who has been in possession of a thing for a long time should be looked upon as the owner of it: because men are naturally careful not to abandon to others what belongs to themselves, and because we ought not to presume without proof that a possessor is an usurper.

If we extend too far the first of these two laws, which declares that the owner of a thing cannot be deprived of it but by legal titles and conveyances, it will follow that whoever can show that either himself, or they from whom he derives his right, have been owners of an estate, though they have been out of possession of it for centuries, will be restored to the estate and turn out the possessor, unless, together with his long possession, he can show a title which has taken away the right of the first owner. And if, on the contrary, we extend too far the rule which makes it be presumed that possessors are owners of what they possess, we shall do injustice by taking away the property from all who are not in possession.a

The contradiction to which these two laws might lead us-one of them restoring the first owner against an ancient possessor, and the other maintaining a new possessor against the right owner-required regulation by an arbitrary law, that they who are not in possession and who, notwithstanding, claim the right of property, should be bound to assert and prove their right within a certain time; and that after that time the possessors who had not been molested in their possession should be maintained in it. This has been done by the arbitrary laws called Statutes of Limitations.

All such arbitrary laws, which are consequences of immutable laws, have two characters which it is important to distinguish, and which make them two laws in one. For in these laws there is one part of what they ordain, which is of the law of nature, and there is another part which is arbitrary. Thus, for instance, in the Law of Dower two dispositions are included; one that widows shall have some provision for their maintenance out of their husbands' estates, and the other which defines what that provision shall be. natural and the other a positive or arbitrary law.

The first is a

The second cause of the arbitrary laws was the invention of certain artificial institutions and usages, which were intended for the benefit of society. Such are feudal tenures, primogeniture, gavelkind, entails, settlements, the distinctions between legal and equitable estates, and other things, the establishment of which was arbitrary. And these matters, which are the invention of man, and which may therefore be termed arbitrary matters, are regulated by a vast number of laws and rules of law of the same nature.

Thus we find in society (as Domat judiciously observes) the use of See Mill, Princip. of Polit. Econ. b. ii., ch. ii., § 2.

two different sorts of matters which are the objects of law. Some are so natural and so essential to our common wants that they have been always in use in all places; such as exchange, letting and hiring, the contract of loan, guardianships, and other covenants and matters. Some, on the other hand, are artificial and invented, and confined to particular places or countries. But even these matters invented by men have, or ought and profess to have their foundation in some principle of the order of society in general, or of the particular society in which they prevail.

It is to be observed also with regard to these arbitrary matters, that though it would seem that they must be regulated entirely by arbitrary laws, yet there are many natural laws relating to them. Thus in the arbitrary matter of settlements it is provided that a voluntary settlement shall not be good against creditors. So in the arbitrary matter of the Law of Estates it is provided that tenant for life or his representatives shall not be prejudiced by any sudden determination of his estate. Therefore, if a tenant for his own life sow the land, and die before harvest, his executors shall have the emblements or profits of the crop. This is natural justice to the tenant and to the commonwealth; and Lord Coke says, "Lest the ground should be immanured, which would be hurtful to the commonwealth, he shall reap the crop which he sowed in peace."a

This explanation of the nature of immutable and arbitrary laws gives us the first principles of all Municipal Law, both public and private; and those first principles are very important to be remembered, for they show how Municipal Law springs out of Natural Law, which is the foundation of all human laws, and thus indicate the place which Municipal Law holds in the great moral science of general jurisprudence. It is easy to infer also from the sketch of that science which I have presented to you, how every one of its branches bears an intimate relation to the others,-all being equally grounded on the great system of human society, founded by the Divine Will, and resulting from the reasonable and responsible nature of man, and the condition in which he is placed on earth, whereby duties are cast upon him from which all legal obligations are derived.

The use of this comprehensive view of law and its branches, and the unity of their foundation, will easily suggest itself to a thoughtful mind. As it is important for the complete knowledge of any branch of natural physical science to be acquainted with the connection of the physical sciences with each other, and the general laws of nature which pervade the whole creation, so it is difficult to attain a profound and masterly knowledge of any particular branch of jurisprudence—. a Co. Litt. 55. a.

such as Municipal Law-without some notion of the great moral science to which it belongs, the connection of the parts of that science, and the fundamental rules which constitute its unity.

The chief object of a lawyer no doubt is the knowledge of the laws of his country, considered as rules of conduct, deriving their authority from the supreme civil power. This is the work of memory. But a lawyer must also explain and reason upon those laws, and assist in improving them and framing new laws. For this part of his duty he must acquire more than the mere knowledge of Municipal Law. And here it is that the science of general jurisprudence becomes necessary, to furnish comprehensive views of law and legislationtheories, arguments, and reasons of law; to show what principles should be extended, and what restricted-what rules may be altered and what ought not to be touched, and to give the lawyer and the legislator a sort of framework in which he may place his ideas, and a scheme for the arrangement of the knowledge which he from day to day acquires. These objects I shall never lose sight of in the readings which I shall have the honour of delivering here. The recollections of this venerable place, and the memorials of great and illustrious advocates, judges, and statesmen by which we are surrounded, inspire me with a zeal for the performance of the duties intrusted to me by their successors, which may in some degree compensate for the absence of other qualifications.

