Chapter V: The Marriage (2)

“Every Englishman who is enthusiastic in any particular cause never
fails to see in that the greatness and the glory of his country; and
in this he is quite serious. In this way I have heard the game of
cricket held up to admiration as one of the noblest institutions of
England, an institution which insures to the country not only an
athletic, but an orderly and moral population. I have seen the time
when the same honour was ascribed to horse-racing; but since this
sport has crossed the Channel, and it has been found by experience
that it does not always preserve a country from revolutions and _coups
d’état_, it has lost something of its prestige in England.”

There is always some moral panacea in the course of advertisement, like a quack medicine, to cure all diseases: mechanics’ institutes, cheap literature, itinerant lecturers, monster music-classes, have all had their turn; and just at present the ‘Saturday Review’ seems to consider that the salvation of England depends upon the revival of prize-fighting.

We cannot follow the writer into all the details of village institutions and village politics, which are sketched with excellent taste and great correctness. It will be quite worth while for the foreigner who wants to get a fair notion of what goes on here in the country—or indeed for the English reader who likes to see what he knows already put into a pleasant form, all the more amusing because the familiar terms look odd in French—to go with our French friend to the annual dinner of “_Le Club des Odd-Fellows_,” with its accompaniment “_de speechs, de hurrahs, et de toasts_”—without which, he observes, no English festival can take place; to accompany him in his “_Visite au Workhouse_,” subscribe with him to the “_Club de Charbon_,” or, better still, sit with him in the village Sunday-school, even if we cannot take the special interest which he did (for his own private reasons) in “_le classe de Miss Mary_.” Very pleasant is the picture—not overdrawn, though certainly taken in its most sunshiny aspect—of the charitable intercourse in a well-ordered country village between rich and poor. One form, indeed, there is of modern educational philanthropy which the writer notices, of the success of which we confess to have our doubts. The good ladies of Lynmere set up an “_Ecole managère_”—a school of domestic management, we suppose we may call it—where the village girls were to learn cooking and other good works. Now a school of cookery, admirable as it is in theory—the amount of ignorance on that subject throughout every county in England being blacker than ever was figured in educational maps—presents considerable difficulties in actual working. To learn to cook, it is necessary to have food upon which to practise. Final success, in that art as in others, can only be the result of a series of experimental failures. And here was the grand stumbling-block which presented itself, in the case of a cooking-school set up with the very best intentions, under distinguished patronage, in a country village within our own knowledge. Some half-dozen girls, who had left school and were candidates for domestic service, were caught and committed to the care and instruction of an experienced matron; not without some murmuring on the part of village mothers, who considered such apprenticeship a waste of time,—all girls, in their opinion, being born cooks. From this culinary college the neighbouring families were to be in course of time supplied with graduates. Great were the expectations formed by the managers, and by the credulous portion of the public. There were to be no more tough beef-steaks, no more grumbling masters and scolding mistresses, no more indigestion. But this admirable undertaking split upon a rock which its originators had not foreseen. It had been proposed that the village families should in turn send dishes to be operated upon by the pupils; but the English village mind is not given to experiments, culinary or other, and preferred boiling its mutton one day and eating it cold the next. Then the bachelor curate, who had a semi-official connection with the new establishment, reading prayers there as “chaplain and visitor,” who was presumed to have a healthy appetite, and was known to have complained of the eternal mutton-chops provided by his landlady, was requested to undergo a series of little dinners cooked for him gratis. The bashful Oxonian found it impossible to resist the lady patronesses’ invitation, and consented—for the good of the institution. But it ended in the loss to the parish of a very excellent working parson. For a few weeks, the experimental ragouts and curries sent in to his lodgings had at least the advantage of being a change: but as the presiding matron gradually struck out a bolder line, and fed him with the more ambitious efforts of her scholars, it became too much even for clerical patience, and he resigned his cure. Out of delicacy to the ladies’ committee, he gave out that it was “the Dissenters;” but all his intimate friends knew that it was the cooking-school.

