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TO THE UNATTAINABLE.
Right golden was the crocus flame, DEAR, how many the songs I bring to you
And, touched with purest green, Woven of dream-stuffs, pleasure, and paid,
The small white flower of stainless name All the songs of my life I sing to you,
Above the ground was seen. And you hear, and answer again.
He used to love the white and gold, she said; Though no rhyme do your dear lips say to me,
The snowdrops come again, and he is dead. Yet, my poet, sweet songs you bring; When you smile, then the angels play to me
I would not wish him back, she cried, Tunes to the silent songs you sing.
In this dark world of pain.
For himn the joys of life abide, All my soul goes forth in a song to you,
For me its griefs remain. All my deeds for your sake are done,
I would not wish him back again, she said, All my laurels and bays belong to you,
But Spring is hard to bear now he is dead.
ANNIE MATHESON. In your name are my battles won. Just by living you make life dear to me,
Though your lips never speak my name; 'Tis your hands that in dreams appear to me, Bringing me all that I ask of fame.
DOROTHY. What though here you are wholly lost to me,
DOROTHY is debonair; Though you never will know or see,
Little count hath she or care; Though life's pain be this worship's cost to
All her gold is in her hair. me, Am I not richer than great kings be?
And the freshness of the Spring Have I not you, in the holiest heart of me
Round this old world seems to cling You, in the eyes which see you alone ?
When you hear her laugh or sing. Shall I not rise to your soul, which is part of me,
On her sunny way she goes; Till you shall meet me and know your own?
Much she wonders - little knows Longman's Magazine,
Love's as yet a folded rose.
All her smiles in dimples die;
Lightly lie the chains, methinks,
Dorothy is debonair;
M. HEDDERWICK BROWNE.
Outside, the little garden glows
Through that green land there blows an air
IRELAND That cools my forehead even here
In the wild and lurid desert, in the thunder. In this sad city's riotous roar;
travelled ways, And from that little room I hear The echo of a life-long prayer,
’Neath the night that ever hurries to the dawn
that still delays, And the world's voice is heard no more.
There she clutches at illusions, and she seeks Leisure Hour.
a phantom goal With the unattaining passion that consumes
the unsleeping soul: And calamity enfolds her, like the shadow of
a ban, THE wind had from the almond flung And the niggardness of nature makes the Red blossoms round her feet,
misery of man: On hazel-boughs the catkins hung,
And in vain the hand is stretched to lift her, The willow bloois grew sweet
stumbling in the gloom, Palm willows, fragrant with the Spring, she While she follows the mad fen-fire that consaid,
ducts her to her doom. He always found the first, - but he is dead. Spectator.
BY SIR FREDERICK POLLOCK.
From The Contemporary Review. courts of justice. By gradual steps, as THE ORIGINS OF THE COMMON LAW. singularly alike in the main in different
lands and periods, at the corresponding
stages of advance, as they have differed It has been usual for writers commenc. in detail, public authority has drawn to ing the exposition of any particular sys. itself more and more causes and matters tem of law to undertake, to a greater or out of the domain of mere usage and less extent, philosophical discussion of morals; and, where several forms of pubthe nature of laws in general, and defini- lic authority have been in competition (as tion of the most general notions of juris. notably, in the history of Christendom, prudence. 1.purposely refrain from any the Church has striven with secular such undertaking. The philosophical princes and rulers to enlarge her jurisdicanalysis and definition of law belongs, in tion at their expense), we find that some my judgment, neither to the historical one form has generally prevailed, and por to the dogmatic science of law, but to reigns without serious rivalry. Thus, in the theoretical part of politics. A phi- every civilized commonwealth we expect losopber who is duly willing to learn to find courts of justice open to common from lawyers the things of their own art resort, where judges and magistrates apis fall as likely to handle the topic with pointed in a regular course by the supreme good effect as a lawyer, even if that lawyer governors of the commonwealth, or, at is acquainted with philosophy, and has least, with their allowance and authority, used all due diligence in consulting phi. declare and administer those rules of losophers. The matter of legal science is which the State professes to compel the not an ideal result of ethical or political observance. Moreover, we expect to find analysis; it is the actual results of facts regularly appointed means of putting in of buman nature and history. Common force the judgments and orders of the. koowledge assures us that in every tolera- courts, and of overcoming resistance to bly settled community