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should come about; for unquestionably Mr. Amos himself should in propria persona be sent down to Edinburgh to preside over the funeral rites of Scottish Jurisprudence. It really could not long survive the sweeping and somewhat venturous utilitarianism of this plucky jurist.
The book is an attempt to lift English Law up to the level of a quasi-utilitarian theory of morals. From this attempt a good deal of mystification necessarily follows, while the general result is anything but a "systematic view of the science of jurisprudence." We really beg Mr. Amos's pardon; we do not affirm that his book may not, for all we know, be in a sense a systematic view of English positive law; indeed there is some ground for holding that it is so, since it contains a great deal of such elementary English law as might be useful to young and inexperienced policemen. For in the chapter on Criminal Law the writer lays down, with a remarkably philosophic air, the tritest possible notions about crime and its detection. Unquestionably Mr. Amos is scientific in this department, seeing that the rules laid down with an air of considerable importance are so elementary and so self-evident that no sane man anywhere has ever been known to deny them or consciously to pay for instruction in them, and thus they enjoy such universality of range in their application as no doubt entitles them to a place in a "systematic view of the science of jurisprudence." Any one who reads the following remarks will judge whether what we have just written is not well founded :—
"The second hypothesis, made in every Criminal Trial, after the Fact of some Crime having been committed (or the corpus delicti) has been established, is that the Criminal Act was that of some assigned Person or Persons. This hypothesis will be formed in some such way as follows:-The Act was done at a certain place and at or within a certain Time. Again, the Crime was committed by some one possessed of the requisite Opportunity, and therefore not by any one out of the country, nor a hundred miles off at the Time of the Crime. Thus access at the given Time to the Person Deceased; knowledge of, and proximity to a house broken into; official duty in reference to Bank-books, and the like, -are obvious grounds, on the score of Opportunity, for implicating certain Persons in the preliminary hypothesis of Guilt. Furthermore, the Crime was committed by some one operated upon by such a Motive (or peculiar attitude of mind towards ulterior consequences) as would be sufficient, in the given case, to overcome the ordinary tutelary' Motives,-Political, Social, Moral, and Religious, which generally operate as dissuasives from Crime. The actual force of a given Motive, depending as it does on the idiosyncrasy and the circumstances of the man upon whom it operates, cannot be measured; and therefore the smallest Motive, provided it is proved to have been really present, is ground for Suspicion, as it is very frequently held to be sufficient, when accompanied by other Evidence, to justify Conviction. Lastly, it is probable that the Person who did the Act will have conducted himself in one or more of certain recognised Modes habitual among Persons committing Crimes. Symptoms of Criminality supplied in this way are Sudden Flight, Possession of Things Stolen within a limited Time after the Theft, Purchase or Possession of Poison, Threats or Professions of Hostility, Confessions, and such Dealings with Rights of Ownership as apparently have reference to the results or proceeds of the Crime. Te frame and verify hypotheses on such indications as these is the work of the subordinate officers of the Police. The English and French
Methods are here notoriously at variance. The English Official proceeds slowly and cautiously, and scarcely ventures to frame a hypothesis till he has congregated together such a number of Evidentiary Facts as shall justify at the least a Magisterial Investigation. He adheres throughout to his hypothesis, when framed, till, by the result of this Investigation, or at the final Trial, it is found baseless, or else is in a greater or less degree substantiated. The French Official grasps at every straw of Evidence; makes a numberless variety of hypotheses and deserts them as rapidly as made; examines privately any number of Persons whom he suspects, calling upon them to account for every hour of a given period of Time, and even for much of their past life; and ransacks to any amount, without a warrant, every square inch of the most private chambers or sacred repositories, from which Evidence, however seemingly irrelevant, may, with any likelihood, be extracted.
"Now, experience has shown, in accordance with the above anticipations, that the typical history of a Crime from first to last includes some or all of the following phenomena and no others. The Criminal is (1.) possessed of an ascertainable Disposition or Character, belongs to a certain Station in life, and is actuated to commit the Crime by the desire of some pleasure or the apprehension of some pain, which desire or apprehension constitute his Motive. He has recourse to (2.) certain Preparations for doing the Act, and sometimes makes Declarations to others relating to it, or uses Threats to the Person to whom it will be prejudicial. Next he avails himself of a given (3.) Opportunity, and frequently brings with him certain (4.) Instruments to assist him in doing the Act. commits the Act by Violating (5.) some Material Object, whether a Thing strictly so called or the body of a Person, thereby superinducing a determinate change in its previous and normal condition. In many cases he reaps and carries off with him (6.) certain Fruits of the Crime. In nearly all cases he resorts to devices for the purpose of (7.) Concealing the Crime. On being charged with the Crime he generally shows unmistakable symptoms (8.) of Fear, and in some rare cases (9.) he Confesses the Crime."
