require exceptions to general rules, 
 those exceptions must take place ; but, nevertheless, those natural 
 laws are immutable, though the exceptions make them less general 
 than those which are subject to no exceptions, such as the law which 
 forbids fraud, and commands good faith and fidelity to lawful engage- 
 ments. The exceptions have their foundation in the spirit of the 
 laws, and they are themselves other laws which do not alter the 
 nature of those to which they are exceptions. Thus the laws are 
 in harmony and agree sCmong themselves by a common spirit, which 
 constitutes the justice of all. For the justice of each law is limited 
 within its boundaries, and no one extends to what is otherwise resru- 
 lated by another law. Thus laws subject to exceptions, must be 
 considered as general rules applying to what occurs commonly ; and 
 those which make exceptions as particular rules for certain cases ; 
 but both are laws and rules equally just, according to their use and 
 extent."^ 
 
 Suarez observes that his proposition cited above does not apply to 
 natural laws in the form of positive laws, that is to say, municipal 
 laws giving a sanction to natural laws. For they must be construed 
 according to the language and intention of the legislator ; and there- 
 fore cases may occur where they are unjust, and a dispensing power 
 may be required, though the law taken, per se, as a natural law, 
 would always be just."* 
 
 Those who neglect the distinctions between different sorts of laws, 
 which I have endeavoured to explain, fall into the error of confound- 
 ing all laws together under the one head of positive laws.*^ For 
 
 '' Suarez De Leg., lib. ii. cap. xvi. § 3. 
 
 "= Domat, ubi sup., § No. 22. 
 
 ■■ Suarez De Leg., lib. ii. cap. xvi. § 16. 
 
 ' Austin falls into this error, vol. i. p. 113, where he says that positive laws 
 are the appropriate matter of jurisprudence. And his distinction between proper 
 and improper laws is equally incorrect. It confounds the law as a rule of conduct 
 which man is bound to follow, with the authority and power by which he is 
 
 c 2 
 
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20 INTRODUCTION TO THE 
 
 the authority of those laws is more striking and obvious than princi- 
 ples of reason and justice, because they are published by the tem- 
 poral power of the state, and enforced as a rule of conduct on the 
 citizens. But this error renders it impossible to understand the 
 nature and spirit of laws, a necessary and fundamental part of juris- 
 prudence in all its branches. And those distinctions are especially 
 indispensable for the science of Universal Public Laws. It contains 
 such a vast multiplicity of laws, having such various objects, accord- 
 ing to the branch of public law to which they belong, that no one 
 can obtain any clear notion of the whole, or of its details, without 
 accurately distinguishing one sort of law from another, and so seeing 
 the distinctions which run through the whole science and simplify 
 the system. Public law has for its principal subject, not the rela- 
 tions of individuals, but aggregates of men, and the relations of men 
 to such politic bodies. It looks on natural persons in a secondary 
 point of view, in their relation to the State, and on states both in 
 themselves and in refer,ence to each other.f And the harmony of 
 the system on which mankind are governed under Divine Providence 
 requires that there should be certain common principles on which 
 the laws of that government are constructed. They are all derived 
 in one way or another from the two fundamental laws, which include 
 the three precepts of Ulpian. And the distinctions which I have 
 explained, between the different sorts of laws, arise from their 
 different relations to those two laws on which the whole scheme of 
 human society is constructed by means of various ties and engage- 
 ments. This would suffice to show what use is to be derived, as to 
 Universal Public Law, from the knowledge of those distinctions, and 
 the nature and spirit of laws. 
 
 The distinctions and classifications briefly explained above, are 
 requisite for the scientific comprehension of every system of juris- 
 prudence — because they give a general plan and arrangement of law 
 — and show the different sorts of laws so as to give the key to their 
 spirit and facilitate their application. But these distinctions and 
 classifications which show the nature of laws and their spirit for the 
 purpose of learning their application, are especially necessary for the 
 
 compelled to obey the law. Thus tlie law wliich forbids murder is a binding law 
 — even in a country where there is no power to punish that crime, and no civil 
 law to forbid it. 
 
 ' Savigny, Traite du droit Rom., torn. i. p. 22 : L. i. ff. De Just, et Jur,, 
 L. ii. ff. be Orig. Jur., § 46. 
 
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STUDY AND USE OF THK CIVIL LAW. 21 
 
 cultivation and study of the Civil Law — in its juridical and scientific 
 aspect — as distinguish it from its historical and positive character. 
 From this analytic method the gi-eatest fruit may be obtained from 
 the Civil Law. It is necessary for the use of the Civil Law as written 
 reason in every branch of jurisprudence, but especially in Ecclesias- 
 tical, International, and Municipal private law.^ For the reason 
 and equity of the Civil Law must, by analysis, be separated from the 
 arbitrary laws. The latter are often important and useful for the 
 purposes of modern society, — but their use arises from various reasons 
 of a nature which belongs to that class of laws, and those reasons are 
 the spirit of those laws. The following illustration will explain the 
 subject : — 
 
 A celebrated law of Papinian in the Pandects decides that pupil- 
 lary substitution excludes the legitim of the mother.'' 
 
 By the Roman Law, no one can make a will who is under the age 
 of puberty. But the father can make a will for his son under that 
 age, by what is called pupillary substitution, that is to say, substi- 
 tuting some one in the place of the son as heir, in the event of the 
 son dying in pupillage, that is to say, before puberty. Now the 
 decision of Papinian is, that if that power be exercised, and the son 
 die before puberty so as to let in the substitute, the mother loses 
 her legitim, though the son could not by his will deprive her of' it. 
 The reason of Papinian is, that it is the father who takes away the 
 legitim (by giving the estate to the substituted heir) and not the son, 
 and the father has the power to do ,so, though the son has not- 
 Domat observes, that the difficulty arose in this case from the appa- 
 rent conflict between a natural law and an arbitrary law. And the 
 decision prefers to the natural law which gives to the mother the 
 right of succeeding to her son's estate, the arbitrary law which 
 permits the father to substitute, extending that power so far as to 
 give the property to the substitute, and deprive the mother of her 
 legitim. It was decided, according to the spirit of the old Roman 
 Law, which favoured the powers of testators, and even allowed a 
 father to disinherit his children without any reason. And, according 
 to that spirit, the subtilty was invented of holding that the substitu- 
 tion being the act of the father, it was he who disinherited his wife, 
 and not the son who disinherited his mother. But it is clear, that 
 
 8 See Bowyer's Commentaries on Universal Public Law, chap. xi. 
 ^ L. viii. § 5, De Inoffic. Teatani. 
 
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22 INTRODUCTION TO THE 
 
 according to the principles of natural law, the mother should not be 
 disinherited. The propert,y belonged not to the father but to the 
 son; and the father being entnisted with the power of making a will 
 for his son by pupillary substitution, should not be allowed to do 
 with the son's property what the son ought not to do himself.' 
 Therefore this is a technicality of the Eoman Law which ought not 
 to be followed, except where that part of the Roman Law is received. 
 It is not written reason. 
 
 Domat observes, that as it is important not to injure natural equity 
 by technicalities and false consequences drawn fi-om arbitrary laws, 
 so on the other hand care must be taken not to extend a natural law 
 beyond the limits assigned to it by an arbitrary law which puts it in 
 harmony with another natural law, and gives to both their proper 
 eifect. Thus it is a natural law, that he who does any damage to 
 another should make reparation for it. But if that law be so 
 extended as to oblige a debtor, who has not paid at the time when 
 the debt was due and payable, to be liable for and repair all the loss 
 or damage which the creditor has suffered by the default, — as, for 
 instance, if his goods have been taken in execution, or his house has 
 fallen down for want of the money,— that application of the law 
 would be unjust. For it would wound an arbitrary law which pro- 
 vides that a debtor, who does not pay a debt which is due, shall be 
 obliged to compensate the creditor for the delay by the payment of 
 interest at a certain rate or percentage, and restricts the compensa- 
 tion for default of payment to such interest. And thereby two 
 natural laws would be violated. One forbids that men be made 
 liable for unforeseen events, which are, as far as he is concerned, 
 rather the act of God or fortuitous occurrences than anything that 
 can be reasonably imputed to him. And the other requires that 
 the infinite variety of injury which creditors suffer by delay of 
 payment, be reduced within some general rule to an uniform com- 
 pensation, because not only that variety is caused by the difference 
 of accidental circumstances for which no one should be answer- 
 able, but it would give rise to an endless and mischievous multi- 
 plication of litigation.'' 
 
 Here again we see an example of the use of arbitrary laws, and 
 this shows that there are difiBculties which require to be regulated 
 
 ' Domat, Loix Civiles, Traits des Loix, ch. xi. § 24. 
 '' Domat, Loix Civiles, Traite des Loix, liv. i. tit. ii. § 12, art. 18. 
 
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STUDY AND USE OF THE CIVIL LAW. 23 
 
 hy thsi,t sort of laws. But Domat points out that there are in the 
 science of jurisprudence an infinite variety of -other difficulties which 
 cannot be solved by any precise rules, and which requires especially 
 a complete knowledge of natural laws. Those laws, though they 
 are naturally taught by reason, are both more difficult and more 
 important to be known than arbitrary laws. And there are two 
 reasons which make a complete study of them necessary. 
 
 The first is, that natural laws are exceedingly numerous, and on 
 account of their multitude and diversity they are not evident to all 
 men ; and reason alone does not suffice to find them and apply them 
 to all cases. And the second reason is, that these laws are the foun- 
 dation of the whole science of law. 
 
 With regard to the study of natural laws, Domat observes that 
 they are of two sorts. One consists of those which convince the 
 mind without any reasoning, by their evident truth. Such are the 
 rules that agreements ate in the place of laws between those who are 
 pa,rties to them, and that he who has received a deposit must restore 
 it. And the other sort consists of those rules that are not so evident, 
 and the truth of which is discovered by means of reasoning, showing 
 their connection with the principles from which they depend. One 
 example will suffice to illustrate this.' If two parties to a lawsuit 
 agree to a compromise, no one can doubt that they are bound by 
 their agreement. But let us suppose that the case has been decided 
 by a final judgment before the compromise, and that they entered 
 into it being ignorant that the judgmeat had been delivered. In 
 that case it is not so evident whether the compromise or the judg- 
 ment is to prevail. For the general rule is that agreements must 
 be performed. But in the case of a compromise of a suit already 
 ended by a judgment that rule ceases, because compromises are 
 made only where a disputed matter is undecided, and men give 
 up their rights only fronj apprehension and in peril of a disadvan- 
 tageous result. Thus, in a case where the matter in dispute is no 
 longer undecided, and where there is no longer uncertainty or peril,, 
 the ignorance of the party in favour of whom judgment has been 
 given, ought not to avoid the effect which the authority of a decree 
 gives to truth and justice. And thus the law decides this case, 
 where the judgment is final and not subject to appeal. This is one 
 
 ' See an analogous case in Peronne, Prselect. Theolog. vol. viii. p. 38. And see 
 vol. i. 430, § 77. 
 
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24 INTRODUCTION TO THE 
 
 of those rales not in themselves so self-evident that no one can 
 doubt."" This and some other examples given by Domat belong 
 particularly to Private Law, but these principles are also applicable 
 to Public Law and to Ecclesiastical Law. 
 
 The foregoing reflections on the nature and spirit of laws, and the 
 different sorts of classes of laws and their relation to the order of 
 human society, give a view of universal juiisprudence. This is a 
 portion of legal science without which the study of the Civil Law 
 must be arid and unfruitful. "We see its fructifying influence 
 through all the schools of civilians, from Accursius and Alciatus to 
 the great Commentators of the sixteenth, seventeenth, and eighteenth 
 centuries. And indeed its germs and fundamental principles are 
 found in the texts of the Pandects themselves, from TJlpian, Papinian, 
 and the other Jurisconsulti of antiquity. In all these great writers 
 we find a profound and thoughtful investigation of the reasons of 
 laws, and a highly-cultivated common sense applied to the determi- 
 nation of questions according to truth and justice. That the 
 German Historical School has rendered great services to learning 
 cannot be denied ; but unless that class of writers be used in a 
 subsidiary manner, they obscure the light of justice which shines in 
 the Roman Law, and paralyses its life. This view is supported by 
 the following passage from Chancellor Kent : — 
 
 ""Since the beginning of the present century a new historical 
 " school of Civil Law has been instituted in Germany, which in the 
 " opinion of some writers Tias quite cast into the shade the illus- 
 " trious jurisconsulti of the eighteenth century. 
 
 " Among the most eminent of this new school, may be placed the 
 " names of Hugo, Savigny, Niebuhr, Eichhorn, Haubold, &c., who 
 " have made profound researches into the antiquities of the Roman 
 " law, as well prior to the time of the decemvirs as during the 
 " feudal ages. They have undoubtedly enriched the science with 
 " acute and searching criticism, and enlarged and philosophical views, 
 " which shed light upon the character, wisdom, and spirit of the 
 " more ancient institutions. But I cannot but be of opinion 
 " (though with much deference) that the importance of the new 
 " Germanic school, as contradistinguished from that of the old 
 
 " Domat, Loix, Civ., Traite des Loix, ch. xi. § 26, 27—29. lb. liv. i. tit. 13, 
 art. 7. ' 
 
 " Kent Comm., vol. i. p. 545, note. 
 
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STUDY AND USE OF THE CIVIL LAW. 25 
 
 " professors, is greatly exaggerated ; and that the Institutes and 
 " Pandects of Justinian, with the commentaries and writings of 
 " Voet, Vinnius, Heineccius, Pothier, and other illustrious civilians 
 " of the old school, furnish quite as much matter for reflection and 
 " useful application as the American student of our own common 
 " law can well attend to, and at the same time become a thorough 
 " master of his profession." 
 
 Chancellor Kent evidently saw the difference between learning 
 and science, and the sort of study which makes the Civil Law prac- 
 tically useful for modem purposes. Lord Hale saw the Civil Law in 
 the same light, for he frequently said that the true grounds and 
 reasons of law were so well delivered in the Digest that a man 
 could never well understand law as a science without first resort- 
 ing to the Roman law for information, and he lamented that it 
 was so little studied in England." The Lord Chief Justice thus 
 shows why he lamented that the Civil Law was so little studied in 
 England ; for he says that the grounds and reasons of law are so 
 well delivered in the Digest . that the science of law cannot be well 
 understood unless by the study of Civil Law. It is by studying 
 the grounds and reasons of the Civil Law according to a scientific 
 method, that it can be made to produce abundant fruit and im- 
 portant practical results. 
 
 If this course had been pursued for even the short space of the 
 last thirty years, we should not be so far as we now find ourselves 
 from the solution of several problems of legislation which are essen- 
 tial for the improvement of the law of this country. 
 
 -Among the most conspicuous of these problems is the question of 
 making a Digest or a Code of the laws of England. As soon as the 
 Digest of Laws Commission (of which the author of these pages was a 
 member) commenced its deliberations, it became evident that thejCom- 
 mission would end in failure and disappointment. The Constitution 
 of Justinian, De Conceptione Digestorium ad Trebonianum, directed 
 Trebonian and his colleagues to make a Digest of the Law from certain 
 specified sources, and laid down clear and definite rules for the work. 
 But the Digest Commission only directed the Commission to en- 
 quire into the expediency of a Digest of Law and the best means 
 of accomplishing the object. The contrast between the masterly 
 vigour of the ancient Commission and the weakness of the modern 
 » Burnet, Life of Sir Matthew Hale, p. 24. 
 
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26 INTRODUCTION TO THE 
 
 one is evident and striking. No rules or scientific principles were 
 enunciated in the latter, and the very meaning of the term Digest was 
 not decided, as it ought to have been. Therefore the first problem 
 for the Commissioners was to decide what is a Digest, and what is 
 the difference between a Digest and a Code. There.was a great 
 diversity of opinions, but the prevalent view was that the difference 
 between a Digest and a Code was this, — that a Code had force of 
 law, and a Digest had not. Yet the greatest of all Digests — which 
 is called The Digest, that is to say, the Pandects — had force of 
 law,!" though the Decree of Gratian, which is a Digest, never had 
 force of law. The Perpetual Edict of Salvius Julianus was a Code, 
 and it had force of law, and so had the Code of Justinian and that 
 of Theodosius. But the Gregorian and Hermogenean Codes had not 
 force of law. 
 
 The real difference between the Code of Justinian and the Pandects 
 is that the former is a compilation of laws, while the latter is a 
 compilation of extracts from books. It was called a Digest because 
 it contained the substance of the books out of which it was formed. 
 Compilations of laws were always called Codes. But in modern 
 times the word Code acquired a different meaning. The Codes of 
 modern Europe are not collections of laws arranged under heads. 
 They partake of the nature of a Digest. They consist of a condensed 
 expression of the law in language sometimes composed by the 
 framers of the Code and sometimes taken from laws, judicial 
 decisions, and writers. And they include alterations of the old law. 
 They have exclusive force of law — excluding and abrogating the 
 authority of anterior laws regarding all matters contained in the 
 Codes. The modern Codes constitute an important phase in the 
 history of the Civil Law and of legislation. They were engendered 
 by the rich maturity of the Civil Law. The jurisprudence of Europe 
 had become overburthened by its own abundance and affluence. The 
 great mine of law contained in the Corpus Juris, which was the 
 Common law of the Continent, had been worked assiduously by 
 the acutest and most learned men of all countries for seven centuries. 
 Civilians, canonists, theologians, philosophers, legislators, and judges 
 had united their efforts and vied with each other to cultivate and 
 augment legal science and apply it practically to all the uses and 
 wants of civilized society and the progress of trade and commerce, 
 ■■ Ccinstit. Tanta circa nos, De Confirm. Dig. 
 
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STUDY AND USE OF THE CIVIL LAW. 27 
 
 agriculture, and every sort of industry. The Civil Law had, more- 
 over, been cultivated in the universities, by different schools, and on 
 different methods, and the administration of justice throughout 
 Europe, especially in the French Parliaments, had given a practical 
 direction and application to scientific studies and legal literature. 
 Under these most advantageous circumstances the Code Napoleon 
 was composed. And it is important to observe that it was not 
 composed of cases decided by courts. The Civil Code of Napoleon 
 was framed from the whole existing legal science as expressed in the 
 best writers. Thus, the law of Contracts was taken mainly from, and 
 even in the very words of, Pothier, who had with wonderful ability 
 condensed the Civil Law of Contracts, eliminating whatever was 
 purely technical and not useful for modern purposes. The Civil 
 Code of Napoleon commenced the era of modern Codes. And 
 England is the only country in Europe that has not a Code. I 
 mention the Civil Code as the most important. But France has 
 five Codes, or if we include the foi-est law and the law of fisheries, — 
 seven Codes. 
 
 The Code Civil of Napoleon put an end for ever to the compilation 
 of Digests, except as a measure of transition. For convenience and 
 practical use a Code is preferable to a Digest. But it would have 
 been a great misfortune if Justinian had made a Code — in the modem 
 sense of the word, instead of the Digest — the Pandects. It would 
 have stunted the growth of the Civil Law, and blighted the scientific 
 element which was necessary to bring it to maturity. If Justinian 
 had made a Code like the modern Codes, he would have been like a 
 man gathering fruit before it was ripe. The Civil Law was then in 
 a more advanced state, especially in one respect, than the English law 
 is now, — for the distinction between the Civil and Prsetorian Law, 
 that is to say, between law and equity, had been abolished ; — but it 
 had much to be eliminated by a refining process, — and many prolific 
 rules, principles, and doctrines, to be developed and applied. It was 
 not ready to be crystallized into a Code. This is a subject of the 
 greatest importance with reference to what is called the Codification 
 of the law of England, and it requires full consideration. 
 
 In ancient times the Roman Jurisconsults composed axioms of 
 law, — several of which are to be found in Gains. But those same 
 writers, and Justinian, caution us not to adhere in a servile manner 
 to those axioms, — not to regard them as the foundation of law, but to 
 
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28 INTRODUCTION TO* THE 
 
 consider them simply as attempts to epitomize the law and to con- 
 centrate its results. Thus, Paulus says, Regula est, qu^ rem quae est 
 breviter enan-at, non (ut) ex regula jus sumatur, sed (ut) ex jure 
 
 quod est regula fiat quee simul cum in aliquo vitiata est, 
 
 perdit officium suum. The meaning of this is that an evident 
 concrete truth must not be sacrificed to a rule. On this subject 
 Savigny says, "In modern times this reaction of form is far more 
 " extensive, more various, more powerful ; and such is the danger 
 " of incomplete imperfect Codes. They fix law in the state in 
 " which it is, — they render it immovable, and deprive it of the 
 " successive improvements which the progress of science naturally 
 " produces." 1 
 
 It follows that before we undertake to make a Code, we ought 
 to consider diligently whether our law is in such a condition that it 
 ought to be, or can be with advantage, made into a Code. We must 
 consider before we decide on making a Code, what materials we have 
 to make it. 
 
 The first point that presents itself is tbis. No Code, and indeed 
 no Digest, has ever been made out of cases decided by courts of 
 justice. Of this there is no example in legal history. It is true 
 that a portion of the Pandects is composed of the Responsa, which 
 are the decisions of the ancient Jurisconsulti on cases. But the 
 Eesponsa are very different from the cases in the reports of the 
 decisions of our courts of law and equity. The Responsa consist of 
 a concise statement of a question followed by the solution of the 
 problem, which is always the quintessence of the law and of common 
 sense and justice, except in those cases where the positive or arbitrary 
 law of the Romans intervenes. And those cases must be subjected 
 to the analytical process of Domat which has been already described, 
 in order to separate the arbitrary from the immutable law. Then 
 the reason of the arbitrary law must be determined, and thus it 
 will appear whether it is a law useful for the purposes of modern 
 society, or whether it is useless because it depends on reasons which 
 have ceased to exist and which belonged to the usages, habits, or 
 institutions of the ancient Romans. That process of analysis is 
 facilitated by the wonderful succinctness of the Responsa, and the 
 profound good sense of the decisions, and this is the reason why the 
 Responsa have been so wonderfully fruitful and productive of such 
 
 ^ Savigny, Traite du Druit Rum., torn. i. p. 45. 
 
