1902 Encyclopedia > Law > Historical Jurisprudence

(Part 4)

Historical Jurisprudence

The historical treatment of law displaces some very remarkable misconceptions. Peculiarities and anomalies abound in every legal system ; and, as soon as laws become the special study of a professional class, some mode of explaining or reconciling them will be reconciling them will resorted to. One of the prehistorical ways of philosophizing about law was to account for what wanted explanation by some theory about the origin of technical words. This implies some previous study of words and their history, and is an instance of the deep-seated and persistent tendency of the human mind to identify names with the things they represent. The Institutes of Justinian abound in explanations, founded on a supposed derivation of some leading term. Testamentum, we are told, ex eo appellator quod testatio mentis est. A testament was no doubt, in effect, a declaration of intention on the part of the testator when this was written. But the mentum is a mere termination, and has nothing to do with mens at all. The history of testaments, which, it may be noticed incidentally, has been developed with conspicuous success, gives a totally different meaning to the institution from that which was expressed by this fanciful derivation. So the perplexing subject of possessio was supposed in some way to be explained by the derivation from pono and sedeo, -- quasi sedibus positio. Posthumi was supposed to be a compound of post and humus. These examples belong to the class of rationalizing derivations with which students of philosophy are familiar. Their characteristic is that they are suggested by some prominent feature of the thing as it then appeared to observers, -- which feature thereupon becomes identified with the essence of the thing at al times and places.

Another prehistorical mode of explaining law may be described as metaphysical. It conceives of a rule or principle of law as existing by virtue of some more general rule or principle in the nature of things. Thus, in the English law of inheritance, until the passing of the recent Inheritance Act, an estate belonging to a deceased intestate would pass to his uncle or aunt, to the exclusion of his father or other lineal ancestor. This anomaly from an early time excited the curiosity of lawyers, and the explanation accepted in the same of Bracton was that it was an example of the general law of nature :—"Descendit ita quasi ponderosum quid cadens deorsum recta linea vel transversali, et nunquam reascendit ea via quo descendit." The author of an excellent summary of the history of the law of real property (Mr Digby) supposes that the "rule really results from the associations involved in the word descent." It seems more likely, however, that these associations explained rather than that they suggested the rule,—that the omission of the lineal ancestor existed in custom before it was discovered to be in harmony the law of nature. It would imply more influence than the reasoning of lawyers is likely to have exercised over the development of law at that time to believe that a purely artificial inference of this kind should have established so very remarkable a rule. However that may be, the explanation is typical of a way of looking at law which was common enough before the dawn of the historical method. Minds capable of reasoning in this way were, if possible, farther removed from the conceptions implied in the reasoning of the analytical jurists than they were from the historical method itself. In this connexion it may be notices that the great work of Blackstone marks an era in the development of legal ideas in England. It was not merely the first, as it will remains the only, adequate attempt to expound the leading principles of the whole body of law, but it was distinctly inspired by a rationally method. Blackstone tried not merely to express but to illustrate legal rules, and he had a keen sense of the value of historical illustrations. He worked of course with the materials at his command. His manner and his work and obnoxious alike to the modern jurist and to the modern historian. He is accused by the one of perverting history, and by other of confusing the law. But his scheme is a great advance on anything that had been attempted before ; and, if his work has been prolific in popular fallacies, at all events it enriched English literature by a conspectus of the law, in which the logical connexion of its principles inter se, and its relation to historical facts, were distinctly if erroneously recognized.

While the historical method has superseded the verbal and metaphysical explanation of legal principles, it has apparently, in some cases, come into conflict with the conclusions of the analytical school. The difference between the two systems comes out most conspicuously in the analytical method between societies in which rules are backed by regulated physical force and those in which no such force exists. At what point in its development a given society passes into the condition of "an independent political society" it may not be easy to determine, for the evidence is obscure and conflicting. To the historical jurist there is no such breach. The rule which in one stage of society is a law, in another merely a rule of "positive morality," is the same thing to him throughout. By a recent Act of Parliament the Ulster custom of tenant right and other analogous customs were legalized. For the purposes of analytical jurisprudence there is no need to beyond the Act of Parliament. The laws known as the Ulster custom are laws solely in virtue of the sovereign government. Between the law as it now is and the custom as it existed before the Act there is all the difference in the world. To the historical jurist no such separation is possible. His account of the law would not only be incomplete without embracing the precedent custom, but the Act which made the custom law is only one of the facts, and by no means the most significant or important, in the history of its development. An exactly parallel case is the is the legalization in England of that customary tenant right known as copyhold. It is to the historical jurist exactly the same thing as the legalization of the Ulster tenant right. In the one case a practice was made law by formal legislation, and in the other without formal legislation. And there can be very little doubt that in an earlier stage of society, when formal legislation had no become the rule, the custom would have been legalized relatively much sooner than it actually was.

Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished, and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon the. The recognized science—and such it may not be considered to be—with which historical jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. Legal systems are related together like languages and dialects, and the investigation in both cases brings us back at last to the meagre and obscure records of savage custom and speech. A great master of the science of language (Max Müller) has indeed distinguished it from jurisprudence, as belonging to a totally different class of sciences. "It is perfectly true," he says, "that if language be the work of man in the same sense in which a statue, or a temple, or a poem, or a law are properly called the works of man, the science of language would have to be classed as an historical science. We should have a history of language as we have a history of art, of poetry, and of jurisprudence ; but we could not claim for it a place side by side with the various branches of natural history." Whatever be the proper position of either philology or jurisprudence in relation to the natural science, it would not be difficult to show that laws and customs on the whole are equally independent of the efforts of individual human wills,—which appears to be what is meant by language not being the work of man. The most complete acceptance of Austin’s theory that law everywhere and always is the command of the sovereign does not involve any withdrawal of laws from the domain of natural science, does not in the least interfere with the scientific study of their affinities and relationships. Max Müller elsewhere illustrate his conception of he different of the different relation of words and laws to the individual will by the story of the emperor Tiberius, who was reproves for a grammatical mistakes by Marcellus, whereupon Capito, another grammarian, observed that, if what the emperor said was not good Latin, it would soon be so, "Capito," said Marcellus "is a liar for, Caesar, thou canst give the Roman citizenship to men, but not words." The mere impulse of a single mind, even but that of a Roman emperor, however probably counts for little more in law than it does in language. Even in language one powerful intellect or on influential academy may, by its own decree, give a bent to modes of speech which they would not otherwise have taken. But whether law or language be conventional or natural is really an obsolete question, and the difference between historical and natural sciences in the last result is one of names.

The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm’s law for jurisprudence ; but something has been done in that direction by the discovery of the analogous process and principles which underlie legal systems having to external resemblance to each other. It happens, however, that the historical study of law has, for the most part, been confined to a single system -- the Roman law. The Roman law present itself to the historical student in two different aspects. It is, regarded as the law of the Roman republic and empire, a system whose history can be traced throughout a great part of its duration with certainty, and in parts with great detail. It is, moreover, a body of rationalized legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into jurisprudence of the whole of modern Europe on the strength of their own abstract authority,—so much so that the continue existence of the civil law, after the fall of the empire, is entitled to be considered one of the first discoveries of the historical method. Alike, therefore, in its original history, as the law of the Roman state, and as the source from which the fundamental principles of modern laws have been taken, the Roman law presented the most obvious and attractive subject of historical study. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recension of those of Gaius,(FOOTNOTE 363-1) the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian law has accordingly been the main subject of historical study, and the conclusions of jurisprudence are to a great extent generalizations suggested by the history of Roman law.

