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Court of Assize that it may not only refuse to give them to, but may award them against, an accused who has been absolutely acquitted. "The declaration of the jury that not only was the accused not guilty, but that he had not shown imprudence on his part, does not bind the Court of Assize so that it cannot in deciding the civil question pronounce that there has been fault (faute) on the part of the accused, and in consequence award damages against him." Acting, doubtless, upon this construction of the article the court on the following day adjudged that Mons. Armand should pay 20,000 francs to the man Roux, as compensation for the injury he had sustained; the jury having the day before declared virtually that the claim was an infamous fabrication. Of course an appeal was at once lodged against this monstrous sentence, and doubtless the Court of Cassation will deal with it in a way to justify its high reputation. There is, however, nothing objectionable even in the wide discretion which has been given as to damages, though we quite concur in the view which we understand is strongly urged in France, that this discretion should be given not to the court but to the jury.
ART IX.-AUSTIN'S JURISPRUDENCE.
Lectures on Jurisprudence, being the sequel to "The Province of Jurisprudence Determined." To which are added Notes and Fragments—now first published from the original manuscripts. By the late JOHN AUSTIN, Esq., of the Inner Temple, Barrister-at-Law. Vols. II. and III., 8vo. London: John Murray, Albemarle Street.
HE students of the science of law at home and abroad, the members of that distinguished profession to which the late Mr. Austin belonged, and of which he was so bright an ornament, and not a few philosophers and statesmen, will rejoice at the rescue of these scattered fragments of excellency from that oblivion to which it was feared the MSS. of Mr. Austin
*Note 62 to Art. 358 of Code d'Instruction Criminelle. Paillict, Vol. II.
were consigned. It is pleasant to acknowledge a boon, and to point with grateful recognition to the source from whence it is derived. We are often placed under obligations to ladies in the department of general literature. Occasionally, also, in the department of language and the classics some fair one steps forth —like Fulvia Olympia Morata, whose neat little mural tablet we see in the porch of the old St. Peter's University Church in Heidelberg—and weaves for herself a garland of imperishable fame. Rarely is it that the legist has to bow with grateful genuflexion to acknowledge a costly gift in his department of study from the hand of a woman. Such, however, is our duty now: a duty we most willingly perform. We sincerely thank Mrs. Sarah Austin for these valuable volumes. We honour the earnestness which she has exhibited in the collating and the editing of these memorials of her highly gifted husband. We thank Mr. Murray, the publisher, and those innonimate members of the profession who have encouraged and aided in the production and completion of Mr. Austin's Jurisprudence.
There are, at intervals of longer or shorter duration, certain works given to the world that stamp the epoch in which they are produced. Such works challenge the attention of mankind, and exert an influence far beyond the limits of the age and the country in which they first appear. The collection of the Corpus Juris Civilis," in the sixth century, the "Divina Commedia di Dante Alighieri," in the fourteenth; the dramas of Shakspeare, the "De Jure Belli et Pacis" of that learned man, who has not been inaptly termed the legislator of nations, were works of this character. In our own day some few works containing the exhibition and development to a greater or less extent of principles destined to exert the greatest possible influence have appeared. Among such books we may mention the economical writings of Adam Smith and David Ricardo, and in the department of general jurisprudence those of Bentham, and Mackintosh, and Austin.
In the year 1828 there appeared a small thin volume, containing only 89 pages, entitled "A Discourse on the Study of the Law of Nature and the Law of Nations," by Sir James
Mackintosh, M.P. After the publication of these brief lectures by Mackintosh nothing attracted attention in this country on the subject of general jurisprudence till Mr. Austin published his able treatise in the year 1832.
The first edition of Austin's Jurisprudence was soon exhausted, and for many years it was only accessible to the student at our public libraries. So rare did the book become that it was necessary for those who wished to have the principal points of the work at hand for reference to make lengthy written excerpts from the copy possessed by some private or public owner. The writer of this article has now before him an epitome of this work, which occupied the spare time of several weeks to compose. Twenty-nine years after the publication of the first edition, and when the writer had passed away, the long looked for treasure was reproduced under the auspices of the author's esteemed widow. The volume had been out of print for many years, and Mr. Austin had received earnest and flattering entreaties from various quarters to publish a second edition. Mrs. Austin tells us in her own touching words the reason of the non-production of the work by her husband. She says:-" The hope, the animation, the ardour, with which he had entered upon his career as a teacher of jurisprudence, had been blighted by indifference and neglect; and, in a temper so little sanguine as his, they could have no second spring."
