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institutions, and therefore he paraphrased the sources.” In other words he merely copied out Glanville and Bracton, and omitted all notice of the only work which would have given him an idea of the progress of laws; that is, he had not an idea of legal history. But the German critic, who has an idea of it, is in utter ignorance of its sources ; at all events, so far as regards English law. What he may know of his own, we know not, but there is an absurd presumption in his assuming to criticise a work on the history of English law, of the sources of which, it can easily be shown he knows absolutely nothing.
It should seem that the Germans have but very lately betaken themselves to the study of the history of their own laws, for Niebuhr observes, after reproaching historians of other nations for not having attentively studied the ancient law books—“But after all, we have not ourselves fared better, for it is now scarcely fifty years since Möser published his first works, stimulated by which we have at length began to have a clear perception of the early institutions of our own country.” That is, they have “only just begun” to acquire any knowledge of the history of their own law. They can hardly be qualified to criticise the labours of those foreigners who have devoted a life-time to the study of the history of their laws and institutions. Yet this is what the German critic has had the presumption to do, though his own incapacity for the task is made flagrant by his own criticism. At the outset he betrays what might be safely predicated, that he has no original knowledge on the subject, that he knows nothing of the original sources and authorities of our law, and has taken his notions of it at second-hand. His main accusation against Mr. Finlason is that he has worked from his own study of the original sources and authorities, and has not, as the critic evidently has, taken his knowledge from modern German books! This is actually betrayed at the very opening of the critique, for the critic proceeds thus to assail ‘Finlason :'-" It was not to be expected that a new edition provided in English fashion with editor's notes,
would give to this solid work the form demanded by a genuine historical conception."
That is, it is presumed, it was very difficult to make a good work out of a bad one, which is true ; but Mr. Finlason did his best. His labours, however, are vain, because he did not work from German sources. · Those of us who were inclined to be sanguine, took up Finlason's edition, in the hope that the essential relations connecting the development of English law with German and Franko-German law would be indicated with reference to the sources."
The scope of Mr. Finlason's notes, no doubt, had been, on the contrary, in accordance with the views of Hallam, and all sensible historians, that the Saxons who settled in this country were barbarians, who had no idea of law at all, and he certainly did not connect the development of law with German sources. Nor would any German who had any knowledge of the history of his own country, ever dream even of associating the development or growth of law, even in that country, with German sources. The great Emperor Charlemagne, to whom we owe the reconstruction of modern society, made the Roman system his model, and strove to reproduce it in its vast dominions. And at least one of our Saxon kings learnt, at his court, by the great Emperor's example, to strive to improve the laws of his barbarous subjects by influences derived from the same source. It is strange that a German writer should be unaware, that it was from Roman, not German sources, that law and civilization proceeded, since it was the great object of Savigny to establish that fact. The German critic, however, does not mention Savigny, though he mentions some German writers of far less importance, and whose imperfect knowledge of English law has long been known. The German critic is angry that the result of German works upon English and Anglo-Saxon law were not noticed, as, for instance, Schmid and Beiner. But as to these, Mr. Finlason was well aware that they had fallen into the error of Reeves, and had failed to notice the progressive and general change of law. Thus
it was pointed out, thirty years ago, that Schmid had given little attention to that remarkable collection of Saxon laws, known as the Leges Henrici Primi, because compiled in his reign, but left unregarded by Reeves. It was too much to expect from German authors greater knowledge of the sources of English law than our English writers on the subject had shown. As to Beiner, for instance, although his knowledge of English law was, for a German, considerable, it was so imperfect that a recent English translator of Gutterbock excuses himself from entering into Beiner's views, because he was compelled to differ from them so materially. Here we may pause to admire the mingled absurdity and presumption of a German critic, censuring an English lawyer for taking his knowledge of English law from its original sources, instead of being content to take what he could get at secondhand from obscure German writers! Probably in the whole history of criticism, there never was such an astounding exhibition of folly and presumption! It is a folly and presumption of which any learned German would have been ashamed. Gutterbock, for instance, excuses himself from pursuing his enquiries beyond Bracton, “ because such a task would require a residence in England of some duration.'' But fools rush in where men of great learning hesitate to step, and the obscure German critic, who evidently has not read even German works upon the subject, is not ashamed to criticize, in a spirit of shallow scorn and ignorant contempt, the work which embodies the studies of an English lawyer's life! Such presumption, of course, is accompanied with corresponding ignorance; for ignorance is blind, and the exhibition of ignorance made by this presumptuous writer, is something perfectly scandalous in any one assuming the critical office and function. The German critic goes on to quarrel with ' Finlason 'for upholding the importance of the influence of Roman law in England. He says: “German jurists would be the last to deny to Roman law an indirect influence upon English law. But they do not look for this influence where Finlason is especially fond of tracing it, in
the domain of public law, but rather in the judicial treatment of individual principles of private law." So much the worse for them if they do not.