Nowhere did Roman law in its modern aspect give a stronger impulse to the study of legal history than in Germany. The historical school of German jurist led the reaction of national sentiment against the proposals for a general code made by Thibaut. They were accused by their opponents of setting up the law of past times as intrinsically entitled to be observed, and they were no doubt strongly inspired by reverence for customs and traditions. Though the examination of their own customary laws, and through the elimination and separate study of the Roman element therein, they were led to form general views of the history of legal principles. In the hands of Sovigny, the greatest master of the school, the historical theory was developed into a universal philosophy of law, covering the ground which we should assign separately to jurisprudence, analytical and historical, and to theories of legislation. There is not in Savigny’s system the faintest approach to the Austinian analysis. The range of it is not the analysis of law as a command, but that of a Rechtsverhältniss or legal relation. Far from regarding law as the creation of the will of individuals, he maintains it to be the natural outcome of the consciousness of the people, like their social habits or their language. And he assimilates changes in law to changes in language. "As in the life of individual men no moment of complete stillness is experienced, but a constant organic development, such also is the case in the life of nations, and in every individual elements in which this collective life consists ; so we find in language a constant formation and development, and in the same way in law." (FOOTNOTE 363-2) German jurisprudence is darkened defective analysis of positive law. But its conception of laws is exceedingly favourable to the growth of an historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles. Such, for instance, is Savigny’s famous examination of the law of possession.

There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all ; but England, as it happens, is isolated in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law may exist in the English system has come in, whether by conscious adaptation or otherwise, ab extra ; it is not the essence of the system, nor does it form a large portion of the system. And, while English law is thus historically independent of Roman law, it is in all respects worthy of being associated with it on its own merits. Its originality, or, if the phrase be preferred, its peculiarity, is not more remarkable than the intellectual which have gone to its formation—the ingenuity, the logic, the reasonableness, of the generations of lawyers and judges who have built it up. This may seem extravagant praise for a legal system, the faults of which are and always have been matter of daily complaint, but it would be endorsed by all unprejudiced students. What men complain of is the practical hardship and inconvenience of come rule of process of law. They know, for example, that the law of real properly is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real properly, which rests to this day on ideas that have bee buried for centuries, has nevertheless the qualities we have named. So too with the law of procedure as it existed under the "science" of special pleading. The greatest practical law reformer, and the severest critic of existing systems that has ever appeared in any age or country, Jeremy Betham, had admitted this :— " Confused, indeterminate, inadequate, ill-adapted, and inconsistent as to a vast extent the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision, yet in the character of a repository of such cases it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political states, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement—in a word, all point taken together, in constructiveness—to that which may be seen to be afforded by the collection of English reports of adjudged cases"(Bentham’s Works, vol. iv. P. 460). On the other hand, the fortunes of English jurisprudence are not unworthy of comparison even with the catholic position of Roman law. In the United States of America, in India, and in the vast colonial empire, the common law of England constitutes most of the legal system in actual use, or is gradually being superimposed upon it. It would hardly be too much to say that English law of indigenous growth, and Roman law, between them govern the legal relations of the whole civilized world. Nor the influence of the former on the intellectual habits and the ideas of men been much if at all inferior. Those who set any store by the analytical jurisprudence of the school of Austin will be glad to acknowledge that it is pure outcome of English law. Sir Henry Maine has associated its rise with the activity of modern legislatures, which is of course a characteristic of the societies in which English laws prevail. And it would not be difficult to show that the germs of Austin’s principles are to be found in legal writers who never dreamed of analysing a law. It is certainly remarkable, at all events, that the acceptance of Austin’s system is as yet confined strictly to domain of English law. Sir H. Maine has found no trace of its being even known to the jurists of the Continent, and it would appear that it has been equally without influence in Scotland, which, like the Continent, is essentially Roman in the fundamental elements of its jurisprudence.

While, however, Roman law has had many historians, and while it has been, in Germany at least, the subject of a good deal of historical philosophy, English law can hardly yet by said to have had its historian, much less its philosopher. What is wanted here, in the first place, is the setting forth of the materials in a condition fit for examination. This has been rightly described as perhaps the most important intellectual want of the present time. But in the meantime the revival of the study of Roman law in England has made the comparison of Roman and English law a matter of course in legal education, and has undoubtedly led, in accordance, no doubt, with the bent of contemporary thought, to the formation in English of what may not improperly be called a great school of historical jurists.