There is nothing more desirable, in an age when crude notions and hasty opinions are more insisted on than gospel truth, than a conscientious devotion to details, and clearly Mr. Amos must be held entitled to the credit of preserving a mind painfully alive to the importance of this. But surely a detailed statement of the kind quoted has quite as much to do with the science of jurisprudence as a grocer's pass-book with mathematics. And yet the quotation is a fair one; for throughout the book Mr. Amos analyses every dogma which he can get hold of down to the level of minds of the most ordinary capacity. We are really sorry to have to write in this fashion, for we received the book expecting great things from a man who fills Austin's chair. But, after all, the faults may be attributed to a bad system of philosophy rather than to anything else. They may also be accounted for by the fact, that Mr. Amos's students require that the various subjects should be treated in the manner of which we complain; although we must confess that the presumption is entirely the other way. And besides, are we not informed in the preface: "There is scarcely a topic in this work which has not been the subject of repeated lecturing, teaching, and conversational or critical disputations with students. Thus the keen-minded members of the author's successive classes must have their share in the responsibility or the merit of attempted innovations. It is to serious students, professional and unpro
fessional,-men and women,-that this book is addressed; though no book-if it serve its purpose as a book-can dispense with oral teaching, if oral teaching also truly serve its purpose as such." This is really good; is it not quite evident that we have not approached the book in the proper spirit? We rather fear that we cannot pretend to much seriousness after what we have written, and if, as a consequence of that, Mr. Amos can relevantly take exception to our verdict, we assure him that we shall be heartily glad of it. We are anxious to believe that Mr. Amos begun his work when in a frame of mind much too concrete for a systematic view of anything. His very definition, which, by the way he justly remarks, "needs some explanation," shews this. "The science of jurisprudence may be said, broadly, to deal with the necessary and formal facts expressed in the very structure of civil society, as that structure is modified and controlled by the facts of civil government and of the constitution of human nature and the physical universe. This attempted description needs some expansion. To allege that jurisprudence is a science is to say that it is concerned with certain sequences of facts which, within the limits of recorded experience, are invariably the same for all times and places."
There you have it all-at a glance; the whole subject is inverted. It is not the general rule of law that is invariable, but the "sequences of facts." To plod wearily on and on, page after page, in the vain attempt to forecast formal laws for such "sequences of fact" is a labour beyond the power of ordinary human intellects, and even Mr. Amos must have a sort of suspicion that he has not been entirely successful. Had Mr. Amos thought less of all those sequences of facts, and paid a little more attention to those ethical elements of the existence of which he becomes occasionally conscious, we think he has sense and industry enough to have succeeded, with less labour to himself and more profit to "serious students-men and women,” in producing a really useful book.
Mr. Amos treats marriage as an event in human history, so far as regards all the world but the parties to the marriage, and as a fact in their peculiar history in regard to the parties themselves. He holds that the view that marriage is a contract is at once juridically misleading and morally false." We are quite willing to accept his own definition of a contract in order to show him that marriage, although both a fact and an event, is notwithstanding a contract. Indeed it is quite obvious that it must be both an event and a fact before it can be deemed a contract. Well, then, the definition being " A contract is such a joint act of two or more persons as is held sufficient in law to determine the present and future rights and present and future duties of one, or some, or all of such persons; of which act specific evidence is required by law"-we cannot see how it can be held that marriage is not a joint act of two persons which most emphatically determines their present and future rights and duties, and which must be specifically proved when the question whether in point of fact such an event as
marriage ever occurred between certain parties is denied. Surely Mr. Amos must have forgotten his own definition when he ventured on the bold and ingenious idea that it was juridically misleading to hold that marriage is a contract, for if such a view be misleading Mr. Amos himself has sanctioned it. But although the definition itself may not be strictly accurate; is it not beyond all doubt that marriage requires to be entered into with all the solemnities, and to be evidenced by all the legal considerations, which other contracts require? A contracting mind (that is, a mind capable of giving an intelligent consent) is required, and both parties must have consciously agreed to enter into the marriage. This implies everything else. Marriage is voidable on the grounds of error, fraud, force, and fear. It is difficult to see what juridically is awanting in marriage that exists in regard to any other contract-why there is even an implied warranty of the most equitable kind, and that too of the same character as is implied, so far as we know, in all other contracts. We do not need to particularize; but the absolute nullity of a marriage, one of the parties to which is impotent, illustrates the matter. One really fails to see any ground for Mr. Amos's curious doctrine. It is said that marriage "is a natural and moral relationship," and we presume it is for that reason that Mr. Amos would hold it morally false to consider it a contract. But does he not see that that is just the reason why people will contract marriages? There are people so peculiarly constituted that they prefer to enter into contracts implying a natural and moral relationship rather than do otherwise.