This numerous attendance, and the presence of so many learned and eminent persons, would almost overwhelm me (conscious as I am of my own deficiencies), if I did not on the other hand feel encouraged by the reflection that those very circumstances show how highly any effort for the augmentation of legal knowledge is appreciated by those whose countenance is most valuable.

And I am further encouraged, by the knowledge that the materials out of which it will be my duty to construct my readings are such that my labours cannot be without some use for it is impossible that the doctrines of the sages of the law, and the oracles of European jurisprudence, can be presented to a cultivated and intelligent mind without producing some valuable result.

SECOND READING.

ON THE USES OF THE ROMAN LAW, AND ITS RELATION TO THE COMMON LAW.

THE uses which we may derive from the science of general jurisprudence to improve the study of our own law, by furnishing us with a great and comprehensive view of law, and also with rules and doctrines founded on reason and justice, showing the grounds of Municipal Law, have been explained in my first reading.

I have shown that Municipal Law is but a branch of a great moral system, having a sort of unity and harmony in its parts which link them all together, so that the study of one must be assisted by a knowledge of the remainder, and of their relation to each other. A portion of this subject is still to be considered, which cannot be omitted without leaving what has been done very incomplete, and breaking the engagement into which I have entered, to bring before you such knowledge as must be useful for the more profound and scientific study of our own law.

I refer to the mass of learning contained in the Corpus Juris and its commentators, and known as the Roman Law; which claims our attention for more than one reason. It has a character of universality which no other body of law possesses; for there is no part of the civilized world where in some form or other, and to a greater or lesser degree, it does not exist in a living state. And Lord Holt, in Lane v. Cotton, 12 Mod. 482, tells us that the laws of all nations are raised out of the ruins of the Roman Law, and that the principles of the English Law are borrowed from that system, and founded on the same reason. Lord Hale also said, that the true grounds and reasons of the law are so well delivered in the Pandects, that a man can never well understand law as a science without resorting to the Roman Law. To this character of universality another distinctive feature is added. There is no body of law that contains the rules of Natural Immutable Law in a purer state, to a greater extent, in a more systematic form, or less mixed with purely arbitrary laws.

Thus Pufendorf speaks of the Corpus Juris as the great collection of the Natural Law; and the Chancellor D'Aguesseau says that to the

Roman jurisconsulti alone justice seemed to have revealed all her mysteries. It is therefore the foundation of the science of general jurisprudence.

These reasons are abundantly sufficient to show that in our future labours we must not neglect the Roman Law; and they also, in my opinion, lead to the conclusion that some reflections on the historical relation of the Roman Law with our own law, and on its uses, will be a useful subject for this preliminary reading.

Notwithstanding the merit and value of the Civil Law as a most ancient and complete body of legislation, and as a system of written legal reason, we must admit that its decided defeat under King Edward I. by the Common Law, was a great national benefit. That defeat is one of the chief causes which led to the development of our mixed constitution, wherein the three elements of governmentmonarchy, aristocracy, and democracy, are so happily united and blended together as to form the most successful (I had almost said the only successful) constitutional government in the world.

The victory of the Common Law in a great degree tended to preserve that most valuable and vital part of our constitution-local liberties and local government, produced by the feudal ingrafted on the Saxon institutions. If the Civil Law had prevailed, the feudal and aristocratic part of our constitution would have been depressed before the popular part had come to its proper strength, and the monarchical part would have thus been unduly exalted. The local government and local institutions of the Common Law would have given way to a Byzantine prerogative.

In saying this, I do not refer to the famous text in the Pandects, "Quod principi placuit, legis habeat vigorem." That is a mere rule, defining one of the sources of the Roman Law. It is indeed curious that the text in question expressly rests the imperial prerogative on a supposed delegation of power to the emperor by the people. Cum populus ei et in eum omne imperium suum et potestatem conferat. The doctrine commonly known as that of divine right of kings is not a doctrine of the Civil Law, ancient or modern. That doctrine was derived by analogy from the Jewish kings, and belongs not to the Roman emperor but to the kings of the barbarians. The great civilian and theologian Suarez, (whose doctrines are most ably summed up by Mr. Hallam) (lib. iii. cap. iv. § 5), very judiciously lays it down that the political power of government, considered in se, is juris divini, but that the power vested in a particular man is juris humani: and that whether the government of a particular country be

* Anaclet. Reiffenstuel, Jus. Can. lib. i., tit. ii., p. 62. Allen on Royal Prerog. p. 23. And see Hallam, Literat. of Europe, vol. iii., p. 356.