the other Courts of the country, except, perhaps, Courts of Bankruptcy, which are already Courts as well of Law as of Equity; and this is the reform to which we trust the Government will apply itself, and to this the Attorney-General, as we collect, is not indisposed: "The ATTORNEY-GENERAL said, there was one thing on which he took it they were all agreed, both in that house and out of it, and as to which even Doctors' Commons hardly ventured to raise a dissenting voice-namely, that the jurisdiction of the Ecclesiastical Courts in matters testamentary did require great and complete reform. But, on the other hand, it must be admitted that the mode of carrying out that reform was a matter of considerable difficulty. Whether they should establish one single Court apart for the purpose, with all proper guarantees for a good and simple system of procedure, the evidence being taken in the manner in which it was taken in the Courts of Common Law, was one question. On the other hand, whether they should transfer the jurisdiction to some other Court, and, if so, whether to a Court of Common Law or to a Court of Equity-the one possessing a peculiar aptitude for the trial of wills, the other having better machinery for the administration of the property of a person, was another question. At the same time, he did not mean to say that was not a question with which the Government might perfectly well grapple; but it did so happen that there was sitting at that peculiar conjuncture a commission of persons of very great ability, and, under these circumstances, it was deemed better to wait until they had reported the result of their deliberations.1 They had been led to suppose that the report was on the eve of publication, and the moment it was before the House it would be the duty of the Government to turn their most anxious attention to the subject. In the meantime, the House would agree with him that they and the country were largely indebted to the hon. and learned member for Plymouth (Mr. Collier) for his zeal and attention, and the singular ability with which he had brought the subject forward. They all agreed in the necessity of some measure, and he trusted that another Session of Parliament would not pass over their heads without a great reform on this subject." We repeat, therefore, that it appears to us that the complete adoption of fusion, as applicable to every Court in the country, County and Superior, is only a matter of time. 1 It is understood that this Report will be made before November, and that it will recommend a new Court clothed with complete powers. ART. II. - HISTORY OF JURISPRUDENCE. No. V.1 § 1.2 THE first title to property is Occupancy. In the progress of civilisation all the material constituents of wealth become appropriated, and title to property by labour becomes of primary importance. The title by Occupancy is recognised and exemplified by Grotius. After the manner that wild beasts become our own, so do also other things that have no owner,-ȧdéσπота. For Nature gives all these to ἀδέσποτα. him who finds and takes possession first.3 Several of the legal propositions discussed in the Institutes of Justinian are analysed, and many are disputed. Thus if any one had formed a thing out of materials belonging to another, the Roman school of lawyers termed Sabinians gave the property to him whose the materials were, but the school of Proculeans to him who formed or put it into such a shape, because he gave it an existence which it had not before. At last a middle opinion was taken up, that if the matter could be put into its first form or shape, it should then be his who owned it before; if that could not be done, then it should be his who gave it its last form. But Connan was of opinion that we should consider whether the work or the stuff was worth most, so that the thing which was of the greater value might carry it from the other of less importance; and this argument was fetched from what the Roman lawyers have said concerning an accession.4 But Grotius is of opinion, that if we consider the natural truth, as by a mixture of several materials there arises a 1 For Nos. I. and II. see vol. xvi. pp. 59. and 268.; for No. III. see vol. xvii. p. 105.; for No. IV. see vol. xviii. p. 91. We purpose to continue this series of articles upon the development of Jurisprudence. A great impulse has recently been given to Legal Reform in England. It may, therefore, prove not unacceptable for our readers to peruse an historical review of the great writers who have sclentifically cultivated Law, combined with a sketch of its internal development. The next Number will contain a critical analysis of the works of Thomas Hobbes on Jurisprudence. 2 Grotius," De Jure Belli et Pacis," continued. 3 B. ii. c. viii. s. 6. 4 B. i. c. viii. pp. 8-19. common title to the thing so mixed in proportion to what each has contributed, which also the Roman lawyers approved of, because the right to such a mixture could not otherwise be fairly decided; so when a thing is composed of a matter and a form, as of its parts, if the matter belongs to one, and the form to another, then must it naturally follow that it belongs to each contributor, in proportion to the value of each part; for the form or shape is a part of the substance, but not the whole substance; which Ulpian saw when he said that the substance was almost lost by the alteration of its form.1 This may serve as a specimen of the discussion of similar questions. The origin of the doctrine of Fixtures, springing from the maxim "Quidquid plantatur solo, solo cedit," is stated and justified by our author. That things planted or Sown