Page images

And undoubtedly they were in no manner bound by it, it having been a judgment of two against two; but, had they agreed with the Lord Chief-Baron and Baron Bramwell, they must have held that the counts were insufficient as they did not contain a charge of "arming." This is all we can at present with certainty predicate of the opinions of the Scotch judges; but we shall probably not have to wait long before we shall have some more light thrown upon this most obscure and ill-worded Act of Parliament.


Private Law among the Romans, from the Pandects. By JOHN GEORGE PHILLIMORE, Q.C., London and Cambridge. Macmillan & Co. 1863.


E never met with a book more difficult to read, comprehend, or review, than this. It must lie in Mr. Phillimore's breast and conscience to explain why it has been written and printed; and we hope that such an explanation would not suggest that it owes its conception to the author's absolute contempt for all other writers and thinkers on the Roman law. On any other rational or intelligible theory of professional motive, it is not easy to account for its publication, We have waded through it without having discovered that in the present state of our legal literature it was in the slightest degree called for. Nor, as a legal work, is it in itself well done. It is not well arranged, and it wants a lawyer-like system or plan. The book-if book by courtesy it may be called-is little more than a selected compilation from the Pandects, with a few notes, a sort of hash of unnecessary learning, a queer stirabout of black letter oddities and crudities, which we verily believe no other man but the author could have



seriously and deliberately offered to the public and profession Mr. Phillimore has doubtless been a diligent student of the Pandects, and his notes and comments on that profound but confused composition would no doubt, on proper occasions, be valuable. But their appearance in the form of this work we are unable to appreciate; nor, we say again, can we understand why it has seen the light, unless it has been for the pleasure and satisfaction of writing the bilious preface, and for the sake of those flings of idiosyncrasy and strong language which may be found in the foot notes. In his character of author, Mr. Phillimore does not hesitate to announce himself as follows:-" My belief that some knowledge of the Roman system of Municipal Law will contribute to improve our own, has induced me to prepare the work I now offer to the public." Some knowledge of the Roman system of Municipal Law, indeed! We have hitherto been without such knowledge (!) and we are, forsooth, to ignore the stream of legal publication before and since the grand work of Pothier, which (with the exception of the work under review) has flown so copiously and admirably down to the present day! Why, a year has not elapsed since we had the pleasure to notice, with the comfort and satisfaction we endeavoured to express, Lord Mackenzie's excellent work, a work infinitely superior in every respect to this one of Mr. Phillimore's, but to which, from beginning to end, he makes not the least allusion, although he indulges in the most extravagant eulogy on some very ordinary and commonplace topics; for instance, the judgment in Entick v. Carrington, in which it was in the quietest manner possible decided that a search warrant by a Secretary of State for the discovery of evidence of a libel against the Government, was illegal. The judgment is in language and argument of the most commonplace character, and with no marks whatever of particular legal enlightenment, except in being right, sound, and constitutional, and yet Mr. Phillimore describes it as "one of the few judgments on a great question in our Reports that a Jurist may read without a blush!" a sentiment which may serve to show the spirit in

which our author applied himself to his unnecessary task. We can only say we hope Mr. Phillimore approves of the judgment as thoroughly as we do, when, in conclusion it states, "We (the court) are no advocates for libels; all Governments must set their faces against them, and whenever they come before us and a jury, we shall set our faces against them; and if juries do not prevent them, they may prove fatal to liberty, destroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government than none at all." To be sure, he tells us, when covering with contempt and scorn that "coacervation of absurdities under the name of law in our books," which he imagines to be the condition of the law of England, that he "desires particularly to be understood throughout the work as never speaking of his contemporaries except when he alludes to them directly;" and we cannot doubt that Mr. Phillimore's knowledge of the law with reference to any such allusion is consistent with his feelings as a gentleman. But such a caveat does not relieve him from the ordinary obligations of scholarship, or entitle him to profess to ignore the accessible learning of his professional brethren. And there is another consideration which Mr. Phillimore might with propriety have kept in view before committing himself to the self-ascription touching "some knowledge of Roman Law," viz., that he is one of the four readers of the Inns of Court, but that he is not the one whose particular duty it is to instruct us in that know. ledge—that duty being rather within the province of another department, in which "Jurisprudence and the Civil Law" are exclusively treated. We have not the personal acquaintance of Mr. Sharpe, the present reader in the department referred to, but we are not aware that he has showed any unfitness for his office, and we rather think if Mr. Maine had been still among us here, he would have considered Mr. Phillimore's suggestion more obtrusive than discreet.

