imaginary one. Mr. Coode also has a forcible passage of warning about it. The following extracts may suffice to show his views :

It is no demerit of modern legislation that it applies itself minutely to special cases. It would, in fact, be the greatest merit of any system of laws that they varied exactly as every case varied in its elements. . . The more a Legislature

is civilised, the more it measures and considers the differences in each class of cases, and adjusts the law to their varieties. With every fair enactment for the peculiarities of a special case, the law loses a portion of its rudeness and unbending character. The proper object of legislation is to make certain rules of the utmost possible convenience, not to propound rules of the utmost possible generality. Legislation is not a science, but a practical art. The perfection of a science is reached when every particular proposition is resolved into or deducible from one general proposition; but the perfection of legislation is attained in proportion as every variety of right, and every corresponding obligation and liability, are most specifically determined, and when the least is left to inference from extensive and remote generalities. It is true, in regard to law, as in regard to all other things, that a simple general rule is most easily comprehended by those who have no practical acquaintance with the particulars included by it; and this fact is also of practical importance in legislation. But to those who do know the particulars experimentally, as each man knows his own case, the more general the terms of a rule the less certain and close does its application appear-the more specific the terms of a rule, the more easily and precisely is its application seen and understood.

And he concludes by condemning such codification as would destroy nice adjustments, and sacrifice aptness and certainty to verbal generality.

It is to be hoped that the framers of codes in this country will keep clear of this danger. They cannot expect to be allowed to avail themselves of the Indian device of appending explanatory comments and supposed cases as illustrations, in order to expand and relieve from barrenness their highly generalized propositions.

F. S. REILLY.

I

IV. ON THE STUDY OF THE LAW.*

-

HAVE often thought that in all legal lectures, attention has been too extensively directed to the technical instead of the moral aspect of Law, and that students were rather warned of what they had to learn in the way of practical business than sought to be interested in the great principles and the noble objects with which Law, to be good, must be familiar. We speak of what the Legislature has directed, and how the Courts have interpreted the directions. But we have employed but little consideration on the circumstances under which Legislatures have acted, the motives which have induced them to adopt certain practices in Law-making, the moral objects they have had in view, and the success or non-success of their efforts to produce the intended results. Yet a consideration of all these matters is that which ought to be active in the mind of the Law-maker, and ought also to be the subject of the study and of the appreciation of Law Writers, Law Expositors, and Law Students. There should be, in our early studies at least, a little more attention paid than we are now encouraged to pay, to Institutional writers rather than the compilers of decisions. The non-observance of this search after principle in the practice of Law, has led to our Law books being crowded with decisions where the supposed point has been referred to, as furnishing the authoritative rule for the decision of a similar case, although the cases may be similar only in small details rather than in the principles which ought to govern the result. The consequence has been that, in the public mind, Law has come to be considered not a Science-hardly even an Art—but a

* Lecture at the Middle Temple, delivered by Mr. Charles Clark, Q.C., as the Lent Reader.

mere collection of maxims of Practice, with a great number of technical rules bewildering rather than governing their application-where the attainment of justice has been looked upon more as a happy accident than as an assured result. And hence has arisen the phrase, which has now passed into the form of a proverb, about the "uncertainty of the law," to which the word "glorious" has been sometimes derisively prefixed. Yet the Law itself is not uncertain, though the varying circumstances of individual cases may make it, to uninformed persons, appear to be so. It could not be Law if in its essence it was uncertain, for Law, properly interpreted, means fixed, settled rule. Legislation, being that which concerns and affects to govern the conduct of men in the ordinary operations of life, ought to be founded on philosophic principles and framed under their influence. For though it may otherwise, by mere authority, enforce obedience to its enactments, it will not win that moral acquiescence, and that mental acknowledgment of its fitness, which give to that obedience the character of a merit or a virtue, rather than that of an overmastering necessity. As I am not merely a Lawyer, but a searcher after the first principles of Law-as I wish our Students for the Bar to entertain a high opinion of the profession to which they are about to devote themselves-I propose to endeavour, briefly, to show them that, in learning what is the Law, and what are the forms of the Law, they should devote some consideration to what in philosophic principle the Law ought to be. The neglect of that consideration has deteriorated Law itself, detracted from its moral elevation, which is its chief value, and has lessened the just estimation due to its distinguished administrators and professors.

In the earliest ages of the world, Law could have been nothing but the suggestion of the moment, adapted to meet the immediate necessities of the men who required it. It must have been a mere attempt at procuring and preserving

order, and protecting the timid and the weak against the violence of the wilful and the strong. Admitting, as we must all do, that the family was the origin of all forms of government, (a proposition, let me say, most thoroughly worked out and established in Sir Henry Maine's History of Early Institutions), it must be clear that even there the rules of property, though perhaps unthought of as rules, were in fact adopted, observed, and enforced.

In spite of the specious fallacy which has in many instances, in modern times, been put forward in favour of a community of property, (which, if it means anything, must mean the absence of exclusive individual title to any possession of it), it is clear that from the very earliest period, the children, even of one family, would, among themselves, act upon the opposite principle of individual proprietorship. Exclusiveness is plainly an instinct, and is displayed by the most amiable of children, as well as by animals; even the act of giving implies the possession in the giver of an exclusive right which he generously confers upon another. Knowledge and moral culture may modify, and, among reasoning beings control, the exercise of this instinct of exclusiveness-but still it exists. And it is a mistake to suppose its existence an unmixed evil. It is only so when it is indulged in without limit or restraint. Kept within proper bounds, and its action governed by good motives, and directed to praiseworthy purposes, it becomes an excellence. It does not then degenerate into repulsive selfishness, but shows itself as the active principle which Nature has wisely employed as an unceasing incentive to honourable exertion, wherein the personal distinction and advantage of the individual are closely, if not indissolubly connected with the advantage and happiness of those around him.

Let us now consider some few of the instances in which the observance of principles might be more capable of happy application than it receives at present. There is one

matter of very great importance, where, of all things, the rules of principle ought most to be applied; but as to which, I am afraid I must add, that there is the least likelihood of their practical application. Interest and Passion join in producing this sad result-all the more sad, because Power interferes to support Interest and Passion, and between them, Principle, the real origin and the proper illustrator of Law and Right, comes to be wholly disregarded. I refer to what has obtained the name of International Law-though it has as little real title to the name of Law as anything can have which is practically and obviously dependent on self-will and force. The world has seen many most admirable treatises on this head of what has obtained the name of Law, but the best written arguments and the most elaborate and eloquent illustrations of them, after having unanswerably proved certain doctrines. in the pages of Publicists, have been utterly ignored in practice by fighting Governments, by armies in the field and ships at sea. If ever there was a matter as to which the phrase Silent Leges inter arma was true, it is true of what is called International Law. And the unhappy cause has been, recently, in the most public manner avowed, in the declaration that even treaties themselves (which are the solemn contracts of established Governments) are worthless, unless there is force ready to compel their observance. When the vindicator of International Law is asked for, he is nowhere to be found, and the quaint legal phrase de non apparentibus et de non existentibus receives an actual illustration. It sometimes happens that, even in the case of Municipal Law itself, where no one Nation has determined to enforce its observance by another Nation this absence of a fitting vindicator has left individuals without protection, and the Law itself and the Country without respect. Thus we are not without instances that there are countries in Christian Europe where municipal laws are frequently set at nought, and a captive sufferer has to pay to lawless brigands