especially the rules of acquiring territorial dominion-it is utterly unreasonable. Surely, then, the time must come when the international code will be reconstructed, with the positive sanction of legislation, by the formal consent of the whole European family.

The history of Wills forms an admirable illustration of the value of the historic method. It explodes all the vain theories of metaphysicians. Those who have gravely argued that the testamentary power is a primitive institution of the law of nature, or a right inherent to every man, may learn that succession ex intestato came long first in the order of time, that a will was originally not an individual but a family privilege, and above all was a late invention which the world owes entirely to the Roman jurists. Again, history reverses all modern popular notions of a will. Who, for instance, would have thought otherwise than that a will must, from the necessary conditions of the case, be secret, be revocable, and be without effect till the death of the testator? Who would dream that the objects of a will had ever been other than to confer a benefit upon the devisee, or to enable the testator, regardless of the claims of his next of kin, to determine by personal choice the object of his own bounty? Yet all these ideas vanish before the touch of history. The first succession was a universal succession ex intestato from the patriarch to his eldest son, and consisted of all included in the patria potestas of the patriarch, viz. his wife, his younger sons, his slaves, his property, his debts, his obligations to maintain his family; in short, it was simply a device to continue the familia. Long afterwards came the will; and the first will was a public, immediate, and irrevocable conveyance inter vivos of the whole of a man's property, debts and obligations included; and it was intended, not for the disinherison of the children, but, on the contrary, as a provision against the evil consequences of intestacy, to enable a father either to secure a share in his inheritance to his emancipated sons and married daughters,-who, though his nearest and dearest relations, would, as not being members of his legal family, have been excluded by the civil law of intestate succession,-or else, in the case where his debts exceeded his property, to throw the damnosa hæreditas off from his own family upon his slaves, who, as some compensation, thereby received their liberty. The steps by which this ancient will passed into the modern will, such as we know it, are of the highest interest; we beg to refer the reader to the book itself, where they will be found traced with regular continuity.

The next subject selected is that of Property, its kinds, and the methods of its alienation. Property, we saw, in earliest times, belonged not to individuals but to families. The first step towards the establishment of individual rights was on the death of the patriarch for his familia to pass not to the eldest son, but

to all the children; these took the succession as a single person, and then by a subsequent process divided the property equally, and each set up a familia for himself. The next step was to allow the son during the life of the father to keep for himself property acquired by himself; but this privilege at first applied only to spoils won in war,-not until the lapse of centuries did it extend completely to the fruits of industry. Again, property belonging to families, it was natural that alienation should be rare, and when it took place should be, like an international act, surrounded by ceremonial, at once as a means of authentication and as a guarantee of a proper solemnity. But as individual rights multiply within the circle, and property is divided amongst private owners, these ceremonials of alienation prove seriously inconvenient. How avoid them? Various devices were thus invented, the chief of which was classification. The Hindoos distinguish between property inherited-which is family property, and inalienable-and property acquired, which is put at the free disposal of the individual owner. The Romans, again, adopted the exhaustive division of res mancipi and nec mancipi. The former originally comprised all property, viz. land, slaves, cattle, and agricultural instruments, the only property once known, and passed only by the solemn form of mancipation. The res nec mancipi were in theory not property at all, being originally mere chattels not worthy of consideration, and, as such, they were allowed to pass by simple transfer. But as this classification was never altered, the list of res mancipi remained fixed, whilst the other list continually expanded, and the result was, that every newly created kind of property, however valuable, was held res nec mancipi, and, therefore, was capable of the more convenient method of alienation. The analogy of this distinction and of our own between real and personal property is very obvious. It is unfortunate that our distinction remains, whereas the Romans, centuries ago, merged theirs into the only rational distinction-that which is recognised in every state of Europe except England-the distinction between movables and immovables, and applied to each class the simplest method of transfer. But besides classification, the Romans also had other devices to facilitate transfer of property. By usucapio, the foundation and still the superior type of our modern law of prescription, the defects of an irregular mancipation were cured by mere lapse of time; by cessio in jure, a fictitious legal proceeding exactly analogous to our collusive recovery, was invented a novel method of alienation in court; and lastly, just as in England, possessory remedies were granted of so effective a character, as not only to give full redress to bona fide possessors with a bad title, but also to be adopted by legal owners in preference to their own cumbersome proprietary remedies.

The ninth chapter deals with Contract. The idea of contract is a part of our legal inheritance, upon which we enter as a matter of course, ungrateful, almost unconscious of the obligation we owe to our predecessors. We see how contract determines the infinite number of every-day rights which lie far beyond the reach of legislation, and imagine it, therefore, the universal possession of all societies. Yet history, if consulted, shows that rights were once determined, not by contract, but by family status; and that contract, as we know it in Europe, is the fruit of the slow growth of Roman jurisprudence. Once there were no contracts, properly so called, only agreements immediately followed by mutual conveyance: the transitional step is a transaction where one party conveys, the other only agrees to convey; the final result is an executory contract on both sides. This is no fanciful explanation, as the history of Roman contracts will show. We shall be helped in our investigation by a preliminary analysis of the idea of Roman contract. It consisted, as Mr. Maine puts it, of two parts, a pact and an obligation. The pact is the mental agreement of the two parties. By itself it is called nudum pactum, and is in no way binding. The obligation is the vinculum juris, which establishes the mutual legal relation between the parties. But the obligation is a legal one, and the vendor is by Roman law as much under an obligation to receive the money as the purchaser to pay it. The word, therefore, has, in modern usage, lost half its meaning, and the other half is used indiscriminately in a legal and a moral sense. Turning to history, we shall find the function of the obligatio from first to last the same, whilst the form passes through regular changes, gradually attenuating itself even to the vanishing point. The most ancient contract cannot either in name or form be distinguished from a mere conveyance; it was a mancipatio per æs et libram, in the presence of witnesses, with solemn words and more solemn ceremonies. Out of this are one by one evolved the four later Roman contracts, Verbis, Litteris, Re, Consensu,-a classification unintelligible except by reference. to their chronological order. The first step of simplification is the contract Verbis: the obligation of the ceremonies is dispensed with, it is sufficiently constituted by the solemn form of words or stipulation, by means of question and answer, e.g. Spondesne dare? Spondeo. Next in order comes the contract Litteris; formal words are waived, the obligatio is created by a register of the pact in the account-books of the parties. This is succeeded by the contract Re, where performance by one of the parties of itself raises an obligatio against the other. Here for the first time the moral duty is recognised, forbidding a contractor to take advantage of informality so as to reap the benefit without bearing the burden. Lastly come contracts Consensu, where mutual con

