1071 

ON THE USES OF THE STUDY OF JURISPRUDENCE

Proper subject of Jurisprudence.

1072The appropriate subject of Jurisprudence, in any of its different departments, is positive law: Meaning by positive law (or law emphatically so called), law established or ‘positum,’ in an independent political community, by the express or tacit authority of its sovereign or supreme government.

Considered as a whole, and as implicated or connected with one another, the positive laws and rules of a particular or specified community, are a system or body of law. And as limited to any one of such systems, or to any of its component parts, jurisprudence is particular or national.

Though every system of law has its specific and characteristic differences, there are principles, notions, and distinctions common to various systems, and forming analogies or likenesses by which such systems are allied.

Many of these common principles are common to all systems;—to the scanty and crude systems of rude societies, and the ampler and maturer systems of refined communities. But the ampler and maturer systems of refined communities are allied by the numerous analogies which obtain between all systems, and also by numerous analogies which obtain exclusively between themselves. Accordingly, the various principles common to maturer systems (or the various analogies obtaining between them), are the subject of an extensive science: which science (as contradistinguished to national or particular jurisprudence on one side, and, on another, to the science of legislation) has been named General (or comparative) Jurisprudence, or the philosophy (or general principles) of positive law.

As principles abstracted from positive systems are the subject of general jurisprudence, so is the exposition of such principles its exclusive or appropriate object. With the goodness or badness of laws, as tried by the test of utility (or by any of the various tests which divide the opinions of mankind), it has no immediate concern. If, in regard to some of the principles which form its appropriate subject, it adverts to considerations of utility, it adverts to such considerations for the purpose of explaining such principles, and not for the purpose of determining their worth. And this distinguishes the science in question from the science of legislation: which affects to determine the test or standard (together with the principles subordinate or consonant to such test) by which positive law ought to be made, or to which positive law ought to be adjusted.

If the possibility of such a science appear doubtful, it arises from this; that in each particular system, the principles and 1073distinctions which it has in common with others, are complicated with its individual peculiarities, and are expressed in a technical language peculiar to itself.

It is not meant to be affirmed that these principles and distinctions are conceived with equal exactness and adequacy in every particular system. In this respect different systems differ. But, in all, they are to be found more or less nearly conceived; from the rude conceptions of barbarians, to the exact conceptions of the Roman lawyers or of enlightened modern jurists.’⁵⁶

I mean, then, by General Jurisprudence, the science concerned with the exposition of the principles, notions, and distinctions which are common to systems of law: understanding by systems of law, the ampler and maturer systems which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction.

Of the principles, notions, and distinctions which are the subjects of general jurisprudence, some may be esteemed necessary. For we cannot imagine coherently a system of law (or a system of law as evolved in a refined community), without conceiving them as constituent parts of it.

Of these necessary principles, notions, and distinctions, I will suggest briefly a few examples.

1°. The notions of Duty, Right, Liberty, Injury, Punishment, Redress; with their various relations to one another, and to Law, Sovereignty, and Independent Political Society:

2°. The distinction between written or promulged, and unwritten or unpromulged law, in the juridical or improper senses attributed to the opposed expressions; in other words, between law proceeding immediately from a sovereign or supreme maker, and law proceeding immediately from a subject or subordinate maker (with the authority of a sovereign or supreme):

10743°. The distinction of Rights, into rights availing against the world at large (as, for example, property or dominion), and rights availing exclusively against persons specifically determined (as, for example, rights from contracts):

4°. The distinction of rights availing against the world at large, into property or dominion, and the variously restricted rights which are carved out of property or dominion:

5°. The distinction of Obligations (or of duties corresponding to rights against persons specifically determined) into obligations which arise from contracts, obligations which arise from injuries, and obligations which arise from incidents that are neither contracts nor injuries, but which are styled analogically obligations ‘quasi ex contractu:’

6°. The distinction of Injuries or Delicts, into civil injuries (or private delicts) and crimes (or public delicts); with the distinction of civil injuries (or private delicts) into torts, or delicts (in the strict acceptation of the term), and breaches of obligations from contracts, or of obligations ‘quasi ex contractu.’

It will, I believe, be found, on a little examination and reflection, that every system of law (or every system of law evolved in a refined community) implies the notions and distinctions which I now have cited as examples; together with a multitude of conclusions imported by those notions and distinctions, and drawn from them, by the builders of the system, through inferences nearly inevitable.

