Page:Encyclopædia Britannica, Ninth Edition, v. 14.djvu/382

 364 LAW in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law may exist in the English system has come in, whether by conscious adaptation or otherwise, ab extra ; it is not of the essence of the system, nor does it form a large portion of the system. And, while English law is thus historically independent of Roman law, it is in all respects worthy of being associated with it on its own merits. Its originality, or, if the phrase be preferred, its peculiarity, is not more remarkable than the intellectual qualities which have gone to its formation the ingenuity, the rigid logic, the reason ableness, of the generations of lawyers and judges who have built it up. This may seem extravagant praise for a legal system, the faults of which are and always have been matter of daily complaint, but it would be endorsed by all unpre judiced students. What men complain of is the practical hardship and inconvenience of some rule or process of law. They know, for example, that the law of real property is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real property, which rests to this day on ideas that have been buried for centuries, has nevertheless the quali ties we have named. So too with the law of procedure as it existed under the &quot;science&quot; of special pleading. The greatest practical law reformer, and the severest critic of existing systems that has ever appeared in any age or country, Jeremy Bentham, has admitted this: &quot;Confused, indeterminate, inadequate, ill-adapted, and inconsistent as to a vast extent the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision, yet in the character of a repository of such cases it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political states, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, iu clearness of statement in a word, all points taken together, in con- structiveness to that which may be seen to be afforded by the collection of English reports of adjudged cases&quot; (Bentham s Works, vol. iv. p. 460). On the other hand, the fortunes of English jurisprudence are not unworthy of comparison even with the catholic position of Roman law. In the United States of America, in India, and in the vast colonial empire, the common law of England constitutes most of the legal system in actual use, or is gradually being superimposed upon it. It would hardly be too much to say that English law of indigenous growth, and Roman law, between them govern the legal relations of the whole civilized world. Nor has the influence of the former on the intellectual habits and the ideas of men been much if at all inferior. Those who set any store by the analytical jurisprudence of the school of Austin will be glad to acknowledge that it is pure outcome of English law. Sir Henry Maine has associated its rise with the activity of modern legislatures, which is of course a characteristic of the societies in which English laws prevail. And it would not be difficult to show that the germs of Austin s principles are to be found in legal writers who never dreamed of analysing a law. It is certainly remarkable, at all events, that the acceptance of Austin s system is as yet confined strictly to the domain of English law. Sir H. Maine has found no trace of its being even known to the jurists of the Continent, and it would appear that it has been equally without influence in Scotland, which, like the Continent, is essentially Roman in the fundamental elements of its jurisprudence. While, however, Roman law has had many historians, and while it has been, in Germany at least, the subject of a good deal of historical philosophy, English law can hardly yet be said to have had its historian, much less its philo sopher. What is wanted here, in the first place, is the setting forth of the materials in a condition fit for exami nation. This has been rightly described as perhaps the most important intellectual want of the present time. But in the meantime the revival of the study of Roman law in England has made the comparison of Roman and English law a matter of course in legal education, and has un doubtedly led, in accordance, no doubt, with the bent of contemporary thought, to the formation in England of what may not improperly be called a great school of historical jurists. By far the most considerable contribution made by Eng land to historical jurisprudence is the writings of Sir Henry Maine. The first of these (Ancient Lau&amp;gt;), published in 1861, has probably had a more profound influence on contemporary thought than any other book of this generation. The Early History of Institutions and Village Communities in the East and West have since followed. In Ancient Law Sir Henry Maine proposes to trace the connexion of the subject with the early history of society and its relation to modern ideas. Taking the Roman law as a typical system, he revealed for the first time to English readers the connexion between the principles of forgotten lawyers and, not merely the legal ideas, but the moral common places of our own time. The book undermined what had been accepted as first principles by showing that they had a history. It gratified the intellectual sense by the brilliant identification of legal ideas, obscured by differences of time and place and circumstance. It is not surprising that its influence has been even more extensive among educated laymen than among professional lawyers, for the latter are condemned by custom to disregard everything in their science but its relation to the business of the day. But Ancient Law set the attitude of regarding a legal rule not as an isolated fact but as the last link in an historical series. In the better sort of legal text-books which have recently appeared this attitude is discernible, and on the whole to the advantage of the exposition, even for the purposes of practice. At the present moment conclusions based on an exami nation of the history of legal systems stand subject to correction by the results of the investigation, which is being conducted with so much diligence and success, into the condition of savage races. If it be a right inference that the phenomena of barbarism, as it exists at the present day, represent a condition through which civilized societies have passed, it is obvious that the origin which recorded history suggests for legal ideas and practices must not be taken as absolute. It so happens that prehistoric society has hitherto engaged a much larger share of attention than the history of laws. Conspicuous among the writers who have made important contributions to the literature of this subject are Mr E. B. Tylor, Sir J. Lubbock, Mr Lewis Mor gan, and especially Mr J. F. M Lennan. Many of the con clusions to which these inquirers have been led do not affect any position taken up by historical jurists, but others tend to show that social forms which, seen from the side of legal history, appeared to be the absolute beginning of modern institutions, may themselves have been the result of a long evolution. The most conspicuous example, not of anta gonism, but of what may be called disconnexion, between juridical and naturalistic theories of the origin of society, is to be found in the FAMILY (q.v.). Here it need only be said that the part played by the family in the development of legal ideas has been fully elaborated by historical jurists, sometimes with the inference, implied rather than expressed, that it marks the beginning of the history, or at least is to be found in the earliest period of the race of which we have