The Eclectic Review

tions of Modern Europe, particularly of those of England, By
George Spence, Esq. of Lincoln's Inn. 8vo. pp. 636. Price 158.
London. 1826.
THE knowledge of History is by no means an affair of such

cheap and average acquisition as people in geueral seem to think. A superficial familiarity with its general outline and with the marking circumstances of its detail, is, indeed, common enough, and may have its use and value in the business of education, as well as in the routine of literary pursuits. There is, however, a wide difference between such an acquaintance with the facts of bistory as may answer the demands of social intercourse, or serve for a connecting medium throughout the various branches of scientific investigation, and an intimate conversance with the secret springs, the incidental motives, the aiding and antagonist influences--in a word, with the associations, immediate or remote, direct or indirect, which give specific qualification to events, and without reference to which, all reasoning founded on mere circumstances must be uncertain and ineffective. The highest kind of historical illustration, that which results from the ascertainment of character and counsel, is, on a large scale at least, nearly inaccessible ; and can be obtained only by presumption and approximation. With respect to individuals, this species of evidence, desirable as it may be, is to be derived only from their overt acts. When men are the heroes of their own tale, their frankness is not trust-worthy, and their very indiscretion takes colour from their vanity: when their ministers and auxiliaries tell it for them, the pars magna fui will too frequently raise the mere agent and accessary to a level with his principal.

Still, although it may be scarcely within the limits of possibility to obtain direct evidence in this matter, so as to give Vol. XXVI. N.S.

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us the advantage of contemplating events in the full light derived from the knowledge of their efficient causes, and of arguing immediately from motive to result, it is of so much importance to gain a clew to this connexion, that we are forced upon the inquiry, whether there may not be some indirect and collateral method of making an approach at least towards the possession of the secret. It is, manifestly, in vain to seek for it in an examination of mere facts. They are so variously stated, that the knowledge of their hidden springs of action becomes necessary in order to elicit the actual circumstances of the case; and they are so often irreconcileable with their ostensible and proximate causes as to prove that the real impulses must be songht elsewhere. It becomes then expedient to look out for some intermediate evidence which may guide us in our investigations, and enable us on the one hand to trace counsel and design, and, on the other, to determine their influence upon actions and events.

Unless such evidence is to be found in the laws and permanent institutions of a nation, we apprehend that the attempt to obtain it must be abandoned as hopeless : but, although we admit that even this source of illustration is imperfect, we are sure that it is most important and, to a very considerable extent, effective. Law implies, by its very designation, deliberate counsel and intent. Institutions exhibit national character, both in action and reaction. Law, in its history, is so intermingled with the general course of events, and, in its purview, not only takes so much of its special character from circumstances, but, in turn, exercises over them so powerful an influence, at once controlling and impelling, that a thorough acquaintance with both is indispensable to the philosophic annalist. And the institutions of a people, compounded as they are of law, custom, and character, at once derive and communicate, in the instances both of individual action and national story, much of their peculiar spirit.

But this is not all. There is, if we may be allowed the expression, a system of filiation traceable in legal and institutional history, not merely marking the successive stages of national advance from barbarism to civilization, but distinguishing the kindred, cognation, supremacy, and subjection of different tribes. For instance, the Common Law of England has derived a considerable proportion of its doctrines from the institutes and pandects of the Roman courts; and by ascertaining how far that adoption has extended, and in what countries it has prevailed, we shall obtain important elucidations both of legal and general history. Again, the entireness of this derivation has been broken in upon by the irruptions of

the northern hordes, bringing with them their own customs and their own tribunals; and it is expedient to inquire, whether these intromissions modified the institutions of the conquered country, or whether the latter became merely the accessories of the intrusive system.

If we have succeeded in shewing the value of this course of research, we have, at the same time, demonstrated the utility of the work now in our hands. In the course of Mr. Spence's studies, his attention was drawn to the circumstance which we have just noticed ; i.e. that much of our Common Law is to be found in the Pandects, the Code, and the Novels of the Roman jurisprudence, and that this similarity is not confined to the simpler and more elementary doctrines, but extends to those which are altogether artificial. This led him to a minute ex.

. amination of the Roman code, civil and criminal, as also to a comparison of its principles and details with the legal institutions of Modern Europe, and more especially with those of England.

For this purpose the Author endeavoured to ascertain what was the nature of the government, both civil and military, which was established by the Romans in the provinces of their widely extended empire, of which Britain formed a part; also, to ascertain what political and civil rights were given by the laws to the inhabitants of the provinces, and what institutions existed, having for their object the preservation of such rights. He was then led to look into the history of the times, to see how the laws were administered,-a most impor. tant inquiry with reference to what may be supposed to have been the disposition of the inhabitants towards the government under which they were living at the time of the irruption of the Germans, and the conduct of the provincials in regard to the invaders.'

Now we confess that there appears to us a radical error. in this mode of originating the inquiry; and, if we mistake not, it has had considerable influence on the management and re: sult of the investigation. It should seem that the surest method of arriving at satisfactory conclusions on this subject would have been, first, to ascertain the actual condition, with respect to legal institutions, of the couutries conquered by the Romans; next, to determine the principles and regulations held in com: mon by both; and then, to discriminate the mode and degree of the action and reaction by which the modern system of jurisprudence has been wrought into its present state. Of all kinds of prejudice, that which identifies itself with classical models, is the most enthralling; and something of this appears to have biassed Mr. Spence in favour of the institutions of Rome as the • venerable and classical originals' of the existing European codes. After having given a well-digested and exceedingly

interesting sketch of the state of the Provinces under the Roman dominion, he proceeds to describe their judicial system in the same condensed but conspicuous and satisfactory manner. far, his materials are ample and his management of them unexceptionable ; but, beyond this, it appears to us that the operation of the error to which we have adverted is clearly discernible. The second book professes to give a summary of the Laws and Institutions of the Franks, Goths, and other German tribes that broke in upon the Western Empire, and established themselves on its ruins. The important inquiries connected with this part of the subject are despatched with exceeding and unsatisfactory brevity. We are aware that the nature of Mr. Spence's plan did not allow him to engage in extended discussion, but it demanded the exhibition of facts on a more extended scale ; it required to be both carried further back, and made to embrace a wider circle. Other nations and different kindreds, perhaps even Eastern races, may claim a share in the great work of European legislation ; and not only will the investigations which discard them be incomplete, but the conclusions to which they may lead, must prove erroneous.

The third main division of the Inquiry relates to the condition of the Roman Provinces, with respect to their judicial and political institutions, subsequent to their conquest by the Barbarian states. This section is by far the best executed and most satisfactory portion of the work, and may serve as a luminous introduction to the history of Modern Europe. It is, in a very uncommon degree for such crabbed matters, readable, and will be found to furnish a key to some of the most puzzling anomalies of our working systems. A curious way of securing evidence will be found in the following extract.

• If a man had purchased a piece of land of another, and was unable to procure an instrument of sale to be drawn up in court, it was. required, in some nations, that the purchaser and seller should go to the purchased land, taking with them six or twelve boys, according to the value of the property sold, before whom the price was to be delivered and possession given ; the purchaser was then to lash the boys and pull them by the ears, that they might the better remember the circumstances when called on to give evidence concerning them. A gift or sale might be valid even without these formalities, if it was impossible to comply with them: in such case, the sale must be established by the oath of the purchaser, and a certain number of cojurors, in proportion to its value."

This rough appeal to the ears seems to have been rather a favourite method of taking security for truth on testimony, among the judiciaries of former times.

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