Of the principles, notions, and distinctions which are the subjects of General Jurisprudence, others are not necessary (in the sense which I have given to the expression). We may imagine coherently an expanded system of law, without conceiving them as constituent parts of it. But as they rest upon grounds of utility which extend through all communities, and which are palpable or obvious in all refined communities, they in fact occur very generally in matured systems of law; and therefore may be ranked properly with the general principles which are the subjects of general jurisprudence.

Such, for example, is the distinction of law into ‘jus personarum’ and ‘jus rerum’: the principle of the scientific arrangement given to the Roman Law by the authors of the elementary or institutional treatises from which Justinian’s Institutes were copied and compiled. The distinction, I believe, is an arbitrarily assumed basis for a scientific arrangement of a body of law. But being a commodious basis for an arrangement of a body of law, it has been very generally adopted by those 1075who have attempted such arrangements in the modern European nations. It has been very generally adopted by the compilers of the authoritative Codes which obtain in some of those nations, and by private authors of expository treatises on entire bodies of law. Nay, some who have mistaken the import of it, and who have contemptuously rejected it, as denoted by the obscure antithesis of ‘jus personarum et rerum,’ have yet assumed it under other (and certainly more appropriate) names, as the basis of a natural arrangement. Meaning, I presume, by a natural arrangement, an arrangement so commodious, and so highly and obviously commodious, that any judicious methodiser of a body of law would naturally (or of course) adopt it.

But it will be impossible, or useless, to attempt an exposition of these principles, notions and distinctions, until by careful analysis, we have accurately determined the meaning of certain leading terms which we must necessarily employ; terms which recur incessantly in every department of the science: which, whithersoever we turn ourselves, we are sure to encounter. Such, for instance, are the following: Law, Right, Obligation, Injury, Sanction: Person, Thing, Act, Forbearance. Unless the import of these are determined at the outset, the subsequent speculations will be a tissue of uncertain talk.

It is not unusual with writers who call and think themselves ‘institutional’ to take for granted, that they know the meaning of these terms, and that the meaning must be known by those to whom they address themselves. Misled by a fallacious test, they fancy that the meaning is simple and certain, because the expressions are familiar. Not pausing to ask their import, not suspecting that their import can need inquiry, they cast them before the reader without an attempt at explanation, and then proceed (without ceremony) to talk about them.

These terms, nevertheless, are beset with numerous ambiguities: their meaning, instead of being simple, is extremely complex: and every discourse which embraces Law as a whole, should point distinctly at those ambiguities, and should sever that complex meaning into the simpler notions which compose it.

Many of those who have written upon Law, have defined these expressions. But most of their definitions are so constructed that, instead of shedding light upon the thing defined, they involve it in thicker obscurity. In most attempts to define the terms in question, there is all the pedantry without the reality of logic: the form and husk, without the substance. The pretended definitions are purely circular: turning upon the very 1076expressions which they affect to elucidate, or upon expressions which are exactly equivalent.

In truth, some of these terms will not admit of definition in the formal or regular manner. And as to the rest, to define them in that manner is utterly useless. For the terms which enter into the abridged and concise definition, need as much elucidation as the very expression which is defined.

The import of the terms in question is extremely complex. They are short marks for long series of propositions. And, what aggravates the difficulty of explaining their meaning clearly, is the intimate and indissoluble connection which subsists between them. To state the signification of each, and to shew the relation in which it stands to the others, is not a thing to be accomplished by short and disjointed definitions, but demands a dissertation, long, intricate and coherent.

For example: Of Laws or Rules there are various classes. Now these classes ought to be carefully distinguished. For the confusion of them under a common name, and the consequent tendency to confound Law and Morals, is one most prolific source of jargon darkness and perplexity. By a careful analysis of leading terms, law is detached from morals, and the attention of the student of jurisprudence is confined to the distinctions and divisions which relate to law exclusively.

But in order to distinguish the various classes of laws, it is necessary to proceed thus:—To exhibit, first, the resemblance between them, and, then, their specific differences: to state why they are ranked under a common expression, and then to explain the marks by which they are distinguished. Till this is accomplished, the appropriate subject of Jurisprudence is not discernible precisely. It does not stand out. It is not sufficiently detached from the resembling or analogous objects with which it is liable to be confounded.

Thus, for example, in order to establish the distinction between Written and Unwritten Law, we must scrutinise the nature of the latter: a question which is full of difficulty; and which has hardly been examined with the requisite exactness by most of the writers who have turned their attention to the subject. I find it much vituperated, and I find it as much extolled; but I scarcely find an endeavour to determine what it is. But if this humbler object were well investigated, most of the controversy about its merits would probably subside.

To compare generally, or in the abstract, the merits of the two species, would be found useless: and the expediency of the 1077process which has been styled Codification, would resolve itself into a question of time, place, and circumstance.