The Rector of Lynmere is a Mr Leslie—a clergyman of the refined and intellectual type, intended, probably, as an artistic contrast to Mr Norris in his cricket flannels. He is, we are expressly told, “an aristocrat”—indeed, a nephew of the Countess aforesaid. He is reserved, nervous, and diffident, although earnest and single-hearted. The vulgar insolence of the Baptists at the vestry-meetings is gall and wormwood to him; and he suffers scarcely less under the fussy interference of a Madam Woodlands, one of the parish notables, of Low-Church views and energetic benevolence, who patronises the church and the rector, and holds him virtually responsible for all the petty offences and indecorums which disturb the propriety of the village. This lady is very slightly sketched, but the outline can be filled up from many a parish clergyman’s mental notebook. We do not wonder that Mr Leslie, with his shrinking sensibilities, had as great a horror of her as of Mr Say, the Nonconformist agitator, who led the attack at the church-rate meetings. Only we would remark, that if the author thinks that the unfitness of the Rector of Lynmere to contend with a body of political Dissenters, or his want of tact in dealing with so very excellent and troublesome a parishioner as Mrs Woodlands, is at all explained by his being “an aristocrat,” he is encouraging them in a very common and very unfortunate mistake. It is true that it is not pleasant for a man of cultivated mind and refined tastes, be he priest or layman, to be brought into contact with opponents whose nature and feelings, and the manner in which they express those feelings, are rude and vulgar; but if he possess, in addition to his refinement and cultivation, good sound sense, a moderate amount of tact, and, above all, good temper, he will find, in the fact of his being “a gentleman,” an immense weight of advantage over his antagonists. We remember to have seen protests, in the writings of a modern school of English Churchmen, against what they are pleased to term “the gentleman heresy;” representing it as dangerous to the best interests of both priests and people, that the former should attempt to combine with their sacred office the manners, the habits, and the social position of the gentleman. Without entering here into the serious question whether a special clerical caste, as it were, standing between the lower ranks and the higher of the laity, distinct from both, and having its separate habits and position, is a desirable institution to recommend; without discussing the other equally important question, whether the aristocracy of a Christian nation have not also _their_ religious needs, and whether these also have not a right to be consulted, and whether they will bear to be handed over to a priesthood which, if not plebeian itself, is to have at least no common interests or feelings with the higher classes—a question, this latter, to which history will give us a pretty decided answer;—it is quite enough to say that the working-classes themselves would be the foremost to demand—if the case were put before them fairly—that the ministers of religion should be “gentlemen” in every sense of the word. They will listen, no doubt, with gaping mouths and open ears, to a flow of rhodomontade declamation from an uneducated preacher: an inspired tinker will fill a chapel or a village-green, while the quiet rector goes through the service to a half-empty church. But inspired tinkers are rare in any age; and it is not excitement or declamation which go to form the really religious life of England. This—which we must not be supposed to confine within the limits of any Church establishment—depends for its support on sources that lie deeper and quieter than these. In trouble, in sickness, in temptation, these things miserably fail. And the dealing of “a gentleman” with these cases—a gentleman in manners, in thoughts, in feeling, in respect for the feelings of others—is as distinct in kind and in effect, as the firm but delicate handling of the educated surgeon (who goes to the bottom of the matter nevertheless) differs from the well-meant but bungling axe-and-cautery system of our forefathers. The poor understand this well. They know a gentleman, and respect him; and they will excuse in their parish minister the absence of some other very desirable qualities sooner than this. The structure of English society must change—its gentry must forfeit their character as a body, as they never have done yet—before this feeling can change. When you officer your regiments from any other class than their natural superiors, then you may begin to officer your national Church with a plebeian clergy.

There is another point connected with the legitimate influence of the higher classes on which the writer speaks, we fear, either from a theory of what ought to be, or from some very exceptional cases:—

“The offices of magistrate, of poor-law guardian, or even of
churchwarden, are so many modes of honourable employment offered to
those who feel in themselves some capacity for business and some wish
to be useful. It will be understood that a considerable number of
gentlemen of independent income, retired tradesmen, and officers not
employed on service, having thus before them the prospect of a useful
and active life, gather round an English village, instead of remaining
buried in the great towns, as too often is the case in our own
country.”

We fear the foreign reader will be mistaken if he understands anything of the sort. The county magistracy offers, without doubt, a position both honourable and useful; but it is seldom open to the classes mentioned. We do not say that the offices of parish guardian and churchwarden are highly attractive objects of ambition; but we do think that in good hands they might become very different from what they are; immense benefit would result in every way to many country parishes, if men of the class whom the writer represents as filling them would more often be induced to do so, instead of avoiding them as troublesome and ungrateful offices, and leaving them to be claimed by the demagogues and busybodies of the district. It may not be pleasant for a gentleman to put himself in competition for an office of this kind; but it may be his duty to do so. The reproach which the writer addresses to the higher classes in France is only too applicable to those in England also:—

“If all those whose education, whose intelligence, whose habits of
more elevated life, give them that authority which constitutes a true
aristocracy, would but make use of their high position to exercise an
influence for good upon public matters—if only the honest and sensible
party in our country would shake off its apathy and fulfil all the
duties of citizens—our institutions would have a life and power which
at present are too often wanting.”

True words for the conservative spirit both in the English Church and in the English nation to lay to heart; for, so long as education and refinement are too nice to stain themselves with the public dust of the arena, they have no right to complain if candidates, less able but less scrupulous, parade themselves as victors.

If our neighbours over the water read (as we hope many of them will) these little sketches of an English village, drawn in their own language, if not by one of themselves, yet by one who is evidently no stranger to their national sympathies, and who writes manifestly with the kindest feelings towards both, it is well, perhaps, that they should bear in mind that it is a picture purposely taken under a sunny aspect. Rural England is not all Arcadia. All English landladies, even in the country, are not Mrs Joneses, nor are all English families as hospitable as the Masons. There are villages where there is no “Miss Mary” to teach the children or to talk sentiment. There are less fascinating “strangers’ guides” which could take him into the public-houses and the dancing-rooms as well as to rural fêtes and lectures, and show him what goes on there. But while we are far from claiming to be judged by our bright side only, we are glad that foreigners should see our bright side sometimes. It has not been too often painted in French colours; and we trust they will give the present artist’s work a fair hanging in their National Gallery.