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STUDY AND USE OF THE CIVIL LAW. 29 
 
 great results in the progress of legal science. And tlie Responsa and 
 those results which have arisen out of them have produced the modern 
 Codes, — by the condensation of the reason and justice and common 
 sense of the Roman Law, — after the purely arbitrary element had been 
 eliminated, as the worthless part of the ore is separated from the 
 precious metal. The Responsa were therefore excellent materials 
 for a Digest ; and a Digest containing them was the best preparation 
 for a Code in the modern sense of the word. 
 
 Reported decisions in Courts of Law and Equity are materially 
 different from the Responsa. For the former frequently involve 
 questions of fact. They include the arguments of counsel. What 
 is called the judgment of the Court is, especially in the Court of 
 Chancery, not a judgment but a speech of the judge, in which with 
 the" skill of an advocate he uses every argument and every topic in 
 support of the view which he has taken of the case. Sometimes, 
 indeed, these judicial speeches contain matters which were not in 
 evidence, or even which could not be given in evidence in the suit. 
 His speech is reported as the judgment of the Court. But the real 
 judgment, the decree or order, is made often a considerable time 
 afterwards, and it is sometimes materially different from the reported 
 judgment. For it is drawn by the registrars on minutes prepared by 
 the counsel and solicitors in the suit, and finally settled after pro- 
 ceedings, which are sometimes very long, before the judge and his 
 chief clerk. The theory of Lord Westbury's Chancery reform, was 
 that the judges should work out their own orders and decrees in 
 chambers. Unfortunately, the orders and decrees were worked out 
 after the judgment has been publicly pronounced, and' the result of 
 the process of working out is often inconsistent with the judgment. 
 But perhaps in some cases the final settlement is more the work of 
 the chief clerk than of the judge, who is obliged to pass from hearing 
 one case in dourt to another in Chambers, the points and details of 
 which he has more or less forgotten. It is usual for the reporter to 
 append a marginal note to the case, which is supposed to contain the 
 substance of the decision. But the marginal note has no authority 
 and is practically of little use. No doubt the reports are important 
 and useful, but it would be extremely difficult to make either a Digest 
 or a Code out of such materials. This was clearly shown by the work 
 done under the Digest of Laws Commission. Several learned counsel 
 were employed (and very badly remunerated) to prepare. Digests of 
 
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30 IXTKODUCTION TO THE 
 
 oortain parts of the law. Thev showed much indnstiv aiul ability. 
 And tlio givatost pai-t of the labour which tliov uiulorwont. arose 
 fn>m the extivnio diiKoulty of dealing- with the materials before 
 them. They weiv like the Isi-aelites, making brieks withont sta-jwv. 
 And the result of their labours was useless. The Conuuissiou ivporttxl 
 in favour of a Digest of Law, but the fivling among'st Couimissionors 
 was that the attempt made in that direetion was a failure. The 
 subject has dixipped and has not since been iv\ ivod. Hero it must 
 be remarked that the treatment received by the learned draftsmeu 
 \nider the C'ommission was such that if another attempt be made to 
 prejxvre a Digest or a Code, it will be very ditlicult to obtain the ser- 
 vices of competent pei-sons to do the work. No doubt the Oovcrn- 
 ment felt a difiBcultj' in asking the House of Commons for snrticieut 
 supply to continue the Digest, tlie value of which was ipiestionable. 
 There was a feeling of disappointment on the ywrt of the Oommis- 
 sionei-s, and probably on that of the Government : but this was 
 from no fault of the leaiued dounsel employed, some of whom showed 
 great ability. The failure should be attributed to the impossibility 
 of making a Digest deserving the name and worth its cost, out of 
 the reports of the cases decided in the Courts. And the impossi- 
 bilitj' of making a Code of the same niaterials is still more evident. 
 Let us consider this important subject more in detail. 
 
 The duty of a court of justice is, not to advance logtil science or 
 jurisprudence, but to dispose of its business by deciding each Civso 
 that comes before it on the merits of tlve points of haw, fai't, or prac- 
 tice on which the decision of the case depenils. Former Cf\ses ai"0 
 referred to, and thus a certain connection is formed and maintained 
 between the decisions. But the tptestiou whether the Court will 
 follow or overrule a former case is very ai"biti"tu'y. Sometimes the 
 Court holds itself bound by a former case, though coudenuuug or 
 regretting it. At other times one or n\ovo ca.ses ai'o overruled. Or a 
 distinction, often very refined, ingenious, and ditWcult, is drawn to avoid 
 overruling a case or a series of oases, and at the same time to avoid 
 injustice in the pai'ticular case before tlio Court (>ther decisions are 
 so special that a rule of law cannot be e.xtrncted fi-om tht>m. And 
 where cases are contrailictory, the whole labour of the Court is to 
 iMuleavour by ingenuity to reconcile them, which is sometinies impiis- 
 sible. All these things arise unavoidably out of the exigences of the 
 daily work ol' the courts for the administi'ation of jxistice. The value 
 
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KTUDY AND USR OF THE CIVIL LAW. 31 
 
 of roportod ciisoa cannot be denied. And it must bo admitted — 
 
 Cldnsucliuliiuun aut rerum perpetuo similiter judicatoruni anctori- 
 
 t;Ui'iii, vim Icgis dbtiiioro debmui' But to iniike the body of law in 
 
 tlu^ lonn of a Digost or a Code solely out of decided cases is a thing 
 
 whicli nover has bcou done in any country in the world, and which 
 
 cannot be successfully accomplished. The Common Law and Equity 
 
 llc'poits fuvnisli valuable materials for a Digest and for a Codo. But 
 
 their very nature precludes the possibility of their being suflScieut by 
 
 themselves. The miscellaneous and fragmentary character of a 
 
 collection of judicial decisions would suffice to establish this proposi- 
 
 Lioii. K.xperieuce shows that in every Digest of Cases there must bo 
 
 important lacunm. The existing Case law has grown within the last 
 
 two hundred years, and that is too short a "space to form a system of 
 
 juris|ivudonce. The iiiconiplctencss of our law has been exemplified 
 
 iu a sliikiiig manner in the two arbitrations in the cases of the 
 
 European Asstu-ance Company and the Albert. There the question 
 
 arose whether a novation can be inferred, or whether it must be 
 
 exjiresst'd. Lord Westbury following the Civil Law said, " The inten- 
 
 " tion must be proved ; it cannot be inferred from the reading of a 
 
 " receipt. The obligation, the onus probandi lies on the company 
 
 " that alleges the novation. It is a question of intent to bo evidenced 
 
 •' in the clearest manner, and unless that intent is so evidenced, the 
 
 " simple payment of the premium will be referred to the old contract, 
 
 " and the old rule." But there was no case in the books settling the 
 
 (piestion, though it is decided by the Civil Law. And accordingly 
 
 Lord Cairns in the case of the Albert Company decided the reverse 
 
 of Lord Westbury 's judgment, and contrary to the Civil Law. 
 
 Another instance is given in the speech of the Lord Chancellor in 
 
 the House of Lords, 12tli June, 18(i.S, of a new case which could not 
 
 be decnded by any precedent in the books, I refer to the question of 
 
 tlie liability of provisional committees of railways. There was a 
 
 lacuna in the Case Law, and for want of science, the judges decided 
 
 by analogy, and full into an error which distressed or ruined many. 
 
 They ima.gineil an analogy to partnership, and so they made members 
 
 of provisional committees liable for each other's acts. Their decision 
 
 was manifestly unjust, and it was overruled by the House of Tjords. 
 
 Many more instances could be given to show how incomjilete our 
 
 C^ase Law is. 
 
 ' L. xxxviii. IV. Do Li'}»ih. Minimo sunt rautaudn ^iw iulevpiolationcirt ccrUnan 
 mnii|n'r Imlmuiunt. lli, L. xxiii. 
 
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32 INTEODUCTION TO THE 
 
 It is true that the Kesponsa contained in the Pandects are in the 
 nature of decisions. But they are supplemented by extracts from 
 scientific juridical treatises of the ancient Roman jurisconsulti. 
 Some of the most important laws in the Pandects are of the latter 
 description. Such, for instance, is the celebrated Law Contractus, of 
 Ulpian,^ on which the doctrine of the liability of bailees is founded. 
 Another instance is to be found in the Law Origo emendi, from 
 Ulpian's Commentary Ad Edictum, with which the 18th Book of 
 the Pandects commences. There Ulpian shows the origin of the 
 contract of sale, and at the same time gives a masterly view of the 
 nature and essence of that contract. No doubt Justinian'a Commis- 
 sioners extracted the pith and marrow of the two thousand volumes 
 which formed the materials of the Pandects. Thus Cujacus com- 
 menting on L. 75, De Cond. et demonstr., taken from the 34th 
 Book of the QuEestiones Papiniani, says : Misera sors libri quod hie 
 tantum ex eo versiculus supersit, quod scilicet, ut veresimile est, 
 cffitera essent antiquata et obsoleta. Id enim tantum voluit Justi- 
 nianus ex veterum scriptis referri in suis Digestis quod, ut ipse 
 loquitur, in ipsis rerum argumentis obtinent.*' And the fragment 
 is a good example of the species of law which we are considering, as 
 it contains not a decision, but a valuable rule of law. Dies incertus 
 conditionem in Testamentis facit. These statements of the law 
 apart from any case, are indeed the very components of a Code, which 
 must consist not of cases but of the laws or rules and principles 
 by which cases are to be decided. And this is the excellence 
 of the Digest or Pandects of Justinian, that it does not consist 
 entirely of decisions of cases, but it includes also rales, principles, 
 definitions, and doctrines of law in their native form, apart from any 
 statement of a particular case. Without this juridical element, a 
 Digest, or collection of decisions, would want cohesion and .sequence. 
 It would settle a number of particular cases, but it would have no 
 general rules. It would represent the practice of the law, but it 
 would be deprived of the scientific part, which is absolutely 
 necessary. 
 
 ' L. xxiii. de Reg. Jur. ; Coggs v. Bernard, 2 Eaym. 913 ; Kent Comm., vol. ii. 
 pp. 559, 560, 561. So in the Jewish law in the Talmud, n3tt?a the distinction 
 as to liability is drawn between MrnOBS a gratuitous keeper, and ~1^3tt71J2a; 
 a keeper for hire ; and see Exodus, c. 22, v. 8. 
 
 ' Cujac, Comment in lib. xxxiv. Qua;st. Papin. Cujac, op. torn. iv. col. 742. 
 
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STUDY AND USE OF THE CIVIL LAW. 33 
 
 This is one reason of the failure of the Digest of Laws Commis- 
 sion. But it has produced one useful result. It has shown that a 
 Digest of Cases (with or without extracts from Acts of Parliament) 
 is not worth its cost. It is like trying to make timber out of 
 chips. To make a Code of any value out of the same materials is 
 a still more hopeless task. For a Code is not a mere compilation. 
 It is the expression of mature results of legal science in condensed 
 language, together with succinct but complete expression of posi- 
 tive legislation. A Code could not be made out of the decisions of 
 courts during two or three centuries. And if it were made, it would 
 only impede future progress and improvement of the law. There is 
 this further difficulty : the problem of the union of Law and Equity 
 must be completely solved before we can have a Code. But this 
 subject we will examine later. 
 
 The question remains : How can we obtain either a Digest or a 
 Code ? If we have nothing to work upon but the cases in the 
 Reports, the Digest or the Code must be postponed indefinitely. 
 We must wait until the case law has become far more complete than 
 it is, and we must wait until the cultivation of jurisprudence has been 
 so developed, and has attained such great proportions and results as 
 to supplement the case law, and complete a comprehensive system of 
 national jurisprudence. And this can never be, until there is a 
 body of professors so amply endowed, and so highly placed, as to 
 induce men of eminent ability and learning to devote their whole 
 lives exclusively to the duties of a legal university, and the cultiva- 
 tion of legal science. The lectureships at the Inns of Court are 
 utterly inadequate for this purpose, for the lecturers are not so 
 well remunerated as a police magistrate or a county court judge, 
 and they are mere officers of the benchers. To expect any results 
 from such a system is not reasonable. The lecturers are no doubt 
 useful to the students who attend them, but they cannot form a 
 jurisprudence, or system of laws, nor a legal literature, without 
 which it is impossible to make either a Digest or a Code worthy of 
 a great nation. And they can do nothing for the progress and 
 improvement of the law. Thus there is no scientific cultivation of 
 the law in this country, and there is no legal literature. 
 
 But the question is this. Is it necessary that to make either a 
 Digest or a Code we should be restricted to our own materials — that 
 is to say. Acts of Parliament and decisions of our Courts of Law and 
 
 D 
 
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34 INTRODUCTION TO THE 
 
 Equity ? In no other science are we restricted to oiir own country : 
 and why should such a restriction exist with regard to law 1 The 
 whole tendency of civilization is to extend knowledge and the culti- 
 vation of science from one country to another, so that all may 
 participate in the progress of learning and improvement. There is 
 no reason why this should not apply to law. No doubt every nation 
 has positive laws adapted more or less to its wants and circumstances. 
 But the immutable laws ought to be the same everywhere. And 
 here we have an example of the use of scientific analysis. Gajus in 
 the Pandects says :" "Omnes populi qui legibus etmoribus reguntur, 
 partim suo proprio, partim communi omnium jure utuntur." The 
 latter is the basis of the Law of Nations. But it also comprises all 
 that part of Private Law which Domat describes (as we have seen) 
 under the name of Immutable Law, because it consists of rules or 
 principles of justice which must be the same everywhere, even where 
 the positive or arbitrary laws of the particular state cont;ravenes them 
 by unjust and unreasonable enactments or customs. Thus the rules 
 of contracts, and the dealings between man and man, are, or ought 
 to be, the same in all countries, so far as they depend on justice and 
 not on arbitrary municipal laws, the spirit of which depends on their 
 utility with reference to the particular circumstances of the place 
 where they prevail, or the policy of each country with regard to the 
 arbitrary laws which regulate the use of immutable laws, or deter- 
 mine certain things which those immutable laws do not determine. 
 In these arbitrary laws there is a margin which may without injustice 
 be differently dealt with in different countries. Thus, for instance, 
 it is an immutable law, that all agreements and contracts between 
 parties shall be performed according to their intentions. But in 
 some countries, from motives of utility, certain contracts are not held 
 to be valid unless they are in writing, or unless they are executed 
 with certain formalities intended to prevent abuses or other evils. 
 And there is no injustice in these restrictions, provided all persons 
 are made duly acquainted with the law with which they are to 
 comply, or at least cases of hardship will be so few that they cannot 
 counterbalance the public and general advantages of the restriction. 
 Besides the immutable laws, there are arbitrary or positive laws, the 
 general nature of whose utility is such that they would be advan- 
 tageous in all countries — or at least in more than one. 
 
 » L. 9, fF. De Just. & Jur. 
 
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STUDY AND USE OF THE . CIVIL LAW. 35 
 
 One result of these reflections is, that there is no reason why any 
 nation desiring to have a complete Corpus of Law in the form of a 
 Digest or Code, should be confined to its own native materials. And 
 indeed the progress of civilization and commerce, and the increase of 
 the intercourse of mankind, tends to assimilate the law of all civilized 
 countries. And the influence of the Civil Law has even in this 
 country conduced, and will do so still more, to the same result. In 
 the United States of America the Civil Law has great authority. 
 In one of them, in the new States of Spanish America, and in Lower 
 Canada, it constitutes the principal basis of the Common Law." The 
 continental civilians have called it Jus commune, because it was 
 the law in force, unless altered by statute or custom, throughout the 
 countries which formed the ancient Roman Empire.X It has always 
 had great authority in Scotland, where it has even been designated 
 as the Common Law.^ The Civil Law has thus constituted a bond 
 of union between the laws of all countries. It contains the principal 
 part of that law which — " Om,nes populi — communi omnium jure 
 utuntur." 
 
 Here there is a common fund from which all nations can supple- 
 ment and improve their national jurisprudence when it is not already 
 the basis of their laws. This has been recognized by the greatest 
 judges in our history, and especially the greatest of all — Lord 
 Mansfield. The Books are full of instances where the judges have 
 made use of the Civil Law, and they would have done so more fre- 
 quently if they had known more of that law. Lord Mansfield was 
 attacked by the bigots of his day — even by the Whig Junius, for 
 using the Civil Law. Afterwards the prejudices of English lawyers 
 gave way to reason, and the Civil Law has been freely resorted to ; 
 and the study of the Civil Law in the Inns of Court will contribute 
 
 * Kent, Comm. Lect., xxiii. p. 514. 
 
 ^ Erskine, Instit., pp. II, 18. 
 
 " Wheaton, Hist, of the Law of Nations, p. 32. Tirabosohi (Storia della 
 Letter.) states that Ed. I., who has been called the English Justinian, being in 
 Italy in (die year 1272, on his way to the Holy Land, attended and admired the 
 lectures of Francis Accursius, the son of the great glossator, who is called by 
 Cujacius " Optimus Accursius " (Cujac. Observ. lib. xii. cap. xvi.), and that the king 
 made him one of his council, and induced him to visit the English court, and twice 
 entrusted him with important foreign missions. Accursius resided eight years at 
 the English court. The doubts of Selden on the subject of his visit to England 
 are disposed of by the writ directed to the Sheriff of Oxfordshire to provide 
 lodgings for the Doctor of Laws Accursius, at the King's charges. 
 
 D 2 
 
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36 INTRODUCTION TO THE 
 
 nrach to increase its influence and utility in this country. Thus a 
 connexion has been established between the English law and that 
 law which is the basis of the jurisprudence of civilized Europe, and 
 indeed the basis of all legal science. The feudal element of the 
 English law was an obstacle to the Civil Law. But that element 
 has dwindled into something very unimportant, and there is now no 
 reason why the Civil Law should not be largely used in the formation 
 of a Corpus Juris for this country. But the Civil Law should be 
 used for this purpose, not in its ancient condition, but as it has 
 been extended and improved by the learning and the thought of 
 successive centuries, and rendered usefully applicable to all the wants 
 of an advanced civilization. The whole jurisprudence of Europe 
 ought to be used by us to prepare a Corpus Juins. Taking our own. 
 law as a basis, we ought to supplement it from universal jurispru- 
 dence, taking what is best from the laws of all countries, and availing 
 ourselves of all existing practical results of legal science. 
 
 There is no instance in history of any one nation which has formed 
 for itself a complete system of Jurisprudence sufficient in itself, with- 
 out the assistance of other nations. The science of law is the know- 
 ledge of the rules by which all mankind are to be governed, and it 
 is therefore too vast to be completed by any one of those siibdivi- 
 sions called peoples or nations (an institution of the jus gentium),'* 
 •which have been adopted necessarily for the government of the world. 
 A nation which wants to be governed exclusively by its own laws is 
 absurd. It will suffer financially to an enormous extent by the liti- 
 gation arising from a bad and insufficient system of laws, which 
 constitutes a gi-ievous tax and a diminution of the value of property, 
 and an obstacle to production. And it will suffer still more by the 
 obstruction of business, and the disturbance of the peace of society, 
 arising necessarily from bad or insufficient laws, which afford constant 
 occasions for delay, doubt, difficulty, and dissension. Every considera- 
 tion points out the necessity of adopting a broad view of Law Reform, 
 and using every source from w^hich anything useful can be .derived. 
 Whether we have a Code or a Digest, it ought to be made out of the 
 universal jurisprudence of the whole civilized world. Nothing less 
 can constitute the materials for the CORPUS JuRis of a great nation. 
 No one nation has ever completed any other science, and can it be 
 
 • L. 5, ff. De Just, and Jur. Ex hoc jure gentium introductoD bella, discrete 
 gentes, regna oondita. — Hermogenianus. 
 
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STUDY AND USE OF THE CIVIL LAW. 37 
 
 believed that any one nation can form a perfect system of those laws 
 by which nianklad ought to be regulated in all their relations to and 
 dealings with each other ? And we have been under special disad- 
 vantages on account of our insular position and the peculiarly feudal 
 nature of our laws and institutions, which have cut us off from the 
 progress of jurisprudence and legislation in Europe. But that juris- 
 prudence and legislation are at our disposal and ready for our use, 
 and we have only to make the best use of tliem. 
 
 A Commission appointed to make a Code or a Digest ought to be 
 assisted by the most learned and able foreign lawyers that can be 
 procured by ample remuneration. The English Law should, on each 
 subject, be compared with the Civil Law, as it exists and is taught, 
 and as it is contained in the greatest Books, and with the best 
 foreign Codes. This process, carried on with the assistance of the 
 foreign Assessors, would show ' what portions of the Civil Law and 
 of the foreign Codes are adapted to the objects of the Commission. 
 The Commissioners would consider the suggestions and propositions 
 of the foreign lawyers, and see how far they were useful, and also 
 how they ought to be incorporated with the English Law in a 
 Digest or Code. If this method were adopted, the materials at the 
 disposal of the Commissioners would be so abundant that there would 
 be no reason for losing time and labour by making a Digest. A 
 complete Code might be made, and being the last it ought to be 
 the best in Europe. The Code would be enacted as Law by the 
 Legislature, and all other Laws on the subjects contained in the 
 Code would be repealed. No cases decided before the publication of 
 the Code should be allowed to be cited as authority in the Courts. 
 
 There would be only one cause of delay and difficulty, and that is 
 the distinction between Law and Equity. This subject now requires 
 consideration. The very same distinction existed in the Ancient 
 Roman Law, and it seems to constitute a necessary pha,se in the 
 history of Jurisprudence. It arises from the want of a remedy for 
 the insufficiency of the ordinary tribunals and the original law. So 
 the technicalities of the ancient Jus Civile, and the narrowness of 
 the forms of actions before the ancient magistrates, engendered the 
 equitable jurisdiction of the Praetor. Tne Prajtorian Equitable 
 Law was formed into a Code, called the Perpetual Edict, by Salvius 
 Julianus. This Code was not a mere compilation, for it contained 
 improvements in the law, and it had full legislative sanction. Tlius 
 
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38 INTEODUCTION TO THE 
 
 the fusion of Law and Equity was preparei And in the Modern 
 Civil Law there is no such distinction. 
 
