sounding the tocsin of war in the straits of Dover. While with one hand they are pouring in the choicest and most costly specimens of their arts and manufactures to our crystal palace of concord, it is not likely that with the other they should be forging a thunderbolt to shiver it in pieces. That very building, the purpose for which it is erecting, the voice of Enrope responding to the call, are evidences of general confidence in the stability and security of our position and institutions, more agreeable, and far more convincing than a fleet of war steamers, or an army of bristling bayonets. Let us proceed on steadily, cultivating the arts of peace, not seek

ing for war, but ready to meet it should such an alternative be forced on us. Above all, let us rely on the same protecting shield which has covered us under far more formidable circumstances of alarm; on the justice of a good cause and honest intentions, and neither waste our time nor our money in idle speculations on very unlikely events. France and England stand at the head of the civilised world. Their common interest is friendship, not hostility. That a blow struck by either at the prosperity of the other, would be a false step we firmly believe to be felt and understood by all wellregulated minds, and influential classes in both countries.

In the late improvements in the arrangement of legal studies, it seems to have been judiciously considered, that the ROMAN CIVIL LAW formed a connecting link between mere professional and general education. Indispensable, on the one side, to the lawyer, it attaches itself, on the other, to all that is most valuable for the accomplishment of a cultivated mind. It is not only a system of jurisprudence, avowedly adopted in some, and influencing to some extent the practice of almost all our courts, but it is a science and a literature, noble, rich, and large, whose roots strike deep in the soil of philosophy, and whose branches are covered with the fruits and foliage of classic and of modern history. In the University of Edinburgh, indeed, Roman Antiquities and general History form, together with Civil Law, the province of one chair; and the subjects are so intimately united as to make the distribution not so unsuitable as might appear at first sight. History is chiefly valuable as the record of manners, and law moulds, and is moulded by, the manners of the nation. We con

gratulate, then, the University of Dublin on their good fortune in possessing a Professor of the Civil Law so well able as Dr. Anster to appreciate himself, and teach others to appreciate, the importance of this ennobling study. We draw a happy augury from the lecture before us; and doubt not that, under instruction such as this, the minds of his class-formed to the large principles and pure taste of the jurists of the Republic and the Empire-will bear the impress of that liberal character which is too often wanting in the mere technical practitioner. Those who value law merely as a means of making guineas, will, of course, deem nothing valuable but what directly subserves such an end; but those who (in the words of one too soon taken from us) regard the advocate as "the servant of his fellow-men for the attainment of JUSTICE,"† will esteem nothing unprofitable which may tend to elevate and enlarge the intellect. Woe be to the profession and the commonwealth, where the meaner view prevails universally! Then shall PRINCIPLES, moral and scientific, be

"The peculiar circumstances of Rome, with its ancient laws, framed for a small community, written in a language that had become antiquated, and incumbered, in their practical application, with forms understood by few, with numbers too of that small community having no rights whatever capable of being enforced, except in the name and by the means of others,-created a body of men of high rank, many of them of great wealth and of abundant leisure, who made the study of the laws the business of their lives; men, for the most part, wholly distinct from the class occupied in the bustle of forensic business. The youth and manhood of every Roman was past in the public service in one form or another; and, youth and manhood thus past, it was impossible that age should be suffered to rust out in idleness. There were, in the better days of the Republic at least, active habits, which found delight in the indulgence of natural and cheerful tastes.

In the Roman poets there

are everywhere proofs of the enjoyment of country life, divini gloria ruris.' I speak not of passages of formal description, but of those fragments of pictures, exhibited in single happy words, which prove how lively and how true their feeling of natural beauty was. In Pliny and in Cicero we have descriptions of the villas in which they were fond of living. Numbers of these men made the Civil Law their study. It was the subject of their constant thought and constant conversations. The scenery amid which Cicero represents imagined speakers of his own day, and of days before his own, discussing subjects of philosophy or rhetoric, or of oratory, is little else than a picture of the very scenes taken on the spot, where they conversed pretty much as they are described as conversing. The dialogues themselves have very much the air of recollected conversations. Amid such scenes the Roman nobility, amplissimus quisque et clarissimus vir,' meditated and read, and communed with each other; and when the season of business brought them to Rome, they were consulted, in every case of doubt, on the subject of their constant speculations. With our habits, it is not easy to imagine VOL. XXXVII.-NO. CCXVII.

