opaqueness of mind which shuts out the perception of Sir H. Maine's meaning in speaking of a contract as originally an incomplete conveyance, excludes every ray of light on all such subjects. A contract, leaving something for execution in the future, is a more refined and a later conception than that of an immediate out-and-out conveyance. In "Ancient Law" we find a very interesting exposition of the evolution of the contract from the conveyance. "There seems to have been one solemn ceremonial at first for all solemn transactions, and its name at Rome appears to have been Nexum. Precisely the same forms which were in use when a conveyance of property was effected, seem to have been employed in the making of a contract. But we have not very far to move onwards before we come to a period at which the notion of a contract has disengaged itself from the notion of a conveyance. . . . Let us conceive a sale of ready money as the normal type of the пехит. . . . So long as the business lasted, it was a nexum, and the parties were nexi; but the moment it was completed, the nerum ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. But now let us move a step onward in commercial history. Suppose the slave transferred, but the money not paid. In that case the nexum is finished so far as the seller is concerned, and when he has once handed over his property, he is no longer nexus; but in regard to the purchaser, the nerum continues. The transaction as to his part of it is incomplete, and he is still considered to be nexus. We may still go forward, and picture to ourselves a proceeding wholly formal, in which nothing is handed over and nothing paid. We are brought at once to a transaction indicative of much higher commercial activity, an executory contract of sale. If it be true that, both in the popular and in the professional view, a contract was long regarded as an incomplete conveyance, the truth has importance for many reasons," &c. ("Ancient Law," pp. 317-21.) One might well have supposed that Sir H. Maine had here made his meaning clear to the dullest intellect. Certainly, any one to whom it is not clear, is, ipso facto, disqualified for the office of a critic. The following is Mr. O'Connell's modest and intelligent comment on the passage:-"I would feel indulgent to Mr. Maine's laxity, as precise language in these foreign laws can come but of long study or of large science. But when he goes so far as to intervert those planes of law, and describe contract as an imperfect conveyance, there is no mercy. For so far as at all related, the case is palpably the reverse, and it is conveyance, as anterior in order, that is the imperfect contract."

(3.) Antestatus. Mr. O'Connell adopts from "Ancient Law" the position that at first a Roman testator parted out and out

with his whole estate when he made his will; but he contemptuously rebukes Sir H. Maine for not having discovered the true proof of his statement. Mr. O'Connell has found out from Mr. Poste (whom he calls, with his usual accuracy, Professor Poste, of Oxford, courteously adding that he "seems no wiser than his Cambridge compeer," whereas he is a barrister residing in London, and no more a. professor than Mr. O'Connell is a scholar or a jurist) that in a Gothic code, and also in a Spanish inscription, a person is named who is called antestatus. In the first case this person appears in connection with an emancipation; in the second, with a transaction of mortgage. From emancipation and mortgages Mr. O'Connell jumps to testaments, and, without the smallest authority from Gaius, whose account of the formalities is exceedingly full, and who does not mention the antestatus at all, asserts that the antestatus was the testator. Antestatus, he says, means ante-testatus, or the testator who made his will by anticipation, or before the time. Now, antestatus happens to occur in popular Latin, and is found in a well-known passage of a famous satire of Horace. Does Mr. O'Connell mean to say that the person who delivers Horace from his tiresome companion, asks Horace to make his will before the time? The best explanation of antestari, which occurs both actively and passively, is that it means "to summon a witness from among bystanders," or "to be so summoned as a witness." The applicability of this meaning to this passage in Horace, and to the two passages to which Mr. O'Connell refers, will be obvious, if not to him, to every other reader.

(4.) Nuncupatio.--Gaius, in describing the ancient mancipatory will, or will per ces et librum, states that it ended with the employment of a form of words called a nuncupatio. He adds that "nuncupation "nuncupation" meant "public declaration "nuncupare est palam nominare. Mr. O'Connell flatly contradicts Gaius, who is our only authority on the subject, and asserts that nuncupare meant nomine-capere, as opposed to manucapere, and argues that as nomen sometimes means a debt, nuncupation was a form of testament by which personalty (!) passed, as distinguished from mancipation, by which realty (!) passed. The passage in Mr. O'Connell's article is noticeable alike for the contradiction of Gaius, for the astonishing theory it propounds, for the modesty with which it is propounded, and for the evidence it affords that Mr. O'Connell conceives that the distinction denoted by the terms realty and personalty existed in Roman law. Nuncupare, indeed, possibly, and even probably, contains the same elements as nomen and capere, and it may well be that its original signification was "to address a person or thing by his or its special name." But there is not a shadow of reason for

supposing that it ever had the particular sense given to it by Mr. O'Connell. The authority of Gaius is conclusive as to the meaning it had acquired in law Latin; and even in popular Latinity this meaning (palam nominare) seems to have been very old, for Ennius writes:-quis est qui meum nomen nuncupat?

I conclude this division of the subject with two extracts from Mr. O'Connell's articles, which exhibit him first, as philosophizing on his own account; and secondly, in his vein of transcendental criticism. In either character his flight is beyond the reach of comment.

(1.) "It was on both of these vast developments of the Family and the House genera, that the Romans came at length to construct. their social edifice, under guidance of the Gentile element, as the type of the supreme cycle. Condere Romanam gentem, as it was worded by their learned poet. The Romans could of course embrace the cycle but in the lowest or Family section, and by a sort of combination of the Chinese fathers and the Egyptian priesthood [!]. Not as it must be quite needless to remark to the rudest readerthat there could be any personal or national consciousness of those proceedings; they being merely, as in inert nature, the operations of social progress, through the medium of the supreme organization known as races."