there are rules by them, at need, by the use of all or any part wbich men are expected to order their of the physical power at the disposal of conduct. Some of these rules are not the State. Lastly, we expect to find not expressed in any authentic form, nor de only that the citizen may use the means of clared with authority by any person or redress provided and allowed by public body distioct from the community at justice, but that he may not use others. large, por enforced by any power consti- Except in cases particularly excepted, the tuted for that purpose. Others are de- man who takes the law into his own hands clared by some person or body having puts himself in the wrong, and offends the permanently, or for the time being, public commonwealth. “The law is open, and
“ authority for that purpose, and, when so there are deputies ; let them implead one declared, are conceived as binding the another.” Such are for the citizen, the members of the community in a special lawyer, and the bistorian, the practical
Jo civilized states there are offi- elements of law. When a man is accers charged with the duty and furnished quainted with the rules which the judges with tbe means of enforcing them. Of of the land will apply to any subject of the former kiod are the common rules of dispute between citizens, or to any act morals and mappers, in so far as they do complained of as an offence against the not coincide with rules of law. We shall common weal, and is further acquainted find that in England, as elsewhere, and in with the manner in which the decision of times which must be called recent as com- the competent court can be enforced, he pared with the known history of ancient must be said to know the law to that ex. civilization, many things were left to the tent. He may or may not have opinions rule of social custom, if not to private upon the metaphysical analysis of laws or caprice or uncontrolled private force, legal duty in general, or the place of the wbich are now, as a matter of course, reg. topic in hand in a scientific arrangement ulated by legislation, and controlled by' of legal ideas. Law, such as we know it
in the conduct of life, is matter of fact; dience to it. But the rule itself is not a not a thing which can be scen or handled, moral rule. In England men drive on the but a thing perceived in many ways of left-hand side of the road, in the United practical experience. Commonly there is States and nearly all parts * of the Condo difficulty in recognizing it by its accus- tinent of Europe on the right. Morality tomed signs and works. In the excep- has nothing to say to this except that tional cases where difficulties are found, those who use the roads ought to know it is not known that metaphysical defini. and observe the rule, whatever it be, pretion has ever been of much avail.
scribed by the law of the country. Many It may be well to guard ourselves on cases, again, occur, where the legal rule one or two points. We have said that does not profess to fulfil anything like law may be taken for every purpose, save perfect justice, but where certainty is of that of strictly philosophical inquiry, to more importance than perfection, and an be the sum of the rules administered by imperfect rule is therefore useful and accourts of justice. We have not said that ceptable. Nay, more, there are it must be, or that it always is, a sum of where the law, for reasons of general poluniform and consistent rules (as uniform icy, not only makes persons chargeable and consistent, that is, as human fallibility without proof of moral blame, but will not and the inherent difficulties of human admit proof to the contrary. Thus, by affairs permit) administered under one and the law of England, the possessor of a the same system. This would, perhaps, dangerous animal t is liable for any misbe the statement of an ideal which the chief it may do, notwithstanding that he modern history of law tends to realize may have used the utmost caution for its rather than of a result yet fully accom- safe keeping. Thus in the modern law of plished in any nation. Certainly it would all nations, it is believed, a master has to not be correct as regards the state of En. answer for the acts and defaults of a serglish legal institutions, not only in modern vant occupied about his business, however but in quite recent times. Different and careful he may have been in choosing more or less conflicting systems of law, and instructing the servant. Thus, again, different and more or less competing sys. there are cases where an obviously wrongtems of jurisdiction, in one aod the same ful act has brought loss upon innocent region, are compatible with a high state of persons, and no redress can be obtained civilization, with a strong government, and from the primary wrong.doer. In such with an administration of justice well cases it has to be decided which of those enough liked and sufficiently understood innocent persons shall bear the loss. A by those who are concerned.