how the opinions of private men could be clothed with the kind of authority which their's possessed; but here was a people satisfied to conduct their business,—as it was at one time conducted in this country, and is still in many parts of Europe,-by laws rather than by legislation. There was among the Romans a superstitious regard for their early laws, and for the forms required by these laws to give their acts legal validity. Even with our unresting machinery of legislation there is the necessity of a continuing and almost contemporaneous exposition of every law that is enacted, in decisions of judges interpreting its language, not without reference to the usages, and habits, and feelings of the society, whose sovereign will is expressed in their laws. That it would be wrong to call this judge-made law,—as a popular phrase, which involves, and well embodies, and happily exemplifies a very general mistake, calls it,-is exhibited by the fact, that any mistake of the judicial interpreter is at once corrected on fuller consideration. The publicity of our administration of the laws calls instant attention to such mistake; and as has been exceedingly well shown by Doctor Longfield in a late lecture, the consequence to the whole community of any error compels its instant correction. It can scarcely prevail so as to cause material inconvenience even in a particular case. At worst the mistaken decision is overruled. If, as frequently happens, the language of legislation, which shares the fault of all human language, in being necessarily imperfect, has been also inaccurate, a new Act of the Legislature will removeperhaps only vary the difficulty. If, however, with us contemporaneous interpretation of our Acts of Parliament is almost indispensable, how much more necessary was some such assistance when the written laws were written in the fewest possible words, were of ancient date, were in antiquated language? If neither of the class of corrections which we have indicated occurs, and the exposition which the judge has given of the law is quietly submitted to, it is scarcely possible to imagine stronger evidence to prove that the interpretation. the contemporaneous interpretation as it most often is-has been true to the meaning of the law; in other words, that the interpretation is the law. From whatever cause it may have arisen, the fact is certain, that there were in Rome a body of men who made the law their study, educated, admired, revered for their learning, and of irreproachable integrity. In their severe logic they did not allow law to be called a science. With them it was ethics; it was philosophy. Their thought was not of an external courcive power, binding society together by a w which was not the will of him from whom obedience was exacted. Law, taught in the schools as science, affirms, and for certain purposes, and in certain respects, rightly

K

asserts for herself a domain separate from that of ethics. But the position of the Roman jurisconsults was, you must remember, that of persons giving replies to those who consulted them on questions affecting conduct in the ordinary relations of life,-relations, every one of them influenced, as all our actions are, by the institutions and regulations of the municipal society of which we are citizens, or in which we live. The questions were not always, perhaps they were not often, questions of doubtful law, or of litigated rights. Even the extracts given by Justinian from the answers may show us that the questions were just as often about rules of conduct. In answering such inquiries, there could be nothing to lead them to consider the divisions and distinctions that occupy the jurists of a later day. The distinction between law and ethics, founded as it is on just grounds, and which we shall have occasion hereafter to examine, was one which, as far as the question of the conduct of the individual consulting the jurisperitus was concerned, it was natural and fitting that his instructor should not introduce; and accordingly, the division, though just, is scarcely adverted to in any of the 'Responsa Prudentum,' in what are properly the books of the Roman law."

It is a consequence of these deep foundations of the Roman law—which arose not, like ours, from the pleading of hired advocates,* but from the counsel of independent patrons – that it took cognizance of actions, not merely as subject to civil positive law, nor even merely as coming under the larger survey of the "jus gentium"--but also as falling under the still more abstract law of the "jus naturale." The distinction is well illustrated in the lecture before us :

"A few instances will, perhaps, be useful to illustrate what is meant. The instinct which unites the sexes is a primary law of nature. The institution of marriage, depending on that original law which it regulates and controls, is referred to the Jus gentium, while many of the legal effects, and often the very validity of marriage, will depend on the laws of a particular country. Self-defence is a natural right arising from an original instinct. The raising an army for the purpose must be referred to numbers in union exercising and regulating this natural right; and the fact whether a nation is at war or not will depend on certain formalities, declarations of war, or the like, which the Civil Law of a particular country may

require. The thought of property in the same way, referred to primary instincts, is acknowledged and modified by the Jus geutium,' while each particular nation has its own regulations as to its security, its transfer, and its devolution."