(2.) “Mr. Maine, instead of contiguity or local contiguity, which phrase moreover is pleonastic, should have said local concentration; that is, a segmentation by a multitude of serial centres, intersecting each other in all collateral directions; and with thus the points of union not the most contiguous, but the most distant-thereby best fortifying each other through the contact of the mere circumferences. This is nature, as may be noted in her simplest structure, which is freezing water."

V. There are in "Ancient Law," it can hardly be doubted, some statements which may require modification in consequence of later researches, some propositions of which the evidence is not complete, and some over-wide generalizations. Considering that it was the first work on the subject published in the English language, and that it sweeps over so vast a field of history, law, and philosophy, the wonder is that it has never been convicted of a single serious error. But it is impossible that there should not be passages of which the progress of historical research and philosophy may not render some change proper; and Sir H. Maine's own later work, "Village Communities," shows that the author of "Ancient Law" has himself been deeply engaged in investigations tending somewhat in that direction in respect of the earlier sources and forms of archaic law. One thing, however, is certain, that it is not from a writer capable of the monstrous mistakes and wild theories with which his two articles

teem, some samples of which have been pointed out in the foregoing pages, that Sir H. Maine or his followers can expect any aid in the shape of correction or of further discovery. Yet it is a writer capable of those blunders who undertakes to give his readers in a few paragraphs "a mappe monde of the whole domain of social history and jurisprudence;" who affects to "feel indulgent to Mr. Maine's laxity, as precise language in these foreign laws can come but of long study or of large science;" who, notwithstanding the indulgence of his disposition, charges the author of "Ancient Law" with "capital confusion," the "sheerest drivel," "catenation of feeble fallacy," and "uncouth error;" who denies his "learning or ability;" who professes to discover errors so flagrant in his pages, that "there is no mercy;" and who seems to look forward to superseding him, in Ireland at least, as a standard authority. It is not in vindication of "Ancient Law," or of its author, that I have ventured to reply to Mr. O'Connell's strictures; though, as a very humble member of the English Bar, I might conceive myself entitled to repel an insult to one of its most distinguished members. But it is in vindication of Irish scholarship, Irish intelligence, and Irish manners, that I protest against both the matter and the form of Mr. O'Connell's criticisms. Belonging, indeed, myself, by family connection, to a part of the population of Ireland, which Mr. O'Connell doubtless regards as extraneous, intrusive, and barbarous, I cannot expect his admission of my right to speak in that behalf. Nevertheless, as a graduate in Arts and in Law of the University of Dublin, as a Professor of Jurisprudence in the Queen's University, as acquainted during many years with some of Ireland's best scholars and most promising students, as having often heard Sir Henry Maine and his works spoken of by them with admiration, I feel myself entitled to assert that Mr. O'Connell's language with respect to "Ancient Law" and its author, would be repudiated by all in Ireland who have any claim to a voice on the subject. Before rushing again into paths of criticism where scholars and jurists would fear to tread, Mr. O'Connell, if he be well advised, will make some preliminary preparations for the task. He will enter on a laborious study of the ordinary text-books in jurisprudence, and of the grammar of the languages he parades. He will lay aside his petty system of quibbling and carping. He will cast out, or at least suppress, the evil spirit of ethnical antipathy. If, after this preparation, he will again read "Ancient Law," he may possibly rise from it with a different estimate of that work; and a soberer appreciation of his own attainments and powers, so that he may hesitate to proclaim himself at home in depths of law "unfathomed by either Romans or moderns."

Meantime, there is another suggestion I must venture to offer to him. Count Moltke has been said to be silent in seven languages. There are four in which, for a different reason, Mr. O'Connell would do well to observe silence-Greek, Latin, French, and English-not one of which he can at present employ without affording a melancholy confirmation of the old proverb, that a little knowledge is a dangerous thing.

II.-TRIALS AT BAR.

T is settled that, in the Tichborne case, there is to be a "trial

trial at

How does it differ from an ordinary trial? What are the reasons for resorting to it, and what are its practical results? On this point there is the more need of information, because, on account of the course which has been pursued, it has not been discussed. The Attorney-General, in a case in which the Crown authorizes the prosecution, is entitled to such a mode of trial, and on this occasion he asserted his right. This course precluded discussion as to the advantages or disadvantages of the course proposed; but Mr. Justice Blackburn did not hesitate to declare that the inconveniences more than outbalanced the advantages. This makes the inquiry one of some interestWhat is a "trial at Bar?" and what its advantages and inconveniences actually are.

The origin and reasons of "trials at Bar" are to be sought far back in our legal history. Our ancestors had great faith in a plurality of judges; partly for the sake of mutual check and control, and partly for the sake of mutual consultation and counsel. For both these reasons-it was peculiarly necessary in criminal cases, especially in times when they were mostly capital. The nature of criminal jurisdiction precludes an appeal as of right, even on points of law; and in such cases a bill of exceptions was not admissible, nor even a writ of error, except with the permission of the Attorney-General, representing the Crown. Hence our ancestors endeavoured to apply the only safeguard in their power by providing a plurality of judges, not only in the jury, but also on the Bench. With the advantage of mutual counsel and control, they could hardly go wrong by inadvertence; and if there was only one honest man among them, the accused had at least one voice in favour of justice.