« PreviousContinue »
is so apt to cloak himself, and to revolutionise the essential nature of an institution, while he maintains its shell. That’in the present state of English law, its study can be usefully prosecuted to any length otherwise than in close connection with its practice, is what no one at all acquainted with the subject can suppose. In order, then, that a comprehensive and flourishing faculty of
law may become even possible at our universities, there must first
be so sweeping a change in the structure of our law itself, as is not indeed inconceivable; and we, as advocates of codification must admit it to be, to a certain considerable extent at least, desirable; but which, at any rate, is not likely to be speedily carried out. But suppose it carried out, what then? Unless not only the structure, but the matter of our law be thoroughly changed, with which would our codified jurisprudence stand in the closest connection? With the history and social life of ancient Rome, or with the history and social life of modern England‘! Through-the adoption of the Roman law by the continental nations, the study of their municipal jurisprudence, even when codified, is to this day so intimately connected with that ancient learning which belongs to the general part of a liberal education, that it stands in the universities in a close and natural sequence on the faculty of arts or philosophy. Here a. similar result can never happen. As soon as he steps beyond the threshold of English law, the student will always require to be familiar with the business transactions of the society around him; with the variety and complication of settlements of property, mercantile arrangements, and contracts which it has never been attempted to compress into classified forms. This knowledge he can only gain in the chambers of counsel ; and it is while passing through these that his real study of law must therefore be made. Thus the attempt to erect a flourishing faculty of law at an English university must, we affirm, be as fruitless as it would be in substance novel: and, we would observe, that even on the continent important inconveniences arise from the exclusive cultivation of the science of law in bodies which are not concerned with its practice ; for not only is there much clumsiness occasion
ally exhibited, where codes have not been introduced, in adapting an ancient rule to the exigencies of modern life, but, what is Worse, complaints are frequently heard of the obstinacy with which errors, exploded in the science, maintain their ground in the practice. In England, if our legal science is sometimes empirical, at least our juridical practice ever represents the very best of that science which is to be had at the time.
To return, then, to the opinion which woul-l limit the study of law at Cambridge or Oxford to a breaking ground preparatory to a complete cultivation in London, another objection lies in our view to such a course, on the general principle that no study should be taken up before it is really time; but, when it is really time, should be taken up in earnest, and carried through to its close without interruption. To play with a pursuit, or potter about it beforehand, the mental energies unbraced by any immediate stimulus, produces desultory habits, and seldom fails to prevent real application when the necessity arises for it. The curiosity which was excited by opening new vistas of knowledge has been allowed to pall: the pleasure which is felt in the effort to assimilate new intellectual food has been allowed to deaden: the sense of incompleteness in his information, of obscurity and uncertainty in his new range of vision—-one of the most dif1‘icult for a young student to support—has been suffered to remain till it has become very supportable, nay, till it has been transmitted into its own opposite, the confident half-knowledge which is the most fatal bar to farther progress; so the allies in the student’s self, with which nature has furnished the teacher, are found to be no longer available, just when fresh interests, which have supervened while the study was interrupted, are alone suflicient to create a feeling of disgust in attempting to revert from them to a twice-told t-ale. Surely, in nothing more than in learning, is it necessary that whatever thou doest should be done quickly and with all thy might; but no. plan can reverse these precepts more thoroughly, than to begin, to interrupt, and to begin again else
where, a study which, at best, is apt to be hard and dry. \Ve are well aware of certain so-called practical answers which
may be made to these views, but they spring out of circumstances which in themselves are by no means unalterable. It is late to begin the special study of a. profession after a. degree generally taken at the age of twenty-two. It is so: but while, on the one hand, we may be thankful for the national wealth which enables us to be so lavish of the years of youth, and for the manly simplicity of character which is not a little due to the absence of precocity, it is certain, on the other, that were our schools properly efficient, that general part of a liberal education which seems the proper province of an English university might be much earlier completed, and the special part earlier commenced in its appropriate locality. Again, if men make proper use of the opportunities afforded them in the chambers of practising counsel, they cannot have leisure to study the science of law at the same time, and so a year's preparation for entering chambers may be as well taken at the university as at the inns of court. We deny the general truth of the assertion: few are the chambers, and exceptional their condition—-for that condition must imply a great disproportion between the amount of business and the number of pupils in them--the student in which cannot both read, and use his opportunities, without any such labour as ought to be judged excessive by one who hopes for his reward in the still heavier labour of successful practice. The former and lighter toil is indeed no bad test, certainly not too severe a test, of the possession of the stamina needed for the other, aggravated as that other is by the continual sense of responsibility. But, were the mertion more widely true than it is, the remedy would have to be sought in some modification of the present system of study at the inns of court, a system of which we now have but the rough draft in operation; and not in dissociating from the sight of practice a study which, we maintain, requires the sight of practice almost from the first to clear and correct the conceptions.