The word Jurisprudence itself is not free from ambiguity; it has been used to denote—

The knowledge of Law as a science, combined with the art or practical habit or skill of applying it; or, secondly,

Legislation;—the science of what ought to be done towards making good laws, combined with the art of doing it.

Inasmuch as the knowledge of what ought to be, supposes a knowledge of what is, legislation supposes jurisprudence, but jurisprudence does not suppose legislation. What laws have been and are, may be known without a knowledge of what they ought to be. Inasmuch as a knowledge of what ought to be, is bottomed on a knowledge of antecedents cognato genere, legislation supposes jurisprudence.

With us, Jurisprudence is the science of what is essential to law, combined with the science of what it ought to be.⁵⁷ It is particular or universal. Particular Jurisprudence is the science of any actual system of law, or of any portion of it. The only practical jurisprudence is particular.

The proper subject of General or Universal Jurisprudence (as distinguished from Universal Legislation) is a description of such subjects and ends of Law as are common to all systems; and of those resemblances between different systems which are bottomed in the common nature of man, or correspond to the resembling points in their several positions.

And these resemblances will be found to be very close, and to cover a large part of the field. They are necessarily confined to the resemblances between the systems of a few nations; since it is only a few systems with which it is possible to become acquainted, even imperfectly. From these, however, the rest may be presumed. And it is only the systems of two or three nations which deserve attention:—the writings of the Roman Jurists; the decisions of English Judges in modern times; the provisions of French and Prussian Codes as to arrangement. Though the points are also few in which the laws of nations ought to be the same (i.e. precisely alike), yet there is much room for universal legislation: i.e. the circumstances not precisely alike may be treated of together, in respect of what they have in common; with remarks directed to their differences. Whether the principles unfolded deserve the name of Universal or not, is 1078of no importance. Jurisprudence may be universal with respect to its subjects: Not less so than legislation.

Inevitable (and sometimes intentional) implication of Legislation with Jurisprudence.

It is impossible to consider Jurisprudence quite apart from Legislation; since the inducements or considerations of expediency which lead to the establishment of laws, must be adverted to in explaining their origin and mechanism. If the causes of laws and of the rights and obligations which they create be not assigned, the laws themselves are unintelligible.

Where the subject is the same, but the provisions of different systems with respect to that subject are different, it is necessary to assign the causes of the difference: whether they consist in a necessary diversity of circumstances, or in a diversity of views on the part of their respective authors with reference to the ends of Law. Thus, the rejection or limited reception of entails in one system, and their extensive reception in another, are partly owing to the different circumstances in which the communities are placed;—partly to the different views of the aristocratic and democratic legislators by whom these provisions have been severally made.

So far as these differences are inevitable—are imposed upon different countries—there can be no room for praise or blame. Where they are the effect of choice, there is room for praise or blame; but I shall treat them not as subjects of either, but as causes explaining the existence of the differences. So of the admission or prohibition of divorce—Marriages within certain degrees, etc.

Wherever an opinion is pronounced upon the merits and demerits of Law, an impartial statement of the conflicting opinions should be given. The teacher of Jurisprudence may have, and probably has, decided opinions of his own; but it may be questioned whether earnestness be less favourable to impartiality than indifference; and he ought not to attempt to insinuate his opinion of merit and demerit under pretence of assigning causes. In certain cases which do not try the passions (as rescission of contract for inadequacy of consideration) he may, with advantage, offer opinions upon merits and demerits. These occasional excursions into the territory of Legislation, may serve to give a specimen of the manner in which such questions should be treated. This particularly applies to Codification: a question which may be agitated with safety, because everybody must admit that Law ought to be known, whatever he may think of the provisions of which it ought to consist.

1079Attempting to expound the principles which are the subject of the science of Jurisprudence (or rather to expound as many of them as a limited Course of Lectures will embrace), he must not only try to state them in general or abstract expressions, but must also endeavour to illustrate them by examples from particular systems: especially by examples from the Law of England, and from the Roman or Civil Law.

Value of the Study Of Roman Law.

For the following sufficient reason (to which many others might be added), the Roman or Civil Law is, of all particular systems, other than the Law of England, the best of the sources from which such illustrations might be drawn.

In some of the nations of modern Continental Europe (as, for example, in France), the actual system of law is mainly of Roman descent; and in others of the same nations (as, for example, in the States of Germany), the actual system of law, though not descended from the Roman, has been closely assimilated to the Roman by large importations from it.