It may seem strange to us, with our habits, that law should thus be regarded as extending itself to beings merely considered as animals, and taking in the class of brutes to whom jurisprudence gives no personal standing; but our surprise wears off when we remember that, in the ancient world, that class comprised human beings, whose case could only be reached by these extensive principles:

"I have told you of Aristotle's view of man, and his notion that slavery existed from the first. I have told you, however, at the same time, that he regarded it as arising from mutual advantage to master and servant, one being given by Nature talents fitted for command, the other incapable of exercising command, but not unfitted for ministerial service. In this thought there is nothing that renders the state of slavery, as it existed among the ancient nations, a condition destined to continue, when Man had in more perfect forms of society arrived at his true nature-when to Society itselfbefore aptly pictured, by the Hebrew prophets, when describing the ancient Empires, in one bestial form or another-should be given at last, in the language of Scripture,

the heart of a man.' The Roman jurist had, we think, this hope; and, though slavery existed in Rome, and existed often in its most revolting forms, yet the distinction which admitted natural rights acknowledged slavery as an unnatural condition; and it was scarce possible not to regard such maxims and such distinctions as we find in the Pandects and the Institutes, as preparing for its extinction. The precepts of nature and the laws of nature, we are told, are immutable. Those which arise from the 'Jus gentium,' or from the civil law of any particular nation, may be altered by some new positive law, or become obsolete by disuse. And almost immediately after this proposition is laid down, we find the following definitions of Liberty and Slavery:- Libertas, quidem, ex qua etiam liberi vocantur, est naturalis facultas ejus quod cuique facere licet nisi quid vi aut jure prohibetur.' 'Servitus, autem, est constitutio juris gentium qua quis dominio alieno contra naturam subjicitur."

This leads us to consider the impor

tance of the study of Roman history as subservient to the study of Roman law. Law was not to them, what it seems to have been to the statesmen of the Sieyes school, a mere vestment that might be changed at pleasure, without altering the frame it encompassed; but a natural integument of the state, which "grew with its growth, and strengthened with its strength;" the dead fibres of which may indeed be anatomised and registered when stripped from the body, but of which the use and beauty can then alone be seen, when it is viewed, in all the play of muscle, on the living subject, as it exists in history. To borrow, once more, Dr. Anster's eloquent words, we have "to create again in our minds the image of that mighty power, whose laws we are examining. We must remember that, while there is an undying principle for ever struggling to express itself, it for ever finds language an insufficient instrument; that this, which once gave life to the letters now dead and voiceless, we are compelled to try and detect, in records of which much has become obscure, much was at all times but occasional, and, for our purposes, unimportant." But in accomplishing this great spell, which shall bring the dead Empire once more in life before us, we must be on our guard lest we be overcome by the spirits whom we employ. The warning is so felicitously expressed that we cannot resist the temptation of extracting it :

"The laws of a people cannot be understood apart from its history and its language; and thus our subject embraces a wide field. We must guard, however, against temptations which beset us on every side. We must deal with history only as it is illustrative of law; and while the most accurate and searching examination of every statement which we find in the works either of the historians or the jurists will be absolutely necessary, we must guard against the antiquarian spirit which is ever on the watch to lead the student away into dry and desert places. We must guard also against the vapours of philology, and take care not to be deluded with the mere shadows of thoughts, sounds of words whose meaning is dead and gone, and which, when they lived, were at best but phantoms of abstraction, or, in Bacon's more accurate thought, -phantoms of phantoms, for the notions themselves which Words expressed were often, in Bacon's language, 'confusæ et temere Rebus abstractæ.' In speaking of the delu

a

sions of words, we may be allowed to cite a poet, and say that

"The Spirit that bideth by himself

In the land of mist and snow'

