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venge. The last words of Hauskuld, when he was foully assassinated through the tale-bearing of Mord, were, “God help me and forgive "you;” nor did the beauty of a Christian spirit ever shine out more brightly than in Hall
, who when his son Ljot, the flower of his flock, fell full of youth and strength, and promise, in chance medley at the battle on the Thing field, at once, for the sake of peace, gave up the father's and the freeman's dearest rights, those of compensation and revenge, and allowed his son to fall unatoned, in order that peace might be made. This struggle between the principle of an old system now turned to evil, and that of a new state of things which was still fresh and good, — between heathendom as it sinks into superstition, and Christianity before it has had time to become superstitious, stands strongly forth in the latter part of the Saga ; but as yet the new faith can only assert its forbearance and forgiveness in principle. It bas not had time, except in some rare instances, to bring them into play in daily life. Even in heathen times, such a deed as that by which Njal met his death, — to hem a man in within his house, and then to burn it and him together; to choke a freeman, as Skarphedinn says, like a fox in his earth,—was quite against the free and open nature of the race; and though instances of such foul deeds occur, besides those two great cases of Blundkettle and Njal, still they were always looked upon as atrocious crimes, and punished accordingly. No wonder, therefore, then that Flosi, after the change of faith, when he makes up his mind to fire Njal's house, declares the deed to be one for which they would have to answer beavily before God," seeing that we are Christian men ourselves.”'
ART. VII. 1. The Province of Jurisprudence Determined.
Being the first part of a series of Lectures on Jurisprudence or the Philosophy of Positive Law. By the late JOHN Austin, Esq., M.A., of the Inner Temple, Barrister-at
Law. 2nd Edition. London: 1861. 2. Ancient Law. Its Connection with the early History of So
ciety, and its Relation to Modern Ideas. By HENRY SUMNER MAINE, Reader of the Civil Law
in the Middle Temple, and formerly Regius Professor of the Civil Law in the University
of Cambridge. London: 1861. THERE is no pursuit on which more ability and learning has
been lavished than on the law of England, and there is no subject to which English literature has contributed so little as general jurisprudence. With the addition of Bentham's works, the two books mentioned at the head of this article would almost complete the list of works upon that subject worth reading, written by Englishmen. The reasons of this state of things are not the less interesting because they are obvious to every one whose acquaintance with the subject is practical. It is often ascribed to the supposed inaptitude or dislike of Englishmen for general speculation, or to the immersion of all our ablest men in pursuits tending directly to their personal advancement; but this view of the matter is neither just nor true. Abundant evidence might be given of the aptitude of Englishmen for general speculations, and there have never been wanting amongst us a sufficient supply of persons inclined to a life of thought and study to investigate the subjects which circumstances from time to time have invested with interest.
The real reason why general jurisprudence has been neglected in this country is to be found in the absence of the causes which in other countries induce men to study it. The popularity of general speculations, either upon law or any other subject, depends principally upon the degree of practical importance and dignity attached to them. For example, when the minds of men are occupied, as in France in the last century, with the presentiment that great social changes are impending, there is a strong inducement to theorise upon the constitution of society, and the nature and limits of political obligations, in order to furnish arms to the combatants in the struggle which is felt to be approaching. The birth and growth of the study of political economy, in the course of the last century and a quarter, is another example of the same influence. The general feeling,
that the accumulation and distribution of property was little understood, and that its principles, if firmly apprehended and clearly stated, would produce great practical results, was no doubt the chief cause of the attention which the subject received. In the same way the degree in which men perceive the necessity for general principles and broad views on legal subjects depends upon the degree in which they feel the want of them; and though it may appear paradoxical, it is strictly true, that under many circumstances, and in many states of society, the study of jurisprudence is injured by a good administration of justice and a good system of legislation, and favoured by a bad one. The law of England in the present day may be not altogether unfairly described as a mass of details which no memory can embrace, and which hardly any understanding can reduce under the heads to which they properly belong ; but this state of things, which a knowledge of jurisprudence more widely diffused amongst lawyers would undoubtedly have gone far to remedy, can be distinctly traced to the fact that the administration of the law was for centuries more pure, systematic, and authoritative, and that legislation was more judicious and definite, in this than in any other country in Europe.
