which I have just described, as forming the especial "privileges" of higher tribunals. But it must be superfluous for me to say that it will be obvious that the coexistence of laws (as administered by two jurisdictions) essentially different and opposite, is not only a gross mockery and injustice, with reference to the principle of Local Courts, but with reference also to the rights and interests of the suitors, and of the people of this country.

Is it to be endured that non-payment of debts should be treated in one tribunal as a crime, in another as a misfortune, - that in cases above the magic limit of 50l. non-payment should in all cases subject the debtor to incarceration, at the will of an intriguing, spiteful, or litigious creditor?

An able member of our Profession, who has turned to admirable account (for the purposes of an instructive fictitious narrative) the ordinary experience of the legal practitioner, has furnished a vivid picture of the abominations of the indiscriminate application of the Law of Arrest in cases of large amount. In his "Ten Thousand a Year," the author has described the position of a high-minded gentleman unexpectedly deprived by a lawsuit of a large estate of which he had honestly believed himself to be the lawful owner, and rendered liable at any moment to be incarcerated for the costs, at the will of the attorney for his opponent, one of the most degraded members of the legal profession.

2. As to the System of Instalments.

This system (which exists in the County Courts) should be extended to all Courts or excluded alike from all, as regards debts of the same nature and amount.

My impression is, that the mode in which debts can be enforced in the Superior Courts, by immediate execution and imprisonment, is injurious alike to debtor and creditor, and calculated to throw large powers of oppression (most mischievously for the public interests and for the public morals) into the hands of the lowest legal practitioners. And I can see no remedy for these evils, except in the power (granted to Courts) of allowing time for payment to the debtor. At the same time, I lean strongly to the opinion that this power

I may be excused for using the expression) with some approach to severity for otherwise the system of instalments (though it may relieve immediate distress) may have a tendency to foster (to some extent) habits of improvidence among the working classes and other sections of the community.

At the same time I am convinced that the evils of an indiscriminate system of immediate execution and arrest for debt are much greater, while a remedy for any evils incident to the system of instalments will be found in the circumspection and increased strictness of the Judges, - a result which may be reasonably expected.

As regards sums above twenty pounds, time is, I believe, very rarely and very sparingly granted by the Judges of the County Courts. I believe, however, that were the present severe system relaxed in the Superior Courts (as regards large amounts) the bonâ fide creditor would be a gainer; for the mere dread of extreme measures (which one vindictive or selfish creditor may put in force) is a fertile source of voluntary bankruptcies and other analogous schemes on the part of debtors, who under a different system of laws would commonly have maintained their position in life and met their engagements.

Creditors are often very bad judges of what is best for their own interests. Under the influence of irritation they are commonly prone to "kill the goose that lays the golden eggs," to seek and obtain from the Legislature severe laws against debtors, which have no other effect, as a general rule, than that of throwing the debtor and all that he possesses (on the first temporary difficulty or partial pressure) into the hands of the "Quirks, Gammons, and Snaps" of the Law.

The first and most valuable protection that the capitalist can possess consists in care and caution in the selection of his customers. All other safeguards must be of very inferior efficacy, but next in importance may be named a lenient and temperate legal system of enforcing the payment of debts; which will encourage and enable the debtor, when unfortunate, to meet his creditors fairly and equally, instead of affording to him (as severe laws obviously do) strong motives

for playing into the hands of friends, and associates, and legal practitioners, to protect himself from beggary and imprisonment, the punishment of a felon.

The effect on the habits of the working classes of the old law of immediate execution, &c., (compared to the present system of instalments) is notorious, and I do not see why an equally beneficial effect should not be anticipated from analogous modifications of the law in cases of large amount, affecting the middle and higher classes of society. Mechanics and labourers who under the old law were in the habit of secreting their goods and often their persons, to avoid the extreme measures to which an adverse judgment exposed them, are now found to derive courage and hope from the opportunities afforded to them, and by gradual exertions to clear off their obligations.