LORD MACKENZIE’S ROMAN LAW.[3]

It has sometimes been suspected that, in the noble delineation of the Roman character ascribed to Anchises in the sixth book of the ‘Æneid,’ Virgil was induced, by unworthy motives, to depreciate unduly the oratory of his countrymen as compared with that of the Greeks; and undoubtedly the inferiority of Cicero to Demosthenes, as a mere forensic pleader, is not so clear or decided as to demand imperatively from a Latin poet the admission there unreservedly made by the blunt and almost prosaic expression, “Orabunt causas melius.” Possibly, however, it was the poet’s true object, by yielding the most liberal concessions on other points, to enforce the more strongly his emphatic assertion, not merely of the superiority of the Romans in the arts of ordinary government, but of their exclusive or peculiar possession of the powers and faculties fitted for attaining and preserving a mighty empire. It is certain that he has justly and vividly described the great characteristic of that people, and the chief source and secret of their influence in the history of the world, when he makes the patriarch exclaim,—

“Tu regere imperio populos, Romane, memento;
Hæ tibi erunt artes.”

In aid of the high moral and intellectual qualities which led to their success as the conquerors and rulers of the world, it is most material to notice the structure and genius of the language in which the Roman people expressed and embodied their political, legislative, and judicial determinations. Every national language is more or less the reflex of the national mind; and in no instance is this correspondence more conspicuous than in the case we are now considering.

The Latin language is inferior to the Greek in subtlety and refinement of expression, and is therefore far less adapted for metaphysical speculation or poetical grace—for analysing the nicer diversities of thought, or distinguishing the minuter shades of passion; but in the enunciation of ethical truths and of judicial maxims, it possesses a clearness, force, and majesty, to which no other form of speech can approach. The great foundations of law are good morals and good sense, and these, however simple and plain in their elements, are not mean or common things. On the contrary, they are susceptible of the greatest dignity of expression when embodied in words; and the language in which their principles shall be clothed may be of the utmost importance in rendering them both more portable in the memory and more impressive on the heart. The Roman jurists of the later period of the Republic were not careless students of the Greek philosophy; but they used it in their juridical writings with a wise discretion, and in special reference to the object of law, which is to lay down the broad rules of human conduct and personal rights in a form easily understood, and capable of being easily followed and faithfully observed by the mass of mankind.

The unequalled talent of the Roman people for political organisation is evinced by the manner in which the imperial authority was maintained, after the personal character of the nominal sovereigns had degenerated to the very lowest point of profligacy and imbecility. Our Teutonic ancestors had the wisdom to appreciate and adopt much of the machinery which they thus found in operation; and the municipal governments, as well as the judicial constitutions of Europe, are at this day influenced by the models which were thus left. The Popedom itself, on whose probable endurance for the future it would be hazardous to speculate, but whose marvellous ascendancy in time past is beyond dispute, was little else than an adaptation of the imperial organisation to ecclesiastical objects. But the influence of the Roman law on other nations was pre-eminently seen in the wide adoption of its general scheme, as well as of its special rules and maxims. Even the law of England—of all European systems perhaps the least indebted to the civil law—is deeply imbued with the Roman spirit in some of the most important departments of jurisprudence; and where the authority of the Roman law cannot claim a submissive allegiance, it is yet listened to as the best manifestation of the _Recta Ratio_ that can anywhere be found. The vast experience of human transactions, and the endless complexities of social relations, which the Roman empire presented, afforded the best materials for maturing a science which was cultivated for noble objects by minds of the highest order, and embodied in propositions of unrivalled power and precision.

Independently of its influence on individual municipal systems, the Roman law deserves to be carefully studied, as affording the easiest transition, and the best introduction, from classical and philosophical pursuits to the technical rules and scientific principles of general jurisprudence. From Aristotle’s Ethics, or from Cicero De Officiis, the passage is plain and the ascent gentle to the Institutes of Gaius and Justinian; and these, again, are the best preparation for the perusal of Blackstone or Erskine. It ought, indeed, to be considered as a great privilege of the law-student that his path lies for so great a portion of its early way through a region which has been rendered so pleasing and attractive by the labours of the eminent men whom we have now named, and who combine so much charm of style and correctness of taste with so much practical wisdom and useful philosophy.

Hitherto, we think, there has been a great, or rather an utter, want in this country of any good Institute of the civil law, that could safely and efficiently guide the student in his early labours, or assist him in his more advanced progress. The elegant and admirable summary given by Gibbon in his History, cannot, without much comment and expansion, be made a book of instruction; but we feel assured that this want which we have noticed is supplied by the work now before us. Lord Mackenzie’s book, though bearing the popular and modest title of ‘Studies in Roman Law,’ is truly an Institute, or didactic Exposition, of that system, where its elements and leading principles are laid down and illustrated as fully as a student could require, while a reference is made at every step to texts and authorities, which will enable him to extend and confirm his views by a full examination of original sources. The enunciation of the legal principles is everywhere given with great brevity, but with remarkable clearness and precision, and in a manner equally pleasing and unpretending. The comparison which is at the same time presented between the Roman system and the laws of France, England, and Scotland, add greatly to the attraction as well as to the usefulness of the work.

At the risk of appearing to resemble the man in Hierocles who carried a brick about with him as a sample of his house, we shall here offer a few extracts in illustration of the character of the work and its style of execution, premising that the passages we have selected have reference to topics more of a popular than of a scientific kind.