Accordingly, in most of the nations of modern Continental Europe, much of the substance of the actual system, and much of the technical language in which it is clothed, is derived from the Roman Law, and without some knowledge of the Roman Law the technical language is unintelligible; whilst the order or arrangement commonly given to the system, imitates the exemplar of a scientific arrangement which is presented by the Institutes of Justinian. Even in our own country, a large portion of the Ecclesiastical and Equity, and some (though a smaller) portion of the Common Law, is derived immediately from the Roman Law, or from the Roman through the Canon.

Nor has the influence of the Roman Law been limited to the positive law of the modem European nations. For the technical language of this all-reaching system has deeply tinctured the language of the international law or morality which those nations affect to observe. By drawing, then, largely for examples on the Roman or Civil Law, an expositor of General Jurisprudence (whilst illustrating his appropriate subject) might present an idea of a system which is a key to the international morality, the diplomacy, and to much of the positive law, of modern civilised communities.

It is much to be regretted that the study of the Roman Law is neglected in this country, and that the real merits of its founders and expositors are so little understood.

Much has been talked of the philosophy of the Roman 1080Institutional writers. Of familiarity with Grecian philosophy there are few traces in their writings, and the little that they have borrowed from that source is the veriest foolishness: for example, their account of Jus naturale, in which they confound law with animal instincts; law, with all those wants and necessities of mankind which are causes of its institution.

Nor is the Roman law to be resorted to as a magazine of legislative wisdom. The great Roman Lawyers are, in truth, expositors of a positive or technical system. Not Lord Coke himself is more purely technical. Their real merits lie in their thorough mastery of that system; in their command of its principles; in the readiness with which they recall, and the facility and certainty with which they apply them.

In support of my own opinion of these great writers I shall quote the authority of two of the most eminent Jurists of modern times.

‘The permanent value of the Corpus Juris Civilis,’ says Falck, ‘does not lie in the Decrees of the Emperors, but in the remains of juristical literature which have been preserved in the Pandects. Nor is it so much the matter of these juristical writings, as the scientific method employed by the authors in explicating the notions and maxims with which they have to deal, that has rendered them models to all succeeding ages, and pre-eminently fitted them to produce and to develop those qualities of the mind which are requisite to form a Jurist.’⁵⁸

And Savigny says, ‘It has been shewn above, that, in our science, all results depend on the possession of leading principles; and it is exactly this possession upon which the greatness of the Roman Jurists rests. The notions and maxims of their science do not appear to them to be the creatures of their own will; they are actual beings, with whose existence and genealogy they have become familiar from long and intimate intercourse. Hence their whole method of proceeding has a certainty which is found nowhere else except in mathematics; and it may be said without exaggeration, that they calculate with their ideas. If they have a case to decide, they begin by acquiring the most vivid and distinct perception of it, and we see before our eyes the rise and progress of the whole affair, and all the changes it undergoes. It is as if this particular case were the germ whence the whole science was to be developed. Hence, with them, theory and practice are not in fact distinct; their theory is so thoroughly worked out as to be fit for immediate application, and their 1081practice is uniformly ennobled by scientific treatment. In every principle they see a case to which it may be applied; in every case, the rule by which it is determined; and, in the facility with which they pass from the general to the particular and the particular to the general, their mastery is indisputable.’⁵⁹

In consequence of this mastery of principles, of their perfect consistency (‘elegantia’⁶⁰), and of the clearness of the method in which they are arranged, there is no positive system of law which it is so easy to seize as a whole. The smallness of its Volume tends to the same end.

The principles themselves, many of them being derived from barbarous ages, are indeed ill fitted to the ends of law; and the conclusions at which they arrive being logical consequences of their imperfect principles, necessarily partake of the same defect.⁶¹

A subordinate merit of the Roman lawyers is their style, always simple and clear, commonly brief and nervous, and entirely free from nitor. Its merits are appropriate and in perfect taste. It bears the same relation to that of Blackstone and Gravina, which a Grecian statue bears to a milliner’s doll in the finery of the season.

I by no means mean to put the study of the Roman Law on a level in point of importance with that of the Aristotelic Logic (for the Roman Law is not necessary): but in the respect now under consideration, it bears the same relation to law and morals, which the school logic bears to philosophy.

The number of the analogies between the Roman Law and many of the Continental systems, and between the Roman and English Law, is not indeed to be wondered at: since those Continental systems and also our own system of Equity, have been formed more or less extensively on the Roman Law; chiefly on the Roman, through the Canon. But the English Law, like the Roman, is, for the most part, indigenous, or comparatively little has been imported into it from the Roman. The coincidences shew how numerous are the principles and distinctions which all systems of law have in common. The extensive coincidence of particular systems may be ascertained practically by comparing two expositions of any two bodies of law. The coincidence is pre-eminently remarkable in the Roman Law and the Common Law of England.

