noted, is the final term of the Civil system! But perhaps Mr. Maine would take the chaos by the two extremities, as being the only portions that present him any character. All creatures of vital, and even of physical nature, from the sporocyst back to the comet, first take shape by a head and tail. And the adage makes the absence of both a synonym with nonsense.

Let us however hear him. Equity, or as the author sums up the theme descriptively, "a set of legal (jural) principles, entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the Roman state and in England." But at all events, not earlier than the older Law itself, but later; nor entitled to "supersede" it, since it fails to do so to this day, and on the contrary is itself reabsorbed into it at this moment in the same England; nor is it obvious how a title of “intrinsic superiority" could have been fathomed early in either Rome or England, and more especially as we are still left in quest of it in both those Laws. Nor, such as the impression was, did the Romans base it upon "distinct principles." Nor, still less, did the English, who merely borrowed the Roman results, and masked them with the Gothic negative of all principle, the Personal conscience! Conscientia viri boni was, and is perhaps, their ground of Equity. Mr. Maine might have at least remembered Selden's heavy and homely image, as to the standard of English Equity in the shoes of the Lord Chancellors.

The author does remark accordingly, that what the English called Equity, was a farrago of odds and ends imported from the Roman law, and as well in its canonical extension as the Civil form, and finally reduced to a grimace of unity by the Personal or ethnic sympathy with Wolff, Puffendorf, and even Grotius; who had themselves, on their part, absorbed into this jural maelstrom of the "moral and personal consciousness"-i.e. selfishness-the Natural Law. And this is probably the clew to the copulation of our author's title.

It was therefore of necessity that he should also misconceive the proper character of what occasionally was called Equity in the Roman system. This he tells us was no other than the famous jus gentium," which the Edict of the prætor was," says he, " supposed to have worked into Roman juris prudence." "Its Ordinances," he goes on to explain, or rather to confound," are said to be dictated by Natural Equity as well as by natural reason." Now this was with the Romans a distinction without a difference. The Natural Equity would describe reason in its stage of the Law of Nature, and the Natural reason does but express the same thing in terms. The Reason was the Roman differentia of the Equitas, and as distinguished from the Natural law, which was simply just―

aquale. It was the state or relation (etas) as opposed to the mere quality; and thus providing an ulterior and independent ground for Equity. And the crowning proof is added by the Greek term, which is E-kia, or as if superaquale; and not worns, which means mere equality. But assuredly Mr. Maine must be too absorbed in his legal studies to breathe a little of the atmosphere of Hellenism that no doubt envelopes him.

The worst of the matter is that the Legal studies do not seem the better for it. Indeed he has not yet collected from the primer called the Institutes the difference they point out plainly between the Jus naturæ and the jus gentium. The Natural law they compose of attributes possessed in severalty by all animals-quod natura omnia animalia docuit. But the expression should be social animals, as the examples adduced confirm; and which was thought perhaps to be supplied by the term docuit, as it implies habit. The jus gentium is defined to quite the opposite, by the same Institutes, as quod omni humano generi commune est. Besides this express limitation to the human kind or species, the commune might apply to this kind as set off into communities; that is, to species of society, instead of individuals, as with Natural law. It should be owned however that the lawyers, both Roman and modern, rather interpret it to mean: what was practised similarly by different nations. But even so, they overlook what amounts to the true construction, that the practices are here a product of nations or communities, although of course exhibited in common by their personal members; and must thus rank as social species, not the animal attributes of Natural law. And such is the grotesque confusion still pervading these great subjects!

It should be noted, moreover, that with the Roman writers, the descriptions of the jus gentium retained a tincture of the Stoic philosophy. This doctrine, as the final summary not merely of the Greek culture, but also virtually of the earlier world, was the vicious circle of a mundane Unity; or socially a vast republic composed alike of gods and men, with an endless train of dualisms, representing the social cycles, which I called African and Asiatic, and which left no outlet for the law of progress. The third or medial term, which gave egress to this supreme course was merely surmised by Aristotle in his ethical and logical writings (as by the doctrines respectively of the "Golden Mean" and the Syllogism); and which formed, by the way, the secret of his fame with thinking posterity. But to work down the idea into society was then impossible, in even its most superficial stratum of religion. It is precisely why even the inspired and "chosen people" could conceive no heaven beyond the earth, and no Trinity in

the Deity; but revolved within the domain of the House, and the Lord, of Israel.

The Romans, as the next society on the stadium of social progress, and prepared by all anterior history to take, in Plato's fine conception, from the hand of exhausted Greece, the torch of civilization, were enabled to give some speciality or articulation to the vague notion of the Stoics and their republic of Natural reason. Having obtained through their vast conquests an agglomeration of various races, whom they saw to be in morals and usages irreconcilable, they seized them by the higher practices they had in common with Rome herself, and to which the local residue must needs be subject, within each community. For that which obtained the consent of all, must be the highest expression of each local body, while yet developed from that body by an independent organism. This organism was the social germ which we said distinguished the jus gentium; which the Romans were prepared for through the accession of their Gentile element; and which they then pursued ideally into a heaven of the future, a trinity of the Godhead, and the Christian system generally,—which accordingly is the noble basis of the veritable Law of Nations.