By far the most considerable contribution made by England to historical jurisprudence in the writings of Sir henry Maine. The first of these (Ancient Law), published in 1861, has probably had a more profound influence on contemporary thought than any other book of this generation. The Early History of Institutions and Village Communities in the East and West have since followed. In Ancient Law Sir Henry Maine proposes to trace the connexion of the subject with the early history of society and its relation to modern ideas. Taking the Roman law as a typical system, he revealed for the first time to English readers the connexion between the principles of forgotten lawyers and, not merely the legal ideas, but the moral commonplaces of our own time. The book undermined what had been accepted as first principles by showing that they and a history. It gratified the intellectual sense by the brilliant identification of legal ideas, obscured by differences of time and place and circumstance. It is not surprising that its influence has been even more extensive among educated laymen than among professional lawyers, for the latter are condemned by custom to disregard everything in their science but its relation to the business of the day. But Ancient Law set the attitude of regarding a legal rule not as an isolated fact but as the last link in an historical series. In the better sort of legal text-books which have recently appeared this attitude is discernible, and on the whole to the advantage of the exposition, even for the purposes of practice.

At the present moment conclusions based on an examination of the history of legal systems stand subject to correction by the results of the investigation, which is being conducted with so much diligence and success, into the condition of savage races. If it be a right inference that the phenomena of barbarism, as it exists at the present day, represent a condition through which civilized societies have passed, it is obvious that the origin which recorded history suggests for legal ideas and practices must not be taken as absolute. It so happen that prehistoric society has hitherto engaged a much larger share of attention than the history of laws. Conspicuous among the writers who have made important contributions to the literature of this subject are Mr E.B. Taylor, Sir J. Lubbock, Mr. Lewis Morgan, and especially Mr J.F. Lennan. Many of the conclusions to which there inquirers have been led do not affect any position taken up by historical jurists, but others tend to show that social forms which, seen from the side of legal history, appeared to be the absolute beginning of modern institutions, may themselves have been the result of a long evolution. The most conspicuous example, not of antagonism, but of what may be called disconnexion, between juridical and naturalistic theories of the origin of society, is to be found in the FAMILY (q.v.). Here it need only be said that the part played by the family in the development of legal ideas has been fully elaborated by historical jurists, sometimes with the inference, implied rather than expressed, that it marks the beginning of the history, or at least is to be found in the earliest period of the race of which we have trustworthy evidence. Substantially the conclusions of the jurists as to the influence of the conception of the family on historic law remain unimpaired. It is true that a great part of the "legal ideas of civilized races may be traced to this conception, and that the history of their development is the history of its slow unwinding." (FOOTNOTE 365-1) But that there is no anterior condition to that in which the patriarchal family – " a group of men, women, and slaves, of animate and inanimate property, all connected together by subjection to the paternal power of the household" -- is the unit of society, is not, so far as we are aware, affirmed by any historical jurist. The evidence on that question will be found in the article FAMILY above mentioned.

Another natural group whose place in legal history has recently been the subject of careful investigation is the village community. In one of its forms – the township -- "it is an organized self-acting group of Teuronic families, exercising a common proprietorship over a definite tract of land, its mark, cultivating its domain on a common system, and sustaining itself by the produce. It is described by Tacitus in the Germania as the vicus; it is well known to have been the proprietary and even the political unit of the earliest English society; it is allowed to have existed among the Scandinavian races, and it survived to so late a date in the Orkney and Shetland islands as to have attracted the attention of Sir Walter Scott (Maine, Village Communities, p. 10). Founding on the researches of G. L. von Maurer, of Nasse, and others on the Teutonic mark, and comparing them with the observed phenomena of the village community in India, Sir H. Maine has shown , in the work just cited, how this widely diffused institution illustrates legal history, more particularly with reference to property in land, and to the conservation of customary law.

The lateness of the intervention of the state or sovereign as a first legislator has been adverted to in the previous discussion. Formal law making by the state by everywhere posterior to its intervention as the enforcer of law. Not that law-making was consciously separated from judging, or that the assembly or officer who represented the state whether represented by a public assembly or by an officer, undertook to decide disputes between man and man long before it presumed to say on what principles such disputes should be decided. The judge everywhere comes before the legislator, if indeed terms so purely modern can be applied without danger to early law. That the pronoucements of the judge were themselves a source of law, -- that be created the law which he professed to declare, -- it true is a sense which, however, requires us to obliterate the most conspicuous of all the duties of a judge conceived in relation to mature law. That the law existed before the judgment, that the judgment should simply declare pre-existing law, that ex post facto laws are unjust – are the inveterate beliefs and prejudices of a civilized society, the strength of which is manifested by the fictions elsewhere noticed as concealing the manufacture of new law. No such conception is to be imported into the notion of early society as to the right and wrong of civil justice. The office of the judge was to settle disputes, to do right where wrong had been done; and whether his decision was founded on law, or custom, or religion, or on personal wisdom or inspiration, was a question which we cannot conceive as being asked, when these things were not distinguished in thought.