The interest attaching at present to questions of international law, and to the rights of belligerents, will recommend the passages on those subjects which here follow:—

“If all the states of Europe were to concur in framing a general code
of international law, which should be binding on them all, and form
themselves into a confederacy to enforce it, this might be regarded as
a positive law of nations for Europe. But nothing of this sort has
ever been attempted. The nearest approach to such international
legislation is the general regulations introduced into treaties by the
great Powers of Europe, which are binding on the contracting parties,
but not on the states that decline to accede to them.

“To settle disputes between nations on the principles of justice,
rather than leave them to the blind arbitrament of war, is the primary
object of the European law of nations. When war has broken out, it
regulates the rights and duties of belligerents, and the conduct of
neutrals.

“As the weak side of the law of nations is the want of a supreme
executive power to enforce it, small states are exposed to great
disadvantages in disputes with their more powerful neighbours. But the
modern political system of Europe for the preservation of the balance
of power forms a strong barrier against unjust aggression. When the
power of one great state can be balanced, or kept in check, by that of
another, the independence of smaller states is in some degree secured
against both; for neither of the great Powers will allow its rival to
add to its strength by the conquest of the smaller states....

“By the declaration of 16th April 1856, the Congress of Paris, held
after the Crimean war, adopted four principles of international law.
1. Privateering is and remains abolished. 2. The neutral flag covers
the enemy’s merchandise, with the exception of contraband of war. 3.
Neutral merchandise, with the exception of contraband of war, is not
liable to seizure under an enemy’s flag. 4. Blockades, in order to be
binding, must be effective; that is to say, must be maintained by a
force really sufficient to prevent approach to an enemy’s coast. This
declaration was signed by the plenipotentiaries of the seven Powers
who attended the Congress, and it was accepted by nearly all the
states of the world. But the United States of America, Spain, and
Mexico, refused their assent, because they objected to the abolition
of privateering. So far as these Powers are concerned, therefore,
privateering—that is, the employment of private cruisers commissioned
by the state—still remains a perfectly legitimate mode of warfare.
Britain and the other Powers who acceded to the declaration, are bound
to discontinue the practice in hostilities with each other. But if we
should have the misfortune to go to war with the United States, we
should not be bound to abstain from privateering, unless the United
States should enter into a similar and corresponding engagement with
us....

“The freedom of commerce, to which neutral states are entitled, does
not extend to contraband of war; but, according to the principles laid
down in the declaration of Paris of April 1856, it may now be said
that ‘a ship at sea is part of the soil of the country to which it
belongs,’ with the single exception implied in the right of a
belligerent to search for contraband. What constitutes contraband is
not precisely settled; the limits are not absolutely the same for all
Powers, and variations occur in particular treaties; but, speaking
generally, belligerents have a right to treat as contraband, and to
capture, all munitions of war and other articles directly auxiliary to
warlike purposes. The neutral carrier engages in a contraband trade
when he conveys official despatches from a person in the service of
the enemy to the enemy’s possessions; but it has been decided that it
is not illegal for a neutral vessel to carry despatches from the enemy
to his Ambassador or his Consul in a neutral country. The penalty of
carrying contraband is confiscation of the illegal cargo, and
sometimes condemnation of the ship itself.

“The affair of the Trent, West Indian mail, gave rise to an important
question of maritime law deeply affecting the rights of neutrals. In
November 1861, Captain Wilkes, of the American war-steamer San
Jacinto, after firing a roundshot and a shell, boarded the English
mail-packet Trent, in Old Bahama Channel, on its passage from Havannah
to Southampton, and carried off by force Messrs Mason and Slidell, two
Commissioners from the Confederate States, who were taken on board as
passengers bound for England. The Commissioners were conveyed to
America, and committed to prison; but, after a formal requisition by
Britain, declaring the capture to be illegal, they were surrendered by
the Federal Government.

“The seizure of the Commissioners was attempted to be justified by
American writers on two grounds: 1st, That the Commissioners were
contraband of war, and that in carrying them the Trent was liable to
condemnation for having committed a breach of neutrality; 2d, That, at
all events, Captain Wilkes was entitled to seize the Commissioners
either as enemies or rebels. Both these propositions are plainly
untenable....

“In an able despatch by the French. Government to the Cabinet of
Washington, M. Thouvenel declared that the seizure of the
Commissioners in a neutral ship, trading from a neutral port to a
neutral port, was not only contrary to the law of nations, but a
direct contravention of the principles which the United States had up
to that time invariably avowed and acted upon. Russia, Austria, and
Prussia officially intimated their concurrence in that opinion.

“To argue the matter on the legal points in opposition to the
disinterested and well-reasoned despatch of the French Minister was a
hopeless task. In an elaborate state-paper, Mr Seward, the American
Secretary of State, professed to rest the surrender of the
Commissioners upon a mere technicality—that there had been no formal
condemnation of the Trent by a prize-court; but, apart from this point
of form, the seizure was indefensible on the merits as a flagrant
violation of the law of nations; and if the principle was not so
frankly acknowledged by Mr Seward as it ought to have been, some
allowance must be made for a statesman who was trammelled by the
report of his colleague, Mr Welles, the Secretary of the Navy,
approving of Captain Wilkes’s conduct, and still more by the necessity
of adopting a policy directly contrary to the whole current of popular
opinion in the Northern States.”

