41. Writ after judgment in a novel disseisin.

42. Revocation of writ ordering capture of an excommunicate. 43. Quod permittat habere pasturam for Walter Tho' the rector of the church of Arreton [Isle of Wight] against the Abbot of Quarr.1

44. Trespass.

45. Novel disseisin.

46. Entry.

47. Aiel.

48. Casus Regis. P. habet duos filios, D. primogenitus est et A. postnatus. D. habet filium B. heredem et D. decedit, et P. decedit et capitalis dominus ponit in seisinam A. postnatum, et B. filius D. perquiret predictum breue de auo.2

49. Waste.

50. Habere facias seisinam.

51. Trespass and imprisonment.

52. Contra forma feoffamenti. Henry of Clakeston and Alice his wife against William de Lacy. Recital-cum consilio fidelium nostrorum provideri fecerimus et statui necnon per totum regnum nostrum publicari ne qui occasione tenementorum suorum distringantur ad sectam faciendam ad curiam dominorum suorum nisi per formam feofamenti sui ad sectam illam teneantur, vel ipsi aut eorum antecessores tenementa illa tenentes eam facere consueuerunt ante primam transfretacionem nostram in Britanniam etc.3 The king is H. dei gracia Rex Anglie, Dominus Hibernie et Dux Aquitanie.

Explicit summa que vocatur Glaunvile. This apparently by the same hand but in different ink. Then immediately a writ issued by H. King of England, Duke of Normandy etc. to B. de Insula. Then a count in an imaginary writ of right from the time of Henry III. Then the form of prohibition known as Indicavit issued by Henry when no longer Duke of Normandy concerning John vicar of Sorewelle, Jordan of Kingeston and William de L'Isle. Nota quod nullum tenementum potest incirographari in curia domini Regis alicui infra etatem existenti.

1 In 1266 Walter Tholomei, rector of Arreton, executed a deed of exchange with the Abbot of Quarr, Hasley's Isle of Wight, App. p. cxxxvi.

2 This is the case of King John and Arthur; P = Henry II.; D

=

Geoffrey;

B Arthur; A =John. See Bracton, f. 267 b, 282, 327 b, where the casus Regis is discussed.

See Provisions of Westminster (1259), c. I.

Item sciendum quod si quis perdiderit loquelam per paralisim et impotens sui fuerit, dominus Rex ponet custodem ad ipsum custodiendum et bona sua et dominus Rex nichil inde capiet. Et tribus de causis erit in custodia domini Regis, quia non debet esse in tuicione domini capitalis, quia dominus capitalis posset forte aliquid alienare de tenemento suo ad exheredacionem heredis. Item non debet esse in custodia heredis quia forte heres mallet ipsum esse pocius mortuum quam viuum. Item non debet esse in tuicione uxoris sue licet uxorem habeat, set in tuicione domini Regis, quia si esset, tunc optineret uxor dominium tocius ipsius tenementi, set per custodem domini Regis ut domina habebit racionabile estouerium suum. Et ita se habet lex Anglie siue tenuerit de domino Rege, siue non. Et si ipse implacitatus fuerit, ipse respondet pro eo qui positus fuerit ex parte domini Regis.1

Si quis uxorem suam occiderit et conuictus inde fuerit, omnia bona ipsius conuicti erunt domini Regis, tamen per legem Anglie ipsa mulier que occisa fuerit partem suam catallorum mobilium habebit.2

A page and a half of blank parchment. Then Capitula Itineris of 40 Henry III. Then other capitula as pleaded by Roger de Turkebi. The Assize of Bread and Beer. The correspondence between the King and the Barons before the battle of Lewes. Account of the battle of Lewes. Statement that the following page was written by the hand of Robert Carpenter of Hareslade at Whitsuntide 1265. Precedent for a will. A few legal notes in French. End of a quire.

In another part of the MS. (f. 87) there is a curious form of prayer apparently intended for the use of litigants . . . . . " sic me presens iudicium fac peragere, ut in tempore probacionis victor valeam apparere per Te, Saluator Mundi, qui viuis et regnas Deus per omnia secula seculorum. Amen. Pater noster, usque ad finem ter in honore Patris et Filii et Spiritus Sancti, et similiter eodem modo ter Pater noster in honore Raphaelis Archangeli, et similiter eodem modo ter Pater noster in honore Sancti Ezechielis Prophete, ut in placito tuo victor valeas existere, cum Aue Maria similiter dicta."

1 This is an important note. The king's right to act as guardian of idiots and lunatics can, I believe, be traced to the last years of Henry III. and no further. See English Historical Review, vi. 369.

2 This curious note tends to show that at this time our law of husband and wife still entertained some notion of a community of goods. A man murders his wife and is hanged; the wife's share of movables is not forfeited, but goes to her kinsfolk.

SOME DEFINITIONS AND QUESTIONS IN JURISPRUDENCE.

N every branch of knowledge a tolerably accurate terminology

corruption. A loose vocabulary is a fruitful mother of evils. It would be difficult to overestimate the harm wrought by the ambiguity of such terms as "the church" in theology, and "humors in medicine.