 A notion commonly exists that, by giving to the same judges 
 both a Common Law and an equitable jurisdiction. Law and Equity 
 would be amalgamated together. This may, however, be questioned. 
 Within not many years, the Court of Exchequer had an Equitable 
 as well as a Common Law jurisdiction. This did not affect the 
 separation of Law and Equity. That end can only be attained by 
 changes in the law itself hitherto administered by the Courts of Law 
 and Equity, calculated to produce one homogeneous .body of Law, to 
 be administered in all the Courts. This is, perhaps, the greatest 
 object of Law reform, and unless it be accomplished, a Code cannot 
 be made. 
 
 How is this problem to be solved ? Its solution has been attempted 
 in the Judicature Act, by giving the preference to Equity wherever 
 it differs from Law, and by providing for the adoption of a uniform 
 system of procedure, for the purpose of terminating the distinction 
 between an action at Law and a suit in Equity. It will be useful to 
 examine the portion of the Act which relates to this important 
 subject, for the pm-pose of showing what the Act does and what it 
 does not accompKsh, and thereby obtaining a knowledge of what 
 remains to be done t-o bring the law into a consistent homogeneous 
 state- without any distinction between Law and Equity. Clause 24 
 enacts that Law and Equity are to be concurrently administered. 
 Every Court and Judge is to be competent to give both equitable 
 and legal relief or remedies, and is to recognize and give effect to 
 every equitable estate, right, or ground of relief, and every equitable 
 defence, properly claimed and pleaded. Thus every Court wiU have 
 both an equitable and a legal jurisdiction concurrently administered. 
 And no cause or proceeding shall be restrained by prohibition or 
 injunction. This is in accordance with the recommendation of the 
 Judicature Commissioners. Every Court (for instance) will have the 
 power of awarding damages for the non-performance of a contract, or 
 of making a decree for specific performance. So far the Act does 
 not, nor does it profess to, amalgamate Law and Equity. On the 
 contrary, it requires both the Judges and the practitioners to be 
 acquainted with the two systems, and it thereby n^aterially increases 
 the amount and difficulty of their labour, which wiU be no longer 
 divided. "^ '"' ~ 
 
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STUDY AND USE OF THE CIVIL LAW. 39 
 
 Section 25 recites that it is expedient to take occasion of the union 
 of the several Courts whose jurisdiction is thereby transferred to the 
 High Court of Justice, to amend and declare the Law to be hereafter 
 administered in England as to the matters next thereinbefore 
 mentioned, and it then enacts as follows : — (1). In the administra- 
 tion by the Court of the assets of insolvent estates of persona dying 
 after the passing of this Act, the same rules shall prevail as may be 
 in force for the time being under the Bankruptcy Law with regard to 
 the estate of persons adjudged bankrupt.'' (2). The Statutes of 
 Limitation are not to apply to express trusts. (3). Tenant for life 
 without impeachment of waste is not to be entitled at law to commit 
 equitable waste. (4). No estate shall be merged by operation of 
 law the beneficial interest in which would not be deemed to be 
 merged or extinguished in equity. (5). A mortgagor, in possession, 
 may sue in his own name for possession or for recovery of rents, or 
 profits, and to prevent or recover damages in respect of any trespass 
 or wrong relative thereto, unless the mortgagee has given notice of 
 his intention to take possession or enter into receipt of rents and 
 profits.' This is an important amendment of the law, for it is one 
 step towards abolishing the distinction between the legal and the 
 equitable estate. It admits on principle the absurdity of the 
 Mortgage Law, by which the land is conveyed subject to an equity 
 of redemption, but provides no adequate reform, because it still 
 leaves the legal estate vested in the mortgagee, who is_not the owner 
 of the land, and/' who ought only to have a security by. J* ^y_ of. 
 hypothecation. (6). An absolute assignment of a debt or other chose 
 in action, with notice to the debtor, trustee, or other person entitled, 
 is made effectual in Law to pass the legal right, subject to the right 
 of the person liable to interplead, on notice that the assignment is 
 disputed. (7). Stipulations in contracts as to time or otherwise, 
 which would not, before the passing of the Act, have been deemed to 
 
 ^ A difficulty arises here. This section extends to the administration of the 
 estates of all persons dying after the passing of the Act. But it applies only to 
 administration of assets by the Court, that is to say the High Court. But the 
 High Court will not come into existence until 2nd November, 1874. Therefore 
 the difficulty is not solved by the preliminary section 2. It would seem that the 
 administration of the assets of insolvents dying between the passing of the Act 
 and November 2nd, 1874, must wait until the latter time. 
 
 • The question will aiise whether the mortgagee may not under this enactment 
 give such notice though the interest is duly paid. 
 
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40 INTRODUCTION TO THE 
 
 be or to have become of the essence of such contract in a Court of 
 Equity, shall receive in all Courts the same construction and effect as 
 they would have heretofore received in equity. (8). A mandamus 
 or injunction may be granted by the Court. The intei-pretation 
 clause does not explain the term the Court, and this provision seems 
 open to doubt, as in other parts of the Act these words are used : the 
 said Courts respectively and every Judge thereof. (9). The rules 
 of the Court of Admiralty regarding damages by collisions at sea 
 are extended to the other Courts. (10). In questions relating to the 
 custody and education of infants, the Rules of Equity shall prevail. 
 
 These amendments, which may be compared to the fifty decisions 
 of Justinian, settle certain questions (except the 9th), on which 
 Law and Equity differed. But the sections 4, 7, and 9 do so, not by 
 directly settling what the law is to be, for they refer to the Rules 
 of Equity, which are to be found only in cases decided in the Court 
 of Chancery. 
 
 The eleventh and last amendment is more important and re- 
 markable. It enacts that generally in aU matters not before 
 particularly mentioned, in which there is any conflict or variance 
 between the Rules of Equity and the Rules of the Common Law 
 with reference to the same matter, the Rules of Equity shall 
 prevail. According to the principles of Jurisprudence, a conflict of 
 Laws arises where any matter is affected by laws of two countries, 
 which laws are at variance. But a legislative recognition of a 
 Conflict of Laws within the same State is a thing very novel and 
 extraordinary. The effect of this is that, before the amending Law 
 is applied, the conflict must be established. Thus Judges and 
 practitioners must consider both laws, and determine where the 
 conflict, if any, arises. It will be instructive to see how Justinian 
 dealt withj this difficulty. In the constitution, Deo auctore,'^ he says 
 to Trebonian and his colleagues :' — Jubemus igitur vobis antiquorum 
 prudentium quibus auctoritatem conscribendarum interpretun- 
 datumque Legum sacratissimi Principes prsebuerunt, Libros ad Jus 
 
 ^ This mode of quotation liy the first words, also used by the Canonists, was 
 derived from the custom of the Jews, who designate the books of the Pentateuch 
 in that way. Thus Genesis is called n''tt7N");2 ; Exodus, maU7 ; Leviticus, K^p"*!. 
 Numbers, however, is called ~13^I3^ instead of "IDT^I, because the latter word is a 
 common commencement of parts of the books ; and Deuteronomy is called Q^~l3ln 
 instead of nbS, because for the same reason n7S alone would not be a sufficient 
 designation. 
 
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STUDY AND USE OF THE CIVIL LAW. 41 
 
 RomaDum pertinentes et legere et elimare : ut ex his omnis 
 materia colligatur, nulla secundum quod possibile est, neque simi- 
 litudine neque discordia derelicta, sed ex his colligi quod unum pro 
 omnibus sufficiat. And in § 8, he adds : — Nulla in omnibus 
 pra^dicti codicis membris antinomia (sic enim a vetustate Grseco 
 vocabulo nuncupatur) aliquem sibi vindicet locum, sed sit una con- 
 cordia, una consequentia, adversario nemine constitute. 
 
 These remarkable passages show the right principle of law reform 
 applicable to cases where there is a variance of laws or antinomia, 
 such as the differences between Law and Equity. The legislature 
 should not merely decide which of two conflicting laws the Judges 
 are to follow ; but ought to enact specifically what the law is to 
 be on the particular subject to which the conflicting laws apply. 
 This is the only way of abolishing an antinomia, and bringing the 
 Law to a homogeneous system. If a Code is to be made, this course 
 will be necessary. 
 
 One difficulty exists in this countiy which is peculiar, and it was 
 not to be found in the Eoman Law. This difiiculty arises from trial 
 by Jury in Civil cases. The object of all pleadings is to ascertain 
 the questions for adjudication. But at Common Law the chief ob- 
 ject is to separate as far as may be the Law from the fact, and to 
 bring every question of fact to an issue to be tried by a jury. All 
 pleadings are derived from the Civil, and still more from the Canon 
 Law. Whether they are commenced by Declaration or by Bill, the 
 principle is the same; It is that the plaintiff should state his com- 
 plaint and the defendant his answer, or defence, with a view to 
 determining what points are in dispute. The distinction between 
 pleadings at Law and in Equity, is that the first principle of the 
 former is to bring questions of fact in dispute to specific issues to be 
 tried by a jury, and leaves, on demurrer, the law to be decided by the 
 Court. But there are a class of cases which cannot be subjected to 
 this analytic process, and they have necessarily fallen within the 
 jurisdiction of Courts of Equity, in which (after the model of the 
 Civil Law), the Court decides both fact and Law, and there is no 
 trial by jury. This institution of trial by jury has had an important 
 effect on our legal history. For if it had not existed, the separation 
 between Law and Equity would not have continued to our times. 
 Thus, in the Roman Law, the consolidation of the Praetorian with the 
 Civil Law took place naturally and easily. The abolition of the 
 
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42 INTRODUCTION TO THE 
 
 formulse, actiones legis,* or forms of action, produced a uniform mode 
 of proceeding by Libellum and Exceptions or Pleas analogous to the 
 Bill and Answer in Chancery, and thus the Courts were enabled 
 to deal uniformly with all cases, whether Civil or Praetorian, and 
 the distinction between the two became mere matters of history. 
 Thus, in the Canon Law, there never existed any distinction between 
 Law and Equity. So in the laws of France, Italy, Germany, Spain, 
 and indeed of every continental state, this distinction never existed. 
 
 The Juxiicature Act attempts to deal with this obstacle to the 
 union of Law and Equity. It will be a task of extreme difficulty 
 to frame a system of pleading, to fulfil the purposes of both the 
 Common Law pleadings and the Bill and Answer in Equity. 
 
 The schedule of the Act provides (section 30) that actions shall be 
 tried and heard either before a judge or judges, or before a judge 
 sitting with assessors, or before a judge and jury, or before an official 
 or special referee. By section 31, the plaintiff may give notice of 
 trial by any of the modes specified in section 30. But the defendant 
 may, by giving notice, have any issues of fact tried by jury. It is 
 probable, that under these enactments, those cases which have 
 hitherto been tried by jury will continue to be so tried. But still 
 the difficulty remains of preparing the case for trial by jury. 
 Section 19 gives the judge power to direct the parties to prepare 
 issues of fact; and, if the parties differ, the judge is to settle the issues. 
 This process will be more dilatory and expensive than the ordinary 
 mode of raising issues by pleadings at Common Law. The power to 
 direct the preparation of issues of fact is confined to cases where the 
 facts are not sufficiently disclosed. But the facts may be sufficiently 
 disclosed, and yet not pleaded in such form as required for trial by 
 juiy. The rules of pleading in the Civil and Canon Law might 
 facilitate a solution of the difficulty. For, by both those systems, the 
 judge has power to compel the parties to clear and explicit state- 
 ments of fact, and he can regulate, of course, the form of the allega- 
 tions.f And in the Civil Law there is the distinction between 
 
 = Cod., L. ii. tit. Iviii. De formulis et Impetrationibus actionum sublatis, 
 L. i. ii. Devoti Instit. Canon., L. iii tit. v. § 3. Voet ad Pand., L. ii. tit. xiii. 
 § 8. Schmaltzgrueber Jua Eccles., torn. ii. par. i. tit. iii. § 1, num. vi. p. 193. 
 The subdivisiona in Schmaltzgrueber's great work make it difficult of reference. It 
 is best to consult the Index, which is on a simpler method. 
 
 ' Voet ad Pand., L. iL tit. xiii. § 3 ; Devoti Inst. Canon., L. iii. tit. v. § 2 ; 
 Schmaltzgrueber, Jus Eccles., torn. ii. par. i. tit. iii. num. viii. p. 199. 
 
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STUDY AND USE OF THE CIVIL LAW. 43 
 
 exceptions (plea) of fact and of law.s although the mode of trying 
 both is the same. Voet thus describes the libellum : Libellus est 
 scriptura futurse litis speciem demonstrans, ac constans narratione et 
 conclusione : sic ut continent enthymema, ut logici loquuntur, seu 
 syllogismum altera propositione et quidem majore, truncatum. 
 Supposita quippe juris dispositione quae majorem in syllogismo 
 propositionem facit, quseque judici jurisperito nota prsesumitur, pro 
 assumto seu minore propositione est narratio facti, comprehendens 
 et ipsam agendi causam ; ex quibus duobus, altera subaudita, 
 expressa altera, tandem conclusio syllogismi formatur.'' The con- 
 clusion is analogous to the prayer of a Bill in Chancery — Conclusio 
 est petitio actoris. As both the libellum and the exception can be 
 amended, there is practically little difficulty in determining what 
 questions are in dispute without proceeding beyond the replication 
 which is the answer to the exception ; though there may be a 
 duplication, a triplication, and a quadruplication.' Each successive 
 allegation must be an answer to the preceding one, and, if not, it is 
 inadmissible. A system of pleading so simple and free from tech- 
 nicalities could be so adapted as to overcome the difficulty which we 
 have been considering, arising from trial by jury in civil cases. 
 
 In Scotland, trial by jury in civil cases exists in such a modified 
 and limited manner, that it has not had any marked influence over 
 the jurisprudence of that country. By the ancient law of Scotland 
 the greatest part of actions proceeded on breves issued out of 
 Chancery, and were tried by jury. But upon the institution of the 
 College of Justice summonses were introduced in the place of breves, 
 as the foundation of most ordinary actions,'' and the rule of the 
 English Common Law, that issues of fact must be tried by jury, is 
 not contained in the law of Scotland. This is one reason why in 
 Scotland there are no Courts of Equity separate from Courts of 
 Law. 
 
 A still more important matter remains to be considered with 
 reference to the amalgamation of Law and Equity. I mean uses and 
 
 ' Voet ad Pand., L. xlix. tit. i. § 4. 
 
 ' Voet ad Pand., L. ii. tit. xiii. § 2. 
 
 ' Voet ad Pand., L. xliv. tit. i. ; De exceptionibus, § 10. Cseterum moribus 
 noatris triplicatio aut quadruplicatio in foro regulariter adhiberi non potest, nisi 
 judex ex justS, causS, speciatim in causa consenserit : qualis consensus prEecipue 
 impetratiu cum nova facta duplicatione continentur. 
 
 ^ Erskine Instit., book iv. tit. i. § 3. 
 
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44 INTEODUCTION TO THE 
 
 trusts. The law of England differs from that of other countries, both 
 ancient and modern, in this respect. It allows the permanent or 
 indefinitely protracted separation of the legal from the equitable 
 estate in land. Let us examine the subject historically and critically, 
 with a view to form an accurate notion of the legal nature and effects 
 of this remarkable institution of our Municipal Law, and to ascertain 
 in what way it should be dealt with. And here the Civil Law is of 
 the greatest value and utility. 
 
 English writers have stated that the general idea of a use or trust 
 answered more to the fidei-commissum than to the usus-fructus of 
 the Civil Law.' This is an error. 
 
 The fidei-commissum of the Civil Law was probably the origin of 
 entails and limitations in remainder, but not of uses and trusts. 
 
 The fidei-commissum arose from substitutions. A substitution is 
 a provision in a testament whereby more than one heir is appointed, 
 and in which the heirs are to take not together, but one in default of 
 the other."' 
 
 One example will suffice : Si Titius heres non' erit, Mfevius 
 heres esto. This is a direct substitution. A fidei-commissum or fidei- 
 commissary substitution is one whereby the heir is required by the 
 testator, by virtue of a trust, to transfer the inheritance to a substi- 
 tuted heir. Vinnius thus very neatly defines a fidei-commissum : — 
 Fidei-commissum est id omne de quo quis suprema defuncti volun- 
 tate rogatus est ut daret vel faceret. I have explained this subject 
 in my " Commentaries on the Modem Civil Law," so as to be intelli- 
 gible even to the unlearned reader. See chap. xxv. and p. 136. 
 Justinian gives in his Institutes, lib. ii. tit. xxiii. § 1, the following 
 account of the establishment of the law regarding fidei-commissum. 
 In former times (says Justinian) all fidei-commissa were ineffectual, 
 because no one was compellable to execute the trust vested in him ; 
 for inheritances were transmitted to persons who could not validly be 
 made heirs, by desiring others who were capable to transfer the 
 inheritance to them. This species of inheritances were called fidei- 
 commissa, because they were sanctioned by no bond of law, but only 
 rested upon the honour and conscience of those to whom the request 
 was addressed. The Emperor Augustus, however, influenced by a 
 desire to favour persons placed in certain situations, or because a 
 solemn abjuration was directed to him by testators, or indignant at 
 ' Steph Com., ch. ix. " Voet ad Pand., L. xxviii. tit. vi. 
 
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STUDY AND USE OF THE CIVIL LAW. 45 
 
 the gross breach of faith of which some persons were guilty, ordered 
 tlie consuls to interpose their authority in these matters. And as 
 this was both just and popular, there soon arose a permanent juris- 
 diction in matters of fidei-commissum, and that jurisdiction became 
 so great a favourite, that a Prastor was appointed to decide upon 
 those matters, who was called Prastor Fidei-commissarius. — Instit.' 
 lib. ii. tit. xxiii. § 1. 
 
 Fidei-commissa were invented in Rome for the same general pur- 
 pose for which uses were devised in England ; that is to say, to evade 
 the law. In Rome this evasion was very beneficial, because of the 
 numerous and merely technical and unnecessary, and therefore 
 unjust, disqualifications of persons who were not permitted by the 
 ancient jus civile to be heirs. 
 
 This is an example of a curious fact to be found in the history of 
 almost every system of legislation, namely, that the legislature does 
 not keep pace with the innovations of time, nor with the growth and 
 changes of the wants of the people ; and it would consequently be 
 difficult to point out many instances of a bad or inconvenient or 
 obsolete law that has not been evaded long before it was abrogated 
 or amended. The ingenious contrivance of the action of ejectment 
 in the English law is an instance of the evasion of the cumbersome 
 forms of a complicated art, which under the specious pretence of 
 providing a remedy for every possible wrong, threw great obstacles 
 in the way of their redress, by rendering it a matter of difficulby 
 in many cases to discover, not indeed the redress promised by the 
 law, but the means provided for its attainment. Many other instances 
 could be given of reforms, or at least changes, which have been 
 effected indirectly by means of fictions and contrivances, because 
 they could not be obtained from the legislature. 
 
 Justinian, in explaining the unprotected state of fiduciary rights, 
 points out the difference between a legal or civil, and a mere 
 , natural or equitable right : — Fidei fidei-commissa appellata sunt quia 
 uullo vinculo juris sed tantum pudore eorum qui rogabantur conti- 
 nebantur. From the legal sanction given by the Emperor Augustus 
 to fidei-commissa arose fidei-commissary substitutions, which by 
 restraining alienation made a very serious inroad upon the sim- 
 plicity of the Roman law. They consisted in the appointment of 
 several persons, to take successively, so that none of them could 
 alienate except the last. 
 
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46 INTRODUCTION TO THE 
 
 It has been supposed that Justinian, by the 159th Novell, 
 restricted fidei-commissary substitutions to four degrees (Co. Litt. 
 191 a, note 1) ; but that celebrated law was framed to provide for 
 the case of a particular family, so that it cannot be interpreted to 
 operate as a general law. But in almost every countiy on the 
 continent of Europe substitutions were limited by the policy of the 
 modern civilians, who soon discovered the evils caused by entrusting 
 so large a power to the hands of a private citizen as that of making 
 his property inalienable in a particular line of succession established 
 by himself, thereby rendering it less beneficial, not only to the 
 public, but to his heirs themselves. 
 
 These restrictions of the power of alienating were not in every 
 case effectual, and they are, with one exception, abolished by the 
 French Code, on grounds of public policy (French Code CivU, 
 art. 896). By art. 1048, fathers and mothers may give property to 
 one or more of their children, subject to the obligation of transmitting 
 it to the children born or to be born of the settlers in the first degree 
 only." The inconveniences of these substitutions were materially 
 diminished in many parts of Europe, but especially in France, by the 
 registration of instruments containing them. That precaution pre- 
 vented secret substitutions, which might have been used for fraudulent 
 purposes. 
 
 This brief account of the law regarding fidei-commissa shows its 
 analogy to the law of entails. But a fidei-commissum did not involve 
 any permanent or lasting separation of the legal title to property 
 from the beneficial interest. This separation is the chief feature of 
 usufruct. 
 
 Usufruct is thus defined in the Institutes of Justinian. Usufruct 
 is the right of using and enjoying the property of another, the 
 substance thereof being preserved. It is the right over a thing, 
 which thing ceasing to exist, the right is necessarily extinguished. 
 
 Here we see clearly the distinction between the legal estate and 
 the use. Usufruct is classed by the Roman Law among personal as 
 contradistinguished from real servitudes. Uses in the English Law 
 were similar to usufruct, but they produced very different results. 
 
 The wisdom of the ancient Eomans saw the danger which the Statute 
 of Uses was intended to meet. Both usufruct and uses and trusts 
 are, no doubt, convenient for various purposes. But the effect of 
 
 ■■ See Merlin Repertoire, torn, xvi. p. 507. 
 