The law of marriage and of divorce is very fully treated by Lord Mackenzie, and the peculiarities of the different European systems are well pointed out. The subject, however, is too extensive and important to admit of being incidentally noticed; and we shall confine our extracts here to a single passage describing a Roman form of cohabitation less honourable than matrimony, and such as we trust is never likely, to be legalised among ourselves:—

“Under Augustus, concubinage—the permanent cohabitation of an
unmarried man with an unmarried woman—was authorised by law. The man
who had a lawful wife could not take a concubine; neither was any man
permitted to take as a concubine the wife of another man, or to have
more than one concubine at the same time. A breach of these
regulations was always condemned, and fell under the head of
_stuprum_. In later times the concubine was called _amica_. Between
persons of unequal rank concubinage was not uncommon; and sometimes it
was resorted to by widowers who had already lawful children and did
not wish to contract another legal marriage, as in the cases of
Vespasian, Antoninus Pius, and M. Aurelius.

“As regards the father, the children born in concubinage were not
under his power, and were not entitled to succeed as children by a
legal marriage; but they had an acknowledged father, and could demand
support from him, besides exercising other rights. As regards the
mother, their rights of succession were as extensive as those of her
lawful children.

“Under the Christian emperors concubinage was not favoured; but it
subsisted as a legal institution in the time of Justinian. At last Leo
the Philosopher, Emperor of the East, in a.d. 887, abrogated the laws
which permitted concubinage, as being contrary to religion and public
decency. ‘Why,’ said he, ‘should you prefer a muddy pool, when you can
drink at a purer fountain?’ The existence of this custom, however, was
long prolonged in the West among the Franks, Lombards, and Germans;
and it is notorious that the clergy for some time gave themselves up
to it without restraint.”

The practice of adoption prevailing in ancient Rome is well known, but an account of it as it is retained in the French law may be thought curious:—

“In France the usage of adoption was lost after the first race of
kings: it disappeared, not only in the customary provinces, but also
in the provinces governed by the written law. Re-established in 1792,
adoption is now sanctioned by the Civil Code. Adoption, however, is
only permitted to persons of either sex above the age of fifty, having
neither children nor other lawful descendants, and being at least
fifteen years older than the individual adopted. No married person can
adopt without the consent of the other spouse. The privilege can only
be exercised in favour of one who has been an object of the adopter’s
care for at least six years during minority, or of one who has saved
the life of the adopter in battle, from fire, or from drowning. In the
latter case the only restriction respecting the age of the parties is,
that the adopter shall be older than the adopted, and shall have
attained his majority. In no case can adoption take place before the
majority of the person proposed to be adopted.

“The form of adoption consists of a declaration of consent by the
parties before a justice of the peace for the place where the adopter
resides, after which the transaction requires to be approved of by the
tribunal of first instance. After adoption, the adopted person retains
all his rights as a member of his natural family. He acquires no right
of succession to the property of any relation of the adopter; but in
regard to the property of the adopter himself, he has precisely the
same rights as a child born in marriage, even although there should be
other children born in marriage after his adoption. The adopted takes
the name of the adopter in addition to his own. No marriage can take
place between the adopter and the adopted, or his descendants, and in
certain other cases specified.

“The practice of adoption, which is better suited to some states of
society than to others, still prevails among Eastern nations. It has
never been recognised as a legal institution in England or Scotland.”

In ancient Rome, as at one time in Modern Athens, there was a practice of throwing or emptying things out of window not without danger or damage to the passer-by. This was the law on that point:—

“If anything was thrown from the windows of a house near a public
thoroughfare, so as to injure any one by its fall, the inhabitant or
occupier was, by the Roman law, bound to repair the damage, though it
might be done without his knowledge by his family or servants, or even
by a stranger. This affords an illustration of liability arising
_quasi ex delicto_.

“In like manner, when damage was done to any person by a slave or an
animal, the owner might in certain circumstances be liable for the
loss, though the mischief was done without his knowledge and against
his will; but in such a case, if no fault was directly imputable to
the owner, he was entitled to free himself from all responsibility by
abandoning the offending slave or animal to the person injured, which
was called _noxæ dare_. Though these noxal actions are not classed by
Justinian under the title of obligations _quasi ex delicto_, yet, in
principle, they evidently fall within that category.

“All animals _feræ naturæ_, such as lions, tigers, bears, and the
like, must be kept in a secure place to prevent them from doing
mischief; but the same vigilance is not required in the case of
animals _mansuetæ naturæ_, the presumption being, that no harm will
arise in leaving them at large, unless they are known to be vicious or
dangerous. So, where a foxhound destroyed eighteen sheep belonging to
a farmer, it was decided by the House of Lords in an appeal from
Scotland, that the owner of the dog was not liable for the loss, there
being no evidence necessarily showing either knowledge of the vicious
propensities of the dog or want of due care in keeping him; and it was
observed that, both according to the English and the Scotch law, ‘the
_culpa_ or negligence of the owner is the foundation on which the
right of action against him rests.’”