But as I have already intimated the object of these remarks is not so much to point out the principles which I conceive ought to govern our laws, as to exhibit the absurdity of maintaining opposite principles in two different jurisdictions.

I have the honour to remain, dear Sir,

Dec. 19. 1853.

Yours very faithfully,

A JUDGE OF THE COUNTY COURTS.

ART. V.—THE USES OF THE GLOSSATORS AND THE COMMENTATORS.

No. I.1

1. Histoire du Droit Romain au Moyen Age.

Par F. C. DE SAVIGNY. Traduit de l'Allemand par M. Charles Guenoux, Docteur en Droit. Paris.

2. Dissensiones Dominorum sive Controversie Veterum Juris

Romani Interpretum qui Glossatores vocantur. Edidit et Adnotationibus illustravit GUSTAVUS HAENEL, Lipsiensis. Lipsic, 1834.

3. Compendium of Modern Civil Law. By FERDINAND MACKELDEY. Edited by P. T. Kaufman, Vol. I. London, 1845.

THE ancient and deadly feud between the professors of the Civil or Imperial and those of the Common Law, which for so many centuries disturbed both courts and parliaments, has long terminated in the complete victory of our national jurisprudence. Notwithstanding the patronage and support of the great prelates of the English Church and the fostering care and encouragement of the august House of Stuart, the Civil Law has fallen within this part of the United Kingdom into neglect and decay. "Quomodo unquam," exclaims Pothier, "quomodo unquam Papiniani olim prefecti sui nomen et doctrinam oblivioni tradere Britannia potuisset?" But it is too true-the cobweb and the dust of ages rest undisturbed on many a volume rich with the accumulated wisdom of both ancient and modern sages the fruits of two thousand years of meditation and toil! The foundations designed by the

At a time when a general Digest of our Law may not unreasonably be expected, when even the Lord Chancellor announces from the woolsack the possibility of a Code Victoria, we think it may be useful to revert to the sources not only of our own law, but that of all civilised nations: and let not the student, or even he who is called the "practical man," turn with distaste from these disquisitions. The demand is now for liberal and extended views on the whole subject; and even in arguing cases, such views are much listened to and desired. "The Law University," branches of which are fast springing up in spite of all opposition, will foster and develope this state of things, and while to the next generation of lawyers this learning will become a necessity, even the advocate of the present hour will be forced to admit its use.—ED.

wise munificence of holy bishops for the encouragement and support of men trained to be the learned servants and advisers of the Church are given to strangers; and even the judges of the Courts which profess to follow the Civil and Canon Law lend a more willing ear to Adolphus and Ellis, and Vesey, Junior, than to Justinian and Gratian.

The leading causes of this decadence of the learning of civilians in England are matter of history; but some portion of the state of things which we lament is also to be attributed to prejudices arising from a misconception of the system itself. With one of those prejudices we propose to deal in a general way in the following pages. It is this.

Our Common Law authorities have long been accustomed to boast of the paucity of commentators on their jurisprudence as contrasted with the number and bulk of those who have written on the Civil and Canon Law. This is an old weapon of war upon the civilians; and in our own days, whenever any matter of Civil or Canon Law comes in question before our English Courts, both judges and council are ever ready to make merry about the "ponderous tomes" and unknown names of the famous European lawyers who are necessarily cited before them. They are apt to be perplexed by the conflicting opinions of the commentators, and to think the whole system a chaos so unbounded and so incomprehensible that the condition of judges compelled to conform their decisions to its rules must be miserable and absurd. We cannot wonder that this impression should exist; it arises from the want of discrimination between the genius and spirit of the Civil Law and those of our National Law.

cases.

The English Law is based (except so far as it consists of statutes) on authorities which, though they are evidence of what the Law is, yet are not Law-we mean adjudged Thus we find it laid down that "the judgments of the Courts of Westminster Hall are the only authority we have for by far the greatest part of the Law of England." Law is only to be found in the judgments, and the judgments profess to be according to the Law. The consequence of

1 3 Bing. 588.

The