We should not forget to notice, and to some extent except from the objection we feel to the whole work, a tabular

synopsis of the whole Roman Law, "taken in part from the French and German tables," and which, on the assumption of its accuracy, may not be without some convenience to the student; but with that exception, and also with the exception of the preface and the preliminary chapter (which, however, treats of matters which are far more satisfactorily considered in Lord Mackenzie's work) the book is simply a selection from and translation of portions of the Pandects, which were as well known to and at least as accessible to the body of the profession, as to Mr. Phillimore himself.

As for the preface, it, perhaps, deserves some attention. Its style is characteristic of the author's powers of sarcasm, invective, and denunciation; but it would be a mistake to describe it as a tissue of nonsense, for it contains some truth, and we confess to a certain amount of sympathy with it. And we are the more anxious that it should not escape observation, because, as we have hinted, we are seriously of opinion that it was for the sake of being able to publish the preface that this strange work was undertaken. It commences with the modest sentence to which we have already referred, in the following style :-" My belief that some knowledge of the Roman system of Municipal Law will contribute to improve our own, has induced me to prepare the work I now offer to the public. * As the diligent study of Homer and Euripides, of Cicero and Livy, of Dante and Bossuet, of Milton and of Shakespeare, would do more to refine the public taste and to correct our antipathy to what is elevated and generous, whether in active life or in speculative study, than any metaphysical inquiry into the principles of eloquence and poetry, so a familiarity with the works that formed Cujas and Doneau, Du Moulin, Pothier, and Montesquieu, a knowledge of that social wisdom among Europeans unequalled, which has bound together so many successive generations by ties that neither the sword of barbarous conquest could sever, nor the fraud of sacerdotal hypocrisy dissolve, would do more to open the eyes of those whom habit

or the desire of gain have (sic) not absolutely blinded to the deformities of our law, than any general or abstract dissertation on jurisprudence. We built our Chalcedon with Byzantium before our eyes. This, however, is not the place to enter upon the reasons which alone among the nations of the West prevented England from sharing in the benefits of the Roman law, and which have made every attempt to cultivate it among us, as if it had been the seed of some plant blown by the wind on an unfavourable soil, sterile and abortive."

Grammatical inaccuracy does not, of course, frequently distinguish the composition of so stern a dogmatist as Mr. Phillimore, and therefore we pass over the little mistake which we have sufficiently indicated by italics; but we seriously ask Mr. Phillimore what he means by contrasting what he calls the social wisdom of the continent with the liberty and free system of government we have the happiness to live under in this country? The foreign lawyers he names, no doubt, were great jurists, and we could wish that such works as those of Pothier were more studied than they are among us; but we are not so sure that such exercises would infallibly lead, in the minds of the educated and professional public of this country, to Mr. Phillimore's sweeping conclusion respecting "the deformities" of our law. Nor is Mr. Phillimore happy in his historical metaphor. He says, "We built our Chalcedon with Byzantium before our eyes. Of course "Chalcedon" is the law of England, while " Byzantium" is that of Rome. But the allusion altogether fails. It does not even indicate the geographical fact; for while it suggests that Byzantium was built first and was staring us in the face all the time we were building our Chalcedon, the truth is, as wellread historians know, that Byzantium did not come into existence till some seventeen years after the building of Chalcedon. The dates commonly given are, as regards Chalcedón, 675 B.C., and as regards Byzantium 658 B.C. Then, as regards the original formation of our law, can it be fairly said that the Roman law was before our eyes? No doubt the ecclesiastics

[ocr errors]
« PreviousContinue »