A conclusion suggested by the earliest forms of procedure in Roman law is that the intervention of the judge is originally that of a private arbitrator. The legis actio sacramenti retained down to a very late period certain symbolical proceedings, in which the features of a private quarrel were simulated. It was a petrified legal drama, like that played by the vouchers in the English action of ejectment. The parties wrangle over the disputed property, the magistrate interposes, and they agree to abide by his decision, each striking a deposit on the justice o his case. Maine felicitously compares these formalities with the trial scene depicted on the shield of Achilles in the Iliad, in which the sacramentum is represented by two talents of gold to go to the judge who shall best decide the points in dispute in the opinion of the spectators. The reward given to the private arbitrator has become in legal symbolism the fee payable to the court on the hearing of the cause. "In confirmation of this view," says Maine, "it may be added that many observers of the oldest judicial usages of modern Europe have marked that the fines inflicted by courts on offenders were originally sacramenta" (Ancient Law, p. 378). The symbolism of another legis actio is susceptible of a similar interpretation. The condiction was a personal action taking its name from the notification to the defendant to appear before the judge on a day named, and it simulated a quarrel settled, not by the interposition of the arbitrator, but by agreement of the parties in the form of a wager, to be decided by the arbitrator at a future time. It is consistent with this view of the first manifestations of judicial functions that early as compared with mature law should assign so large a place to mere procedure. The adjective law, as it is now called, was the first portion of the law to take definite shape, and long maintained its place in the foreground of the system. When a special class in society, whether an aristocratic or priestly caste or a profession, became, as was almost universally the case, the exclusive custodians of the law, the formalities of procedure were their most important secrets. It is represented as a revolution in Roman society when the clerk of one of the aristocratic lawyers divulged to the public his master’s notes for the conduct of legal proceedings. And at all times, it may be said, the law of procedure or practice is in a special sense the law of the professional lawyer, his knowledge of which makes him a skilled craftsman.

The more definite the judiciary power the more do we approach the state of things in which the postulates of analytical jurisprudence are true. Another mark of maturing law is its expression in writing, which, while it destroys the secret monopoly of a class, tends to develop the separate profession of free practising lawyers, who in all progressive societies count as the most powerful instrument for moulding the shape of the law. The influence of lawyers upon law is one of the topics on which the comparison of English and Roman law throws a flood of light, but its illustration would carry us beyond present limits. Nor can we do more than allude to the importance tentatively assigned by Maine to the question whether a written law comes relatively early or late in the history of a nation. He appears to hold that the relatively early code of the Romans saved them from that degeneration of custom which takes place when it is transmitted by oral tradition from one generation to another.

We have discussed elsewhere, under the headings EQUITY and FICTIONS, two of the modes by which legal changes have been brought about indirectly. Direct law-making by the sovereign power, there is reason to believe, is not only everywhere later these agencies, but its activity is progressive, and constantly tends to displace them. A glance at the English statute-book will show that the legislature at the present day undertakes the deliberate alternation of the law to a much greater extent than it has ever done before. A rough illustration is the fact that the chronological table of the statutes from 1235 to 1877 covers over the hundred pages, of which fully two-thirds are occupied with the legislation of the last hundred years. This activity varies of course at different times, and the variations even in recent times have been remarkable. And, large as are the contributions of modern parliaments to the law, its is notorious that but for defects in the legislative machinery they would be much larger. Nor is this activity to be accounted for by the theory that the domain of law is more intrusive than in earlier times. There has undoubtedly control asserted by the state over the habits of its citizens, for some account of which reference may be made to the article GOVERNMENT. But on the whole the range of action with which the English law declines to interfere is probably as great now as it ever has been in civilized societies. The true explanation is that parliament has effectually secured for itself exclusive authority as the source of legal changes. The violent assault of Bentham on judiciary law was but the echo of the lesson taught by the English judges as to omnipotence of parliament, and thoroughly understood and accepted by popular opinion. To that is due the caution, not to say timidity, which now characterizes the judicial interpretation of statutes. The courts adhere to the literal meaning of the enactment unless compelled to open it by its too frequent absurdity or self-contradiction. If there is any way out of a difficulty which will not involve the slightest addition to the enacted law, that will be the way followed by judicial decision. This attitude is a complete reversal of that which once prevailed in the courts, when the law embodied in decided cases, pure drawn from the fountains of justice, was deemed superior in dignity to the enactments of an unlearned parliament. The tribunals, in so far as they now make law, operate much more freely on the cases than on the statutes.