should go along with the soil is also a maxim of the Civil Law, for this reason, because they are nourished by it. And therefore it is a distinction about a tree whether it had taken root or not, for the nourishment of a thing that was growing before gives a title to part of it only; because, as there is some right due to the owner of the soil, on the account of that nourishment, so there certainly still remains a natural right to the owner of the seed, plant, or tree. Thus in this case, too, Nature admits of partnership, as, likewise, in a building, of which the ground and the surface are only parts; for if it were moveable, the owner of the ground could have no right, of which opinion was the jurisconsult Scævola.2 Nor, says Grotius, does Nature allow him, who has got another man's goods in his possession, though it were honestly and without fraud, to appropriate the profits of them to himself, but only empowers him to charge the cost at which he has been, and the pains which he has bestowed upon them, and to deduct for these out of the profits so arising. The right of the improver is, however, recognised to retain a lien on the profits, if satisfaction be not made him some other way. The cessation of jurisdiction and property is next discussed: 1 Grotius, "De Jure Belli et Pacis," b. i. c. viii, ss. 8-19. 3 Ib. s. 23.. These may cease by being abandoned, for where there is no will there is no property. There is another mode of the extinction of these rights when the subject in which the jurisdiction or property is ceases to be, as in the case of successions to an intestate. And therefore if a person die without any signification of his will, and leaves no relatives behind him, all the right that he has dies with him too. His slaves become free; his subjects their own masters, because they are not in their nature things that may be possessed, unless they voluntarily part with their liberty, but all other things belong to the first occupant.1 The Tenth Chapter of the Second Book discusses the obligations which arise from property. Many of the intricate questions relating to the bonâ fide possession of another person's property are propounded. The very design of property is that every man might enjoy his own. "It is contrary to nature," says Cicero, "to augment one's own gain by another's loss:" "Contra naturam esse, ex hominis incommodo suum augere commodum." And again he says, "Nature does not endure that we should raise our wealth and fortune upon the spoils of others: ""Illud natura non patitur, ut aliorum. spoliis nostras facultates, copias, opes augeamus." Hence Grotius lays down, that he who has come by a thing honestly is not obliged to make any restitution if the thing be gone, because he neither enjoys the substance, nor any benefit by it; secondly, that whoever has come honestly by a thing is obliged, however, to restore all the produce of it which he has still remaining. He is not, however, to be obliged to restore the produce of his own labour and industry; for though without the thing there had been never any such produce, yet it does not in any way belong to the thing itself. The reason of this obligation arises from property, for he who is the owner of the thing is naturally the owner of the produce:: thirdly, whoever has honestly got what is another's is obliged to give satisfaction, not only for the thing itself, but also for the produce of it, though that produce be spent and gone, if Grotius, "De Jure Belli et Pacis," b. ii. c. ix. s. 2. 2 De Officiis, iii. c. v. it appear that he must otherwise have spent and consumed as much of his own, because he is looked upon to be so much the richer for it.' Grotius also lays down, that another's property, although honestly paid for, and the intermediate profits, are to be restored, nor can the bonâ fide possessor demand a reimbursement of his charges. This doctrine is in accordance with the rule of the English Common Law, which denies the possessor by a bad title, though bonâ fide, any indemnification for which he may have laid out. This is wholly opposed to the rule of the Civil Law, and the dictates of natural justice. In the chapter on Promises the opinion of Francis Connan is first combated, who maintains that those promises which are not made upon mutual agreement are not binding either by the law of nature or nations. He acknowledges, however, that they may be justly performed, if the thing promised be such as might, had no promise ever been made, honestly be done. To confirm his opinion Connan adduces these reasons: first, that he who believes a man who promises rashly, and without any cause, is as much to blame as he who himself makes such a vain promise; secondly, that it would be very dangerous to most men's fortunes if they were obliged to perform all their promises, which they generally make more out of ostentation than a real intent to perform them; and lastly, that it is reasonable to leave some things to every man's honesty, and not to confine him to a necessity of performance. Cicero held that those promises were not to be performed, which are of no advantage to those who receive them, or the performance of which is more prejudicial to the promiser than of service to the promisee. 3 Grotius distinguishes three degrees or manners of speaking about things future, which either really are, or at least ought to be, in our own power. The first is a bare assertion, signifying what we intend hereafter, in our present disposition. And that this may not be defective, it is required that we sincerely express what at that present time we think, 1 B. ii. c. x. s. 3—5. 2 Ib. s. 9. 3 B. ii. c. xi. |