The subject of succession is treated by Lord Mackenzie in a very ample and satisfactory discussion. In particular, the chapter on ‘Intestate Succession in France, England, and Scotland’ will be found highly useful to the international jurist. Lord Mackenzie has not failed to observe here the striking peculiarity of the Scotch law, by which, with some qualifications very recently introduced, intestate succession, whether in real or personal estate, goes entirely to the agnates or paternal relations, and not at all to cognates or those on the mother’s side. This was the law of the Twelve Tables, but it was wholly altered in process of time, and, under Justinian’s enactments, paternal and maternal relations were equally favoured. In retaining the old distinction, the law of Scotland seems now to stand alone. The peculiarity may perhaps be explained by the strong feelings of family connection or clanship which so long prevailed in Scotland, and which bound together the descendants of the same paternal ancestor by so many common interests. But it is certainly singular that it should have continued to the present day with such slender modifications; and it is no small anomaly that, while a man may succeed to any of his maternal relations, none of his maternal relations can in general succeed to him, even in property which he may have inherited from the mother’s side.

The portion of the work devoted to actions and procedure introduces a clear light into a subject extremely technical, and often made very obscure by the mode in which it is treated. We have only room for a short extract as to the _remedium miserabile_ of Cessio Bonorum:—

“The _cessio bonorum_ has been adopted in France as well as in
Scotland. By the ancient law of France, every debtor who sought the
benefit of _cessio_ was obliged by the sentence to wear in public a
green bonnet (_bonnet vert_) furnished by his creditors, under the
penalty of being imprisoned if he was found without it. According to
Pothier, this was intended as a warning to all citizens to conduct
their affairs with prudence, so as to avoid the risk of exposing
themselves to such ignominy; but he explains that in his time, though
the condition was inserted in the sentence, it was seldom acted on in
practice, except at Bordeaux, where it is said to have been rigidly
enforced.

“Formerly, a custom somewhat similar prevailed in Scotland. Every
debtor who obtained the benefit of _cessio_ was appointed to wear ‘the
dyvour’s habit,’ which was a coat or upper garment, half yellow and
half brown, with a cap of the same colours. In modern times this usage
was discontinued. ‘According to the state of public feeling, it would
be held a disgrace to the administration of justice. It would shock
the innocent; it would render the guilty miserably profligate.’ For a
considerable time it had become the practice in the judgment to
dispense with the dyvour’s habit, and by the statute of Will. IV. it
is utterly abolished.”

The work concludes with a very agreeable chapter on the Roman bar, from which we shall borrow a couple of passages. A certain portion of time was generally allowed to advocates for their speeches, but which varied before different judges and at different periods.

“A clepsydra was used in the tribunals for measuring time by water,
similar in principle to the modern sand-glass. When the judge
consented to prolong the period assigned for discussion, he was said
to give water—_dare aquam_. ‘As for myself,’ says Pliny, ‘whenever I
sit upon the bench (which is much oftener than I appear at the bar), I
always give the advocates as much water as they require; for I look
upon it as the height of presumption to pretend to guess before a
cause is heard what time it will require, and to set limits to an
affair before one is acquainted with its extent, especially as the
first and most sacred duty of a judge is patience, which, indeed, is
itself a very considerable part of justice. But the advocate will say
many things that are useless. Granted. Yet is it not better to hear
too much than not to hear enough? Besides, how can you know that the
things are useless till you have heard them?’

“Marcus Aurelius, we are told, was in the habit of giving a large
measure of water to the advocates, and even permitting them to speak
as long as they pleased.

“By a constitution of Valentinian and Valens, A.D. 368, advocates were
authorised to speak as long as they wished, upon condition that they
should not abuse this liberty in order to swell the amount of their
fees.”

The history of Roman practice, and, in particular, of the Cincian Law on the subject of advocates’ fees, is ably condensed; and the law of France and Scotland on the subject is thus stated:—

“In France, ancient laws and decisions, as well as the opinions of the
doctors, allowed an action to advocates to recover their fees; but
according to the later jurisprudence of the Parliament of Paris, and
the actual discipline of the bar now in force, no advocate was or is
permitted to institute such an action. In like manner barristers in
England are held to exercise a profession of an honorary character,
‘and cannot, therefore, maintain an action for remuneration for what
they have done, unless the employer has expressly agreed to pay them.’
Upon this point the authorities in the law of Scotland are not very
precise. Lord Bankton says, ‘Though action be competent for such
gratification, advocates who regard their character abhor such
judicial claims, and keep in their mind the notable saying of Ulpian
upon the like occasion, _Quœdam enim tametsi honeste accipiantur,
inhoneste tamen petuntur_.’ But it is maintained by others, whose
opinion is entitled to great weight, that no action lies for such
fees—the presumption, in the absence of an express paction, being,
that the advocate has ‘either been satisfied, or agreed to serve
_gratis_.’”

What the law of England is on this most important question will probably be definitively settled in a _cause célèbre_ now depending. We do not conceal our earnest hope that the principles laid down in the recent judgment of Chief-Justice Erle will never be departed from.

We close this notice by strongly recommending Lord Mackenzie’s book to the notice both of the student and the practising jurist, to each of whom we think it indispensable.

THE PERIPATETIC POLITICIAN—IN FLORENCE.

