to both Houses such as is extremely needed, and than which no better could possibly be obtained. Every year that passed would add to their experience, not only in the framework, but in the substance of Legislation, and the bills produced by them would gradually advance to a degree of excellence, from which the present statutes are indeed far distant, but which it is most expedient for the public at large that they should attain. It must be remembered, however, that the success of the plan will necessarily depend upon the very best possible Board being constituted. No niggardly parsimony or contracted views ought for a moment to stand in the way of such an important institution. Her most gracious Majesty's benign sway has been said to extend over one-fourth of the human race,* and our statutes are looked upon as examples and followed as guides in the United States and elsewhere. What duty, then, can be so pressing-what object can be so noble, as to provide the very best means for securing the enactment of the very best laws? We glory in the spread of our arts, our sciences, and our civilisation to the uttermost parts of the earth; how much more glorious would it really be to enact statutes for the whole of the British dominions in so perfect a form, that whilst they contained the best laws for the subjects of Queen Victoria, they might serve as admirable examples for other states in the formation of their own!

ART. II.-BROOM'S CONSTITUTIONAL LAW.

Constitutional Law Viewed in Relation to Common Law and

Exemplified by Cases. By HERBERT BROOM, LL.D., Barrister-at-Law; Reader in Common Law to the Inns of Court; Author of "A Selection of Legal Maxims;

*The Times, October 5, 1861.

"

"Commentaries on the Common Law," &c. London: William Maxwell.

ALTHOUGH we have read Mr. Broom's work with much

pleasure and profit, we are, on the whole, inclined to think that it would have been better if he had adhered to the plan which he originally proposed to follow. It seems that on a suggestion of Mr. Phinn, Q.C., Mr. Broom applied himself to the task of selecting and illustrating a series of leading cases upon constitutional law, without any attempt at classification, and with only such annotations as were necessary to show their significance and bearing. This idea, however, he was subsequently induced to modify, by limiting the scope of his undertaking in the manner indicated in the present title, and by arranging the cases and grouping them together according to their relation to each other.

Now we can scarcely give our approval to the method which Mr. Broom has adopted, nor do we quite appreciate the theory of the relation between constitutional law and common law on which he professes to proceed. Instead of giving us a selection of leading cases, illustrated in the manner so successfully adopted by the late Mr. J. W. Smith, and by Mr. Tudor, his work is substantially a treatise on constitutional law with respect to the relation of the subject to the Crown, to the Executive, and to Parliament, exemplified by cases. These cases are no doubt all extremely interesting and important, but they come in rather awkwardly as illustrations of the different topics of which he treats, and although judiciously enough abridged, yet occupy so considerable a space as to violate in no slight degree all correct rules of literary perspective. Viewed as a treatise, the work would have been quite as valuable as it is had the cases which are given nearly in extenso been incorporated into Mr. Broom's text in a condensed form, with references to the original authorities, whilst in the estimation of most persons, we think, it would have been a great deal more readable. On the other hand, viewed

as a collection of leading cases, the work would have been more convenient in form, and more suitable both for study and reference, had it simply followed what is now a recognised form of legal literature. In attempting to combine two discordant methods-to fuse together the commentary and the selection of leading cases-we cannot but think that Mr. Broom has fallen into a mistake, which, considering the labour he has bestowed on the work, and the valuable materials he has collected, we very much regret.

With respect to the other point of demurrer which we have stated, we think that Mr. Broom is under some slight misapprehension as to the relation between constitutional law and common law. In our opinion it is the relation of a part to the whole, but Mr. Broom seems to consider that one is extrinsic to the other. We have always been accustomed to reckon it a happy peculiarity of the constitutional law of England that it is part and parcel of the common law, that there is no formal boundary by which it is marked off from the rest of our legal system, and that the great principles of the common law regulate alike our rights and duties with respect to the Sovereign and with respect to each other. The common law of England is no mere system of jus privatum. What would Lord Coke have thought of such a notion as Mr. Broom seems to sanction? In what light would Lord Somers have considered the following sentences of our author?