But

has had strange pleasure in playing tricks on our German friends; and there can be no doubt that their practice of conjuring up the ghosts of dead words has been carried too far, and that in examining the structure of language they have now and then forgotten, or seem to have forgotten, the purposes for which language was used by articulately speaking men. To destroy the living frame of language, and resolve it into the dust out of which it was created, is, for most purposes, carrying analysis too far. Do not mistake me as disposed to underrate the importance of what the antiquarian acquires or inherits. Do not mistake me as disposed to take a low estimate of philology. Both are unspeakably valuable; both are absolutely necessary for us, and little of much account to us has been yet done in either, except by Continental scholars. they are in their nature ministerial, and I would guard you against their usurpations, not forbid their use. Their very disposition to usurp what is not their's, and never can be their's, is reason for our distrust. Are they in their nature less servile because they have never done good service? Will they, properly employed, be unserviceable because useless or troublesome before they have been disciplined and brought to good? They are slaves, who have not as yet found a master, or who have fled from their proper service. Reclaim them, restore them, render them useful. They are in their nature slaves, and they would be despots. I mean they are essentially ministerial, and in using the words 'slaves' and 'servile' in this way, I am not in truth borrowing a metaphor from a condition of human society, and by implication admitting my approval of such condition, but using the words in a truer application than could ever have been made of them when applied to individual men, when I appropriate them to abuses of particular faculties of the mind, which nature has in all men made inferior and subordinate to the whole mind, and when I endeavour to press upon you that the busy restlessness or ill-directed industry of these inferior faculties, should not be suffered to assert a province not properly their's, and thus destroy the liberty of the entire man. They are in their nature servile,-as Caliban and Ariel were, before Prospero had landed on their island, and as they continued when made subject to his dominion. Without such servants the island could never have been what it became in the hands of the benevolent magician. Such instruments, as the misshapen Drudge, who thought all things should for ever remain as they were, who worked blindly on, not sympathising with any one of his master's purposes, living

in his traditions of the days of Sycorax, and her god Setebos, and regarding all good done as a wrong offered to his old claim of ancestral right,-and the winged meteor of Fancy, I had almost said, the Spirit of winged words, whose very life is perpetual change, were alike indispensable, and may, for the purpose of our illustration at least, be regarded as typifying the lubber and limber elves of Antiquarianism and Philology, whose services you will require, but whose usurpation you must resist."

passages,

While lingering upon these however, our limits contract, and our lessening space admonishes us to conclude. We have not touched the abstruser parts of the subject, as our object was to make this article as little professional as possible. It is not only lawyers who may study Dr. Anster's pages with advantage, but all who love literature and science will find here matter to interest them, and a charm of fancy and expression which throw the brilliancy of the writer's own mind over the driest details of the dri est subject. Nor is it merely genius which gives a charm to these pages. The sublimity of the concluding passage has a moral and religious grandeur of its own, which is reached by no eloquence but that of the highest kindthe eloquence of the heart.

"Our first thoughts of law, before it becomes a matter of speculation with us, are connected with its restraints, not with the advantages derived from these restraints As far as the law is from withinthe voice of God echoed in the human heart -a principle co-existent with man, susceptible of new development with each advance of civilisation-it is a language pointing out our own duties, not suggesting to us the rewards which arise from their performance. As far as it is from without-the imperative

language of the legislator, addressing all, regarding all as possible offenders-its language is necessarily of menace. The sanctions, which it proclaims as guards of its decrees and ordinances, are punishments, not rewards. The imagination is seized and pre-occupied by this language. We think of law but in its terrors. We do not remember that by it, and by it alone, can society, with all its artificial relations, subsist. We forget that it is the protection from the violence of others which renders possible for us the indulgence of the thousand almost capricious enjoyments which each day brings round us in increasing abundance. What hundreds and thousands are there who live happily and peaceably, and yet whose happiness and whose peace would be wholly impossible but for that unseen dominion of law which prevents any interference with their comforts, while they move on within their unambitious circle of domestic duties, quiet enjoyments, and inoffensive hopes. They have known and obeyed law under the name and with the feeling of religion. When we think of the wickedness of men, of the inordinate passions everywhere at work, the possibility of society continuing to exist, for the most part progressive too in good-for such, with occasional and doubtful exception, is the history of man-we think of ourselves and of society as if there was for ever going on around us-as there is-the agency of God, which we at times almost see visibly revealed. There is a passage in the Hebrew Seriptures which from my earliest childhood always impressed me as one of singular beauty. Elisha is in a situation that seems of great danger. A hostile army encompasses the city where he is, and he is the object of their leader's vengeance; and his servant said unto him, 'Alas! my master, how shall we do?' And he answered, 'Fear not, for they that be with us are more than they that be with them.' And the prophet prayed and said, 'Lord, I pray thee to open the eyes of this young man;' and he saw, and behold the mountain was full of horses and chariots of fire round about Elisha.'"