We must part with Mr. Amos for the present. We regret that we have not been able to have said kinder things of his book, but one thing we can say, and that is, that the book, with all its faults, is well written, and may be useful to Scotch Students who desire an elementary knowledge of the principles of English law. It may be read with advantage for a general knowledge of the principles of all contracts but marriage. The laws of personal capacity and responsibility are well treated, and we do not doubt that the law of ownership is very accurately stated. The book might have been considered excellent if it had come in less bulk, with smaller pretensions, and free of false philosophy. Our objection to it really comes to this, that it raises expectations which a perusal of it does not justify.
Lectures on Scotch Legal Antiquities. By COSMO INNES, Advocate,
Professor of Constitutional History in the University of
IT is difficult for a pupil to review fairly the work of his master. He is almost sure to err either on the side of panegyric or depreciation. The conviction however of the service Mr. Innes has rendered both to Law and History, by keeping alive the study of the history of Scotch Law, tempts us to undertake the task. Al
most alone in a generation of lawyers which has done less than any of its predecessors for this study, he has devoted the greater part of his time and talents to the preservation and elucidation of our ancient records. To any one whose line of investigation has not been in the same direction, there is something trifling and almost ludicrous in the enthusiasm which the record lawyer displays for parchment, in his reverence for the single words or even letters which he finds traced upon it by the pen of some unknown writer who, centuries ago, has become mingled with his kindred dust. If we are practical men, how small, we think, is the upshot of such inquiries. It is quite certain that they do not pay. If we are intellectual men, what meagre crumbs, we say, they yield for our mental nourishment. How few and uncertain are the facts they afford for those brilliant generalizations and striking paradoxes which make a living history and the fortunes of historians! Yet, perhaps, more justly considered, we see in such inquirers men engaged in the difficult labour of the search for truth in a difficult department-the oldest written memorials of our race. What a lesson of patience they give to a restless generation! What an example of zeal to an age which has applied the maxim of Talleyrand, "Surtout point de zèle," to other fields than diplomacy! This at least seems certain, that those who do not themselves engage in these inquiries, but use them, ought, if they are wise, to be silent, if they do not, which would be more just, express their gratitude. It does not become those who have done nothing to blame one who has done something because he has not done more.
The present work must be judged according to its intention. It is not an outline of the history of Scotch Law, but might have been called to adapt a happy title-" Chips from a Legal Antiquary's Workshop.”
Mr. Innes has here collected and adapted for the use of students what he has observed illustrative of our ancient law, in the course of editing the many valuable publications with which he and others, working on his suggestion, have been connected-the Acts of the Scotch Parliament, the Origines Parochiales, the Munimenta Universitatis Glasguensis, the Facsimiles recently issued of National Scotch MS., and the new Index of the Acts of Parliament, which will be of great use to future historians, to name only the more important of them. By students we do not mean law students or university students, but all persons who are willing to give time and attention to that phase of Scotch history which exhibits itself in Scotch law.
1 Since the death of Mr. Thomas Thomson and Mr. John Riddell, almost the only other lawyers who have done anything in this department are Mr. Hill Burton, whose History of Scotland contains many instructive notices of the progress of Scotch Law; Mr. Patrick Fraser, Sheriff of Renfrew, whose legal treatises never neglect the historical origin of the relations with which they deal, and Mr. W. F. Skene, W.S., whose indefatigable labours in the reconstruction of early Scotch History have necessarily led him to illustrate many obscure matters in our ancient law. Mr. Maclennan's learned and ingenious researches have taken a wider range and contain little specially Scotch.