While, however, we believe that it is on these principles that the future course of the study of law in England will depend, we do not forget that, for some time to come, there will be an opportunity at the old universities to do much for men who are going to the bar, who are already at an age when special professional training ought to commence, and who feel no call towards the higher honours and more richly endowed pursuits of the Cam or the Isis The question, of what nature should be the work there done for them, will perhaps be best solved by making it coincide, as far as possible, with what ought, as a part of general liberal education, to be done there for all? If the elements of moral philosophy be necessary to a cultivated man, there is no doubt that they are best presented in connection with the elements of law; that natural obligations are most clearly understood when paralleled and contrasted with legal ones; and that for the unconscientious looseness, which is often observable in ethical definitions and arguments, the best corrective is that severity which jurisprudence has derived, not more from its evolution in the actual conflict of interests, than from the reverence with which men approach the discussion of facts, and of rules which are meant to be practically enforced. Nor again, if the universities, departing in this from English precedent, should, as a part of general education, attempt to connect morality with law, will it be any cause for regret if, by farther attempting to combine in this the generally educational with some introduction to a special training, the general and shadowy should become more human by investing the dry bones of theory with more of the flesh and blood of fact. The time may come when, with a good system of legal education at work in London, a short residence there, in the centre of business, may be thought the necessary complement, even for the independent gentleman, of a university career. Meanwhile, it may be possible for the universities to do, to a considerable extent, that which, for the reasons already detailed, we are disposed to think will ultimately be best done in London.
It is neither necessary, nor our purpose, to write a eulogy on the Roman law, or to shew how far it may present the best foundation for such a course as we have indicated, wherever pursued. It may be assumed that it always will do so, and more particularly at the universities; only, whether we regard it as
entering into a liberal education, or into a special preparation for the English bar, it is obvious that its definitions and classifications, its mode of thought and the internal connection of its parts, are for us incomparably more important than its minuter details. The enduring merit of the Roman law is, that it is the work of a people who seem to have been raised up for that particular end, at a time when the vocations of races appear to have been more marked and separate than they are now. We can therefore no more dispense with the Romans to teach us law, than we can with the Greeks to teach us art; and if that inner spirit and connection of his jurisprudence, which the Romans knew by the phrase ratio juris, could in any tolerable degree, and even so far as concerns the great outlines only of the Roman law, be transferred to the minds of our students, that it is which we should mainly desire for them from this source, whether as gentlemen or as lawyers. Another object which should never be lost sight of in the modern study of the Roman law, is its historical development ; for in the ten centuries from the twelve tables to Justinian, the constitutional and social life of the nation underwent great changes, to which the law was progressively adapted ; and, not to mention the interest of thus tracing the first introduction of many principles which have become a second nature to us, we have in this an instructive series of examples of the mutual connection between legal rules and political and social facts—such a series as is not furnished by the history of English law, the changes of which, for better or worse, have too often had but accidental and technical occasions, with little or no reference to the necessities of the times. And at the universities there are greater facilities than elsewhere for presenting this historical side of the subject, since the facts of Roman history and manners are fresher in the minds of the students, or may even be acquired in the philological course at the same time that the outlines of Roman law are learnt in the juristic course.
Dr. Leapingwell, however, has not aimed at any philosophical treatment of his subject, but at producing a compendium of so much of the details of Roman law as, by a terse method of state