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and modes of thought were cast in the moulds of Roman jurisprudence and classical learning; to that jurisprudence they naturally resorted, as to an inexhaustible storehouse, whenever they were in want of a legal principle, and they worked into the rising structure much that was solid and valuable, with much that has since been thrown away. The structure itself was a theory, though the master-theorist, Grotius, acquired almost the authority of a legislator. But a real customary law of nations grew fast during the seventeenth and eighteenth centuries, and it is interesting to observe how quickly it disembarrassed itself of its Roman dress, learnt to appeal to recent precedents and contemporary usage, and put on the garb and manners of its time. Bynkershoek, the ablest, perhaps, certainly the most masculine and vigorous, of its expounders—wrote his first book about eighty years after the publication of the De Jure Belli et Pacis. His whole life was spent in the practice and administration of Roman-Dutch law; yet in the entire course of his writings on international topics, strongly coloured as they are by his professional studies and habits, he hardly ever refers to a Roman text, except to question its applicability to the matter in hand. The publication of collections of Treaties, and the diffusion, chiefly from the Hague, of political intelligence, furnished an increasing store of materials for an inductive treatment of the subject, such as was adopted exclusively by the elder Moser. Its terminology and its modes of reasoning are very Roman, and it has been elaborated almost entirely by civilians. Yet we are disposed to doubt whether, as it now exists, there is any branch of jurisprudence which has drawn so little of its substance from Rome, in which direct appeals to Roman authorities are so infrequent, and to which Rome so rarely furnishes, in cases of dispute, an available principle of decision.
The difference between us and Mr. Maine on this head will be niore clear if we refer to the two examples which he has chosen. The Roman principle of occupancy, he says, has determined the tenor of that chapter of International Law which is concerned with capture in war.
• The Law of Warlike Capture derives its rules from the assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents.'
This assumption is an idea which would occur spontaneously to persons practising the ancient forms of warfare, when victory dissolved the organization of the conquering army, and dismissed
the soldiers to indiscriminate plunder. The principle of occupancy, when it was admitted into the modern law of capture in war, drew after it a number of subordinate canons,' &c. Now it is certainly true that the Roman jurisconsults clothed with a legal dress the rude old jus belli, which is as old and as universal as war itself, and placed it, thus adorned, among the modes by which property is transferred from one person to another. The fact of capture transfers the property. This proposition, or rather this mode of stating the legal consequences of an unquestionable fact, was, as we might expect, adopted, together with some fragments of the law of postliminium, by the predecessors of Grotius in the sixteenth century, and afterwards by Grotius himself. But the Roman theory or fiction of res nullius hardly appears at all in writers, early or late, on International Law, and is not required or used by them as a logical premise. The numerous mitigations introduced by humanity and convenience, which have in practice largely broken in upon the rule, are not only foreign to the theory, but inconsistent with it; and the law of Booty and Prize, as it now exists, has been built up almost entirely by usage.
There is a second point on which Mr. Maine insists more strongly, and with still less reason. In applying, he says, to the discovery of new countries the same principle which the Romans had applied to the finding of a jewel, the Publicists forced into their service a doctrine wholly unequal to the task expected from it, and this misapplication of the law of occupancy has, in his opinion, had a very injurious effect. It failed to determine the two questions on which certainty was most wanted—the extent of the territory acquired, and the acts necessary to constitute acquisition. It conferred enormous advantages as the consequence of a piece of good luck; it was instinctively mutinied against by the most adventurous nations. And even the famous Bull of Alexander VI., which divided the undiscovered countries of the world between Spain and Portugal by an imaginary line drawn on the surface of the globe, was perhaps not more absurd than a rule which 'gave half a continent' as a reward to a fortunate finder.
Now, what is this 'absurd' rule of discovery and the history of it? The idea that the first comer, first finder, first appropriator of a thing has a better title to it than anybody who may seek to deprive him of it, is certainly-if we may be forgiven so loose a phrase-a very natural idea. A child in petticoats will proclaim it as decidedly as a jurisconsult
, and much more Ioudly. A gold-washer in the dry bed of a Californian river will affirm, without any hesitation, that possession is nine points of
the law where there is a law, and first possession is everything where there is none—although he could not define with technical precision what possession means.