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STUDY AND USE OF THE CIVIL LAW. 47 
 
 separating indefinitely or permanently the legal right of ownership 
 from the use or enjoyment, must be to constitute two distinct titles 
 to property, with a separate and different devolution. Therefore, the 
 Civil Law provided that usufruct should terminate by the death of 
 the usufructory or cestui que use, and also by non-use for a certain 
 term defined by law. This extinction of usufruct by the union of 
 the usufruct with the property (the legal estate) was- called consoli- 
 datio. The dominion over the property is dismembered by the 
 usufruct being vested in one person and the property in another. 
 Consequently the union of the two rights merges the servitude with 
 the dominium of which it is a part, and they become consolidated 
 together. 
 
 A perpetual or indefinite separation of the usufruct from the pro- 
 perty or legal estate is contrary to the policy of the Roman Law. 
 For this reason usufruct is a personal right which finishes by the 
 death, natural or civil, of the person in whom it is vested, and 
 becomes consolidated with the property. 
 
 But by a special limitation to that effect, a usufruct might be 
 made to descend to the heir of the usufructuary. Justinian, however, 
 by one of his Fifty Decisions, determined that the usufruct should 
 terminate in the person of the first heii' of the usufructuary, though 
 granted to his heirs. On the same principle it was doubted by the 
 ancients whether an usufruct could be held by a city or municipal 
 body ; for periculum esse videbatur ne perpetuus fieret, because 
 those bodies could not suffer natural, and would not probably suffer 
 civil death ; and thus the dominium or property would become 
 illusory. But the law in the Pandects allows a bodj' politic or 
 corporation, a charity, and the like, to hold the usufruct for a 
 hundred years, being the utmost limit of human life. The French 
 Code, art. 619, reduces that time to thirty years. In the old 
 French Law another device was adopted for the same purpose. 
 When a usufruct was vested in a corporation or any other body 
 having a perpetual succession, a life was required to be appointed, 
 termed I'homme vivant et mourant, and the usufruct became re- 
 united with the property on the termination of that life. 
 
 It is evident that the device adopted in this country to avoid the 
 operation of the law of mortmain would have been defeated if the 
 principles of the Civil Law, which does not permit the perpetual 
 separation of the use or equitable estate from the property or legal 
 
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48 INTRODUCTION TO THE 
 
 estate, had been appealed to and applied. The Courts of Common 
 Law in the reign of Edward III., when uses of land were introduced 
 by the clergy, might have said : If you borrow uses from the Civil 
 Law, let them be subject to the principles of Civil Law, which limit 
 their duration, and which totally reject the perpetual separation of 
 the use from the dominion or legal estate in land, and, indeed, in 
 every sort of property, real and personal, as a thing abhorrent to 
 sound principles of legal policy. Why this course was not taken it 
 is difficult to say, unless we conjecture that the knowledge of the 
 Civil Law was confined to the clergy, or that the Common Law judges 
 were imperfectly acquainted with it. If the limitation of the 
 duration of uses had been insisted on and adopted, John of Waltham, 
 Chancellor to Richard II., would not have introduced the writ of 
 subpoena, because the Courts of Law need not have refused to recog- 
 nize and enfore fiduciary rights of the cestui que use, and Parliament 
 need only have limited the duration of uses for the benefit of churches 
 and ecclesiastical bodies, on the principles of the Civil Law, to a short 
 term of years. Thus the Court of Chancery might probably never 
 have existed, and there would now be no distinction between Law or 
 Equity. The statute 15 Rich. II. c. 5, would have been unnecessary ; 
 feoffees to the use of religious houses could only have held during 
 a short term, which, aftei: consolidation, would have brought the 
 property within the operation of the law of mortmain. Blackstone 
 tells us that to the inventions of the clergy, for the purpose of 
 evading the law of mortmain, we are indebted for the introduction 
 of uses and trusts, the foundation of modern conveyancing. It 
 would, I believe, be easy to show that the effect of the introduction 
 of uses and trusts on conveyancing and our law in general has been 
 very pernicious, and that the law of real property and conveyancing 
 cannot be reformed without extirpating the vicious principle of the 
 permanent separation of the equitable from the legal estate. 
 
 We now come to the Statute of Uses, 27 Henry VIII. c. 10. It 
 is remarkable that this statute operated in a manner the reverse of 
 the Roman Law. For instead of terminating the use, by merging 
 it in the dominion or legal estate, the statute transfers the possession 
 to the use ; that is to say, the legal estate is considered as one in 
 actual seisin and possession which is transferred by the statute to 
 the use, that is, to the cestui que use. This was not correct on 
 scientific principles of jurisprudence, for the usufruct or use is a 
 
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STUDY AND USE OF THE CIVIL LAW. 49 
 
 dismemberment of the dominium, and therefore ought to follow and 
 coalesce with the dominium. But the object of the statute was 
 sound ; and if it had been effectual it would have restored the 
 great principle of the unity of title, and have prevented the many 
 and costly complications of our present system of conveyancing. But 
 the statute was defeated by the pedantic narrowness of the judges, 
 who held that no use could be limited on a use. Besides which 
 there are other cases of uses not within the operation of the 
 statute, though not limited on another use. The statute, though 
 grounded on sound principles of legislation, was ineffectual, and 
 trusts sprung up in the place of the old law of uses whenever they 
 were within the statute. The Statute of Uses was defeated, and 
 the permanent separation of the legal from the equitable estate still 
 remained, and became established as a most important part of the 
 law of real property in this country, and an institution unknown to 
 the jurisprudence of all other countries. The reason of this is, that 
 there was no allodial land in England. All England was feudal. 
 The feudal system belonged to public law ; but land was becoming 
 more and more the subject of private law. The tenure of la'nd was 
 part of a. political system founded on military service. But that 
 system was declining, and land was more and more considered, as 
 civilisation and comnaerce progressed, in the light simply of private 
 property. Uses and trusts were allodial, because feudal tenure and 
 all its incidents belonged properly to the legal estate. For this 
 reason uses and trusts were useful and convenient, and they no 
 doubt contributed to the gradual extinction of the feudal system. 
 But now that the feudail system has ceased to exist, uses and trusts 
 are unnecessary. 
 
 The Civil Law permits no distinction or difference between the 
 legal and the equitable estate, and it allows movable and immovable 
 property to be dealt with freely by contract alike. It only admits the 
 distinction between moveables and immoveables. It allows every 
 sort of property to be dealt with in the most direct and simple way 
 according to the interests and wants of mankind." 
 
 The question now arises, how we can attain this much-desired 
 
 simplicity of the law of real property. This can only bey' done by 
 
 abolishing all artificial laws belonging to or arising from the feudal 
 
 system, and by considering all property as the same, except so far 
 
 ° Tills will he more fully explained. 
 
 s 
 
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50 INTRODUCTION TO THE 
 
 as its physical nature causes a diversity in the rules of law which 
 apply to it, or special positive laws regulate certain particular kinds 
 of property for economical and political purposes. 
 
 The first point is that all dealings with immovable property should 
 be direct and simple, and as little technical as jpossible. 
 
 The legal estate should be entirely assimilated to the equitable 
 estate, and thus the equitable estate would be unnecessary andTuse- 
 less. Whatever modifications of the dominium or right of property 
 may now be made by means of uses and trusts creating equitable 
 estates, should be mad e directl y and_simply without resorting to uses 
 and trusts, — by conveyance or contract without the intervention of 
 trustees. By this means the legal estate can be moulded, and 
 made to fulfil every purpose ; and conveyances to trustees will be 
 resorted to only where they are necessary to take charge of the 
 property for the purposes intended, such, for instance, as trusts for 
 charitable purposes, or for accumulation, &c. 
 
 By this amendment of the law, powers would be created without 
 any equitable estate. And at law, as well as is now done in equity, 
 a deferted or future interest could be created in the first instance, 
 so as to limit a remainder, after a fee simple determinable on the 
 happening of a given event ; and the artificial and circuitous practice 
 of creating springing, or shifting uses would be superseded by simple 
 grant of^ihe_ownership of the estate, or by contracts, expressing 
 plainly and in simple language the disposition intended to be made 
 according to the intentions of the parties. 
 
 The object in view is that, whatever can now be done, by means 
 of uses and trusts, may be done, as in the Civil Law, by contract 
 unilateral or otherwise, without resorting to any indirect, circuitous, 
 artificial method. 
 
 In all cases in which trustees are necessary for the administration 
 and management or dealing with land, the law should invest them 
 with all the powers required for the fulfilment of their trust ; but no 
 estate nor interest in the property should be vested in them. This 
 part of the subject is easily explained by reference to the Civil 
 Law. The leading principle is to be found in the Institutes, lib. iL 
 tit. i. § 7. Justinian there (in accordance with the ancient jurists) 
 holds things consecrated, religious, or sacred to be res nullius. 
 They are appropriated to a purpose, but they are not the property 
 of any one. On ' the same principle, trust property, strictly so called. 
 
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STUDY AND USE OF THE CIVIL LAW. 51 
 
 is appropriated to a purpose. And to hold that the trustee has 
 any estate or interest in it is a mere fiction. This doctrine is 
 further illustrated by the title of the Institutes Quibus Alienare 
 Licet vel non Licet, which shows that property may be in some 
 cases alienated by one who has no vested interest of proprietorship, 
 or, as we should say, no estate in it, because the law itself gives him 
 the power of doing so. Thus the hypothecarius has a poyver of sale 
 and can alienate the hypothecated property of his debtor, though it 
 is by contract merely a security for the debt. So, if the trust requires 
 the trustee to alienate, the trust property is not his property. He 
 has only a legal power over it. As for trustees for charities, they 
 ought to be deemed simply public officers, administering property for 
 the objects of the charity. The trustees have simply certain duties 
 to perform. The law should give to them the necessary powers. 
 But they should have no rights of dominium, or estate or interest, 
 either legal or equitable. In common sense, and according to the 
 accurate principles of jurisprudence, they should have simply a power 
 and authority conferred by the law. 
 
 Let us work out the subject more in detail. If, by reforming 
 legislation, the legal estate be rendered capable of being dealt with 
 in the same way as the equitable estate, and moulded for the same 
 purposes, uses and trusts would become unnecessary in this country 
 as they are in other countries. But this is not sufficient, for no 
 reform of the law can be effectual unless it thoroughly carries into 
 operation the principles of the Statute of Uses, which are analogous to 
 those of the Civil Law, by putting an end for the future to the 
 separation and distinction between the legal and equitable estate in 
 land. 
 
 This can only be done by preventing for the future limitations to 
 trustees for terms of years in conveyances. We have an example of 
 this in Stat. 7 & 8 Vict. c. 76, s. S, repeated and re-enacted (in 
 substance) by 8 & .9 Vict. c. 106, which provides that no estate in 
 law shall be created by way of contingent remainder, but every estate 
 which, before the passing of the Act, would have taken effect as a 
 contingent remainder, shall take effect, if in a will or codicil, as an 
 executory devise, and if in a deed as an executory estate of the same 
 nature, and having the same properties as an executory devise. To 
 conveyances by will the law? has indulged the creation of future 
 
 Burton, Real Property, § 280. 
 
 £ 2 
 
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52 INTRODUCTION TO THE 
 
 and contingent estates under the name of executory devises according 
 to a system analogous in other respects to springing and shifting 
 uses, but with this difference, that the gift by will is allowed to be 
 direct and independent of the interposition of a third person which 
 the Statute of Uses requires, and thus the question of scintdla 
 juris may be avoided. 
 
 This statute thus rendered unnecessary and abolished the convey- 
 ance to trustees to preserve contingent remainders. It also affords 
 an example of rendering the legal estate capable of being dealt with 
 and moulded to the same purposes as the equitable estate. The 
 abolition of the limitation to trustees to preserve contingent remain- 
 ders, and the well-known provision in the Act preventing the de- 
 struction of contingent remainders existing when the Act came into 
 force, effected a great improvement and simplification of the law, 
 rendering obsolete much of the abstruse law contained in Fearne's 
 celebrated treatise. 
 
 The statute also illustrates the proposition that the interposition of 
 trustees in conveyances is useless. It is, indeed, strange that lawyers 
 did not see that if trustees to preserve were unnecessary in wills and 
 codicils they were unnecessary in deeds also. The distinction was 
 founded on no principle, either of jurisprudence or of common sense. 
 
 The stats. 7 & 8 Vict. c. 67 and 8 & 9 Vict. c. 106 are in truth a 
 valuable step in law reform. They show that the legal estate may 
 be made equally plastic and practically adaptable to every purpose as 
 the equitable estate, and that limitations to trustees ai'e useless. These 
 are, indeed, most important propositions, for they involve the whole 
 subject of the reform of the law of real property, either directly or 
 consequentially. 
 
 For if the legal estate can be dealt with in the same way and for 
 the same purposes as the equitable estate, there is no reason for the 
 separation of the legal estate from the equitable estate. And if the 
 interposition of trustees is not necessary, it follows that limitations to 
 trustees, and the interposition of trustees in conveyances is unneces- 
 sary ; and if they be unnecessary, they must be prejudicial, because 
 they complicate the law, rendering it unintelligible to the people ; 
 and they give rise to technical questions ; and they, therefore, cause 
 loss of time, and also much expense in dealing with landed property. 
 
 Now, let us consider this law of trustees with reference to their 
 obligations and liabilities. We ehall see tliat it is desirable, if 
 
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STUDY AND USE OF THE CIVIL LAW. 53 
 
 possible, to abolish the office of trustees, and to deal with property 
 without their intervention, — even without consideration of anything 
 apart from the trustees, themselves. 
 
 The Law of Ekigland adopting the principles of the celebrated Law 
 Contractus in the Pandects, attaches a less degree of responsibility, 
 where a bailee derives, no benefit, but performs a gratuitous duty for 
 the benefit of another.' This is fair and equitable. But although 
 the office of trustee is gratuitous and often very onerous, the Courts 
 have dealt with trustees in a rigorous manner. There are instances 
 in which trustees have suffered severely in consequence of some error 
 in judgment, often caused by the earnest solicitation of the cestuis 
 que trusts, or some slight omission which anyone but the most care- 
 ful and vigilant person might make, even in his own affairs. It is 
 often very difficult to refuse ta be a trustee, but no prudent person 
 will accept the office if he can fairly avoid it. It is an office fraught 
 with trouble and danger. A trustee is often obliged to refuse to do 
 that which his cestuis que trusts wish, and which would be very con- 
 venient and useful to them, or to expose himself and his family to 
 dangerous liabilities.. And frequently, he cannot act in prudence 
 without legal advice, or even without direction of a Court, and he 
 thereby causes delay and serious expense. 
 
 These considerations suffice to show that trusteeships are liable to 
 grave inconvenience, and that it would be very desirable, if possible, 
 to dispense with them. 
 
 Trusts were originally invented and used for technical purposes, 
 and to remedy the defective state of the law of real property. 
 
 They have been extended to personalty in many cases where they 
 aj-e quite unnecessary. The result has been an enormous amount of 
 litigation in suits and actions, and prosecutions against trustees. 
 Many trustees have been ruined. Many trustees have ruined their 
 cestuis que trusts. And it has been necessary to pass an Act making 
 trustees liable to criminal prosecutions. This Act of Parliament was 
 required to bring fraudulent trustees under the criminal law. But 
 the real and true remedy is. to abolish trusts in all cases in which 
 they are not absolutely necessary. And those cases are comparatively 
 few. A radical reform of the law of trusts of personalty is necessary. 
 But that reform is a matter too extensive to be treated here. On 
 this subject the French Law will furnish a solution of every difficulty. 
 1 L, 23. ff. De Divers. Reg. Jur. ; Coggs v. Bernajcl, Raymond, 909. 
 
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54 INTRODUCTION TO THE 
 
 It is true that in well-drawn deeds there are clauses for the relief of 
 trustees as far as may be. But still cases of gi-eat hardship must and 
 do occur in every class of trusteeships ; and a trusteeship is a thing 
 from which every man who knows its responsibilities recoils, if he 
 possibly can do so with propriety. This is, in many instances, im- 
 possible ; and great hardships occur in those cases by persons being 
 forced into a position of dangerous responsibility. 
 
 All these inconveniences have been caused by the distinction 
 between equitable and legal interests which, from historical causes, 
 existed in the law of real property, being imported into the law of 
 personalty, where it was unnecessary and absurd. And thus the 
 feudal element of the law of real property introduced a most errone- 
 ous and unscientific principle into the law of personalty- Because 
 real property could not be dealt with for and adapted to certain pur- 
 poses without the interposition of trusts, therefore it was imagined 
 that personalty, even money in the funds, could not be in like manner 
 dealt with, except by means of trusts and trustees. And the law of 
 personalty was thus infected with the vicious and totally unscientific 
 notion of the permanent separation of the legal from the equitable 
 estate, used as a means of dealing with property. Personalty may 
 be settled in the same way as real property, but this is only done by 
 means of trusts which are quite unnecessary. 
 
 Thus, as personalty is not within the opei'ation of the Statute de 
 
 Donis, it cannot be entailed. And if personalty is to be settled to 
 
 follow real property entailed, this can only be effected by means of 
 
 trusts, and through the interposition of trustees. And in this way 
 
 the technical principles which govern real property are extended to 
 
 personalty. If entails are useful, personalty should be capable of 
 
 being entailed as well as real property. If not, entails should be 
 
 / forbidden. The distinction between real property and unmoveable 
 
 I personalty or chattels real, is absolutely foolish^ It is impossible to 
 
 ' justify the law under which an estate for life in land vested in a man 
 
 a hundred years old is a freehold, while an estate for ten thousand 
 
 years is only a chattel and personalty. And so according to the 
 
 Common Law, a grant to A to hold from Michaelmas next for twenty 
 
 years is good ; but to hold from Michaelmas next for the term of his 
 
 natural life is void. For no freehold estate can commence in futuro. 
 
 There was a reason for this in the old Common Law. But that 
 
 reason has long ceased to exist. The distinction, therefore, ought to 
 
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STUDY AND USE OF THE CIVIL LAW. 55 
 
 be got rid of between personal estate in land and freehold. Nothing 
 is here said regarding the law of entail and the restraint on aliena- 
 tion allowed by the law of settlements. Those are exceptional laws 
 the merits and demerits of which depend on economic, social, and 
 political considerations, and which have no influence on jurisprudence, 
 being arbitrary or positive laws, pot grounded on any rule or principle 
 of jurisprudence. They are primarily and chiefly applicable to lands, 
 tenements, and hereditaments, and may, therefore, be considered as 
 belongitag to the law of real property. And the law of primogeniture, 
 which is a law of the same special nature, belongs exclusively to the 
 law of real property. 
 
 Apart from these special matters, the most essential reform of the 
 law of real property is (in accordance with the Civil Law) to assimi- 
 late it to that which governs personalty. 
 
 One evil of the legal distinction which ma,kes estates in land less 
 than freehold personalty, is that they devolve on the executor or 
 administrator, while the freehold passes to the heir. Thus we have 
 two entirely different and separate laws of inheritance affecting pro- 
 perty of the same nature, that is to say, immoveable property, so that 
 even an estate pom~ auter vie will go, on intestacy, to the heir, while 
 an estate for' a million of years, or until the day of judgment, will 
 go to the executor or administrator. 
 
 This is contrary to common sense. It is obvious that all immove- 
 able property ought to be subject to the same law of inheritance in 
 case of intestacy ; that is to say, it ought without distinction to 
 devolve on the heir, and not on the executor, if, indeed, the distinc- 
 tion between heirs and executors is to exist. 
 
 Let us now apply the principles already explained to the creation 
 of equitable estates and limitations to trustees in settlements. 
 
 Let us see first a concise form of settlement on marriage.' 
 
 The operative part commences with a conveyance by the settlor to 
 trustees and their heirs to the use of the settlor till marriage, and 
 then after marriage, follow limitations in favour of the husband, wife 
 and children. 
 
 The first question that arises is this : Is there any need for the 
 grant to trustees ? By that grant, the legal estate, if it was in the 
 settlor, or a quasi legal estate, is vested in the trustees and' their 
 
 ' Davidson, Precedents, No. xxxvii. 
 
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56 INTRODUCTION TO THE 
 
 heirs, and all the subsequent limitations are equitable estates; The 
 legal ownership, or dominium is in the trustee ; and thus until the 
 late Judicature Act, the husband and the successive proprietors 
 within the limitations of the settlement could not bring an eject- 
 ment ; and the trustees are burthened with onerous and responsible 
 duties. The powers of sale and exchange are vested not in the pro- 
 prietor of the estate, but in the trustees and the survivor and the 
 executors and administrators of such survivor. The husband and 
 the other persons entitled are usufructuaries, while at law^ the 
 trustees are the owners of the land, though liable to be compelled to 
 fulfil the trusts of the settlement, and this is so, notwithstanding the 
 consolidation of the equitable with the legal jurisdiction by the 
 Judicature Act. Thus a fuU-grown man and woman are put under a 
 sort of curatorship, like infants or lunatics. When the greatest and 
 most powerful territorial lord marries he is obliged to give his estate 
 to trustees. Thus, in the discussions regarding baronies by tenure, 
 one, and a weighty objection was, that the trustees of a settlement, 
 — or the person in whom the legal estate was vested, — a person 
 often very difficult to discover, would sit in the House of Lords as the 
 baron, and not the real lord : and so a money-lender would sit as a 
 baron, as mortgagee with the legal estate, instead of the mortgagor, 
 the real lord of the soil. This illustrates the absurdity of the law, 
 which interposes a stranger between the land and the real land- 
 owner, and this is an essential part of a technical and complicated 
 system, of which no one but a conveyancer can be master, and which 
 places the landowners in the hands of the lawyers. For few landed 
 proprietors are able to understand the title to their own estates, and 
 they cannot deal with their property without legal advice and assist- 
 ance, which are always expensive. 
 
 In some settlements terms of years are created to raise money. 
 They are satisfied when such money has been raised. The statute 
 8 & 9 Vict. cap. 112, recites, that the assignment of satisfied terms 
 has been found to be attended with great difficulty, delay and 
 expense, and to operate in many cases to the prejudice of the persons 
 entitled to the land to which they relate. The chief delay, difficulty 
 and expense arose from making out the title. But the same evils 
 are caused by the difficulty of finding the persons in whom the terms 
 are vested, and procuring their execution of the deeds. The statute 
 provides for the cesser of such satisfied terms becoming attendant 
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STUDY AND USE OF THE CIVIL LAW. B7 
 
 on the inheritance and reversion. But questions must arise as to 
 whether and when a term is satisfied, and whether and when it is 
 attendant on the inheritance' or reversion by express declaration or 
 construction of law." Therefore the cesser of the term must be in 
 many cases a question of doubt and difficulty, and consequently involve 
 delay and expense. Such terms ought_to_be. entirely dispensed with. 
 