There is a mysterious power in this nineteenth century before which we all bow down and worship. Emperors have grown powerful by its support, and kings that know not how to please it become the laughing-stock of Europe. The highest are not beyond its reach, the lowest are not beneath its notice. The Secretary of State spreads lengthy despatches as peace-offerings at its shrine, and the parish beadle is careful not to put his hat on awry lest he fall beneath its censure. The idol has innumerable votaries; but its high priests, the exponents of its law, are the great authors and statesmen of the day. And they have a hard taskmaster to serve: they must do the pleasure of their lord before he has signified his wishes—they must anticipate his thoughts and be beforehand with his commands; obsequiousness and obedience alone will not suffice them; they may sacrifice every friend and every principle for his sake, and nevertheless disgrace and proscription await them, unless they can know their master’s mind before it is known to himself.

Public Opinion is the unknown master to whom all submit; listening anxiously but vainly for his commands, not knowing how or where to study his humour. There are Houses of Parliament, newspapers, clubs, mechanic’s institutes, pot-houses, prayer meetings—but which of all these speak public opinion? A weekly gathering of articles from daily papers is not public opinion. Opinion after dinner is not public. It is evidently necessary to apply some means specially adapted to the place and the time in order to discover the mood of public opinion. In Syracuse, Dionysius constructed an ear for the purpose; unfortunately this invention has been lost.

In London, it is popularly said that the only means to ascertain public opinion is to take a seat in the omnibus for the day and drive continually up and down.

In Florence, public opinion walks,—it cannot afford to drive. The people must be studied on foot. The reader will therefore have already understood that the title of this paper was chosen from necessity and not for the sake of the alliteration; that in order to catch a glimpse of Italian affairs as seen through Tuscan spectacles—in order to enter for the moment into the jealousies, the grievances, and the vanities of the provincial town of Florence—there is no resource but that of treating the question peripatetically—that is, of walking the streets.

This course is the more natural because in Florence the streets are—thanks to the high price of manure—remarkably clean. Accordingly the people live in the street; there they are to be met at an early hour lounging along talking or smoking, wrapped in cloaks that take an extra twist with every degree of cold. The street is their assembly-room; it is frequented by men of all sorts, as will be at once seen by a moment’s scrutiny of the stream of people creeping slowly along over the pavement.

There is the commercial dandy who affects a felt hat with mandarin button on the crown, a knobby stick, and a would-be English shooting-jacket. Behind him is the sober professional man, in a French great-coat which has wandered from Paris, making room for newer fashions. There, too, is the priest of portly figure and wasted garments, which show at once his devotion to the inner man, and his neglect of the outer world, walking along with a blessing on his lips and a green cotton umbrella under his arm. By his side is the peasant come to town for the day, cart-whip in hand, and a long coarse cloak trailing from his shoulders, embroidered behind with flowers in green silk. Every stitch will show character in one way or another. Italians wear green flowers where Spaniards would have crosses in black braid.

And who is there among all this crowd who would trouble his thoughts about Victor Emmanuel and his Ministers? Look at yonder corner-wall where there is a sheet of paper prominently pasted on a black board: one solitary passenger gives it a passing glance: that is the telegram just received, announcing the formation of the new Ministry. But farther on there are collected a little company of people, whose animated and intent looks show something really interesting to be going on: it is that two or three young men are practising in chorus a snatch out of the last street-ballad. Farther on the respective merits of different ballet-dancers are under discussion, and some of the company are pronouncing the stage-manager unfit for his post. In the whole crowd there is not one word, nor even a passing thought, bestowed on the Government which is going on at Turin. So universal is the carelessness with regard to the current affairs of the day, that, as a general rule, if a man be heard to speak about politics, or in any way show himself conversant with public affairs, it may at once be concluded, more especially if he speak in a disagreeable voice, that that man is a Piedmontese.[4]

In vain do loud-voiced criers hawk prints representing the murder of the Gignoli family by the Austrians in 1859; they offer them at half-price, at quarter-price, but find no purchasers. Even the photograph of the bullet extracted from Garibaldi’s foot has ceased to draw people to the shop-window.

Leaving the street for the moment, and turning the corner of the great Piazza, we find under the colonnade, opposite the picture gallery, an anxious crowd of people, eager and pushing. That is the entrance to the ‘Monte di Pieta,’ or municipal pawnbroking establishment (for private pawnbroking is illicit in Florence). There is a long table before the door, and on it are spread silver watches, coral bracelets, and other trinkets. Articles that have lain unredeemed are being sold at auction. The sale is well attended, but purchasers will not compete. There is much examination and very little bidding. This same scene has occurred regularly at stated intervals for the last several centuries.

In the time of the Medicis, public policy and private benevolence became copartners in founding a self-supporting pawnbroking shop on a large scale, to be kept under the supervision of Government. To a people who, whenever they begin to be pinched in circumstances, try to economise but never attempt to work, and exert themselves rather to save than to make money, it is no small object to have a public pawnbroking establishment where money is allowed at a fixed scale. If a Florentine have a bracelet too much, and bread too little, he has but to give the bracelet in pawn to the Government. In the same way, if he be troubled with a child too many, he proceeds to the infant asylum, rings the bell, and in the cradle which forthwith opens, he deposits the child for the Government to feed. Under the Governments which have prevailed in Tuscany for the last three hundred years, this is precisely the kind of political institution which the Florentines have learnt to value and appreciate.