sent alone is allowed to superinduce theobligatio. But mark how sparingly this license is applied: at first only to the four most common contracts, which most need to be simple in form; then to pacts made for good consideration, or pacts ancillary to previously-made contracts, but to these pacts only; finally, to all pacts. But even then mere pacts could be pleaded only by way of defence to an action. It was very late before a pact, i.e. an executory contract, became the subject of specific performance.

Space alone forbids us to follow Mr. Maine in his investigations upon the prodigious effect which the contract law of the Romans has had, outside its own precincts, upon history in general, upon moral philosophy, theology, and politics.

The last chapter of the book deals with the early history of Delicts and Crimes as exhibited by Roman law. Its chief point of interest is that, in the most ancient times, there was no criminal law, properly so called. Offences against the state, confined to acts of treason or sacrilege, were punished as they arose by individual legislative enactments-privilegia. The penal code, however voluminous, was but the law of torts or private wrongs administered by the state officer in the capacity of a private arbitrator. Criminal law was not possible, until first civilisation, and then more rapidly the Church, established the moral sense that private crimes are an injury to society at large. A permanent criminal jurisdiction was a very late Roman institution; and to the last the Romans never attempted a classification of crimes.

The above is a most imperfect analysis of Mr. Maine's work. To the general reader we can only say the book will be attractive as a fresh exemplification of the historic method. That method will be found, in law as well as elsewhere, to possess not only a scientific value as fixing our ideas and discomfiting many a long-cherished fallacy, but the unspeakable charm of bringing out the true romantic colours of history, and of awakening in us a sense of our deep obligations to the past. From a professional point of view, Mr. Maine's book seems to convey exactly the sort of general knowledge-the knowledge of principleswhich is a proper introduction to a study of the details of any particular system; as such, therefore, we hope it may be adopted as an educational treatise at our universities and inns of court; and for the same reason we rejoice to think it is the work of one who is an ex-Regius Professor at Cambridge, and Reader of Jurisprudence at the Middle Temple. This book will not only recall the student's attention to the Roman Law, so unaccountably omitted from the programme of our classical education, but, as he serves his dreary apprenticeship in chambers, will cheer him by revealing the true interest and intellectual dignity of his profession,-the interest and dignity of science; it will impress upon him the necessity of a technical training, if ever, as

barrister, he is effectually to handle the higher questions of the law; it may, perhaps, even inspire him to educate himself to be, what is higher than either advocate or practitioner, a jurist. It is a work which directs the labours of future generations: as such it must lead to great results.

ART. VI.-MEMOIRS OF MRS. PIOZZI.

Autobiography, Letters, and Literary Remains of Mrs. Piozzi (Thrale). Edited, with Notes and an Introductory Account of her Life and Writings, by A. Hayward, Esq., Q.C. Longmans, 1861. MRS. THRALE is one of the women about whose memory there hangs an odour of romance. Our imagination is captivated by the thought of a lively young lady who carried contested elections for her husband, piqued the jealousy of Boswell, and made life almost endurable to the great Johnson. Most readers of Johnson's life care little about her after she sank into the insignificance of a singing-master's wife, and feel still less inclined to ask how she came by her brewer and her mansion at Streatham. Mr. Hayward has come forward to stimulate and gratify curiosity as to the beginning and the ending of the career of Johnson's Hetty. We are now permitted to know how the lively Miss Hester Salusbury was married to the richest of her acquaintance, in spite of a reciprocal indifference bordering on dislike, and how in later life she boldly stuck up for her Piozzi, buried him decently, adopted his nephew, and signalised the twelve years of her second widowhood by writing some of the most disagreeable letters in the English language. Mr. Hayward, although too sensible to be a violent partisan, has sufficient affection for the task he has chosen to hint that Mrs. Thrale has been misunderstood and misjudged, and that now she will be, for the first time, respected as she deserves. It is probable that the collectors of literary anecdotes will find in these volumes some additions to their store of knowledge, and some hints for correcting mistakes. Ordinary readers will be glad to be reminded of the happy days when Johnson took his ease at Streatham; and every one will receive with pleasure one or two real contributions to our knowledge of Johnson, and will thank Mr. Hayward for having illustrated the liveliest part of the volumes by lively notes. But we cannot think that the impression of Mrs. Thrale which her memoirs are calculated to produce is a favourable one, or that her character, fortunes, and writings deserve to be disinterred with so much pomp. We knew all that was best of her already, and in her later letters and private