 The question now arises : What remedy is proposed for the reform 
 of the law on the matters above indicated ? 
 
 The Civil Law sheds a flood of light on this question. And here 
 we see the use of the Civil Law for the improvement of our own 
 law, and for the solution of every difficulty in legislation. 
 
 A settlement ought not to be a conveyance. It ought to be only 
 a contract. That is to say, it ought not to transfer the land. It 
 ought only to create obligations and liabilities, and charge them on 
 land by way of hypothecation or lien. Let us now consider some of 
 the usual limitations of a settlement. 
 
 The first limitation to trustees to the use of the settlor until 
 marriage is useless. For the whole transaction is grounded on this 
 marriage, and if it do not take place the property ought to remain as 
 it was the consideration having totally failed. The only object of this 
 limitation is technical, and founded on the absurd expedient of a con- 
 veyance to trustees. We come now to the estate for life of the 
 settlor. For this a conveyance to trustees is clearly unnecessary. 
 According to the principles of the Civil Law already explained, that 
 land should be dealt with by contract, and not by conveyance (a 
 method derived from the antiquated principle of livery of seisin), the 
 trustees might effectually perform their duty without taking any 
 estate or interest in the land. But the trustees themselves are use- 
 less. It ought to be sufficient for the settlor to bind himself 
 by contract to hold for life. This would be a covenant running 
 with the land, and creating a life interest with all its incidents. The 
 contract should be entered into between the intended husband and 
 wife, or between the intended husband and wife and her father, or 
 some relative or friend, who would act, not as a trustee, but as a 
 protector or curator of her rights, having power to enforce the due 
 performance of the contract. Thus there would be no separation 
 of the legal from the equitable estate, and the simple unity of the 
 title would be preserved intact. 
 
 ' Davidson, Concise Precedents, p. 75.. 
 
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58 INTRODUCTION TO THE 
 
 We come next to the jointure, or other provision for the wife in 
 case she survive her husband. Here again there is no need for 
 trustees. The marriage contract and the law should give the widow 
 a charge on the land, and a right to call on the heir for an account 
 of the rents and profits of the estate, and to compel him to pay her 
 what she is entitled to. This she should be entitled to do by herself, 
 or her protector, curator, or next friend. 
 
 It is a mistake to suppose that in order to enforce charges on land, 
 some one must have an estate or vested interest in it. Thus, as we 
 have seen, the Civil Law gives us instances where a person may sell 
 property without having any vested interest in it. Justinian says : 
 Accidit aliquando ut qui dominus rei sit alienore non possit : et 
 contra, qui dominus non sit, alienandi rei potestatem habeat.' This 
 is an important principle of jurisprudence and prolific of conse- 
 quences. The power of disposing of land is the creature of the law, 
 and of contract, and the law may give that power to a stranger having 
 no vested or contingent interest in the land. So a stranger — that is 
 to say, a person having no estate or interest in the land — may, in 
 accordance with the principles of jurisprudence, — be invested by the 
 law with a right and power to enforce a charge on land legally 
 created. If the owner of the land gives by contract such a power, 
 the law ought to enforce it. And to create such a power it is un- 
 necessary to transfer the legal ownership of the estate, or to convey 
 the estate to trustees, thereby causing duality of title, and subverting 
 the simplicity of unity of title. 
 
 Let us now consider the provisions for the application of the rents 
 and profits during the minority of children after the death of the 
 father. Here again the conveyance or limitation to trustees is use- 
 less. The mother is naturally the person who ought to exercise 
 those powers. In case of her death, incapacity, or unfitness, let 
 curators or guardians be appointed by the deed. It may be objected 
 that those curators or guardians would be similar to trustees. But 
 this is not so. For there would be no conveyance of a term or vested 
 interest in the estate to them, and thus the unity of the title would 
 remain unbroken. Then we come to the powers of leasing, sale and 
 exchange. Here again the conveyance or limitation to trustees is 
 unnecessary. Those powers should be exercised by the owner of the 
 estate: and if he is incapable, or unfit to exercise them, or if it 
 ' Instit. L. xi. torn. 8. Quibus Alien. Licet vol Non. 
 
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STUDY AND USE OP THE CIVIL LAW. 59 
 
 be desired to prevent him from selling the land without properly 
 securing the purchase-money, some person should be appointed by 
 the deed or the Court to control him, and to protect the interests of 
 other parties. This analysis shows the uselessness and the inconve- 
 nience of those technical and artificial restrictions which the law of 
 real property and conveyancing has imposed upon dealings with, and 
 the management of, land. 
 
 Here we have to consider two important principles of jurisprudence 
 and legislation. One is the liberty of contracts, and the other is the 
 doctrine that the law regarding immoveable property ought not to 
 differ from that which regulates m.oveables, or personalty, except so 
 far as the immoveability of the former requires ; and also in those 
 respects and exceptional particulars which arise from political 
 reasons and the interests of society, as, for instance, the law of 
 primogeniture, and of entails and settlements. These exceptional 
 and positive laws are founded on the principle of utility which is 
 their reason and the foundation of their justice." 
 
 I. The principle ofi liberty of contract is in substance this. The 
 law ought to interfere as little as possible with dealings between man 
 and man, and ought to facilitate those dealings. Technical restric- 
 tions and arbitrary rules affecting such dealings and the manage- 
 ment and disposal of property should not exist, except where they 
 are necessary for a clear advantage to the community. This is in 
 accordance not only with jurisprudence, but also with political 
 economy. For any unnecessary interference with, or impediment to 
 dealing with, property and its management diminishes its value. 
 Thus if Consols were subjected to the technical and artificial systems 
 which are known as the Law of Real Property and Conveyancing, they 
 would be depreciated, and the public interest would be injured. And 
 so the great question put by law reformers is this : Why cannot an 
 estate in fee simple be transferred from one man to another as 
 easily and as simply as a bale of goods ? If this could be done, the 
 value of land would be enormously increased. 
 
 II. Let us examine the second of the two principles, and in 
 doing so we shall throw light on the first. In the Civil Law 
 there is no distinction between moveable and immoveable pro- 
 
 " Cujacius Op. torn. vii. fol. 9. Edit. Venet. IfUtin. L. ix. ff. de Just, et Jur. 
 Domat, Loix Civ. Traite des Loix, Ch. xi. § 20. 
 
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60 INTRODUCTION TO THE 
 
 perty, except those arising from their nature as such. In the 
 Ci^'il Law there is no such thing as estates in land, such as fee 
 simple and the like. The different interests which may be had 
 in land are not defined by any technical rules of law. Conse- 
 quently land may be subjected to all kinds of contracts like move- 
 ables. There is no distinction between freehold and less than 
 freehold, for the distinction of property is only between immoveables 
 and moveables, and there are no executors in the Civil Law. All 
 the estate of the deceased, real and personal, passes to the heir with 
 all the debts and liabilities affecting it. And real property is dealt 
 with by will in the same manner as personalty. The only material 
 difference of the law applicable to the two sorts erf propert}' is that of 
 servitudes real and habitation, and, in practice, hypothecs. There 
 is also the exceptional contract of emphyteusis, from which some of 
 the learned have considered feudal tenures to be derived. In other 
 respects the Civil Law deals with all property alike with iiniform 
 rules except so far as the nature of the property renders special rules 
 necessary. And whatever the nature of the property, whether 
 moveable or immoveable, it may be dealt with by the same contracts, 
 varied in every possible way to suit all the purposes of human life 
 and intercourse! The rules of the Civil Law regaording the Contract 
 of Sale are substantially the same, whether the thing sold is land 
 or moveable property. Sugden's. " Vendors and Purchasers '' would 
 have astonished Cujacius, Donellus, Pothier, Yoet, and the other great 
 Civilians. Compare that work with the Titles of the Pandects, con- 
 taining the Law of the Contract of Sale and Purchase ; that is to sa}', 
 De Contrahenda Emptione, De in Diem addictione, De Lege Com.- 
 missoria, De Hereditate vel actione vendita, De Rescidenda 
 Venditione, De Periculo et Commodo sed Vendita, De Actione 
 Empti et Venditio, and the Commentators and Expositors of those 
 Titles. They contain a homogeneous and uniform system of law 
 applying to every description of property, with such exceptions only 
 as the physical nature of the thing sold requires. The same is to be 
 found in the succeeding title Locati Conducti. The nature and uses 
 of the different things which may be the subject matter of this 
 contract, necessarily cause a diversity of rules. But the principles of 
 the contract itself are the same, and the diversities arise from the 
 vei-y nature of things and not from any artificial law or legal 
 institution. In like manner, the Title De Pignoribus et Hypothecis 
 
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STUDY AND USE OF THE CIVIL LAW. 61 
 
 treats pawn and mortgage conjointly, and Voet says : " Conventionali 
 sensu latiori, pignus in specie hypothecam complectitur, adeo ut inter 
 pignus et hypothecam, tanturn nominis sonus differat ut ex utroque 
 actio hypothecaria nascitur .... licet pignus est contractus .... 
 quo possessio in creditorem transit, et hypotheca est pactum .... 
 quo creditori jus in re constituitur in securitatem crediti, non translata 
 in creditore possessione."* Thus if land is the security, and the 
 creditor is in possession, the contract is pignus.^ But generally 
 speaking, hypotheca applies to immoveable property, because the 
 creditor is sufficiently secured without having possession, and this 
 is not so with regard to moveables. In the English law, however, 
 mortgage is totally different from pawn. For it consists of an actual 
 conveyance of the land to the mortgagee, subject to an equity of 
 redemption iu the mortgagor. Here again we find the pernicious 
 system of separating the. legal from the equitable estate, which is the 
 principal cause of the complication of titles to land and the difficulty 
 and expense of conveyancing. The abolition of mortgage and the 
 inti-oduction of the law of hypothec, together with a system of 
 registration of hypothecs, would be a most useful step in the reform 
 of the law. This wo\dd be easily effected by resorting to the Codes 
 of modern Europe where the law of hypothec and registration are 
 brought to great perfection. 
 
 The principle ought to be fully carried out that lands, tenements, 
 and hereditaments, are to be made a security for a debt according to 
 the same law as personalty, and that in like manner they may be 
 charged with the payment of money without any conveyance to 
 trustees, but by contract or will, creating a lien or hypothecation, 
 with tlie necessary powers for enforcing it. 
 
 One very important result of the simplification of titles by abolish- 
 ing the separation between the equitable and the legal title, except 
 for a limited period, according to the principles of the Roman Civil 
 Law, is that the establishment of a general registration of deeds will 
 be greatly facilitated. This subject deserves further explanation. 
 
 It is not necessary here to explain the distinction between registra- 
 tion of titles and registration of deeds. If a general registration of 
 titles were possible so that the register would show who is the owner 
 of the land and what his interest in the land is, no doubt great 
 advantage would be obtained. But the difficulty is that, before the 
 ' Voet ad Panel, lib. xx, tit. i. § 1. 1 1bid. § 2. 
 
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62 INTRODUCTION TO THE 
 
 title can be registered, it must be established and proved. Attempts 
 have been made to meet this difficulty, but they have not been 
 successful. No one can be registered as the owner with absolute and 
 indefeasible title unless he is tenant in fee simple of the land not 
 subject to any mortgage or other charge, so that a purchaser would 
 only have to see his name on the register and the description of the 
 property. Such cases are few, and applicable mostly to small estates. 
 And if the legal estate were outstanding it must appear on the 
 register. A proprietor having a limited interest in the land ; such, for 
 instance, as a tenant for life under a settlement, or a tenant in tail, 
 could not be registered as absolute owner. Either the deed or the 
 substance and effect of the deed must be registered. So if there be 
 a mortgage or other charge on the estate, even though it be an estate 
 in fee simple, the deed, or the effect of the deed creating the charge, 
 must appear on the register. So where there are several owners, 
 their names must be registered and the effect of the deed or will 
 under which they hold, showing whether they are joint tenants or 
 tenants in common, or what the nature of their respective interests 
 are. It follows that except in the uncommon case of an absolute 
 tenant in fee simple without charges, the register must in substance 
 be a register of deeds, or of the effect of deeds. If not, it cannot be 
 called a general register, for its use will be very limited. It is pro- 
 posed by the report of the Registration Commission of 1868, that the 
 name of a registered owner should be on the register, and that 
 interests not on the register should be protected by notices or caveats. 
 But this would afford no protection to a purchaser, for he must still 
 investigate the title to ascertain what those interests are, and the 
 sale of the land would not be facilitated. It is therefore best that all 
 the interests should appear on the register, provided the law protects 
 him against all deeds not on the register, whether he had notice of 
 them or not. It is true that in the case of stock, a ti'ustee appears 
 in the books of the Bank of England as owner, and other interests are 
 protected by stop orders or registered notices. To this extent the 
 case resembles that of the proposed registered owner of land, for a 
 purchaser must investigate the title to the stock. But the title to 
 stock is much more simple than the title to land. The bank pays 
 the dividends on stock to the registered proprietors only, or to their 
 properly constituted attorneys, and if there is reason to suspect that 
 the registered proprietors are dead, the bank suspends the further 
 
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STUDY AND USE OF THE CIVIL LAW. 63 
 
 payment of dividends. In this way the connection between the real 
 and nominal ownership is constantly maintained in a practical and 
 effectual form. But this cannot be so with a register of title to 
 land, because the rents and profits cannot be paid by the registra- 
 tion office. 
 
 The transfer of land cannot be as easy as the transfer of 'stock, 
 unless the title to land is made as simple as the title to'stock. For 
 registration cannot make a title better or more simple than it is. In 
 the case even of an absolute and indefeasible title in fee simple, all 
 that registration can do is to record it. But such cases are uncom- 
 mon. In other cases all that registration can do is either to record 
 the deeds affecting the property, or to record a notice to induce the 
 purchaser to require the production of such deeds. And it is better 
 that the deeds should appear on the register, provided no deeds are 
 admitted as against a purchaser unless they are registered. For thus 
 the purchaser is certain of the title. He is not bound to go beyond 
 the register. The deeds should be copied into the register, and the 
 register should be conclusive without the production of the original 
 deeds. Thus a purchaser should not be obliged to compare the 
 deeds with the register, but the deeds would remain in the custody 
 of whoever is entitled to such custody.^ The deeds would be stamped 
 with the seal of the Kegistrar to show that they have been regis- 
 tered, and the date of, and parties to, all the deeds registered, and 
 the page of the register should be endorsed on each deed. This 
 would, in many cases, render it unnecessary to search the registry. 
 For each deed would serve as an index to the registers and show what 
 deeds have been registered. This system would constitute something 
 like a double registration, and would, to a considerable extent, 
 obviate the dangers arising from the loss or destruction of the re- 
 gister or of deeds. Every purchaser of land should be obliged to 
 register his purchase deed. But owners should be allowed to register 
 their deeds in any case. There should be separate registers— of 
 mortgages and leases, other than agricultural leases. 
 
 * It deserves consideration whether parties should not be allowed the option of 
 regi3tering_printed copies. If so, any requisite number of copies might be struck 
 off, and authentlcatecTby the seal of the Registry. The printed copies of deeds 
 should be numbered, and each printed copy of deed should have the numbers of 
 all the other registered deeds with the pages or other reference to the register. 
 Thus each printed copy would be an index of the register. 
 
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64 
 
 INTRODUCTION TO THE 
 
 These suggestions are grounded on the systems of registration 
 which exist all over the Continent of Europe. Lord Hatherley said 
 in the House of Lords [5th May, 1874], that he had long regretted 
 that this country was the only one without a Land Reg;istry, that 
 system existing among us only in Middlesex and Yorkshire.' No 
 doubt this is much to he lamented. But the real difficulty was 
 pointed out by the Registration Commissioners appointed in 1868, 
 In their report in 1870, p. xxr., after referring to the foreign re- 
 gistries, they say: "The Continental nations have, we believe, a 
 more simple law." No doubt a perfect system of registration cannot 
 be obtained here without a reform of the cumbersome and compli- 
 cated law of Conveyancing and Real Property, and especially without 
 the abolition of uses and trusts, and of the distinction between the 
 legal and equitable estate, which are unknown to the law of all other 
 civilised countries. These are the real causes why land cannot be 
 dealt with in this country as easily as personalty. No doubt the 
 vicious system of uses and trusts has infected the law of personalty 
 to some extent. And so far the law regarding personalty requires 
 reform. But the general doctrine may safely be laid down, that 
 dealings with land -cannot be as easy as dealings with personalty, 
 unless the law of real property is reformed by the introduction of 
 unity of title, and by assimilating it as much as may be to the law of 
 personalty. Until this reform is effected, the complication and 
 multiplicity of interests in land, and deeds, wills, probates, and 
 administrations affecting it, must greatly impair the utUity of any 
 system of registration, however ingeniously and ably contrived. 
 
 It has been asserted that a registry of deeds, though it would 
 increase the secuiity of property would not facilitate its transfer and 
 
 ■ As to the registers of Middlesex and Yorkshire, see Co. Litt. 290, note 1, § xiii. 
 The decision of Lord Hardwicke in Le Neve v. Le Neve, 1 Ves. 64, established this 
 doctrine. If a deed respecting lands in any of the register counties is not regis- 
 tered, and afterwards the same lands are sold or mortgaged by a deed properly 
 registered ; if the person claiming under the second deed has notice of the first 
 deed, the person claiming under the first deed, though it is not registered, shall 
 be preferred to him- This decision, letting in the doctrine of notice, has rendered 
 the r^istries comparatively useless. The French Ordinance of 1747, framed by 
 the Chancellor D'Agnesseau, after taking the opinion of aU the parliaments of the 
 kingdom, decided that a creditor or purchaser having notice of a substitution, 
 before his contract or purchase is to be admitted to plead the want of registration, 
 and this is now the law of France. Thus the doctrine of notice is absolutely 
 excluded. 
 
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STUDY AND USE OP THE CIVIL LAW. 65 
 
 dealings with it. This, however,' may be questioned. For whatever 
 renders the title more secure and clear must enable the owner to 
 deal with the property with less difficulty and expense. 
 
 The period of limitation ought to be shortened. 
 
 The statute 3 & 4 Will. 4, c. 27, is founded on the general 
 principle of giving twenty years' allo^v^ance of time for the recovery 
 of corporeal hereditaments, except in the case of disability. As for 
 personalty, except with respect to instruments under seal, and some 
 other cases not within the stat. 21 Jac. 1, c. 16, with regard to which 
 twenty years are allowed by stat. 3 & 4 Will. 4, c. 42, the period of 
 limitation by the statute of James, is six years. It is difficult to see 
 why the period of six years should not be extended to corporeal 
 hereditaments, with due provisions for cases of disability. Moreover, 
 the distinction between instruments under seal, and those which are 
 not clothed with that formality, is absurd, and founded on antiquated 
 and obsolete ideas ; and one period of limitation should be estab- 
 lished without reference to that distinction. It is indeed strange, 
 that a wafer or a little sealing-wax placed at the'foot of an instru- 
 ment should be supposed to change its legal character, and that such 
 a superstition should have lasted to our times. 
 
 This shortening of the period of limitation regarding real property 
 would very greatly diminish the expense of all dealings with land, 
 and thereby increase its value very materially. It would] also 
 greatly facilitate the establishment of an effectual system of regis- 
 tration. 
 
 A separate register should be provided for mortgages or hypo- 
 thecs. Thus it would not be necessary to enter copies of deeds of 
 that nature in the principal register. There a reference to the 
 hypothecary register would be sufficient, and this would relieve and 
 simplify the principal and more important register. The registration 
 of such incumbrances should, for the future, be made compulsory; 
 and purchasers as well as mortgagees should be secured by law 
 against unregistered deeds which ought to have been registered. 
 Thus the doctrine of notice would be excluded. 
 
 Provision should also be made, as in the French"Law,''to enable a 
 purchaser to clear off incumbrances (purger les hypotheques,) by de- 
 positing, with due notices, the sum required to the credit of^ the 
 register office, which would have an account at the Bank of 
 England for that purpose. 
 
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6§ INTRODUCTION TO THE 
 
 A separate registration should be provided for leases, except mere 
 agi'icultural leases and some others. The word Lease in the 
 principal register, with a reference to the register of leases, would 
 be notice, and the register of leases should also have refer- 
 ences to the principal register, so that any one dealing with 
 the lease would be able to find with ease the registered deeds 
 constituting the title of the lessor. The law should define, clearly 
 and simply, what leases must be registered, and the lessee should be 
 bound to see that his lease is registered and the proper notice 
 entered in the principal register, and if he neglects to do so his lease 
 should be void, except against the lessor himself. Thus a purchaser 
 of the land would not be obliged to search the Register of Leases 
 to ascei-tain whether there is a lease, for if he finds no notice in the 
 principal register he has a right to assume that there is no lease, or 
 at any rate no lease binding on him. The same law should be 
 enacted with regard to the registration of mortgages (hypothecs) 
 and thus a purchaser would not be obliged to search the register of 
 mortgages to ascertain whether there are any such charges on the 
 property which ought to have been registered. 
 
 It is shown in the foregoing pages that the Modem Civil Law is 
 a necessary part, if not the very foundation, of that science which is 
 properly and correctly called jurisprudence — that is to say, the know- 
 ledge, practical as well as theoretical, of the rules or laws by which 
 all the relations of men with each other are, or ought to be, governed, 
 whether those laws are immutable, or positive and arbitrary ; and of 
 the laws on which Civil societies are constructed, and by which they 
 subsist under various forms. And on the same rules, or the principles 
 from which they spring, the relations of bodies of men such as states 
 and nations to each other depend. 
 