Nor does there appear to be anything strained or artificial in the early application of the same principle to vacant territories, the first access to which had been gained by a speculation so costly and surrounded with so much mystery and danger as a distant voyage of discovery. The Portuguese navigators of the fifteenth century carried with them this common instinct, and believed themselves to be acquiring rights for the Sovereign they served when they set up on headlands of the African coast the rude wooden crosses which after 1484 were replaced by monuments of stone. The enormous extension given to these rights, at first by Portugal and afterwards by both Portugal and Spain, and which they endeavoured to fortify by a series of Papal grants, was undoubtedly mutinied against by other nations ; and Queen Elizabeth disputed the justice of a title founded on having touched here and there upon the 'coasts, built cottages, and given a name to a river or a cape,' at the very time when Sir Francis Drake was erecting posts and burying coins as symbols of her own claim to the north-east shore of America, as far as the
Meta incognita. By the end of the sixteenth century at least, as we learn from Strachey's Historie of the Travaile into Virginia,' both discovery and an actual taking of possession were deemed necessary to constitute a right, but where they concurred sufficient; and on those grounds, says Strachey, 'we allow him (the King of Spain) both his longitude and his latitude in the new world, from Cape Florida northward to Cape Breton, without any one inch of intrusion. The controversies to which the progress of colonisation has given rise in the last two centuries have turned, as Mr. Maine says, on what constitutes planting and occupation, and on the space over which occupation extends; and the suggestions that the settlers on a line of seaboard should be deemed to have possessed themselves of the inland tract to which it is the natural outlet, and the settlers at a river's mouth of the country watered by that river and its affluents (a view curiously anticipated, as we learn from Mr. Dasent, by the Norse settlers in Iceland), are expedients, more or less reasonable, for solving them. The question has passed through the hands of civilians; they have moulded it, with such assistance as they could get from Roman law, into a semblance of technical precision, and incorporated with it so much of the doctrine of possession as requires, in accordance with common sense, both the act of taking possession and the intention to do so, and permits the act to be done by an agent. But we do not think with Mr. Maine that the effect has been injurious, or that the rule itself is absurd. It is rough and
vague, like many other rules with which we have to content ourselves in public and in private life, but it furnishes a common principle to appeal to, a common ground for compromise; it has the advantage, rude as it is, of squaring with a universal sentiment of justice; it has done some useful work, and we do not see what better expedient could have been adopted in its stead.
In concluding this notice we take leave to add two remarks. Mr. Maine's method of inquiry, true and scientific as it is, has nevertheless its peculiar temptations. He who has applied all his industry and acuteness to track a legal principle or conception through many codes, many countries, and several thousands of years, may be tempted sometimes to detect the object of his pursuit where it does not exist-sometimes to forget that an institution which has a long history is what it is, not what the germ of it was many centuries ago. It is not the less essential, for instance, to the true notion of a will that it should take effect at the testator's death, and not before, although mancipations,' or voluntary conveyances, may once have been used instead of wills.
Such conveyances, though they had a true testamentary intention, had not, as the English will has, a true testamentary character—in other words, were not strictly and simply adapted to carry the testamentary intention into effect. They were makeshifts, which, under different circumstances and from different reasons of necessity or convenience, have been adopted at Rome and in England to accomplish, more or less clumsily and imperfectly, the objects of a will. Secondly, it should never be forgotten that the science of jurisprudence, regarded as a whole, comprises not only a study of what the law is and has been, but of what it would be if the principles to be extracted from it were correctly worked out-an inquiry which has generally been carried on under the obnoxious name of the Law of Nature, with the disadvantage of being placed on an unsound foundation, and pursued upon a perverse method. The difference between a book which embraces only one of these inquiries and a book which comprehends both, is the difference between the History of Roman Law in the Middle Ages' and the 'System of Modern Roman Law,' the two great works of Savigny's earlier and of his later life. In its larger and more comprehensive sense it goes, indeed, still farther, and embraces what was called by French writers of the last century the théorie des lois, and by later English thinkers the science of legislation. It permits us to test those principles themselves by a standard external to them—by our abstract notions of what is right and reasonable, by our observation of what is useful, by the visible wants and tendencies of society. It is unscientific and illogical to confound these inquiries together; but it would
be a great practical mistake to lose sight of their intimate connexion with each other.
In dismissing very briefly the book which stands coupled with Mr. Maine's at the head of this article, we hope to be understood as by no means undervaluing its importance. Mr. Austin's Lectures are always mentioned with high respect, but they have never been extensively read. They failed, when delivered, to attract, or at least to retain, an audience ; and it would have been extraordinary if they had not. Abstract dissertations, wrapped in language which is made singularly hard by the very labour spent in giving it the most finished precision, are not inviting to the English student; and to master these Lectures would be impossible without patient thought and sustained attention. Yet no one ever took the pains to read them without feeling himself richly rewarded. A more firm, clear, penetrating intellect than Mr. Austin's was never applied to legal science; and he gave himself to it with a devotion rare and almost unknown among English lawyers. His definition of the province of jurisprudence may by some be thought too circumscribed, his terminology somewhat arbitrary, and (careful as it is) not always exact ; his discussion of the theory of utility, which fills too large a space for the symmetry and compactness of the book, does not quite dispose of that vexed question; and on several subordinate points he leaves much room for difference of opinion. Yet it is a work which no one who aspires to be a jurist can afford to leave unread; and there is hardly any Englishman having pretensions to that character who does not owe to it, more or less, such conceptions as he has of the philosophy of law. And we do not fear to predict that it will be much better known hereafter than it has hitherto been. By republishing it with all the advantages of typography, with many manuscript notes and additions, and prefaced by a most graceful and touching memoir, Mr. Austin's widow has done justice to her husband's memory, and an immense service to that science which was the great employment of his life—a service which she promises to complete by giving to the world, in a second volume, the remainder, hitherto unprinted, of the Lectures delivered at the London University, together with some additional matter. Her account of the motives which led her to undertake the work is given with such a noble and feminine simplicity that we cannot forbear quoting it :
"I have sometimes doubted whether it was consistent with my obedience to him to publish what he had refused to publish. I have questioned myself strictly, whether, in devoting the rest of my life to an occupation which seems in some degree to continue my
intercourse with him, I was not rather indulging myself than fulfilling my duty to