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By constitutional law I would be understood to mean the aggregate of doctrines and sanctions directly tending to the maintenance of our social union. By common law, I would be understood to signify the aggregate of rules and maxims written or customary, directly tending to the maintenance of private rights-to the enforcement of private remedies. Constitutional law I would regard as applying itself to the solution of questions which concern the Sovereign, the state, the cohesion of society; whereas common law applies itself to resolving questions between party and party, questions of a strictly private nature, uninteresting to, because unaffecting, the community at large. According to this view, the relation of

constitutional to common law is that of law regulating and assuring the stability of the empire, to law regulating and assuring the maintenance of private rights."-Preface, pp. vii, viii.

We need hardly remind Mr. Broom that Serjeant Ashley was committed to the Tower in the 3rd Charles I. by the House of Lords only for asserting, in argument, that there was a "law of state" different from the common law.-5 St. Tr., 151.

Of course we perfectly well understand what Mr. Broom means in the passage we have quoted; but we think he has committed a mistake in limiting the term common law to those rules and maxims which tend to the maintenance of private rights and the enforcement of private remedies. Even with the correction which seems to us obvious, we are not prepared to admit the broad distinction which he draws between such rules and maxims, and the doctrines and sanctions which tend to the maintenance of social union. The law of England, it is obvious, does not draw any such distinction, either formally or virtually, and it is very difficult for one imbued with the true spirit of English law to consider these matters as distinct even in abstract contemplation. In the first place, Mr. Broom is entirely wrong in supposing that questions of a strictly private nature, under our system, do not affect the community at large. It concerns the whole community that justice in any particular case should be properly administered, whether the question relate to a poor-rate or to ship money; and every judgment in a court of law will be applicable to all other cases of a similar nature. Again, does Mr. Broom consider such cases as Ashby v. White, and Semayne's case, as having reference to private rights or to social union, or as comprehending both? What does he say as to Sommerseit's case, where the rights of the negro might have been asserted as well in an action for false imprisonment, as in the proceedings adopted? The truth is, that the law of England does not, except in certain particular cases, contemplate social order as one of its direct

objects, but that it ensures social order by protecting and maintaining the rights of the individual, whether those rights belong to him as a person, as an owner of property, as an inhabitant of a parish, or as a member of the state.

Passing, however, from these considerations, which we have ventured to submit, we have much satisfaction in bearing testimony to the substantial merits of the work itself. The arrangement which Mr. Broom has adopted is clearly set forth by him in the following paragraph

"The plan proposed may thus be explained and vindicated: 1st. The subject may be viewed in relation to the sovereign power of the realm; the tie which binds him to it may be examined; the duties which he owes to it may be investigated; the means of redress which he has against it may be specified; and so reciprocally may the obligations imposed on the Sovereign towards his subjects be examined, and the position occupied by the Sovereign relatively to them be defined: 2ndly. The Executive Department of the State puts in force and executes the laws; it is distinguishable from that which deliberates and legislates. The Executive acts, through public servants and officials, civil, military, or naval; and in Part II of this volume I shall endeavour to show what are the rights of the subject against such public officers; what are the immunities specially extended to these latter: 3rdly. I shall speak of the relation of the subject towards Parliament, and of the conflict which has ere now occurred (even in our own time), and may again be possible, between the Commom Law of England, and the Law of Parliament." Pp. 1, 2.

We have no hesitation in saying that Mr. Broom has fully performed what he has here promised, and that he has presented to the profession in an accessible form a great deal of sound and important learning, which does not lie within the range of ordinary study, but which it is extremely desirable should be more common than it actually is amongst members of the Bar. It is to the legal profession that we mainly owe the preservation and vindication of our rights and liberties. In the worst of times, members of it have never been found wanting, who