 We have seen how, by analysis, that vast multiplicity of rules 
 and laws constituting universal jurisprudence may be classified 
 so as to give a key to their application and various uses, and 
 a plan of the great system which they constitute. These 
 things are more fully developed in my Commentaries on Universal 
 Public Law. We have seen how the study and cultivation of 
 the Civil Law should be conducted for the purpose of using it 
 to the greatest advantage, not only for intellectual, but for practical 
 purposes. And it has been shown that the use of the Civil Law 
 
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STUDY AND USE OF THE CIVIL LAW. 67 
 
 extends to the science of legislation, and that it is required for the 
 improvement of our laws, because it sheds on them the full and 
 resplendent light of the learning, experience, and wisdom of those 
 great civilians and statesmen who, all over the Continent of Europe, 
 for many centuries have cultivated and improved that law, and 
 adapted and applied it to all the wants and the progress of civilised 
 life. Thereby many difficulties may be solved, and the reform of our 
 law may be greatly advanced. These objects cannot be attained by 
 antiquarian and historical investigation of the positive laws and 
 customs of the ancients. They require a liberal and enlightened 
 method directed to practical purposes, and calculated to secure the 
 concurrence of practical men engaged in the administration of the 
 law, and in legislation and government. And the result of that 
 method will be to show how imperfect our law is, and how much it 
 requires to borrow from other legal systems. Much has, no doubt, 
 been done to reform our law. But the task of reform will never be 
 completed unless we examine our law impartially, and apart fromi 
 national prejudices. We shall then see why the administration of 
 justice is more expensive and dilatory here than in other countries, 
 and why we are the only civilised nation without a code. And when 
 once the difficulties in which we are placed have been understood, 
 the proper and effectual remedies will easily be discovered. And the 
 process of simplification and the application of reason and good sense, 
 wiU render the knowledge of the law no longer, as it now is, inacces- 
 sible to those who have not made it their profession. This is of great 
 importance. It may indeed be laid down, that that system of law is 
 best which is most capable of being understood, as far as may be, by 
 the people who are to be governed thereby — or at least the educated 
 part of them, and which most commends itself to their common sense 
 and their knowledge and experience of business. And that system is 
 worst in which a man can do nothing without the advice of lawyers, 
 which he is obliged to receive with implicit faith, because, whatever 
 may be his mental powers, he is not able fully to comprehend it with 
 any well-grounded confidence in his own judgment. 
 
 This must be so, where, as in this country, the law mainly consists 
 of the daily decisions of judges, and there is no complete body of law 
 or code to which anyone can refer, and in which he can see what the 
 law is. It is true, — the law must always be a science, and there 
 must be cases of doubt under every system. But the object of wise 
 
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68 INTKODUCTION TO THE 
 
 legislation must be to restrict those cases, by providing a basis of 
 written law, clearly expressed and as comprehensive as possible. 
 A collateral but important effect of constituting a body of written 
 law is, that it would diminish the arbitrary power of the judges, and 
 check that peculiar spirit of the Law of England which leads the 
 Courts to exercise that power, even over acts of the legislature, to an 
 extent unexampled in the civilised world. 
 
 One aspect remains under which the simplification of the law, the 
 composition of a Code, and everything that facilitates the adminis- 
 tration of justice ought to be considered. 
 
 It has been often said with truth, that by rendering justice cheaper, 
 the value of property is increased, and national wealth augmented. 
 In no department of the public service is it more true that Magnum 
 est vectigal parsimonia, if that axiom be applied to the expenditure of 
 those who resort to the Courts of Justice. Indeed, the people of this 
 country seem never to have understood this truth, the practice of 
 which is more important than many of the economical measures by 
 which governments have obtained applause, or incurred, sometimes 
 deserved, censure. The people seem never to have fuUy understood 
 the enormous waste with which the law is in this kingdom adminis- 
 tered in all its branches, including all the management of and 
 dealings with property, as well as administrative and judicial pro- 
 ceedings, both voluntary and contentious. To put an end to that 
 waste would be a greater financial measure and success than ever 
 was achieved. It would practically diminish the national debt, by 
 rendering the burthen of taxation more easy. And that rehef would 
 not be deferred, like that arising from terminable annuities, but 
 immediate, and extending to the classes of the community who pay a 
 larger amount of taxation. 
 
 But this cannot be effected by cutting down salaries, nor by dimin- 
 ishing the remuneration of those who earn it with benefit to the 
 public. The object can only be accomplished by the improvement of 
 the law and of the mode of administering it. Uncertainty, difficulty, 
 and delay are expense and waste. Certainty, simplicity, and expe- 
 dition are economy. A defective Act of Parliament costs the country 
 thousands, before its meaning and effect are determined by the 
 opinions of counsel and judicial decisions. And bad law or compli- 
 cated machinery are financially pernicious. Thus the legislation 
 regarding companies — and especially the iniquitous proceedings for 
 
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STUDY AND USE OF THE CIVIL LAW. 69 
 
 compulsory liquidation, by ■which the assets are plundered and con- 
 sumed in costs — have caused the loss of enormous sums positively 
 wasted. A good Code would have prevented this, by providing a 
 complete system of law regarding those associations considered as 
 limited partnerships, and not treated piecemeal and exceptionally, 
 but in conjunction with the law of partnership, and systematically on 
 scientific principles of jurispnidence. This is one instance to illus- 
 trate the proposition that the imperfect state and the difficulty of 
 the law are a grievous burthen on the country, and a diminution of 
 its capital. 
 
 A perfect Code, making the law plain and intelligible, would be a 
 greater financial relief to the country than any retrenchment 
 practicable in the estimates. It would not only be a saving in 
 hard cash, but also a saving by the facilitation of business and the 
 economy of time, the money value of which would be enormous 
 — for time is money. Delay is always loss, often failure, and some- 
 times ruin. 
 
 That which, in the language of the day, is called law reform, has 
 never been seriously and practically considered in this light, for it 
 has been chiefly looked upon with regard to the grievances of indi- 
 viduals. It ought to be dealt with as a matter of general and 
 national importance, with reference to its effect on the resources, the 
 industry, the revenue, and the capital of the country. 
 
 Another consideration must now be dealt with. It is the waste of 
 energy, ability, talent, health, and even life, which is caused by the 
 defective state of our law. In no other country have the judges and 
 practitioners of the law so laborious, anxious, and difficult a duty. 
 Many have broken down, especially those who were wanting in 
 physical strength, or in the peculiar faculty of quick perception, which 
 facilitates mental work. They were the victims of a bad system of 
 law. They had to deal with unwritten law based upon, or rather 
 consisting of, judicial decisions. And where they had to construe and 
 apply the written law — that is to say. Acts of Parliamentr— they were 
 again met by decisions — reported cases,— often of the most arbitrary 
 character, because their spirit was analogous to that of the decisions 
 constituting the unwritten law which is in truth judicial legislation. 
 Thus, no one can say what is the meaning of an Act of Parliament 
 without knowing what the Courts have decided thereon. For the 
 Courts have repealed portions of Acts of Parliament, or altered their 
 
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70 INTEODUCTION TO THE 
 
 plain grammatical meaning materially. Under a complete system of 
 written law forming a Code, the labours of judges and practitioners 
 would be wonderfully diminished. They would be able to do twice 
 the amount of business with less exertion and in less time, and there- 
 fore it would be better done. Instead of analysing and comparing 
 Cases, the judges would have the written law before them. Decisions 
 on that law would therefore take a subordinate and subsidiary posi- 
 tion. The decisions would not contain the law. They would be used 
 only as explanations of the law. And thus the element of uncertainty 
 would be greatly diminished. 
 
 Bat this difficulty will, no doubt, be suggested. It will be argued 
 that the decisions of the Judges would accumulate so as to almost 
 supersede the Code, and that therefore the state of the law would 
 become very much as it is now. To this there are two answers. 
 First, though reported cases often overshadow Acts of Parliament, it 
 does not follow that they could do the same with a complete system 
 of written law ; and secondly, it would be desirable that the Code 
 should be periodically revised and compared with the Cases, and aJl 
 disputed points settled by legislation similar to the Fifty Decisions of 
 Justinian. The tendency of a complete system of written law would 
 be to check the arbitrary interpretation of the Couits, even in the 
 administration of that law. For the Judges would feel that they 
 were no longer law-makers. And their responsibility to public 
 opinion would be very different from what it is now, for the general 
 body of educated persons would more and more understand the law, 
 and judge for themselves as to its meaning and effect. This is so in 
 France, where every man has the Code Civil in his hands — with or 
 without Notes. Even there, cases of doubt and difficulty occur ; and 
 decisions, especially those of the Court of Cassation, must be referred 
 to. But still, there is the written law to fall back upon ; and this 
 diminishes the element of uncertainty, and the arbitrium of the 
 Courts. For the rule of the Civil Law prevails : Legihus non exem- 
 plis judicare oportet. And the Judges are bound to decide in obe- 
 dience to the meaning of the words of the written law, in accordance 
 with rules of interpretation and construction laid down by the written 
 law itself. This is very different from deciding on the authority of 
 Cases, which themselves depend on other and anterior Cases based on 
 the doctrines that the law is in the breast of the Judges, and that 
 their decisions are the evidences of what the law is. For under this 
 
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STUDY AND USE OF THE CIVIL LAW. 71 
 
 Bystem there is no basis. There is often no law. No doubt a 
 great part of both the Common Law and Equity is so settled by 
 decisions of the Courts that it cannot be disturbed. But still the 
 uncertainty of the law, arising from the power of the Judges to overrule 
 cases and to draw distinctions for the purpose of evading previous cases, 
 is a great evil. It gives rise to great expense and delay, and it is 
 a serious injury to business, and to all transactions and questions 
 between man and man which must be regulated by law. The only 
 remedy is a complete Code of written law. But that Code will be 
 of little advantage without the abrogation of all anterior law of every 
 description relating to the subjects provided for in the Code. This 
 was done by Justinian and NapoleoD, and it is a necessary measure. 
 Another necessary condition for making a Code is, as has already 
 been shown, that its materials must be taken, not from this country 
 alone, but from the laws and the legal science of the whole civilised 
 world. 
 
 Whether public opinion in this country will entertain such innova- 
 tions as have been sketched out in the foregoing pages remains to be 
 seen. It is difficult to persuade English lawyers to teach or to learn 
 the Civil Law on any method except that which is suggested by the 
 positive and historical spirit of the English law, and therefore based 
 more on authority and history than on the reason and science of law, 
 which are in truth highly cultivated and systematic common sense. 
 But the great value of the Civil Law consists in the fact that it 
 contains more common sense than any other legal system. This is 
 the key both to its Study and its Use. This is the true reason of 
 its adoption throughout the civilised continent of Europe, and its 
 paramount authority — Non ratione vmperii, sed rationis imperio. 
 
 There may be still greater difficulty to induce the people and the 
 Legislature of this country to see the use of the Civil Law for the 
 solution of our questions in legislating for the amendment of our own 
 law. That use would, as has been shown above, lead to extensive 
 and fundamental changes in our law, in accordance with the Civil 
 Law, beyond any reform that has yet been attempted. It may be 
 many years before these things are accomplished, or even dealt with 
 practically. But the time must and will come when their wisdom, 
 and even their necessity, will be recognised by statesmen, and by the 
 most educated and intellectual classes of the nation. And when 
 
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7i THE STUDY AND USE OF THE CIVIL LAW. 
 
 those refonus receive that sanction, practical men will wonder why 
 they were not long ago adopted. For one characteristic of truth and 
 wisdom is that, though apparently difficult to discover, like many 
 thii^ in science they seem easy and even obvious when once they 
 have been attained. 
 
 THE END. 
 
 BRADDCRV^ Ap^'KW. A CO. 
 
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 llii- liiiiiM' 'l','iii|.l.., r',iriiNl,'i'al l,:in. iiml W 11,1,1 \M 'I'.VHN 
 l'i;ri'i'll.\i;iV Wllli Ni,|,',,i,i| (\i.,.,-,,.ri-,,iii Imih.Ii M.inlim,- 1,;iw. 
 \\\ \\,{',\:\i\0\ ,H1M',M, ,V\,v;il l^ lik Cuiii' lllllu^Hi^ll' ,li> I'miM. 
 a\,i|a. K,i,\iiKSM,, l.Sii.-i, ;;/. 
 
 SIllMli'M ('^M!'i>'i lii',inl .'Uiil il,,|,inulii,'il in 111,, \ i.-,- ,\,liiiiv!il| v 
 Ciiiiil 111. i.iu.'li,..', l;i;!ii',.\, l'',,IU,.,l liv (Jl'HMvMil'', OKll,!. 
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 ;!ii \ i,'i |i, ,• n r,\ i^lPM'lN WiUM.K, Kv,i., ol llu' MiiliU,, 
 'r.'iuiil,', Rin'i;>l,'i-nt 1,!1«. r,"iii,>, l,'<','i ;!.«. li,/. 
 
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 Smith's Manual of Common Law. — A Manual of 
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 ancing.— A Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing 
 in Solicitors' Offices. To which are added Concise Common Eorms 
 and Precedents in Conveyancing ; Conditions of Sale, Conveyances, 
 and aU other Assurances in con.stant use. Eom-th Edition. By 
 H. N. CAPEL, Esq., LL.B. (In the press.) 
 
 "The information under these heads is just of thst ordinary practical kind which is 
 learned from experience, and is not to be gathered from treatises. .^ ...-,, „ 
 
 " The work is well done, and will be very useful to the class tor whom it is intended. — 
 
 ■'''"it is an educational as well as practical compendium, and it conveys that special kind 
 of information which the student has generally the greatest dilBculty in discovering from 
 
 ''""A careful study of these pages would probably arm a dilligeat clerk with as much 
 useful knowledge as he might otherwise take years of desidtory questioumg and obsorvuiK 
 to -icoufre . All that can be done to put an old head upon young shoulders is 
 
 effected (so far' as its own subject is concerned) by Mr. Greenwood's lucid aud business- 
 like Manual."— fioft'dtoJj' Journal. 
 
 Housman's Precedents in Conveyancing.— A 
 Selection of Precedents in Conveyancing ; designed as a Hand-book 
 of Eorms in frequent use, with Practical Notea,,including Notes on 
 the Conveyancing Act of 1860, and the adoption of its provisions m 
 actual practice. By ERANCIS HOUSMAN, Barrister-at-Law. 
 Svo. 1861. '^'■''■ 
 
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STEVENS AND SONS' LAW PUBLICATIONS. 
 
 COHVEYkHOmO -Continued. 
 
 Prideaux's Precedents in Conveyancing. — With 
 Dissertations on its Law and Practice. Seventh Edition. By 
 FBEDERICK PKIDEAUX and JOHN WHITCOMBE, Esqrs., 
 
 Barristers-at-Law. 2 vols. Uoyal 8vo. 1873. Nett SI. 3s. 
 
 " We really can hardly imagine a convej'aucer U^iug required to prepare any instrument 
 ■wliich he will not find sketched out iu the work under notice . . . We can cordially 
 recommend the book to both branches of the Profession. It is cheaper and more por- 
 table than Mr. Davidson's valuable work, and we believe quibe as useful."— iaw Journal. 
 
 "This is a revised edition of a work to which the moat favourable criticism cannot add 
 reputation." — Law Times. 
 
 Smith..— Vide " Real Property." 
 
 CONVICTIONS.— Paley on Summary Convictions.— 
 Fifth Edition. By H. T. J. MACNAMAKA, Esq., Banister-at- 
 Law. Svo. 1866. 11. Is. 
 
 "Great pains havebeen evidently taken to render the present edition very complete. It is 
 enriched with several excellent notes besides the one to which we have already called 
 attention ; amongst these is one on the subject of wox'ds usedin a statute being compulsory 
 or only directory, and another in which there is a review of decisions nnder the Masters 
 and Servants' Act (4 Geo. 4, c. 34). This edition, of what may be considered a standard 
 work, incorporates all the statutes and decisions from tlie date of the last edition, ^md, as 
 far as we have been able to examine (and we have put it to some test), the work has been 
 prepared with great care and accuracy. It is a good, practical, and valuable treatise, 
 which we can safely recommend to the profession." — 2%e Law Journal. 
 
 "'Paley on Convictions' has enjoyed a high reputaiion and extensive popularity. 
 Devoted exclusively to the jurisdiction in summary couvictions, it collects and conveys to 
 the magistrate and his clerk the fullest and most accurate information as to the practice 
 to be observed iii the hearing of charges which the magistrate is empowered to dispose of 
 summarily. Ten years have elapsed since the last edition. Daring the interval many 
 important changes have been made in the law, and there has been a general call for a new 
 edition. No better man could have been found for such a work than Mr. Macnamara, 
 &c."— iaw Times, May 5, 1866. 
 
 COPYHOLDS-Cuddon's Copyhold Acts.~A succinct Trea- 
 tise on the Copyhold Acts, the practical Working rjid Effect thereof, 
 and the mode of Procedure under the same for etfecting Enfranchise- ' 
 ment. By JAMES CUDDON, Esq., Barrister-at-Law. Boyal 
 8vo. 1865. K)s. 6t?. 
 
 OOPYRIGHT.-Phillips' Law of Copyright.~The Law of 
 Copyright in Works of Literature and Art, and in the Appli- 
 cation of Designs. With the Statutes relating thereto. By 
 CHAELES PALMEK PHILLIPS, of Lincohi's Inn, Esq., 
 Barrister-at-Law. Svo. 1863. 12s. 
 
 "Mr. Phillips lias shown not only great diligence in collecting cases bearing upon the 
 various topics which he has treated, but considerable judgment in the manner in which he 
 has dealt with them. He has spared no paius to make liis work reliable as a legal text 
 book,audat the same time equally useful to publishers, authors, artists, azd other persons 
 ■who are interested in works of literature, art, or design. In a word, surh a hook has long 
 been wanted, and Mr. Phillips has given abundant proof of his ability 1o meet the 
 desideratum." — Solicitors' Journal, Nov. 14, 1863. 
 
 " Mr. Phillips' work is at once an able law-book and a lucid treatise, in a popular form, 
 on the rights of authors and artists. Tbe wants and interests of ihe legal pi-actitioners 
 are consulted by a careful collection and discussior of all the authorities, while the non- 
 professional reader will find in the book a well-written and perlecrly intelhgible statement 
 of the law upon the matter of which it treats."— /«rw(, Jan. 9, 1S64. - 
 
 CORONERS.— Jervis on the Office and Duties of 
 Coroners. — ^With Forms and Precedents. Third Edition By 
 C. W. LOVESY, Esq., of the Jliddle Temple, Barriater-at-Law- 
 12mo. 1866. 12s. 
 
 COSTS.—Carew's Precedents of Bills of Costs, for 
 obtaining Grants of Probate and Letters of Administration in the 
 Principal Registry of the Court of Probate, 1869. gg. 
 
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 COSTS. — Continued. 
 
 Morgan and Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.A., 
 Barrister-at-Law, late Stowell Fellow of University College, Oxford, 
 and Eldon Scholar ; and HORACE DAVEY, M.A., Barrister-at- 
 Law, late Fellow of University College, Oxford, and Eldon Scholar. 
 With an Appendix, containing Forms and Precedents of Bills of 
 Costa. Svo. 1865. U. Is. 
 
 Scott's Costs in the Superior Courts of Com- 
 iTlon Law, and Probate and Divorce, and in Conveyancing ; 
 also in Bankruptcy (Act of 1869). Proceedings in the Crown Office, 
 on Circuit and at Sessions, and in the County Court ; together with 
 Costs of Interlocutory Rules and Orders xmder the Common Law 
 Procedure Acts 1852 and 185i, BUla of Exchange Act 1855, &c., 
 &c., and the Railway and Canal Traffic Act, 1854. With an 
 Appendix, containing Costs under Parliamentary Elections Act, 
 1863. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at- 
 Law. Third Edition. Royal 12mo. 1868-73. 2i3. 
 
 \* The Supplement, containing "Bankruptcy Costs (Act of 
 1869)," may be had separately. ' A^ett, 3s. 
 
 ^' Mr. Scott's work is well known to the profession. It is an extensive collection of 
 taxed bills of costs in all branches of practice, supplied to him probably by the taxiug 
 masters. Such a work speaks for itself. Its obvious utility is its best recommenda- 
 tion." — Law Times. 
 
 " ' Taxation of Costs' — In re Foster — ^Vice-Chancellor Wood said that Mr. Scott's 
 book was a competent authority upon the subject." — Times. 
 
 "Webster's Parliamentary Costs. — Private Bills, 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 WEBSTER, Esq., of the Taxing Office, House of Commons, and of 
 the Examiners' Office, House of Lords and House of Commons. 
 Third Edition. Post Svo. 1867. 20s. 
 
 "The object of this work is to give the scale of costs allowed to Solicitors in relation 
 to pi'ivate bills before Parliament, the conduct of Election Petitions and Appeal Causes, 
 and the Allowance to Witnesses. The connection of the author with the Taxinfj Office 
 of the House of Commons gives authority to the work, which has been compiled with 
 some skill, and contains a vei-y useful Index, by which thecosts allowed for attendances, 
 time, drawing, copying, and perusing, in the several p.irliamcntary proceedings may bo 
 easily ascertained." — Solicitor^ Journal. 
 
 COUNTr COURTS The Consolidated County Court 
 
 Orders and Rules, Awith Forms and Scales of 
 Costs and Fees, as issued by the Lord Chancellor and Com- 
 mittee of County Court Judges. Authorized Edition. Super-royal 
 Svo. 1875. 3s. 
 
 "Will's County Courts Act, 1867.— With Notes, New 
 Rules, and Forms ; Practice in Discovery, Interrogatories, Attach- 
 ment of Debts, Equitable Defences, &c. By J. SHIRESS WILL, 
 Esq., Barrister-at-Law. Svo. 1368. 15s. 
 
 CRliVllNAL LAW,— Archbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &c., and the Evidence necessary to support them. By 
 JOHN JERVIS, Esq. (late Lord Chief Justice of Her Majesty's 
 Court of Common Pleas). Eighteenth Edition, including the 
 Practice in Criminal Proceedings by Indictment. By WILLIAM 
 BRUCE, of the Middle Temple, Esq., Barrister-at-Lav/, and 
 Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 
 1875. 1«. lis. Cd. 
 
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10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CRIMINAL \.k^. -Continued. 
 