The reason would be ridiculous, even if it were true in fact ; for what could be more presumptuous than to restrict or measure the researches of English lawyers in the sources of their own law, by the views of German writers ! But what is to be thought of a German critic writing in this way, apparently without any notion that the grand object of Savigny's greatest work is to show the influence of Roman law in the domain of public law and institutions. The German critic sneers with shallow and narrow-minded self-sufficiency at the great French writer Guizot, evidently unaware that Guizot, upon this subject, avowedly followed Savigny; and that Finlason's study of the German jurist satisfied him that he might safely follow his own views, sanctioned, as they were, by the authority of the two greatest writers on the subject. The truth is, however, that the German critic knows very little of the works of his own countrymen on the subject, and is not acquainted with German works familiar to students of legal history in this couutry. The German critic, in his usual style, says:
“Bracton, of course, with his Romanising tendencies, is water for Finlason's well. It is surprising, on the other hand, that he should be totally ignorant of Güterbock's monograph, * Henricus de Bracton und sem Verhält ness zun römischen Rechte,' a book that has been translated into English.”
It would not be so very surprising, even if it were true, which it is not; but what is surprising is that a German critic, in the same sentence, sneers at an English writer for tracing English law to a Roman source, and also for assumed ignorance of a German work, the whole scope and subject of which is to establish that connection ! Finlason might justly retort upon his German critic the charge of ignorance of the German work, which shows, at all events, so far as Bracton is concerned, a very large infusion of Roman law. The German author referred to was but following the foot.
steps of his author Reeves, and by other learned writers, for instance, Spence, who refers our Equity system to a Roman origin, and whose view, it is clear, were approved by the German writer. For Guterbock adds :
6. The best that has been written is still to be found in Reeves' History of the English Law, Vol. I and II. Spence, in his work upon the Equitable Jurisdiction of the Court of Chancery, which is of great importance, for the History of the English Law, has paid much attention to the history of the Roman Law in England, and has made researches upon many details of the subject."
Now Spence traced the origin of the Equitable Jurisdiction through the Ecclesiastics to the Roman system, the Chancellors for many ages having been Ecclesiastics, and naturally introducing their own ideas of law and procedure. And in the same way Mr. Finlason traced the influence of the Roman system through the same channels, upon the formation of our English system, even in the institution of trial by jury. He, therefore, followed Spence.
The German critic, when he sneers at 'Finlason' for tracing Saxon institutions to a Roman origin, does not know that Finlason follows German authorities ; for instance, Guilds, as Guizot says, are generally considered as of Saxon origin, yet they are undoubtedly of Roman origin, and must have been derived by our Saxon ancestors from their Roman predecessors in this country. Mr. Finlas on, being satisfied that on this point Guizot was right, followed him in this, as in other matters. The German critic sneers at him for so doing ; but let us listen to a German authority--the highest upon such a point-Niebuhr:-" There existed at Rome from the earliest, certain guilds, the institutions of which was ascribed to Numa.” They included, he adds, the principal trades; and “the object,” he says, “was to give to the city trades a corporate existence, as in the middle ages."
Here, then, is the highest German authority on Roman history, against the conceited German critic, who insists on measuring the knowledge of other men by his own, and to assume that nothing can be true of which he does not