typical example is the sale of stolen goods Another point on which confusion is to one who buys them in good faith. The natural and may be dangerous is the rela- fraudulent seller is commonly out of reach, tion of law to morality. Legal rules are or, if within reach, of no means to make not merely that part of the moral rules restitution. Either the true owner must existing in a given society which the State lose his goods, or the purchaser must lose thinks proper to enforce. It is easily rec. his money. This question, simple enough ognized that there are, and must be, rules as to the facts, is on the very border-line of morality beyond the commandments of of legal policy. Some systems of law law; no less is it true, though less com- favor the first owner, some the purchaser, monly recognized, that there are and must and in the common law itself the result be rules of law beyond or outside the may be one way or the other, according to direct precepts of morality. There are conditioos quite independent of the actual many things for which it is needful or honesty or prudence of the parties. In highly convenient to have a fixed rule, the dealings of modern commerce, quesand comparatively or even wholly indif- tions which are reducible to the same ferent what that rule shall be. When,
• Bohemia is an exception. indeed, the rule is fixed by custom or law, + E.8., an elephant - Filburn v. People's Palace and theo morality approves and enjoins obe. ' Aquarium Co. (1890), 25 Q.B. Div. 258.
principle arise in various ways which may necessary. But if we suppose an Eastern be complicated to an indefinite extent. despot to sit in the gate and deal with Evidently there must be some law for such every case according to the impression of cases; yet no law can be made which will the moment, recognizing no rule at all, we not seem unjust to the loser. Compensa may say that he is doing some sort of tion at the public expense would, perhaps, justice, but we cannot say that he is doing be absolutely just, and it might be prac- judgment according to law. Probably no ticable in a world of absolutely truthful prince or ruler in historical times ever and prudent people. But in such a world really took upon himself to do right acfrauds would not be committed on individ-cording to his mere will and pleasure. uals any more than on the State.
There are always points of accepted faith Another point worth mention is that the which even the strongest of despots dares Dotion of law does not include of necessity not offend, points of custom which he tbe existence of a distinct profession of dares not disregard. lawyers, whether as judges or as advo- At the same time the conscious separacates. There cannot well be a science of tion of law from morals and religion has law without such a profession; but justice been a gradual process, and it has largely can be administered according to settled gone hand in hand with the marking off of rules by persons taken from the general special conditions of men to attend to relibody of citizens for the occasion, or in a gious and to legal affairs, and the developsmall community even by the whole body ment, through their special studies, of of qualified citizens; and, under the most jurisprudence and theology, as distinct advanced legal systems a man may gen- sciences. If there be any primitive theory erally conduct his own cause in person, if of the nature of law, it seems to be that so minded. lo Athens, at the time of laws are the utterance of some divine or Pericles, and even of Demosthenes, there heroic person who reveals, or declares as was a great deal of law, but no class of revealed to him, that which is absolutely persons answering to our judges or coun-right. The desire to refer institutions to sellors. The Attic orator was not a lawyer a deified or canonized legislator is shown in the modern sepse. Again the Icelandic in England, as late as the fourteenth censagas exbibit a state of society provided tury,* by the attribution to King Alfred with law quite definite as far as it goes, of everything supposed to be specially aod even minutely technical some national and excellent. In the extant points, and yet without any professed Brahminical recensions of early Hindu lawyers. The law is administered by gen. law this desire is satisfied with deliberate eral assemblies of freemen, though the and excessive minuteness. Wherever court which is to try a particular cause is and whenever such notions prevail, the selected by elaborate rules. There are distinction between legal and moral duty old men who have the reputation of being can at best be imperfectly realized. Even learned in the law; sometimes the opinion now many persons not otherwise ignorant of such a man is accepted as conclusive ; are unable to comprehend that law does but they hold no defined office or official not pretend to fulfil every precept of mo. qualification. In England itself it cannot rality, or to punish everything that is morbe said that there was a definite legal pro-ally wrong, and is, therefore, not to be fession till more than a century after the charged with failure because jurispruNorman Conquest. To this day we have dence does not cover the whole ground of courts of justice, though inferior courts, ethics, and legislation does not suppress whose members need not be learned in every vice. It is true that one attempt the law. In short, the presence of law is has been made on a great scale, and conmarked by the administration of justice in tinued into modern times, to reduce mo. some regular, course of time, place, and rality to legal forms. In the system of the manner, and on the footing of some recog. Church of Ronie the whole of moral duty nized general principles. These conditions appear to be sufficient, as they are • See the Mirror of Justices, passim.