In law, however, the evil of lax definitions, though real, has not been without compensation. Men are very ready to accept new ideas, provided they bear old names; and the indefiniteness of many legal terms has been the cover under which improvements have been worked insensibly into the law, - improvements which would have been made more slowly, if at all, had the terms borne a more rigid meaning. If the words "contract," "consideration," " "tort," "trust" had been defined by Statute four hundred years ago, a serious obstacle would have been put in the way of legal development.

As knowledge grows in any department, the classification in that department changes; and with a change in classification is involved a change in the meaning of terms.1 So long as the object of knowledge is alive, there can be no final definitions; and it is the truth of this which furnishes so strong an argument against schemes of codification. But although it be true that classification must and ought to change as the law grows, and an official attempt to fix it is pernicious, it by no means follows that it should not be unofficially investigated.

If we are moving in the right direction, there is a constant possibility of improvement in stating and arranging the law; and although we recognize, in all humility, that any statement and arrangement will some time be superseded, it is a step for further advance to see what has been won from chaos already.

The analysis of the general conceptions of our law is not a study which has much flourished in England or America. There was little of it before the time of Bentham and Austin. Austin's book

1 I Mill, Logic (9th ed.), 159.

was known to but a narrow circle, and had become a bibliographical rarity when it was republished by his widow, with additions, in 1861. It was then considerably in vogue until 1874, when Sir Henry Maine dealt it a severe blow in his last two lectures on the "Early History of Institutions," since which time its credit has been sensibly shaken.

Later excellent treatises have been published by Professor Holland and Sir William Markby, and valuable essays by others, notably by Sir Frederick Pollock in a collected volume, and by Mr. Justice Holmes in the "American Law Review;" but aside from books intended for practitioners, the writers who in England and America have illustrated the jurisprudence of our generation have approached the law mainly from the historical side.

The brilliant results of research into the history of the law, the fascinating character of the research itself, and the general acceptance, often in an extravagant form, of the philosophy of evolution, have drawn attention to the change and growth of the law, and away from the elements of permanence which it contains. It is rather the question of how law has become what it is, than the question of what it in fact is now, that has attracted the attention of writers. It has been the growth of the tree of the law, and not the appearance of a cross section at the present or any other time that has occupied them.

I by no means regret this, and I fully recognize the fact that legal conceptions are constantly changing; yet, to borrow a figure from the shop, it seems well at times to take account of stock, and to consider where legal studies and investigations have in fact brought us, although we believe it is neither possible nor desirable to prevent their carrying us farther.

Besides, as one should remember, though most legal conceptions alter, and there may be few which are so based on eternal principles that they cannot change while the order of nature continues, yet their change is often exceeding slow, and many of them go back as far as we have a clear knowledge of human affairs, and show to our eyes no signs of decay.

The analytical study of the general conceptions of the law is not, as experience has shown, without its dangers. It may easily result in a barren scholasticism. "Jurisprudence," as Mr. Dicey says,1 "is a word which stinks in the nostrils of a practising barrister. A

1 5 Law Mag. and Rev. (4th series), 382.

jurist is, they constantly find, a professor whose claim to dogmatize on law in general lies in the fact that he has made himself master of no one legal system in particular, whilst his boasted science consists in the enunciation of platitudes which, if they ought, as he insists, to be law everywhere, cannot in fact be shown to be law anywhere." But, as Mr. Dicey in the same article goes on to show, "prejudice excited by a name which has been monopolized by pedants or impostors should not blind us to the advantage of having clear and not misty ideas on legal subjects."

Especially valuable is the negative side of analytic study. On the constructive side it may be narrow and unfruitful; but there is no better means for the puncture of wind-bags. Most of us hold in our minds a lot of propositions and distinctions, which are in fact identical, or absurd, or idle, and which yet we believe or pretend to ourselves to believe, or impart to others, as true and valuable. If our minds and speech can be cleared from these, it is no small gain.

This is the great merit of Austin. His style is inexpressibly wearisome. He himself once expressed a doubt whether his loveletters were not written in the fashion of an equity draughtsman; and certainly his treatise is in manner more like the charging part of a bill in equity than any other kind of human composition. The insolence of his language also-though very likely not of his thought is often offensive, and the theories which he advanced have not remained unshaken. But his unwillingness to let others juggle with words or to juggle with them himself, or knowingly to leave any dark corner of a subject unexplored, have never been surpassed, and to many students have made the reading of his crabbed book a lesson in intellectual morals.

I wish in this article to put one or two definitions and propositions, rather as suggesting them for consideration, than as positively affirming them to be true.

I. JURISPRUDEnce is the SciENCE WHICH DEALS with the PrinCIPLES ON WHICH COURTS OUGHT TO DECIDE CASES.1 Every society or organized body of men must have a judge or judges to determine disputes. Sometimes the duties of judge are united in the same person with other official duties. The more

1 It may be urged that this definition is much as if medicine were defined as the science which deals with the principles on which physicians ought to diagnose and treat