Uses of the Study of Jurisprudence.

1082Having stated generally the nature of the science of Jurisprudence, and also the manner in which I think it ought to be expounded, I proceed to indicate briefly a few of its possible uses.

I would remark, in the first place, that a well-grounded study of the principles which form the subject of the science, would be an advantageous preparative for the study of English Law.

To the student who begins the study of the English law, without some previous knowledge of the rationale of law in general, it naturally appears an assemblage of arbitrary and unconnected rules. But if he approached it with a well-grounded knowledge of the general principles of jurisprudence, and with the map of a body of law distinctly impressed upon his mind, he might obtain a clear conception of it (as a system or organic whole) with comparative ease and rapidity.

With comparative ease and rapidity, he might perceive the various relations of its various parts; the dependence of its minuter rules on its general principles; and the subordination of such of these principles as are less general or extensive, to such of them as are more general, and run through the whole of its structure.

In short, the preliminary study of the general principles of jurisprudence, and the mental habits which the study of them tends to engender, would enable him to acquire the principles of English jurisprudence, in particular, far more speedily and accurately than he possibly could have acquired them, in case he had begun the study of them without the preparative discipline.

There is (I believe) a not unprevalent opinion, that the study of the science whose uses I am endeavouring to demonstrate, might tend to disqualify the student for the practice of the law, or to inspire him with an aversion from the practice of it. That some who have studied this science have shewn themselves incapable of practice, or that some who have studied this science have conceived a disgust of practice, is not improbably a fact. But in spite of this seeming experience in favour of the opinion in question, I deny that the study itself has the tendency which the opinion imputes to it.

A well-grounded knowledge of the general principles of jurisprudence helps, as I have said, to a well-grounded knowledge of the principles of English jurisprudence; and a previous well-grounded knowledge of the principles of English jurisprudence, can scarcely incapacitate the student for the acquisition of practical knowledge in the chambers of a conveyancer, pleader, 1083or draftsman. Armed with that previous knowledge, he seizes the rationale of the practice which he there witnesses and partakes in, with comparative ease and rapidity; and his acquisition of practical knowledge, and practical dexterity and readiness, is much less irksome than it would be in case it were merely empirical. Insomuch, that the study of the general principles of jurisprudence, instead of having any of the tendency which the opinion in question imputes to it, has a tendency (by ultimate consequence) to qualify for practice, and to lessen the natural repugnance with which it is regarded by beginners.

System adopted in Prussia.

The advantage of the study of common principles and distinctions, and of history considered as a preparative for the study of one’s own particular system, is fully appreciated in Prussia: a country whose administrators, for practical skill, are at least on a level with those of any country in Europe.

In the Prussian Universities, little or no attention is given by the Law Faculty to the actual law of the country. Their studies are wholly or almost entirely confined to the general principles of Law; to the Roman, Canon, and Feudal law, as the sources of the actual system: the Government trusting that those who are acquainted with such general principles and with the historical basis of the actual system, will acquire that actual system more readily, as well as more groundedly, than if they had at once set down to the study of it, or tried to acquire it empirically.

‘In the Prussian states,’ says Savigny, ‘ever since the establishment of the Landrecht, no order of study has ever been prescribed; and this freedom from restraint, sanctioned by the former experience of the German universities, has never been infringed upon. Even the number of professors, formerly required on account of the Common Law (Gemeines Recht), has not been reduced, and the curators of the universities have never led either the professors or the students to believe, that a part of the lectures, formerly necessary, were likely to be dispensed with. Originally it was thought advisable that, in each university, one chair at least should be set apart for the Prussian law, and a considerable prize was offered for the best manual. But even this was subsequently no longer required; and, up to the present time, the Prussian law has not been taught at the university of Berlin. The established examinations are formed upon the same principle; the first, on the entrance into real matters of business, turning exclusively on the common law; the next period is set apart for the directly-practical education 1084of the jurisconsults; and the two following examinations are the first that have the Landrecht for their subject-matter; at the same time, however, without excluding the common law. At present, therefore, juridical education is considered to consist of two halves; the first half (the university) including only the learned groundwork; the second, on the other hand, having for its object the knowledge of the Landrecht, the knowledge of the Prussian procedure, and practical skill.’⁶²

The opinion I have expressed was that of Hale, Mansfleld,⁶³ and others (as evinced by their practice) and was recommended by Sir William Blackstone, some eighty years ago.⁶⁴

Backed by such authority, I think I may conclude that the science in question, if taught and studied skilfully and effectually, and with the requisite detail, would be no inconsiderable help to the acquisition of English law.