 Anderson's Digest of Bankruptcy and Criminal 
 Law.— By 0. H. ANDERSON, Esq., Barriater-at-Law, of the 
 Inner Temple. 8vo. 1867. 7s. 6d. 
 
 Cole on Criminal Informations and Quo War- 
 ranto.— By W. K. COLE, Esq., Barrister-at-Law. 12mo. 1843. 
 
 12j. 
 
 Greaves' Criminal Law Consolidation and 
 Amendment Acts of the 24 & 25 Vict— With 
 Notes, Observations, and Forms for Summary Proceedings. By 
 CHARLES SPEENGEL G-KEAVES, Esq., one of Her Majesty's 
 Counsel, who prepared the Bills and attended the Select Committees 
 of both Houses of Parliament to which the Bills were referred. 
 Second Edition. Post 8vo. 1862. 16s. 
 
 Roscoe's Digest of the Law- of Evidence in 
 Criminal Cases.— Eighth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1874. 12. lis. 6rf. 
 
 Russell on Crimes and Ivlisdemeanors.— Intended 
 as a Court and Circuit Companion. Fourth Edition. By 
 CHARLES SPEENGEL GREAVES, Esq., one of Her Majesty's 
 Counsel 3 vols. Royal 8vo. 1865. 51. 15s. 6d. 
 
 In this Edition of " Rusaell " the Editor has endeavoured to malce such a statement 
 
 each case of the facts, the decision, and the grounds of it, wherever they appear, as 
 may enable the reader to understand what the decision really wiis ; and, although this 
 course has necessarily much increased the size of the work, yet it renders it much more 
 useful, especially to all who may uot be in a position to refer to the original reports of 
 the cases. This course is the same as was adopted in the last Edition, which was found 
 in practice to he so very useful whenever any question suddenly arose in Court, before 
 Magistrates, or elsewhere. 
 
 This treatise is so much more copious than any other upon all the subjects contained 
 in it, that it affords by far the best means of acquiring a knowledge of the Criminal Law 
 In general, or of any offence in particular ; so that it will be found peculiarly useful as 
 well to those who wish to obtain a complete knowledge of that law, as to those who 
 desire to be informed on any portion of it as occasion may require. 
 
 This work also contains a very complete treatise on the Law of Evidence in Criminal 
 Cases, and in it the manner of taliing the depositions of witnesses, and the examinations 
 of prisoners before magistrates, is fully explained. 
 
 "What better Digest of Criminal Law could we possibly hope for than 'Eussell on 
 Crimes?* " — Mr. Fitzjames Stephen's Speech on CodiUcation, Dec, 1872. 
 
 Thring's Criminal Law of the Navy.— The Crimi- 
 nal Law of the Navy, comprising an Introductory Sketch of 
 the Early State and Discipliue of the Navy ; the Naval Discipline 
 Act of 18b0, with Notes ; Criminal Oilences and their Punislmient ; 
 the Constitution and Jurisdiction of Courts-Martial ; the Eorms of 
 Procedure, and Law of Evidence applicable to Trials by Courts- 
 Martial, with the New Regulations of the Admiralty, and a copious 
 Index. By THEODOEE THRING, of the Middle Temple, Esq., 
 Barrister-at-Law. 12mo. 1861. 8s. 6d. 
 
 DICTIONARY — Wharton's Law Lexicon.— A Law Lexicon, 
 or Dictionary of Jurisprudence, explaining the Technical Words and 
 Phrases employed in the several Departments of English Law ; ivith 
 an Explanatory as well as Literal Translation of the Latin Maaims 
 contained in the Writings of the Ancient and Modem Commentators. 
 Sixth Edition. Revised in accordance with the Judicature Acts by J 
 SHIEESSWILL, Esq., of the Middle Temple, Baa-rister-at-Law. 
 Super royal 8vo. (In the press.) 
 
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 DIARY — -La-wyer's Companion (The), Diary, and La"w 
 Directory. — For the use of the Legal Profession, Public Com- 
 panies, Justices, Merchants, Estate Agents, Auctioneers, &o., &;c. 
 Published Ajjnuallt. The Work is Svo. siu, strongly hound in 
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 The La^Aryer's Companion — Is edited by JOHN 
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 tains a Digest of Kecent Cases on Costs ; an outline of the Judicature 
 Acts; Alphabetical Index to the Practical Statutes ; "Cases affecting 
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 a Copious Table of Stamp Duties ; Legal Time and other Tables, a 
 London and Provincial Law Directory, and a variety of matters of 
 practical utility. The Diary is printed on paper of superior quality, 
 and contains memoranda of Legal Business throughout the Year. 
 {ThiHieth issue for 1876. Now ready.) 
 '' We observe in this, the thirtieth annual issue, all the merits "whicli have distinguished 
 predecessor.":, added to some novel characteristics of real value. Tlie Editor has been 
 alive to the most recent changes in Judicial matters." — Law Journal, Nov. 13, 1875. 
 
 ** The ' Lawyer's Companion and Diary ' is a book ttizX ought to he in the possession of 
 eveiy lawyer, and of every man of business." 
 
 *' The 'Lawyer's Companion' is, indeed, what it is cc'Jed, for it combiues everything 
 required for reference in the lawyer's office." — Law Times. 
 DIGESTS.— Anderson.— FMe "Criminal Law." 
 Bedford. — Vide " Examination Guides." 
 Chambers.— Fide "Public Health." 
 
 Chitty's Equity Index.— Chitty's Index to all the Pveported 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords, 
 from the earliest period. Third Edition. By J. MACAULAY, 
 Esq., Barrister-at-Law. 4 vols. Eoyal 8vo. 1853. 71. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the .House of Lords and Privy Council, and in the 
 Courts of Common Law, Divorce, Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1766, to Hilary Term, 1870 ; 
 with Eeferences to the Statutes and Bules of Court. Eounded on 
 the Analytical Digest by Harrison, and adapted to the present 
 practice of the Law. By R. A. FISHER, Esq., of the Middle Temple, 
 Barrister-at-Law. Eive large volumes, royal 8vo. 1870. 122. 12s, 
 {Continued AnnvnUy.) 
 "Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry." — Mr, 
 JuUici: Willes. 
 
 " The fact is, that we have already the best of all possible digests. I do not refer merely 
 to the works which pass under that title — though, I confess, I think it would be very 
 difficult toimprove upon Mr. Fislier's 'Common Law Digest' — Irefer to the innumerable 
 text books of every branch of the law. What better digest of criminal law could we 
 possibly hope for than 'Itussellon Crimes,' and the current Eoscoe and Archbold, to say 
 nothing of the title, 'Criminal Law,' in'Fisher'sDigeLt.'" — Mr. Fitzjamcs Stephen, Q.C.,in 
 his Address to iheLaw Amendment Society on Codijication in India and England, Session 1872-3. 
 
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12 ST'EVEI^S AND SONS' LAW PUBLICATIONS. 
 
 D\QE.STS.— Continued. 
 
 HaPPison. — Vide " Fisher." 
 
 Leake. — Vide "Keal Property." 
 
 Notanda Digest in La-w, Equity, BankFuptey, 
 Admiralty, Divorce, and Probate Cases. — By 
 E. S. MASKELYNE, Esq., and CECIL C. M. DALE, Esq., of 
 Lincoln's Inn, Barristers-at-Law. The NoTAiTDA Digest, from the 
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 "^sf* Back Numbers to complete the above volume, may be had of 
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 DIVORCE.— Bro-wne's Treatise on the Principles 
 and Practice of the Court for Divorce and 
 Matrimonial Causes: — With the Statutes, Rules, Eees, 
 and Forms relating thereto. By GEORGE BROWNE, Esq., B.A., 
 of the Inner Temple, Barrister-at-Law. Third Edition. {Nearly 
 ready.) 
 
 Macqueenon Divorce and Matrimonial Causes. 
 — A Practical Treatise on Divorce and Matrimonial Jurisdiction, 
 under the Act of 1857, and New Orders ; including Scotch Marriages 
 and Scotch Law of Divorce, &c., &c. With numerous Precedents. 
 Second Edition, greatly enlarged. By JOHN ERASER MAC- 
 QUEEN, Esq., Barrister-at-Law, Honorary Secretary to H.M. 
 Divorce Commission, &c. 8vo. 1860. 18s. 
 
 DOMICII Phillimore's (Dr. R.) Law of Domieil.— 8vo. 
 
 1847. 9s. 
 
 DUTCH LAW.— Vanderlinden's Institutes of the Laws 
 
 of Holland.— 8vo. 1828. 11. 18s. 
 
 EASEMENTS.— Goddard's Treatise on the Law of 
 
 Easements.— By JOHN LEYBOURN GODDARD, of the 
 
 Middle Temple, Barrister-at-Law. 8vo. 1871. 14s. 
 
 %* The Author was appointed by Her Majesty's Digest of Law 
 
 Commissioners to prepare a specimen Digest of the Law of Easements. 
 "Nowhere has the subject been treated so exhaustively, and, ^e may add, so scientifi- 
 cally, as by Mr. Goddard. We recommend it to the most careful study of the law student, 
 as well as to the library of the practitioner."— £aw THmes, March 18, 1871. 
 
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 not only in Bauc but at Nisi Prius, the book is invaluable ; and where the cases are silent 
 the author has tali en pains to ascertain what the law would be if brought into question." — 
 Law Journal, March 10, 1871. 
 
 Woolrych. — Vide "Lights.'' 
 
 ECCLESIASTICAL.— Phillimore's (Sir R.) Ecclesiastical 
 Law. — The Ecclesiastical Law of the Church of England. By 
 SiK ROBERT PHILLIMORE, D.C.L., Official Principal of the 
 Arches Court of Canterbm-y ; Member of Her Majesty's Most 
 Honom-able Privy Council. 2 vols. 8vo. 1873. SI. 3s. 
 
 Rogers' Ecclesiastical Law.— A Practical Arrangement 
 of Ecclesiastical Law, including a Treatise on Prohibition, and 
 showing the Practice of the Ecclesiastical Courts. Second Edition. 
 By F. N. ROGERS, Esq., one of Her Majesty's Counsel. 8vo. 
 1819. 11. 16s. 
 
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 ELECTIONS.— Fitzgerald.— yzcie "Ballot." 
 
 Rogers on Elections and Registration.— With an 
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 WOLEEESTAN, Esq., of the Inner Temple, Barrister-at-Law. 
 {Xcarly ready.) 
 
 ENGLAND, LAWS OF,— Bowvyer.— Vide " Constitutional Law." 
 Broom and Hadley. — TMe " Commentaries." 
 Syms' Code of English Law (Principles and Practice) 
 for handy reference in a Solicitor's office. By P. 11. SYMS, Solicitor. 
 12mo. 1870. 16s. 
 
 EQUITY and me CHANCERY. 
 Chitty.— Firfe "Digests." 
 
 Seton's Forms of Decrees in Equity. — Fourth 
 Edition. Specially adapted to the Eules of Procedure under the 
 Judicature Act. By E. H. LEACH, Esq., Senior Registrar of the 
 Court of Chancery ; and F. G. A. WILLIAMS, Esq., of Lincoln's 
 Inn, Barrister-at-Law. {In Preparation.) 
 Smith's Manual of Equity Jurisprudence. — 
 A Manual of Equity Jurisprudence founded on the Works of Story, 
 Spence, and other writers, and on the subsequent cases, comprising 
 the Fundamental Principles and the points of Equity usually occur- 
 ring in General Practice. By JOSIAH W. SMITH, B.C.L., Q.C., 
 Judge of County Courts. Eleventh Edition. 12mo. 1873. 12s. 6 d. 
 "To sum up all in a word, for the student and the jurisconsult, the Manual is the nearest 
 approach to an equity code that the present literature of the law is able to furnish."- Law 
 'limes. 
 "It will be found as useful to the practitioner as to the student." — Solicitors^ Journal. 
 " Mr. Smith's Manual has fairly won for itself the position of a standard work." — Jurist, 
 "It retains, and that deservedly, the reverence of both examiners and students." — From 
 a Lecture on a Course of Reading hij A. K. Rolltt, LL.D., Gold Medallist of the University 
 of London, and Prizeman of the Incorporated Law Society. 
 
 " There is no disguising the truth ; the proper mode to use this book i« to learn its pages 
 by heart." — Law Magazine and Review. 
 
 Smith's (Sidney) Principles of Equity.— 8vo. 1856. 
 
 11. 5s. 
 EVIDENCE.— Archtaold.— Fide " Criminal." 
 
 Norton. — Vide " Indian Law." 
 
 Phillimore's Law of Evidence. — The History and 
 Principles of the Law of Evidence as illustrating our Social 
 Progress. By J. G. PHILLIMOEE, Esq., Q.C. 8vo. 1850. 
 
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 RoSCOe. — Vide " Criminal." 
 
 Roscoe. — Vide "Nisi Prius.'' 
 EXAMINATION GUIDES — Anderson.— 7i& " Criminal" 
 
 Bedford's Guide to the Preliminary Examina^ 
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 Bedford's Digest of the Preliminary Examina- 
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 EXAMINATION GUIDES.-c™"""'' 
 
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 EXECUTORS.— "Williams' La^A^ of Executors and Ad- 
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 FACTORY ACTS. — Notoutt's Faotory and "Workshop 
 A.CtS. — Comprising all the Laws now in force (including the 
 Act of 187i) for the regulation of Labour in Eactories and 
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 decided oases, by GEORGE JARVIS NOTCUTT, Esq., of the 
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 FARM, LAW OF. — Cooke. — Vide " Agricultural Law." 
 
 Dixon's La-w of the Farm — A Treatise on the Law of 
 the Farm ; including the Agricultural Customs of England and 
 Wales. Third Edition. With an Appendix of Cases to the end of 
 Hilary Term, 1863. By HENRY HALL DIXON, Esq., Barrister- 
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 FIXTURES. -Amos and Ferard on Fixtures. — Second 
 Edition. Royal 8vo. 1847. 16.?. 
 
 "W^OOdfall.— &e " Landlord and Tenant." 
 
 FORMS — Chitty's Forms of Practical Proceedings 
 in the Courts of Queen's Bench, Common 
 Pleas, and Exchequer of Pleas. — Tenth Edition. 
 By THOMAS CHITTY, Esq. Royal 12mo. 1866. 
 Corner's Forms of "Writs and other Proceed- 
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 Daniell's Chancery Forms. — Eorms and Precedents of 
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 and JOHN BIDDLE, of the Master of the RoUs' Chambers. 
 Second Edition. By JOHN BIDDLE. 8vo. 1871. \l. 12s. 
 
 Moore's Solicitor's Book of Practical Forms.— 
 12mo. 1852. 7s. 6d. 
 
 HIGHWAYS.-Bateman's General Highway Acts.— 
 Second Edition. By W. N. WELSBY, Esq. With a Supplement 
 containing the Highway Act of 1864, &c. With Notes and a 
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119, CHA.NGERY LANE, LONDON-, W.C. 15 
 
 HIGHWAYS.- -C"n</««eJ. 
 
 Shelford's Law of Highways.— The Law of 
 Highways ; including the General Highway Acts for England and 
 Wales, and other Statutes, with copious Notes of the Decisions 
 thereon ; with Forms. The Third Edition, corrected and enlarged. 
 By LEONARD SHELFORD, Esq., Barrister-at-Law. With a 
 Supplement containing the Highway Act, 1864, &c. ; with Notes 
 and a revised Index by C. MANLEY SMITH, Esq., Barrister-at- 
 Law. 12mo. 1865. 15s. 
 *»* The Supplement may be had separately, price 3s. sewed. 
 INCLOSURES.— Ftrfc "Commons." 
 
 INDIAN LAW — Montriou; the Hindu Will of Bengal. 
 With an Introductory Essay, &c. Royal 8vo. 1870. Nett, 11. 10s. 
 
 Norton's Law of Evidence applicable to India. 
 By JOHN BRUCE NORTON, late Advocate-General of Madras. 
 Eighth Edition. Royal 8vo. 1873. NcU,20s. 
 
 Norton's Leading Cases on the Hindu Law of 
 
 Inheritance.— 2 vols. Royal 8vo. 1870-71. JVett, 21. 10s. 
 
 INFANTS.— Ebsw^orth's La-w of Infants.— A Handy Book 
 
 of the Law of Infants. By JOHN EBSWORTH, Esq., Solicitor. 
 
 12mo. 1861. 3s. 
 
 Forsyth's Law relating to the Custody of 
 Infants in Cases of difference between 
 Parents or Guardians. — 8vo. 1850. 8.!. 
 
 INSURANCE. — Arnould on the Law of Marine Insu- 
 ranee.— Fourth Edition. By DAVID MACLACHLAN, Esq., 
 Barrister-at-Law. 2 vols. Royal 8vo. 1872. 21. 12s. Gd. 
 
 Hopkins' Manual of Marine Insurance.— 8vo. 
 1867. 18s. 
 
 Lowndes.-- Fide "Average." 
 
 INTERNATIONAL LAW. — Amos' Lectures on Inter- 
 national La^A^. — DeUvered in the Middle Temple Hall to the 
 Students of the Inns of Court, by SHELDON AMOS, M.A., of 
 the Inner Temple, Barrister-at-Law ; Professor of Jurisprudence 
 (including International Law) to the Inns of Court ; Professor of 
 Jurisprudence in University College, London. Royal 8vo. 1874. 
 
 10s. 6d. 
 Kent's International Law. — Kent's Commentary on 
 International Law, Revised, with Notes and Cases brought down 
 to the pnesent time. Edited by J. T. ABD Y, LL. D., Barrister-at- 
 Law. 8vo. 1866. 16s. 
 "Dr. Abdy has done all Law Students a great service in presenting that portion of 
 Kent's Commentaries -which relates to public International Law in a single volume, neither 
 large, diffuse, nor expensive," 
 
 " Altogether Dr. Abdy has performed his task in a manner 'worthy of his reputation. 
 His book will be useful not only to Lawyers and Law students, for whom it -was primarily 
 intended, but also forlaymen. Itis-wellworththeatudyotevevymembor of an enlightened 
 and civilized comrauuity." — Solicitor^ Journal, Max-cb 16tb, 18G7. 
 
 Levi's International Commercial Law.— Being the 
 Principles of Mercantile Law of the following and other Countries 
 — viz. ; England, Ireland, Scotland, British India, British Colonies, 
 Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, 
 Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia, 
 Russia, Spain, Sweden, Switzerland, United States, Wiirtemberg. 
 By LEONE LEVI, B^q. , P. S. A. , F. S. S. , of Lincoln's Infi, Barrister. 
 
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 INTERNATIONAL LAW.-C"""'"'*''- 
 
 at-Law, Professor of the Principles and Practice of Commerce at 
 King's College, London, &c. Second Edition. 2 toIs. Eoyal 8ro. 
 1863. 1'- 15s. 
 
 Vattel's Law of Nations.— A New Edition. By 
 JOSEPH CHITTY, Esq. Eoyal 8vo. 1834. ±1 Is. 
 
 Wildman'S International Law. — Institutes of Inter- 
 national Law, in Time of Peace and Time of War. By EICHAED 
 WILDMAN, Barrister-at^Law. 2 vols. 8vo. 1849-50. 1?. 2s. 6d. 
 
 JOINT STOCKS.— Jordan's Joint Stock Companies.— A 
 Handy Boot of Practical Instructions for the Formation and 
 Management of Joint Stock Companies. Fifth Edition. 12mo. 
 1875. Neit, 2s. 6rf. ' 
 
 Thring's (H.) Joint Stock Companies' La-w.- iTie 
 Law and Practice of Joint Stock and other Public Companies, in- 
 cluding the Statutes, with Notes, and the Forms required in Making, 
 Administering, and Winding-up a Company, with a Supplement 
 containing the Companies' Act, 1867, and Notes of Eecent Decisions. 
 By Sir HENRY THRING, K.C.B., The Parliamentary Coimsel. 
 Third Edition. By GEEALD A. E. FITZGERALD, Esq., of 
 Lincoln's Inn, Barrister- at-Law, and Fellow of St. John's College, 
 Oxford. 12mo. 1875. 20s. 
 
 "The index has been bo framed as to constitute a sort of digest of many of the heads 
 
 uF law therein referred to. Mr. FitzGerald has done Lis worh: with great precision and 
 
 tlinronghness." — Palf MaU Gazette, August 17th, 1875. 
 
 JUDGMENTS. — Pask's Judgments, Executions, and 
 Crown Debts. — The Judgments Law Amendment Acts 
 relating to Eeal Pi-operty, 22 & 23 Vict., c. 35, and 23 & 24 Vict, 
 c. 38, 23 & 24 Vict. c. 115, and 27 & 28 Vict. c. 112. With Notes, 
 Eeferences to Cases, and Index : forming an Appendix to " The 
 Practice of Eegistering," &c. By JAMKS PASK, Chief Clerk to 
 the Eegistrar to the Court of Common Pleas, Westminster. Third 
 Edition. 12mo. 1866. Sewed. XM, 2s. 
 
 JUDICATURE ACTS.— Clov/es' Compendious Index to 
 the Supreme Court of Judicature Acts, and to 
 the Orders and Kules issued thereimder. By W. CLOWES, Esq., 
 one of the Ecgistrars of the Court of Chancery. Second Edition, 
 revised and enlarged. (Uniform in si-C with the Queen's Piinter's 
 mUion of tJie Acts and Jinks.) 1875. Balf bound. 10s. 6r/. 
 
 *,* The above, with the Acts and Eules (Authorized Edition), Orders in 
 Cotmcil, and addition.al rules, court fees, &c., complete jn oxe 
 "\'0HJiF, bovnd in limp leather. 25s. 
 
 The same, Interlcarcd, in one Vol., hound in limp leather. 30s. 
 
 Lely and Foulkes' Judicature Acts, 187S and 
 187B : containing the Statutes, Eides of Court, and Ordei-s in 
 Council, mth Notes, forming a Practice of the Supreme Court. 
 By J. M. LELY and W. D. I. FOULKES, Esqrs., BaiTisters-at- 
 Law. Eoyal 12mo. 1S7;". 14s. 
 