The proper supervision of the pawnbroking shop, the maintenance of the foundling asylums and the hospitals (with which Florence is, in proportion, better provided than London), the grant made to the opera—these and other such questions are the matters of government in which a Florentine takes interest. To politics, in an Englishman’s sense of the word, they pay little or no attention. In the election of representatives to the Chambers at Turin the people appear to take little or no part. For instance: M. Peruzzi, the present Minister for the Interior, is one of the representatives of Florence. On accepting office he was of course obliged to appeal to his constituents. The seat was contested. On the day appointed for the election I had occasion to ask my way to the place where it was being held: several respectable citizens did not know that any election was to take place whatever. At last one man, better informed than the rest, had heard something about an election that week, but did not know where the elections were held. The election proved invalid for want of the legal complement of voters—namely, one-half the whole number. This is the general result of elections in Tuscany on the first trial. The second election is valid, provided only the same number of voters are present as attended the first. This is fortunate, otherwise it might occur that there would be a lack of representatives from Tuscany in the Parliament at Turin.

The fact is, and it needs repetition, the Florentines do not care about politics. They have accepted the revolution that was made for them, and on the whole are well contented with the change; at least we ought in justice to ascribe their general listlessness in political affairs to contentment and not to indifference.

To inquire, however, more exactly into the thoughts of those amongst the Florentines who do think about politics, it will be as well to obtain at once rest and information by sitting down for a few moments in the tobacconist’s shop, which may be called the centre of the political world. To begin with, the tobacconist is always himself by profession a finished politician, and he, moreover, enjoys the confidence of several distinguished friends, who keep him accurately informed of every word that passes in the Cabinets of Europe. The general burden of his conversation, which is a fair type of the talk at shops and second-rate cafés, is as follows:—The Pope-king is the father of all mischief; and how should it be otherwise? are not priests and kings always the promoters of every evil? and this man is a combination of both. Then follows a complaint against the Emperor Napoleon and his creatures, the Ministers at Turin, who, like true Piedmontese, are in secret jealous of the greatness of Italy, and treacherously keep in pay reactionary employés in lieu of filling the offices, as they should, with enterprising liberals. This sentiment meets with loud and general applause, and the company, waxing warm on this topic, forthwith launch into various prophecies as to the immediate future. French wars, Polish revolutions, Austrian bankruptcies, are all considered, and it is weighed what each might do for Italy. What the Italians themselves might do is a less frequent theme.

The Government, however, is blamed for its neglect of Garibaldi, which is only of a piece with its conduct in leaving the active and patriotic liberals of the country without employment while they are pensioning the reactionists—an opinion which usually serves as alpha and omega in the discussions of the Florentine liberals on the conduct of the Government.

Having exhausted this topic, our friend the politico-tobacconist resumes his seat, taking his scaldino (an earthenware vessel shaped like a basket, and filled with hot ashes) on his lap for the comfort of his fingers, and proceeds to draw the attention of visitors to various piles of newspapers, the sale of which is part of his trade. And as Florence produces, for a country town, a very respectable number of papers (some dozen daily papers, not to count two tri-weekly papers and other periodicals), which, moreover, have something of a national, or rather of a provincial character, it will be worth while to look over them before leaving the tobacconist’s shop. It is not every paper that will be found: for instance, the three retrograde papers will not be forthcoming. These have so extremely small a circulation that it is very difficult to hunt them up. It is only by favour, for instance, that a copy of the ‘Contemporaneo’ can be got, for, there being no public demand, there is no sale; a limited number of copies only are distributed among subscribers.

The newspapers to be found on the counter are all liberal, but of various shades of “colour,” as the Italians name party opinions.

The ‘Gazzetta del Popolo,’ which is strictly constitutional, has still the largest circulation of any (it prints about 3000 copies daily), though not half what it had. Its decline has been owing partly to general competition, partly to its having embraced the defence of the late Ratazzi Ministry, which unpopular course is said to have cost it in a few months nearly one-fourth of its circulation; partly, perhaps, to its sustaining the Piedmontese, who have not of late been growing in the favour of the Tuscans.

The other papers are all more “advanced,” that is, more opposed to Government. Among these the ‘Censor’ ranks first. This is a thoroughly Tuscan paper, and full of quaint, provincial expressions. In party politics it is red—a colour which evidently finds most favour in the eyes of the poorer citizens; for recently it lost no less than a fourth of its circulation by raising its price from three to five cents, that is, from about a farthing and a half to a halfpenny. In its columns, though not there only, may be seen a catalogue of indictments against the Piedmontese. The Tuscans voted annexation to Italy, it is said—not to Piedmont. With Rome unity, without it none. Does the unity of Italy mean the domination of Turin? Are we to accept from the most barbarous portion of Italy laws which are sent down to us written in a jargon which cannot even be called Italian? Tuscany is being fleeced by men so greedy of every little gain, that they supply all the royal offices with paper made only in Piedmont, in order that Piedmontese paper-mills may reap the benefit.

It speaks well for the Piedmontese that, with so much desire to find fault with them, these are the most serious charges brought forward.