I may also urge the utility of acquiring the talent of seizing or divining readily the principles and provisions (through the mist of a strange phraseology) of other systems of law, were it only in a mere practical point of view:

1°. With a view to practice, or to the administration of justice in those of our foreign dependencies wherein foreign systems of law more or less obtain. 2°. With a view to the systems of law founded on the Roman directly, or through the Canon or the Roman, which even at home have an application to certain classes of objects. 3°. With a view to questions arising incidentally, even in the Courts which administer indigenous law. 4°. With a view to the questions in the way of appeal coming before the Privy Council: A Court which is bound to decide questions arising out of numerous systems, without the possibility of judges or advocates having any specific knowledge of them: an evil for which a familiarity with the general principles of law on the part of the Court and advocates is the only conceivable palliative.

For, certainly, a man familiar with such principles, as detached from any particular systems, and accustomed to seize analogies, will be less puzzled with Mahomedan or Hindoo institutions than if he knew them only in concreto, as they are 1085in his own system: nor would he be quite so inclined to bend every Hindoo institution to the model of his own.

And (secondly) without some familiarity with foreign systems, no lawyer can or will appreciate accurately the defects or merits of his own.

And as a well-grounded knowledge of the science whose uses I am endeavouring to demonstrate, would facilitate to the student the acquisition of the English law, so would it enable him to apprehend, with comparative ease and rapidity, almost any of the foreign systems to which he might direct his attention. So numerous, as I have said, are the principles common to systems of law, that a lawyer who has mastered the law which obtains in his own country, has mastered implicitly most of the substance of the law which obtains in any other community. So that the difficulty with which a lawyer, versed in the law of his own country, apprehends the law of another, is rather the result of differences between the terms of the systems, than of substantial or real differences between their maxims and rules.

Now the obstacle to the apprehension of foreign systems which is opposed by their technical language, might in part be obviated or lightened to the student of General Jurisprudence, if the science were expounded to him competently, in the method which I shall endeavour to observe. If the exposition of the science were made agreeably to that method, it would explain incidentally the leading terms, as well as the leading principles, of the Roman or Civil Law. And if the student were possessed of those terms, and were also grounded thoroughly in the law of his own country, he would master with little difficulty the substance of the Roman system, and of any of the modern systems which are mainly derivatives from the Roman.

It has, I perceive, been maintained by some able and distinguished persons, that the jurisdiction of the Ecclesiastical Courts ought to be extended, in order that the ecclesiastical bar may not be extinguished, and that a sufficient supply of Civilians may be secured to the country.

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 in the way of appeal. In order that these various 1086questions may be justly decided, and in order that the law of these colonies may be duly administered, the existence of a body of English lawyers, with a somewhat extensive knowledge of the Civil Law, is manifestly requisite.

But I think it will be questioned by all who are versed in the Civil Law, whether a well-grounded study of the principles of the Law of England, of the rationale of law in general, and of the leading principles and terms of the Roman system itse1f, be not a surer road to the acquisition of this knowledge, than the study of Ecclesiastical Law, or practice at the ecclesiastical bar.

Before I proceed further, it will be proper that I should describe what is, in my opinion, the education necessary to form a Lawyer.

Training of a lawyer.

In order to the formation of a theoretico-practical lawyer, extensively versed in law as a science, and in the sciences related to law—such a man as were alone capable of advancing the science, and of conceiving sound legislative reforms—he must begin early to attend to these studies, and must be satisfied with a limited attention to other sciences.

The languages of classical antiquity are almost indispensable helps to all sound acquirements in Politics, Jurisprudence, or any of the Moral Sciences. They are also requisite for the formation of those elevated sentiments, and that rectitude of judgment and taste, which are inseparably connected with them. These languages may be acquired, and in fact are acquired, when well acquired, in early youth.

But with regard to mathematics (except in as far as the methods of investigation and proof are concerned, and which would form a branch of a well conceived course of logic), I cannot see why men intended for law, or for public life, should study them: or why any men should study them, who have not a particular vocation to them, or to some science or art in which they are extensively applicable. To all other men, the advantages derivable from them, as a gymnastic to the mind, might be derived (at least in a great measure) from a well conceived course of logic: into which, indeed, so much of mathematics as would suffice to give those advantages, would naturally enter.