But the Prætor had to do with earth, the Roman State, and its Civil law, to which he had to divert downwards the Rational doctrine of the jus gentium. This he could do but by the same reasoning which would apply to the subject states, had they each of them a prætor to give some system to their civil usages. He merely turned it to the organic or rational control (and not absurdly the supplantation) of both the Civil and the Natural laws; and irrespective of the authority of the "allied" states whom he despised, and knew to be themselves unconscious of any such conception. Well, here was in turn the true genesis of Roman Equity.

The novel result may be quaintly tested by a previous innovation, upon the notions which make Postliminy a central portion by the jus gentium. What was it that constrained the Prætor to originate this institution; and afterwards, the Legislature to enact the Cornelian supplement? Why the spectacle, in the first case, of the captive citizens who returned, and were left in indigence or in dependence on the heirs succeeding to their goods and family; and in the second case, the counter spectacle of the heirs or family themselves, left in the like destitution, if the prisoner died in slavery, through his unfitness to make a testament of any force with the Civil law. The conflict thus entailed by the Civil law with the law of Nature was so glaring, we are told, as to shock the Roman people, and so to suggest the Prætorian middle term which was thence called Equity. Not at all of course the jus gentium, which knew elsewhere of no such practices; and

less, if possible, the Legal Fictions of Mr. Maine, before excluded.

Prepared a little by this slight exposition, the reader may now estimate the views which Mr. Maine still echoes upon these cardinal subjects. He says: "The jus naturale or Law of Nature is simply the jus gentium or Law of Nations seen in the light of a peculiar theory." But even the "simple theoretic" light he does not show us. He thinks it "unfortunate" that the great Ulpian even tried to make any distinction between them! Gaius, who countenanced the modern huddle, was "a much higher authority." And the passages from the Institutes-above exhibited and explained—“ leave no doubt that the expressions (i.e. jus naturæ and jus gentium) were practically convertible!" The reader is requested to revert to those descriptions, showing the one Law to extend to all animals indiscriminately, and to man at their head but in the measure of individuals; and the other Law to comprehend the men alone and as composing nations! The difference, our author repeats, "was entirely historical, and no distinction in essence could ever be established between them."

There remains to be here added but that the English Chancellor, who is the analogue of the Prætor, though in the usual way of contrariety, moves, or reasons or divines, not from above or a higher law; but on the contrary, from below-from the special facts and the personal conscience, and which thus sways him, by the national bias, into the dominant Common law. He is accordingly, in his turn, amassing Rules, Reports, nay Precedents; which would be jural monstrosities in a system of genuine Equity. Bacon, with his usual grandiloquence in Law as in other things, began his functions with the Prætorian prelude of some hundred rules, not one of which adverts to anything above the routine of the Chancellerie. But Bacon knew his countrymen as well at least as he knew their law.

In Equity he saw before him but a chaos or else a void; whereas the Prætor proceeded on a scheme of laws, if not rational principles. The Roman Chancellor discharged the judicial business of Administration; the English Chancellor directs the judicature as an engine of Political government. The Prætor was a lawmaker, as all things public were at Rome; and even down to the private Pater, who could produce law by his ut legassit; and the supreme official did but make modifying or medial laws, to resolve by reason any conflict rising between the Civil law and the Natural. The English Prætor is a mere judge, and like all things English a politician; indeed a species of "family solicitor to the State. The former was the noble leader-pra-itor-on the route of progress. The latter is a legal "tinsman a legal" tinsman" of political expediencies, a

mender of casualties-whence doubtless his name of Chancellor.*

On commencing I expected to despatch the work in a single article, but now observe that we have yet reached but the fourth of its ten chapters. Another paper will be therefore needed to do full justice to the book and public. The matter is the richest possible, however scandalous the treatment-less however by the fault of Mr. Maine than of his German "sources." "And having laid down in the present sketch a sort of basis and scale of principles, I may henceforth go directly, without excuses or explanations, to seize the errors of detail, and haul them up for execution.

J. O'CONNELL.

III.-ON UNIFORMITY OF DESCENT.

NE of the most familiar words to the student of Roman

uniformity, simplicity. The idea is much more in accordance with the spirit of our common law than our equity. It looks rather to the general rule than to the particular instance, and in this respect is not without great advantage. General rules or orders laid down by authority should be few in number, but those few rigid and unbending. Every general rule must sometimes work harshly. If, however, the rule be in some instances not adhered to, other instances of a somewhat similar character afterwards arising, doubts suggest themselves whether the rule will be enforced or relaxed. Now, nothing is worse than doubt and uncertainty. A certain wrong is better than an uncertain right. Besides, if one person is to have a privilegium or special right, a wrong will result to another who would be entitled were the general rule not interfered with. In the abstract, all jurists must agree that in every branch of a municipal system of law uniformity is to be desired.

Applying what has been said to the subject of the present paper, why, we ask, should various customs of descent prevail side by side in England? Why should freehold land in Kent devolve upon all the sons, and in other counties upon the

Seriously, this is just the province of English equity, if we believe Coke, who assigns its subjects to be Trusts, Frauds, and Accidents.