The consequence of this relation of the judiciary and the legislature is that, while great reforms are no doubt accelerated, small reforms have to wait. Parliament doe sin a single session that which would have taken ages to accomplish under the natural agencies of equity and fiction, and much which would never been brought about by these agencies at all. But the capacity of parliament is limited, and so is its foresight. The work of legislation is left incomplete, and the judicature carefully avoids completing it, leaving the legislature to take it up again when it may. An instance in point is the late history of the law of evidence. This portion of the law grew to maturity in the courts, whose creation it was. It has been wholly transformed by direct legislative enactment (under the influence of Bethamite principles), Act after Act being passed as occasion pointed out defects in what had already passed accomplished. One of the latest Acts on the subject simply enables parties and their husbands or wives to give evidence in a certain class of indictments. The substitution of an affirmation for an oath has been carried out in the same piecemeal fashion, the courts refraining from developing the principle of the amendments, as they would have done if the movement had originated with themselves and in an earlier stage of their history. The most portentous example of the intervention of the legislature to complete the exact details of its enactments is the Act previously noticed, which orders the word "this" to be interpreted as "that". The defects of existing legislative methods in England result in some defects in the form of the law, which the tribunals are free to criticize but not to correct. An Act of Parliament bears upon its face the marks of the tumultuous discussion of a large popular assembly, and of the compromise which reconciles the opposing views of the two Houses. Very few Acts, no matter what care may be employed in framing them, are promulgated in the form best suited for actual exercise, -- in the form which would be given to them by an intelligent legislator, charged with the expression of the principle which parliament is supported to have sanctioned.

In what has been said regarding the relations of the legislature and the judicature it is not implied that the manufacture of case-law by the latter has ceased. On the contrary, it goes on with yearly increasing volume, and the immense accumulation of decided cases is one of the evils of the present state of the law. The hand of precedent never lay heavier on the conscience of the judge than it does now. The necessary literature of the law is increased by a dozen large volumes every year. The law becomes more voluminous without becoming more elastic or more systematic. The stereotyped judicial habit is to follow absolutely the precedents set by every tribunal of higher rank, and almost absolutely those set by tribunals of coordinate rank. A careful semi-official record has taken the place of the private reports published by lawyers privileged by the courts to take notes of their proceedings. Every case of any importance is recorded and becomes a precedent which the practising lawyer in future must know, and which the judge must follow. The minute detail into which legal literature is thus made to descend is becoming an intolerable load; and it is a question whether some revolution in respect to precedents in not becoming necessary.

Legislation by judges has its counterpart in the use of legislative forms for judicial purposes. Long after legislative and judicial functions have been separated, we find legislative acts serving the purpose of judicial decisions. The history of English law is full of examples, the best known of which is that of divorce. The practice of passing private bills of divorce, at a time when the technical law did not allow of that remedy, hardened into a purely judicial practice. The Act which established the Divorce Court did not in effect do more than create a new and better tribunal. So with the General Enclosure Act, which took over from the legislature the purely judicial work of sanctioning enclosures in proper cases.


363-1 A very useful edition of the Institutes of Justinian, printed as a recension of the text of Gaius, has been published by Professor T. E. Holland, Oxford, Clarendon Press, 1882, 2d ed.

363-2 See Introduction to the History of Jurisprudence, by D. Caulfield Heron, LL.D., London, 1880.

365-1 Maine’s Village Communities, p. 15.

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