Logic is a necessary preparation to the study of the moral sciences, where the ambiguity of the terms (especially that which consists in their varying extension), the number of collective names (apt to be confounded with existences), and the elliptical form in which the reasoning is expressed, render a previous 1087familiarity with the nature of terms and the process of reasoning absolutely necessary. In pure mathematics, and in the sciences to which these are largely applied, a previous acquaintance with the nature of induction, generalisation and reasoning may not be so necessary; because the terms are definite, the premisses few and formally introduced, and the consequences deduced at length. But to those who have not time to discipline their minds by this most perfect exemplification of these processes, a previous acquaintance with logic is absolutely necessary. Indeed, considering the sort of difficulties which beset moral disquisitions, logic is a better preparation than the mathematics or the physical sciences; which are not the theory of these mental processes, but merely exemplifications of them.

With regard to lawyers in particular, it may be remarked, that the study of the rationale of law is as well (or nearly as well) fitted as that of mathematics, to exercise the mind to the mere process of deduction from given hypotheses. This was the opinion of Leibnitz: no mean judge of the relative values of the two sciences in this respect. Speaking of the Roman Lawyers he says, ‘Digestorum opus (vel potius auctorum, unde excerpta sunt, labores) admiror: nec quidquam vidi, sive rationum acumen, sive dicendi nervos spectes, quod magis accedat ad mathematicorum laudem. Mira est via consequentiarum, certatque ponderi subtilitas.’⁶⁵

And with regard to an accurate and ready perception of analogies, and the process of inference founded on analogy (‘argamentatio per analogiam,’ or ‘analogica’)—the basis of all just inferences with regard to mere matter of fact and existence,—the study of law (if rationally pursued) is, I should think, better than that of mathematics, or of any of the physical sciences in which mathematics are extensively applicable. For example, the process of analogical inference in the application of law: the process of analogical consequence from existing law, by which much of law is built out: analogical inferences with reference to the consideration of expediency on which it is built: the principles of judicial evidence, with the judgments formed upon evidence in the course of practice: all these shew that no study can so form the mind to reason justly and readily from 1088analogy as that of law. And, accordingly, it is matter of common remark, that lawyers are the best judges of evidence with regard to matter of fact or existence.

And even admitting that, as a gymnastic, mathematics may be somewhat superior to law, still it is better that lawyers, and young men destined for public life, should not affect to know them extensively; but (having acquired the classics, and gone through a course of logic) should, as early as possible, bend their attention, strenuously and almost exclusively, to General Jurisprudence. Legislation, and all the sciences related to these, which tend more directly to fit them for their profession, or for practical politics.

By the former, they are merely exercising (with reference to their callings) the mental powers. By the latter, they are at once exercising the mental powers, and making the very acquisitions without which they are not adequately fitted to exercise their callings. If I want to go to York on foot, I may acquire the swiftness and endurance which would help me to my goal, by preparatory walks on the road to Exeter. But by setting out at the commencement for York, I am at once acquiring swiftness and endurance, and making a progress (during the acquisition) to the point which I am specially aiming to reach.

These remarks will not apply to men who are gifted with such velocity and such reach of apprehension, that they may aim safely at universality. They merely apply to men whose acquisitions are got by laborious attention: the only way in which, to my apprehension, they are to be got. These must content themselves with moderate acquisitions, out of the domain of the sciences bearing directly on their callings (enough to prevent bigotry), and must begin early to master those sciences. I am sorry it is so. For nothing would give me greater pleasure than extensive knowledge; especially of the strict sciences. But (speaking generally) he who would know anything well, must resolve to be ignorant of many things.

Necessity for a Law Faculty.

And here I must add that, in order to enable young men preparing for the profession, to lay a solid basis for the acquisition (in the office of a practitioner) of practical skill, and for subsequent successful practice, an institution like the Law Faculty in the best of the foreign universities seems to be requisite: an institution in which the general principles of jurisprudence and legislation (the two including ethics generally), international law, the history of the English law (with outlines of the Roman, Canon, and Feudal, as its three principal 1089sources), and the actual English law (as divided into fit compartments), might be taught by competent instructors.

In such a school, young men, not intending to practise, but destined for public life (‘ad res gerendas nati’), might find instruction in the sciences which are requisite to legislators. Young men intended for administration (other than that of justice) would attend the law faculty; as, on the other hand, the men intended for law would attend the courses on the various political sciences, such as political economy, etc. For, however great may be the utility of the study of General Jurisprudence to lawyers generally; however absolute its necessity to lawyers entrusted with the business of Codification, its importance to men who are destined to take part in the public business of the country is scarcely inferior.

It is extremely important that a large portion of the aristocracy, whose station and talents destine them to the patrician profession of practical politics, should at least be imbued with the generalia of law, and with sound views of legislation; should, so far as possible, descend into the detail, and even pass some years in practice.