 (Bound in Uvip leather, 18s. 6rf., or the same, inta-Iearcd, 21s.^ 
 ■'We think that in every \vay the work deserves high commendation. The typography 
 
 and general get-up of the book is excellent— a book which is highly creditable to ail 
 
 concevned." — Law Times, Oct. 9, 1S75. 
 
 '■ We have here the first of the more ambitious works on the ne^v syUem. and wo aro 
 
 glad that there is mnch in its design and execution of which we can appro^-e." — Solicitors' 
 
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 JUDICATURE kCT S.-Continuea. 
 
 Ley's Complete Time-Table to the Rules under 
 the Supreme Court of Judicature Act, 187S. Show- 
 ing all the periods fixed by the Eiiles within or after which any proceed- 
 ings may be taken. By JOHN KIRKWOOD LEYS, M. A., of the 
 Middle Temjale, Barrister-at-Law. Eoyal 8vo. 1875. Nctt, Is. 6d. 
 Lynch and Smith's Introduction to the Final 
 Examination. — Being a collection of the questions set by the 
 Incorporated Law Society, with the answers adapted to meet the 
 recent extensive alterations made by the JUDICATURE ACT, 
 1873. By H. FOULKS LYNCH, Solicitor, and ERNEST 
 AUGUSTUS SMITH, Solicitor, CKfEord's Inn, Prizeman ; Senior 
 Prizeman of the Incorporated Law Society, and Brodrip Gold Medalist, 
 1872. Vol. I. The Principles of the Law. Post 8vo. 1874. 12s. 
 Vol. II. The Practice of the Supreme Court of Judicature. (In 
 •preparation.) 
 Lynch's Tabular Analysis of the Supreme 
 Court of Judicature Acts, 1873 and 1875, for the Use of Students. 
 Royal 8vo. 1875. Nett, Is. 
 
 Stephen's Judicature Acts 187S, 1874, and 187S, 
 consolidated. With Notes and an Index. By J.FITZJAMES 
 STEPHEN, one of Her Majesty's Counsel. 12mo. 1875. (Nearly 
 ready.) 
 Wilson's Judicature Acts, Rules and Forms. With 
 Notes and a copious Index, and additional Rules to Oct. 28, forming a 
 Complete Guide to the New Practice. By ARTHUR WILSON, 
 oftheIunerTemple,Esq., Barrister-at-Law. Royall2mo. 1875. 18s. 
 Bound ill limp leather for the poehet, 22s. 6d., or the same, Interleaved, 25s.) 
 *,* A LARGE PAPER EDITION 01? THE ABOVE (for marginal notes), in royal 
 8vo, cloth, 25s. (Bound in limp leather, 30s.). 
 " Mr. Wilsou appears to us to have made his choice with gi-eat skill and success . . 
 , the references are ample, and the description of the matter referred to is 
 clear. The result of a very careful examination of Mr. Wilson's book is that it is executed 
 with great cai'e nnd thorougtinesp, and that it will bo of the utmost value to all those ou 
 whom the task falls, whether as practitiouers or as administrators of the law, of applying 
 and ad.aptiDg the new practice aucl procedure." — Solicitors^ Journal, Oct. 23, 1875. 
 
 "We have nothing but praise to bestow upon the annotating of the rules. We have 
 no doubt it will mailttain a position in the front rauk of the works upon the all-engrossiug 
 aubjectwith which it deals."— Zffw) TlHies, Oct. 16, IS75. 
 
 "Mr. Wilson has appended to the Acts and Rules, especially the latter, a valuable body 
 
 of notes, which we are sure will be found useful The additional rules are of 
 
 course given, .ind there is a copious index." — Law Journal, Oct. 30, 1875, 
 
 ** Mr. Arthur Wilson, as might have been expected, ia particularly successful in deal- 
 ing with the Rules of Court, to which, indeed, his notes are an almost indispensable 
 accompaniment." — Law Magazine, Nov. 1875. 
 
 ' As Mr. Arthur Wilsou was one of the gentlemen employed to draft the rules he may 
 be supposed to speak with some authority on that part of the subject, and he has cer- 
 tainly devoted much care aud time to their elucidaLion."~i?jff«m')jeJ', Oct. 23, 1875. 
 
 JURISPRUDENCE. — Amos, Law as a Science and as 
 an Art. — An introductory lecture delivered at University 
 College at the commencement of the session 1874-5. By SHELDON 
 AMOS, Esq., M.A., Barrister-at-Law. 8vo. 1874, Is. 6d. 
 
 Phillimore's (J. G.) Jurisprudence. — An Inaugural 
 Lecture on Jurisprudence, and a Lecture on Canon Law, delivered 
 at the Hall of the Inner Temple, Hilary Term, 1851. By J. G. 
 PHILLIMORE, Esq., Q.C. 8vo. 1851. Sewed. 3s. M. 
 
 JUSTICE OF THE PEACE.— Arnold's Summary of the 
 Duties of a Justice of the Peace out of 
 Sessions. — Summary Convictions. By THOMAS JAMES 
 ARNOLD, Esq., one of the Metropolitan Police Magistrates'. 
 8vo. 1860. \l. 6s. 
 
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13 STEVEN'S AXD SO^'S' LAW PtJBLICATIOXS. 
 
 JUSTICE OF THE PEACE.-OmiinuM. 
 
 Burn's Justice of the Peace and Parish Offieep. 
 — Edited bv the following Barristers, nnder the Greneral Superinten- 
 dence of JOBS BLOSSETT jMAIXE, Esq., Q.C., Recorder of 
 Leeds. The Thirtieth Edition. ToL I. containing titles 
 "Abatement" to '■ Dwellings for Artizans;" byTHOS. SIKRELL 
 PKITCHAED, Esq., of the Inner Temple. Vol. II. containing 
 titles "Easter Offering" to " Hundred :" by SAME. BOTELER 
 BRISTOWE, Esq., of the Inner Temple. VoL IIL containing 
 titles "Indictment" to "Promissory Xotes ;" by LE'SVIS W. 
 CAVE, Esq., of the Inner Temple. Vol IV. containing the whole 
 title "Poor;"' by JAMES EDWD. DAVIS, Esq., Stipendiary 
 Magistrate for Stoke-npon-Trent. {Sold separatti;/, price £1 lis. Gd.) 
 Vol. V. containing titles 'Quo Warranto" to 'Wreck;" by JOHX 
 BLOSSETT MAULE, Esq., Q.C., Recorder of Leeds. ' Fire vols. 
 8vo. 1S69. 7/. 7s. 
 
 Since the publication in I S45 of the former Edition of Burn's Justice of the Peace and 
 Parish Officer the whole range of the Law which Magistrates had to administer has 
 undergone more or less alteration, and. indeed, the time which has elapsed since that 
 publication appeared has doubtless worked as great a change in the Magistrates them- 
 selves ; so that to very many of the Geutlemen now composfng the body of Justices the 
 Encyclopedic Work of Burn mnst be, if not entirely nuknown, at least tmrajuUar as a 
 book of reference. 
 
 Paley. — Vide "Convictions.' 
 Stone. — Vide "Petty Sessions." 
 
 LAND DRAINAGE.— Thping's Land Drainage Act.— With 
 an Introduction, PracticS ICotes, an Appendix of Statutes relating 
 to Drainage, and Forms. By THEODORE THRESTG, Esq., 
 Barrister-at-Law. 12mo. 1S61. 7s. 
 
 LAND TAX. — Bourdin^'s Land Tax. — An Exposition of the 
 Land Tax ; its Assessment and Collection, with a statement of the 
 rights conferred by the Redemption Acts. By MARK A. BOUR- 
 DIN, of the Inland Revenue OflSce, Somerset House (late Registrar 
 of Land Tax"). Second Edition. Crown 8vo. 1870. is. 
 
 LANDLORD AND TENANT.— "Woodfall's La^v of Landlord 
 and Tenant. — .A. Practical Treatise on the Law of Landlord 
 and Tenant, with a full Collection of Precedents and Forms of 
 Procedure. Tenth Edition. By W. R. COLE, Esq., Barrister-at- 
 Law. Royal Svo. 1S71. 1/. ISs. 
 
 LAW, GUIDE TO.— A Guide to the La"w for General 
 Use. By ^ Barrister. Twentieth Edition. Crown Svo. 1S75. 
 
 A'ctt OS. 6(?. 
 " There may be many students of both branches of the profession who will find the 
 
 following pages an assistance to thorn in the course of their reading, not in substitution of 
 
 but together with, or preliminary to, the voltmiinous and highly technical works which 
 
 they have necessarily to examine." 
 
 LAW LIST— La"W List (The).— Comprising the Judges and Officers 
 of the different Courts of Justice, Counsel, Special Pleaders, 
 Draftsmen, Conveyancers, Attomeys, ISTotAnes, &c., in England 
 and Wales ; to which are added the Circuits, Judges, Treasurers, 
 Registrars, and High Bailiffs of the County Courts, District 
 Registries and Registrars under the Probate Act, liords Lieu- 
 tenant of Counties, Recorders, Clerks of the Peace, Town Clerks, 
 Coroners, Colonial Judge.', and Colonial Lawyers having English 
 Agents, Metropolitan Police Magistrates, Law Agents, Law and 
 Public Officers, Circuits of the Judges and Counsel attending 
 Circuit and Sessions, List of Sheriils and Agents, London Commis- 
 
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119, OHANOEUY LA.NE, LONDON, W.O. 
 
 LAW LIST. -Continued. 
 
 sioners for taking Oaths in Chancery, Queen's Bench, Common 
 Pleas and Exchequer, &c., &c., and a variety of other useful matters 
 so far as relates to Special Pleaders, Draftsmen, Conveyancers, 
 Attorneys, Solicitors, Proctors and Notaries. Compiled by 
 ' WILLIAM HENRY COUSINS, of the Inland Revenue Office, 
 Somerset House, Registrar of Certiiioates. Published annually. 
 By authority. Nett 10s. 6c(. 
 
 LAW REPORTS.— FfcZe pages 26-7. 
 LAWYER'S COMPANION.— Fi^e "Diary." 
 
 LEGACIES.— Roper's Treatise on the La\Ar of Lega- 
 cies.— Ifourth Edition. ByH. H.WHITE. 2 vols. Royal 8 vo. 
 1847. 31 3s. 
 
 Trevor. — Vide "Succession." 
 LEXICON.— Fide "Dictionary." 
 
 LICENSING.— Lely and Foulkes' Licensing Acts, 
 1828, 1869, 1872, and 1874; Containing- the Law of the 
 Sale of Liquors by Retail and the Management of Licensed Houses ; 
 with Notes to the Acts, a Summary of the Law, and an Appendix 
 of Forms. Second Edition. By J. M. LELY and W. D. I. 
 EOULKES, Esqrs,, Barristers-at-Law. Royal 12mo. 1874. 8s. 
 " Messrs. Lely and Foulkes'a plan is to print in fall the principal Acts, and to inter- 
 polate between the sections of each of these statutes all subsidiary enactments, distin- 
 guishing them by braoltets and marginal notes .... to most of the sections of tho 
 Act of last Session notes are added. These notes are usually sensible and to the point, 
 and (five evidence both of care and knowledge of the aMsct." —Solicitors' Journal, Oct. 
 10, 1874. 
 
 LIEN.— Cross' Treatise on the Law of Lien and 
 Stoppage in Transitu.— 8vo. 1840. 15s. 
 
 LIGHTS — Woolrych's Practical Treatise on the Law 
 of Window Lights.— Second Edition. 12mo. 1864. 6s. 
 
 LUNACY — Elmer's Lunacy Practice.— Eifth Edition. By 
 JOSEPH ELMER, of the Office of the Masters in Lunacy. 8vo. 
 1872. 21s. 
 
 MAGISTERIAL LAW.— Burn.— FiVe " Justice of Peace." 
 Paley. — Vide "Convictions." 
 Pritchard. — Vide " Quarter Sessions." 
 Stone. — Vide " Petty Sessions." 
 
 MAINTENANCE AND CHAMPERTY. — Tapp on Main- 
 tenance and Champerty. — An Inquiry into the present 
 state of the Law of Maintenance and Champerty, principally as 
 ailectmg Contracts. By WM. JOHN T APP, Esq. , of Lincoln's Inn, 
 Barrister-at-Law. 12mo. 1861. is, Sd. 
 
 MANDAMUS. — Tapping on Mandamus. — The Law and 
 Practice of the High Prerogative Writ of Mandamus as it obtains 
 both in England and Ireland. Royal 8vo. 1848. 1?. Is. 
 
 MARINE INSURANCE — Vide " Insurance." 
 
 MARTIAL LAW — Finlason's Treatise on Martial Law, 
 as allowed by the Law of England in time of Rebellion ; with 
 Practical Illustrations drawn from the Official Documents in the 
 Jamaica Case, and the Evidence taken by the Royal Commission of 
 Enquiry, with Comments Constitutional and Legal. By W. P. 
 EINLASON, Esq., Barrister-at-Law. Svo. 1866. 12s! 
 
 MERCANTILE LAW — Brooke.— Fic?e "Notary." 
 Russell. — Vide "Agency.'' 
 
 Smith's Mercantile Law. — A Compendium of Mercantile 
 Law. By the late JOHN WILLIAM SMITH, Esq. Eighth 
 
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20 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 MERCANTILE \.M4 -CorMnued.. 
 
 Edition. By G-. M. DOWDESWELL, of the Inner Temple, Esq., 
 one of Her Majesty's Counsel. Royal 8vo. 1871. 11. 16s. 
 
 Tudop's Selection of Leading Cases on Mer- 
 cantile and Maritime Law.— With Notes. By 0. D. 
 TUDOE, Esq., Barrister-at-Law. Second Edition. Koyal Svo. 
 1868. _ U 18s. 
 
 fttlNES. — Rogers' La^w relating to Mines, Minerals, 
 and Quarries in Great .Britain and Ireland ; 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines. 
 By AEUNDEL EOGEES, Esq., Barrister-at-Law. 8¥0. 1864. 
 
 \l. 10s. 
 
 MORTGAGE.— Coote's Treatise on the Law pf Mort- 
 gage. — Third Edition. Eoyal 8vo. 1850. Nett, 11. 
 
 MUNICIPAL ELECTlONS.-FMc "Ballot." 
 
 NAVAL LAW — TYiring.— Vide "Criminal Law." 
 
 NISI PRIUS.— Roscoe's Digest of the Law^ of Evidence 
 on the Trial of Actions at Nisi Prius. — Thirteenth 
 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 MAUEICE POWELL, Barrister-at-Law. Eoyal 12mo. 1875. 11. 
 
 (Bound in one tMck volume calf w circuit, 5s. Gd., or in two convenient vols, 
 calf or circuit, 10s. nett extra.) 
 
 "Any one "who glances at ' itoscoe's Digest* in all the amplitude and immensity ot a 
 Thirteenth Edition, must admit that there can he only one thing on earth more marvel- 
 lous than this vast volume ; and that is, the barrister's brain that constructively contains 
 all that is in this book. The work itself has long ago won a position altogether unique, 
 and in the hands of its present editors there is no fear that the position ^viU be lost."— iaui 
 Journal, July 10, 1875. 
 
 "Koscce's Dieest has alvvays been a work of reference absolutely necessary to the 
 common law practitioDcr; it retains this ) osition now under very greatly improved 
 conditions, and we are sure that the profession will thoroughly appreciate the intelligent 
 labour, which has been bestowed Uf on the work." — Law Times, July 24tb, 1875. 
 
 Selwyn's Abridgment of the Law of Nisi 
 Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., 
 Eecorder of Bedford, and CHARLES T, SMITH, M.A., one of the 
 Judges of the Supreme Court of the Cape of Good Hope. 2 vols. 
 Eoyal 8vo. 1869. 21. 16s. 
 
 NOTARY. — Brooke's Treatise on the Office arid Prac- 
 tice of a Notary of England. — ^With a fuU collection of 
 Precedents. Third Edition. By LEONE LEVI, Esq., P.S.A., of 
 Lincoln's Inn, Barrister-at-Law, Professor of the Principles and 
 Practice of Commerce in King's College, London, &c., &c. 8vo. 
 1867. 21s. 
 
 NUISANCES.— Fitzgerald.— Fide "Pul^lio Health." 
 CATHS, — Braithwaite's Oaths in Chancery.— A Manual 
 for the use of Commissioners to Administer Oaths in Chancery ; 
 being a collection of officially recognised Eorms of Jurats and Oaths' 
 with Explanatory Notes and Observations. Second Edition. By 
 THOMAS W. BEAITHWAITE, of the Eecord and Writ Clerks 
 Office. Eoolscap 8vo. 1864. 3s. 6d. 
 
 Cole's (R.) Oaths in Common LaAAr.- By KOBEET 
 COLE, Solicitor. Foolscap 8vo. 1859. Keit 2s. 
 
 PATENTS.— Hindmarch's Treatise on the Law rela- 
 ting to Patents.— 8to. 1846. 21s. 
 
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119, CHANCERY LANE, LONDON, W.G, 21 
 
 PAWNBROKERS.— Turner's Pawnbrokers' Act, 1872.— 
 With Explanatory Notes. By FRANCIS TURNER, Esq., Bar- 
 rister-at-Law, Author of the "Contract of Pawn." 12mo. 1873. 
 
 Nett, is. 
 
 PERSONAL PROPERTY. — Smith's Real and Personal 
 Property, — A Compendium of the Law of Real and Personal ' 
 Property Primarily Connected with Conveyancing ; Designed as a 
 Second Book for Students, and as a Digest of the most useful 
 Learning for Practitioners. By JOSIAH W. SMITH, B.C.L., 
 Q.C., Judge of County Courts. Eourth Edition. 2 vols. 8vo 
 1870. II. 18s. 
 
 PETTY SESSIONS.— Stone's Petty Sessions Practice.- 
 With the Statutes, a list of Summary Convictions, and an Appendix 
 of Forms. Seventh Edition. By THOMAS BELL, and LEWIS 
 W. CAVE, of the Inner Temple, Esqrs., Barristers-at-Law. 12mo. 
 1863. 18s. 
 
 PLEADING,— Archbold.— Ficic " Criminal" 
 
 Bullen and Leake's Precedents of Pleadings.— 
 Precedents of Pleadings in Actions in the Superior Courts of Com- 
 mon Law, with Notes. By EDWARD BULLEN, Esq., and 
 STEPHEN MARTIN LEAKE, Esq., Barristers-at-Law. Third 
 Edition. 8vo. 1868. II. lis. 6rf. 
 
 Stephen on Pleading. — A Treatise on the Principles of 
 Pleading in Civil Actions ; comprising a Summary Account of the 
 whole proceedings in a Suit at Law ; being the Seventh Edition of 
 Mr. Serjeant Stephen's work under that title, with Alterations 
 adapting it to the Present System. Seventh Edition. By FRANCIS 
 F. BINDER, Barrister-at-Law. 8vo. 1866. 16s. 
 
 POOR LAW.— Davis' Treatise on the Poor Laws.— Being 
 Vol. IV. of Bum's Justice of the Peace. 8vo. 1869. II. lis. Qd. 
 
 POWERS.— Far^?vell on Powers.— A Concise Treatise on 
 Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Bar- 
 rister-at-Law. 8vo. 1874. 11, Is. 
 " "We recommend ilr. Farwell'a book as containing within a small compass what would 
 
 otherwise have to he sought out in the pages of hundreds of confusing reports. " — The Law^ 
 
 November, 1874. 
 
 PRINCIPAL AND AGENT.- Petgrave's Principal and 
 Agent. — A Manual of the Law of Principal and Agent. By 
 E. C. PETGRAVE. 12mo. 1857. 7s. 6d. 
 
 PRIVY COUNCIL.— Lattey's Handy Book on the Prac- 
 tice and Procedure before the Judicial Com- 
 mittee of Her Majesty's Most Honourable 
 Privy Council.— By ROBERT THOMAS LATTEY, Attor- 
 ney of the Court of Queen's Bench, and of the High Court of Bengal ; 
 and Advocate of the Courts of British Burmah. 12mo. 1869. 65. 
 PROBATE.— Browne's Probate Practice : a Treatise on the 
 Principles and Practice of the Court of Probate, in Contentious and 
 Non-Contentious Business, with the Statutes, Rules, Fees, and 
 Forms relating thereto. By GEORGE BROWNE, Esq., Barrister- 
 at-Law. (Author of "Practice for Divorce and Matrimonial 
 Causes.") 8vo. 1873. 11. Is. 
 
 "A cursory glance through Mr. Browne's work shows that it has been compiled with 
 more than ordinary cure and intelligence. We should consult it with every confidence, 
 and consequently recommend it to those who require an instructor in Probate Court prac- 
 tice." — Law Times, June 21, 1873. 
 
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22 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 PROBATE. — Continued. 
 
 Dodd and Brooks' Probate Court Practice.— The 
 Law and Practice of the Court of Probate, Contentious and Common 
 Form : with the Eules, Statutes and Porms. By PHILIP 
 WILLIAM DODD, Solicitor, and GEOEGB HENKY BEOOKS, 
 Proctor in Doctor.?' Commons. 8vo. 1865. 1.1. lis. 6rf. 
 
 PUBLIC HEALTH.— Chambers' Sanitary Acts Amend- 
 ment Act, 1874 . By GEOEGE P. CHAMBERS, Barrister- 
 at-Law. Imperial 8vo. 1874. Kelt, 2s. 6d. 
 
 Chambers' Digest of the La-w relating to Public 
 Health and Local Government. — With notes of 107-3 
 leading Cases. Various official documents ; precedents of By-laws 
 and Eegulations. The Statutes in full. A Table of Offences and 
 Punishments, and a Copious Index. Seventh Edition, enlarged and 
 revised Imperial Svo. " 18s. 
 
 FitzGerald's Public Health Act, 187S.— The Law 
 relating to Public Health and Local Government, as contained in 
 the Public Health Act, 1875, with Introduction and Notes, showing 
 all the alterations in the Existing Law, with reference to the Cases, 
 &c. By GEEALD A. E. PITZGEEALD, Esq., of Lincoln's Inn. 
 Barrister-at-Law. {Nearly ready). 
 
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