the civilians. Though the old English common lawyers showed great aversion to the Roman law, the Crown and the Church were generally arrayed in its favour. Everywhere the churchmen combined the study of the civil law with their own canons, and degrees in both laws were given in the universities. The English system of equity and the ecclesiastical law have been formed more or less extensively on the Roman law, or on the Roman through the Canon law. On the other hand, the English people, jealous of their national freedom, had a rooted dislike to the public law of the Romans, which set no limits to the royal prerogative, and placed the prince beyond the control of any other power; and therefore, when at various times attempts were made in Parliament to introduce changes founded on the Roman law, these innovations were strenuously resisted by the English barons, from a natural apprehension that they might prove injurious to the liberties of the subject.' In every free country there are good grounds for rejecting the public law of the Romans, as being suitable only for an absolute government; but this circumstance does not derogate from the excellence of their private law, the value of which is acknowledged by the most eminent English jurists. Mr Austin observes: "The importance of securing the existence of a body of lawyers with a somewhat extensive knowledge of the civil law is not to be disputed. Questions arise incidentally in all our tribunals on systems of foreign law, which are mainly founded on the civil. The law obtaining in some of our colonies is principally derived from the same original; and questions arising directly out of colonial law are brought before the Privy Council by way of appeal.""

In Scotland the Roman law was much more favourably received than it was in England. From the close alliance that so long subsisted with France, Scotland borrowed many of its institutions from that country, besides importing a large portion of Roman jurisprudence to make up the deficiencies of a municipal law, long crude and imperfect, and which

1 Dr Hurd's Moral and Political Dialogues, vol. ii. p. 194-209.

2 Austin's Lectures on Jurisprudence, vol. iii. p. 367.

had made little progress as a national system till some time after the establishment of the Court of Session in 1532. King James V. instituted that court, as Sir George Mackenzie informs us, after the model of the Parliament of Paris; and, by its original constitution, the ordinary judges were composed of seven churchmen and seven laymen, with a president. Properly speaking, the teaching of the civil law commenced in Scotland at the Reformation, in 1560. Previous to that era, it was a common practice for young men destined for the legal profession, upon finishing their course of education in Scotland, to go abroad and prosecute their studies in civil law at one or more of the universities on the Continent; and this practice continued to a considerable extent with those who wished to attain proficiency in this department of jurisprudence, long after chairs for teaching it had been established in the Scottish universities. In Scotland a knowledge of the Roman law has always been regarded as the best introduction to the study of the municipal law. No person can be admitted a member of the Faculty of Advocates without undergoing an examination in both laws. The judges of the Supreme Court are usually selected from that body; and by an express article of the Treaty of Union, no one, not an advocate, can be appointed a judge of the Court of Session without passing an examination in Roman law. All the best writers on the law of Scotland, such as Stair, Bankton, Erskine, and Bell, were able civilians; and though they have not produced separate treatises on the subject, their works abound with admirable illustrations of the Roman law, evincing great learning and research, and a familiar acquaintance with the writings of the Continental jurists.

school of

Since the close of the eighteenth century a new historical Historical school has sprung up in Germany, where the study of Roman Germany. jurisprudence has been prosecuted with extraordinary ardour and success. By the discovery of some ancient works, disclosing new sources of information, something like the enthusiasm of the sixteenth century has been rekindled. The Institutes of Gaius, the new constitutions of the Theodosian Code, the Fragmenta Vaticana,' the Republic' of Cicero,

the Letters of Fronto and Marcus Aurelius, the 'Rhetoric' of Julius Victor, the fragments of Symmachus, of Dionysius of Halicarnassus, of Lydus on Magistrates, have opened up a rich mine for the investigation of the modern German jurists. Facts formerly unknown have been revealed; ancient errors traditionally received have been exploded; and Roman law, as a science, has in many respects assumed a new aspect. To this department of knowledge the writings of Hugo, Haubold, Thibaut, Niebuhr, and Savigny have given a wonderful impulse. In 1811 M. Niebuhr published the first edition of his 'Roman History;' but he afterwards saw reason to modify many of his views. Frederick Charles von Savigny, professor of law at Berlin, who died in October 1861, in the 83d year of his age, stood at the head of the historical school of Germany. Besides a treatise on Possession, published in 1803, he is the author of two celebrated works, first, the 'History of the Roman Law during the Middle Ages,' and, secondly, the 'System of actual Roman Law,' both being distinguished by great erudition and learning. To Charles de Vangerow, professor of Roman law at Heidelberg, we are indebted for an admirable treatise on the Pandects (Lehrbuch der Pandecten,' 3 vols., 6th edition, 1855); this contains a clear exposition and probably the best solutions of the controversies on the civil law which have engaged the attention of modern jurists. Nor, among other eminent German civilians in our day, must we omit to mention Mackeldey, Marezoll, and Warnkoenig, who are the authors of excellent elementary works on Roman law, which we have found extremely useful in guiding our researches.

In some countries of Europe, and particularly in France and Germany, the publication of new civil codes has superseded to a considerable extent the practical application of the Roman law; but this circumstance has not proved so injurious to the study of that law as was often predicted by the adversaries of the historical school. For, as Marezoll has justly remarked, the Roman law not only possesses a universal scientific value, which it can never lose, but preserves also indirectly a practical value, in this sense, that it forms

the basis of the new civil codes of different states, besides furnishing an inexhaustible store of general principles for the decision of questions constantly occurring in daily practice which are not settled by statute, precedent, or usage. In giving judgment in Acton v. Blundell, Chief-Justice Tindal observed: The Roman law forms no rule binding in itself on the subjects of those realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by that law-the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe."1

1 12 Meeson and Welsby, p. 324.

PRELIMINARY CHAPTER.

ON JURISPRUDENCE AND THE PRINCIPAL DIVISIONS OF LAW.

Jurisprudence defined.

THE object of this chapter is to take a cursory glance at jurisprudence as a science, and to make some general observations on the principal divisions of law which form the subject of a course of legal education. In some Continental universities, chairs are set apart for this general instruction, as forming the best introduction to the study of law in any of its special departments.

Jurisprudence, in its literal sense, means knowledge of law. Ulpian, who entertained very lofty ideas of his favourite study, defined jurisprudence to be the knowledge of things divine and human, and the science of right and wrong.1 According to modern notions, jurisprudence is the science or philosophy of positive law-that is, law established in an independent political community by the authority of its supreme government. By positive law jurists understand a collection of rules, to which men living in civil society are subjected in such a manner that they may, in case of need, be constrained to observe them by the application of force. General jurisprudence investigates the principles which are common to various systems of positive law, apart from the local, partial, and accidental peculiarities of each; while particular jurisprudence treats of the law of a determinate nation, such as France or England. By French writers, jurisprudence is sometimes used in a technical sense to denote law

1 "Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia."-I. 1. 1. 1.

2 Austin, Lectures on Jurispru dence, vol. iii. p. 349 et seq.