If the houses of parliament abounded with laymen thus accomplished, the demand for legal reform would be more discriminating, and also more imperative; much bad and crude legislation would be avoided;—opposition to plausible projects not coming from a suspected quarter. This, in the innovating age before us, is no small matter. And though lawyers, fully acquainted with system, alone are good legislators, they need perhaps a check on professional prejudices, and even on sinister interests.

But such a check (and such an encouragement to good lawyers) would be found in a public of laymen versed in principles of law, and not in men ignorant of detail and practice.

It appears to me that London possesses peculiar advantages for such a Law Faculty. The instructors, even if not practising lawyers, would teach under the eye and control of practitioners: and hence would avoid many of the errors into which the German teachers of law, excellent as they are, naturally fall, in consequence of their not coming sufficiently into collision with practical men. The realities with which such men have to deal, are the best correctives of any tendency to antiquarian trifling or wild philosophy to which men of science might be prone. In England, theory would be moulded to practice.

1090Besides the direct advantages of such an institution, many incidental ones would arise.

In the first place; a juridical literature worthy of the English bar.

Good legal treatises (and especially the most important of any, a good institutional treatise, philosophical, historical, and dogmatical, on the whole of the English law) can only be provided by men, or by combinations of men, thoroughly grounded and extensively and accurately read. Such books might be produced by a body of men conversant (from the duties of their office) with the subjects, but can hardly be expected from the men who now usually make them: viz. not lawyers of extensive knowledge (whose practical avocations leave them no leisure for the purpose, although generally they are the only men fit for the task), but young men, seeking notice, and who often want the knowledge they affect to impart.

Such men as I assume a law faculty to consist of, being accustomed to exposition, would also produce well-constructed and well-written books, as well as books containing the requisite information. Excellent books are produced by German Professors, in spite of their secluded habits; many of them being the guides of practitioners, or in great esteem with them (e.g. those of Professor Thibaut). In England, better might be expected, for the reason already assigned: viz. the constant view to practice forced upon writers by constant collision with practical men.

Secondly; Another effect of the establishment of a Law Faculty would be, the advancement of law and legislation as sciences, by a body of men specially devoted to teaching them as sciences; and able to offer useful suggestions for the improvement (in the way of systematising or legislating) of actual law. For though enlightened practical lawyers are the best legislators, they are not perhaps so good originators (from want of leisure for abstraction) as such a body as I have imagined. And the exertions of such men, either for the advancement of Jurisprudence and Legislation as sciences, or in the way of suggesting reforms in the existing law, might be expected to partake of the good sense and sobriety to which the presence and castigation of practitioners would naturally form them.

How far such an institution were practicable, I have not the means of determining.

There would be one difficulty (at first); that of getting a sufficient number of teachers competent to prove the utility of learning the sciences taught by them: masters of their respec1091tive sciences (so far as long and assiduous study could make them so); and, moreover, masters in the difficult art of perspicuous, discreet, and interesting exposition: an art very different from that of oratory, either in Parliament or at the Bar. Perhaps there is not in England a single man approaching the ideal of a good teacher of any of these sciences. But this difficulty would be obviated, in a few years, by the demand for such teachers; as it has been in countries in which similar institutions have been founded by the governments.

Another difficulty is, the general indifference, in this country, about such institutions, and the general incredulity as to their utility. But this indifference and incredulity are happily giving way (however slowly); and I am convinced that the importance of such institutions, with reference to the influence and honour of the legal profession, and to the good of the country (so much depending on the character of that profession) will, before many years are over, be generally felt and acknowledged.⁶⁶

Encouraging symptoms have already appeared; and there is reason to hope from these beginnings, however feeble, that the government of the country, or that the Inns of Court, will ultimately provide for law students, and for young men destined to public life, the requisite means of an education fitting them for their high and important vocations.

Having tried to state or suggest the subjects of the science of General Jurisprudence, with the manner in which those subjects ought to be expounded and exemplified; and having tried to demonstrate the uses which the study of the science might produce; I would briefly remark, that those uses are such as might result from the study, if the science were acquired by students of law (professional or intended for public life) with the requisite fulness and precision. But from mere attendance on a Course of Lectures (however completely and correctly conceived, and however clearly expressed), the science could not be acquired with that requisite fulness and precision. It could not be so acquired, though the lecturer brought to the task the extensive and exact knowledge, the powers of adequate and orderly conception, and the rare talent of clear exposition and apt illustration, which the successful performance of the task requires. For he could only explain adequately, or with an approach to adequacy, some certain parts in the whole series; filling up the gaps with mere indications of the necessary, but necessarily omitted, links.