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. În its larger and In 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 be a great practical mistake to lose sight of their intimate connexion with each other. A 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. Â 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 him. There have been times, too, when, in the bitterness of my heart, I have determined that I would bury with me every vestige of his disinterested and unregarded labours for the good of mankind. But calmer thoughts have led me to the conclusion, that I ought not to suffer the fruit of so much toil and of so great a mind to perish; that what his own severe and fastidious judgment rejected as imperfect, has a substantial value which no defect of form or arrangement can destroy; and that the benefits which he would have conferred on his country and on mankind, may yet flow through devious and indirect channels. I persuade myself that if his noble and benevolent spirit can receive pleasure from anything done on earth, it is from the knowledge that his labours are "of use to those who, under happier auspices, pursue the inquiry" into subjects of such paramount importance to human happiness.' 'I need not repeat the terms in which Mr. Austin's friends encouraged me to undertake the task of putting these precious materials in order, nor the offers of advice and assistance which determined me to venture upon it. One of them, who spoke with the authority of a lifelong friendship, said, after looking over a mass of detached and half legible papers, "It will be a great and difficult labour; but if you do not do it, it will never be done." This decided me. 'I have gathered some courage from the thought that forty years of the most intimate communion could not have left me entirely without the means of following trains of thought which constantly occupied the mind whence my own drew light and truth, as from a living fountain; of guessing at half expressed meanings, or of deciphering words illegible to others. During all those years he had condescended to accept such small assistance as I could render; and even to read and talk to me on the subjects which engrossed his mind, and which were, for that reason, profoundly interesting to me.' It is a task involving great labour; and, when it is completed, English jurisprudence will be indebted for one of its highest aids to the reverential affection of a wife and the patient industry of a refined and intelligent woman. ART. V.-1. My own Life and Times, 1741-1814. By Thomas Somerville, D.D., Minister of Jedburgh, &c. Edinburgh, 1861. 2. Autobiography of the Rev. Dr. Alexander Carlyle, Minister of Inveresk. 1 vol. 8vo. Edinburgh and London, 1860. 3. Domestic Annals of Scotland. By Robert Chambers. 3 vols. 8vo. Edinburgh and London, 1858-61. 4. Sketches of Early Scotch History and Social Progress. By C. Innes. 8vo. Edinburgh, 1861. 5. Reminiscences 5. Reminiscences of Scottish Life and Character. By E. B. Ramsay, M.A., LL.D., F.R.S.E., Dean of Edinburgh. Sixth edition, 12mo. Edinburgh, 1860. Ditto, Second Series. 12mo. Edinburgh, 1861. 6. Familiar Illustrations of Scottish Character. By the Rev. Charles Rogers, LL.D., F.S.A., Scotland. 12mo. London and Edinburgh, 1861. 7. The Days of the Fathers in Ross-shire. By the Rev. John Kennedy, Dingwall. Second edition, 12mo. Edinburgh, 1861. 8. History of Civilization in England. By Henry Thomas Buckle. Vol. II., 8vo. London, 1861. EVER VER since the genius of Sir Walter Scott, aided in no mean degree by his diligent study of antiquities, did so much to reproduce the men and the manners of earlier days, historical research has met with general favour in Scotland. Although Vandalism may not be wholly extinct, yet individuals and societies have sought out and rescued from destruction whatever seemed to throw light upon the old times. Family and college muniments have been examined, the fine ecclesiastical remains of Scotland have been illustrated, and the peculiar principles of its half-military, half-domestic architecture have been studied,* and the wonderful sculptured stones have been admirably delineated and described.† The origin and the history of the nation will, in the end, be better understood than they have hitherto been ; and, in the mean time, some attempts have been made to exhibit in a connected form the results already obtained. The indefatigable Mr. Robert Chambers has arranged in chronological order a great deal of important and characteristic matter, drawn from a variety of sources. Mr. Cosmo Innes, a valued contributor of our own, who edited several works for the Spalding Club, has put together in a separate form a series of very instructive papers. The memoirs of several eminent Scotsmen have been published within the last few years, and even months; and some attempts have been made to note and preserve those relics of ancient thought and manners which still linger in the country. Lastly, we have received, just before sending these lines to press, the second volume of Mr. Buckle's History of Civilization in England,' which volume is entirely devoted to Spain and Scotland. We do not propose in the present article to examine Mr. Buckle's 6 * See Billing's 'Baronial and Ecclesiastical Antiquities of Scotland.' Edinburgh, 1847. Quart. Rev.,' vol. lxxxv. Sculptured Stones of Scotland.' Stuart, for the Spalding Club. Aberdeen, 1856. Edited by Mr. John volume |