It is to be regretted that a man of Mr. Austin's power and wisdom did not perceive that devotion to the study of the abstruse propositions of general jurisprudence is not generally the condition of success in that profession which he had chosen. If a man wishes to be honoured as a Deity in the Temple of Law, it is more than possible that he will find himself destined to repose in awful briefless grandeur in the solitude of his chamber. If the choice is made, it is useless to repine at the dreary neglect to which one is likely to be reduced. It is quite natural that the admirable woman who has given us these three noble volumes should feel as she does, but it is to
be regretted much to be regretted that Mr. Austin should, by his refusal to reproduce his valuable volume, have shown anything like disappointment at a result which might almost infallibly have been predicted.
It is then in these three volumes that we have the result of the labours of a thoughtful and painstaking man on one of the most momentous topics to which it is possible to direct our attention. The first impression made upon the minds of those who are acquainted with the subject, or who have perhaps pursued a similar course of investigation, will be that of profound regret, that a work so elaborately planned—that a temple, for the construction of which such choice and rare materials had been collected, should be left unfinished and unadorned. A fine ruin is beautiful in its decay, for when Time places upon it his mouldering hand, he at the same instant, and as it were to hide its desolation, reaches forth another hand to clothe with moss and varied verdure its decaying arches and falling columns. But it is not so with an unfinished work. It is not so with Mr. Austin's projected edifice. Some portion of his goodly temple is indeed reared— we can scarcely say adorned, for whilst he paid great attention to the exactness of his expression, he had little time, and perhaps little inclination, to attend to style. To pursue the illustration, the scaffolding is unremoved, materials of great value, which have cost time and enormous labour to procure, lie in heaps and masses all around. In some instances, we see the skill of the workman upon some block intended to be reared to its place in the building. It is squared or cut to the pattern required for some important point; but it has never been uplifted and placed upon the spot for which it had been. designed and wrought. The mallet has been cast aside, and the chisel flung from the hand of the workman, from a sense that his labour was unappreciated and his toil unrequited. Many may be disposed to blame Mr. Austin for this, and perhaps he was not altogether without blame; but it requires a large amount of moral and mental sinew for a man to con
tinue at a task the object of which his superiors are too busily engaged to notice, and too remiss to reward. It is perhaps worth calling attention to the different treatment such a man as Mr. Austin would have experienced in a continental State. In Germany, for instance, Mr. Austin would probably have started as a "Privatdocent" or tutor in one of the universities. His talents and industry would very soon have brought him under the special notice of his seniors in the university. Some Professor ordinarius" would have referred to the rising man in his lectures, or in his works. As the universities are in close connexion with the Government, the Dean of the faculty in which he taught would have made such representations in the proper quarter as would have procured for him the position of a "Professor extraordinarius." His star would have arisen; the rank and emolument of "Professor ordinarius" would have been, in his case, soon reached. Then the Government would have decorated him. He would have been made first a "Hofrath"-a Courtcouncillor, and then a "Geheimrath "-a Privy-councillor. Then would have come the struggle between rival universities to obtain the aid and distinction of the enrollment of such a man among their staff of professors. This would assuredly have secured for Mr. Austin wealth, if not riches. It is a sad reproach to us as a nation that it should come to pass that Mrs. Austin should have to utter her mild and gentle reproaches at the neglect and poverty to which a great and wealthy nation exposed so learned a man. We boast that we are a practical people, and it must be admitted that in many things we are. But if we are great, as the Germans express it, in the "practical life," we are, to use another of their expressions, anything but great in the "scientific life ;" and in the present instance we have the mortification of beholding an unfinished work with scaffolding unremoved, and heaps of unemployed materials lying in confusion all around, instead of a structure at once noble and complete. A philosopher has passed away before he has taught us all the lessons he was