is included in the law of God and of Holy common law of the United States distinct Church, and there is no breach of that from the English law received in the jurislaw. which may not be dealt with in a regu- diction of this or that State; in these lar and formal manner by the Church's kingdoms it is certain that there is no such tribunals. Morality becomes a thing of thing as a common law of Great Britain. arguments and judgment, of positive rules When, therefore, we speak of English and exceptions, and even of legislative laws and of England in relation to them, declaration the authority supreme on we must be understood as using the terms earth in matters of faith and morals. in their exact political sense.' It is need Many things on which Protestants are ac- less to enumerate here the British colonies customed to spend their astonishment and and possessions outside the United King. indigoation are merely the necessary con- dom in which English law does not presequences of this point of view. For the vail. The Channel Islands and the Isle purposes of legal history it is sufficient to of Man are, so to speak, our domestic observe that the wide and flexible juris- examples. In British India the common diction of the spiritual power was of great law, modified by divers acts of Parliament service in the Middle Ages, both in sup. and acts of the government of India, has plementing the justice of secular courts, become for all purposes the personal law and in stimulating them by its formidable of Englishmen sojourning in India, and competition to improve their doctrine and for some purposes, especially in criminal practice. This was especially the case in jurisdiction, the general law of British InEngland. On the other hand, the attempt dian subjects; but Hindus and Mahome. to enforce all kinds of moral duties by tans are still governed by their respective proceedings of a criminal nature had in customs in most matters touching religion many ways oppressive and vexatious re- or the family, or the succession to property sults, and it has been thought with good so far as dependent on family relations; reason that this bad as much to do with and those customary laws are administered the triumph of the Reformation in En- by our judges, whether Englishmen born, gland as any general sense of the doctrinal Mahometan, or Hindu, with impartial errors of Rome, or zeal for the study of the fidelity. Scriptures in the vulgar tongue.
We may now endeavor to take a general The laws now administered in England view of the elements that have gone to by the queen's courts of justice are derived build up the common law. from many sources, and are complex with Question has been made at various times all the complexity of English politics and how much of ancient British custom sursociety. We may say the same, allowing vived the conquest of Britain by succes. for local and modern variations, of the sive invaders, and became incorporated laws administered in all other English. in English law. The present writer is speaking countries, with one notable ex. unable to assign any definite share to a ception, by courts more or less framed on Celtic element in English laws at any time the same model. This unique exception within the last thousand years or more. is Scotland, whose law stands apart. It The supposed proofs of such an element has run a distinct course of its own, from have, as far as I am aware, no surer foun. the time when Scottish independence was dation than coincidence. Now the mere established ; and in the political union of coincidence of particulars in early bodies the two kingdoms the legal individuality of law proves nothing beyond the general of Scotland was carefully preserved. We resemblance of all archaic institutions in may cross the border in search of paral. certain stages. In the archaic law of lels, illustrations, or suggestions. We Rome in the republican period, of which may note mutual approaches of the two the founders of the common law certainly systems in our own times, induced by the knew nothing, there are striking points of practical needs of commerce, and effected resemblance to the Germanic customs either by direct legislation, or by the com- which left their mark on_mediæval Enmon judicial authority of the House of glish law, and which the Roman lawyers * Lords. A certain number of learned per- of the empire, if they had heard of their soos may be found who are qualified both existence at all, doubtless disdained as as Scottish advocates and as English bar- merely barbarous. Again, there may be risters. Nevertheless, the English law- points of real organic connection between yer, as such, is at most an intelligent | Celtic and English law without any borlayman in Edinburgh as much as in Paris rowing from the Welshman on the Eoor Rome. It is doubtful among learned glishman's part. If there be a true affinAmericans whether there is or is not a lity, it may well go back to a common