The general object of jurisprudence is to lay down principles as to the nature of law, and to devise for legal purposes classifications of the various actions and relations of mankind; but the practical value of such theories is little felt where a system of law is established, which is so administered as to fulfil satisfactorily the primary objects of the protection of person and property; and their direct influence on judicial decisions is diminished in exact proportion to the degree of authority which practically attaches to the enactments of a well-ascertained sovereign legislature. We have fallen so much into the habit of making a supposed incapacity for systematic thought or systematic institutions on the part of Englishmen a subject either of foolish lamentation or of still more foolish boasts, that we have almost entirely forgotten the fact, that throughout the greater part of the history of modern Europe this was the only country which possessed either a real legislature, or a uniform administration of justice. The French, of whose inherent aptitude for everything systematic, or, to adopt one of the slang phrases of the day, logical,' we hear so much, allowed their law to remain for many centuries in a state of confusion, of which we in this country have had no example since the Heptarchy. Not only was there an endless conflict of jurisdictions, but there was also such a confusion of laws that in any given jurisdiction it was impossible to say what was law and what was not. In England the statutes, the law reports, and a few standard text books, have for many centuries formed the only authorities to which persons acting judicially would listen. In France, even at the present day, a far greater latitude is allowed both to judges and to advocates, and the long absence of any standard authority, universally acknowledged and obeyed, has had much more to do with the fondness of French lawyers for general theories, than any natural superiority in their understandings over those of our own legal writers. Nor has this habit of mind been entirely removed by the promulgation of the Code Civil.
In France the line between theory and authority was traced, if at all, in the faintest manner. In a country which contained as many as seventeen or eighteen Supreme Courts, and an infinite number of local jurisdictions of more or less authority, and which was governed partly by customs, partly by Roman law which owed its authority not to enactment but to immemorial usage, partly by royal ordinances, partly by laws made by states-general, which sat perhaps once in a century, and partly by what were called fundamental laws — such as that which regulated the succession to the crown, and which apparently were not made, and could not be repealed, by any known power whatever, the word 'law' had no clear meaning. There was thus a strong inducement to writers to attempt to rise above the petty mass of intricate rules established amongst them, and to claim for their own theories a right to regulate the affairs of mankind on account of their inherent justice and wisdom. On the other hand, the absence of any general authorities binding on all courts alike, naturally disposed the judges to encourage such speculations, by attaching to them a degree of importance which in our own country they have never been allowed to obtain.
In England, on the other hand, the double authority of Parliament on the one hand and the three Courts of Westminster Hall on the other, was unquestioned throughout the whole country. Even in isolated jurisdictions, with one or two unimportant exceptions, the twelve judges administered the law. The only substantial difference between the law of Lancashire and Cornwall and that of Yorkshire and Devonshire was, that in the last two counties the writs ran in the name of the reigning sovereign, and the judges sat by his authority; whereas, when they crossed the border into the other two, the same persons administered the same law by means of the same process under the authority of the same sovereign, by the titles of the Duke of Lancaster or Cornwall, instead of that of the King of England.
Jurisdiction has thus been fixed, and the broad outlines of the law have been laid down in this country from time immemorial, and the result of this has been that general theories as to what the law ought to be, or as to the principles which should regulate its proceedings, have always been relegated by the judges to the legislature. No doubt legislative powers of great importance always have been, and from the nature of the
case always will be, vested in the judges; but the acknowledged supremacy of the legislature, and the great authority of the courts, narrow the spirit in which they are exercised. The parliament of Toulouse might take a different view of the principles by which a sale of goods should be regulated from the parliament of Rouen; but when the courts at Westminster had once affirmed a principle, their successors were bound by it, and no other court in England could differ from them. The unquestioned supremacy of the law has been the great guardian of our liberty and prosperity, but like all other unquestioned authority, it has its inconveniences. If there had been courts of co-ordinate authority at York, Bristol, and Norwich, as well as at London, society at large would have suffered, but we should probably have had a greater number of influential writers on jurisprudence.
It must, however, be observed that the strong, and even harsh line drawn by the course of events in this country between legal theories and legal authorities may ultimately favour an enlightened study of jurisprudence as much as it has delayed it; for there can be no doubt that whilst the prospect of producing great immediate practical results stimulates, it also biases, theory in no slight degree. Hardly any one speculates on politics or theology in a purely neutral manner. The most judicial writers think how their views will affect the actual course of events, and shape their premisses and conclusions accordingly. In respect of subjects which attract general attention and provoke discussion on all sides, there is perhaps little harm in this, as the discussion results in the discovery of truth, but subjects of a special character attract comparatively little attention. The debate is usually one-sided, and permanent effects may be produced without attracting public attention. It is therefore highly important that such discussions should have nothing but truth for their object; and the best security for this result is to be found in drawing the line between theory and authority as distinctly as possible, and in rigidly excluding the one from any direct influence upon the other.
the other. Whatever may be the defects of our law, there can be no doubt that it has obtained this object with absolute completeness. The proverbial observation that law is