inadvertence on a point of French constitutional history, occurring in a note to page 167. We find it stated there, that under the reign of Louis Philippe, the members of the Lower Chamber were paid. The matter stands thus. Shortly after the Revolution of 1830, when the electoral code was undergoing revision, a proposal was made to give members of the Chamber of Deputies twenty francs a-day, and their travelling expenses. But the proposal was negatived, and the following enactment was carried: "Les députés ne reçoivent ni traitement ni indemnité." A different rule, as is well known, prevailed during the republican interregnum between the downfall of Louis Philippe and the coup d'état of December 1851. A far graver error, in our opinion, is the judgment pronounced by Mr Lorimer (p. 223) on M. Guizot's Origines du Gouvernement Représentatif, founded, as we think, upon an entire misconception of M. Guizot's meaning. That eminent man, the most wisely conservative of French statesmen, and the very foremost of modern thinkers on the philosophy of history, never proposed the suffrage as a mere corrective of social evils endured by the classes who claim it, or as a sop for public discontents. He is neither a political sceptic, nor an associate of Louis Blanc and Ledru Rollin. Not only his entire public life, but the book under Mr Lorimer's criticism, conclusively answers any such (perhaps unintentionally) implied imputation. Out of the older history of Europe M. Guizot brings forth into view the primary elements of representative government, and shows how, through numberless vicissitudes and difficulties, they grew into strength, until, in England at last, they obtained a complete and permanent victory. What then is it which representative government does? Putting aside altogether the souveraineté de droit which belongs to no one, and by claiming which, Monarchy, Aristocracy, and Commonwealth respectively degenerate into three different forms of tyranny, representative government seeks out those social influences which derive from public reason and public morality their title to govern society. These are the nation's wealth, its old traditions, its enlightenment, and its justice. To these M. Guizot gives the name of pouvoirs de droit. When they receive legal recognition, and are incorporated into the constitutional powers which bear actual rule among men, he calls them pouvoirs de fait. Conversely, and passing from the province of theoretical politics into that of practical good government, he states it to be the duty of the pouvoirs de fait, whether they consist of Monarchy, Aristocracy, or Commonwealth, to justify their existence more and more, by giving increased legal effects and guarantees to those social influences which have already been described as pouvoirs de droit. These, briefly stated, are M. Guizot's views, of which Mr Lorimer says, that they are the very converse of his own. Our author is 1 Art. 69 du Code Electoral, 19 Avril 1831, p. 198 of the 31st volume of the Collection des Loix [in the Advocates' Library]. mistaken. On the true purposes of representative government he is at one with the great historian and philosopher. M. Guizot, it is true, would limit political recognition and effect to those existing social influences which derive their title to rule society from reason and justice; a limitation which we rather understand Mr Lorimer to reject. But even this difference of opinion, if it exist, has little practical importance; for, in any country ripe for representative government, the predominant social influences are precisely those of which reason and justice require the conversion into political power. This conversion is both by Mr Lorimer and M. Guizot thought to be the proper function of representative government. The apparent conflict of opinion between them is due to a mistranslation. Existing social influences are what Mr Lorimer understands by pouvoirs de fait. In M. Guizot's book the phrase never bears that meaning; on the contrary, it invariably signifies the powers actually vested with legal authority, such as king, parliament, courts of judicature, magistrates, electors; in a word, the "powers that be." Property, for example, when it is merely an existing social influence, is not yet a pouvoir de fait; it is still in the category of powers that ought to be"-pouvoirs de droit. Mr Lorimer (p. 244) expressly calls it a pouvoir de fait. It becomes so, it takes its place among the powers that be (pouvoirs de fait), only after it has received that political recognition and effect to which it is entitled. 66 There are some other points on which Mr Lorimer's views seem open to criticism. It is not easy, for example, to perceive how in any nation, and at any one time, the will of the majority on any subject can be opposed to the general will (note, p. 17); nor to understand the latter phrase in any other sense than the will of an overwhelming majority of those who have any thought or feeling at all on the subject in question; a numerical majority so large that it becomes unnecessary to take any account of the dissentients. Neither can we see (note, p. 171) that the Revolution of 1688, if it be justifiable at all, can be logically or indeed intelligibly justified on any other principle than this, that the king had broken the contract with his people, i.e., had violated the obligations towards his people imposed on him by his office. But we feel this to be mere carping at small points in a book as to which all our sympathies are in unison with the writer's general purpose and spirit. We wish him all success in the field of thought he has chosen, trodden by so few of our fellow-countrymen in modern times. Will Mr Lorimer pardon our presumption in acting towards him the part of counsellors? Let him henceforth give us less of Dahlmann, of Stahl, and of Aristotle, pleasant as his pages are made by the judicious erudition that adorns them. Let him abound more in historical illustration; for, after all, to the test of history must all speculations in political science necessarily be brought. To any one who feels unduly alarmed at the progress of democracy in modern times, we heartily commend this book as an excellent example of that tone of thought best fitted to quell these unreasonable terrors. We should also lay before such an one the wise and eloquent words of a man still honoured by his disciples as conspicuous among the wisest and most eloquent leaders of thought in France; we mean Royer-Collard. In the days of Louis XVIII., an orator of the stand-still school in politics exclaimed pathetically, in the Chamber of Deputies:-" Democracy now runs in overflowing channels" (La démocratie coule à pleins bords). Royer-Collard answered him thus:-"If by democracy you mean the ever increasing progress, in these last ages, of industry, of art, of laws, of manners, of knowledge, I accept such a democracy; and for my part, far from blaspheming against my own times, I thank Providence for having brought me into the world at an era when a greater number of God's creatures have been called to participate in the virtues, the well-being, the enlightenment, at one time reserved for a few among the sons of men." Correspondence. MR DUNLOP AND THE COURT OF SESSION BILL. (To the Editor of the Journal of Jurisprudence.) SIR,-In your indignation against the authors of the Court of Session Bill, you do injustice to one who deserves well of his country. I am neither a member of the Bar or a W.S.-but I protest against being held as acquiescing in the judgments which are said to have been pronounced by these bodies upon Mr Dunlop's Registration of Leases Bill. I have read the Act now after it has become law; but I never read more than the marginal rubrics of the Bill, and I certainly never wasted a moment in reading the reports of my brethren upon it, until I have been stimulated to do so by your reproaches. If it was condemned by my brethren, I demur to being held as concurring in that condemnation. In this I am not singular,-I have precognosced other members of that branch of the profession to which I belong, as to whether they were in a state of more perfect knowledge upon the subject than myself; and of course I found they had neither read the Bill nor the reports of the committees of the body, nor did they attend a single meeting on the subject I knew of, and cared nothing about all that had been resolved or done upon the subject. Why should they? No one pays them for the labour; no one thanks them; and, as you yourself say, the reports are treated with indifference by Parliament. It is absurd to quote these resolutions,-nominally passed by the Faculty of Advocates, or the Writers to the Signet,-as embodying the opinions of the two professions. They represent nothing but the opinions of the chairman of a committee, who may, just according to accident, be a very wise or a very silly person. I had an opportunity, and leisure recently, to read all that was written upor the subject of the Registration of Leases Act; and I entirely concur in the conclusion to which its learned author, supported by the Lord Advocate, arrived, when he followed his own opinion, and refused to adopt suggestions from the Faculty of Advocates and other bodies, that irritated the ulcer without curing it. In refusing to concur in the censure passed upon this measure, you know well that I speak the sentiments of nine-tenths of the body to which I belong, who, up to this date, had treated the subject with equal indolence and indifference-and who now accept the Act, as one of the best pieces of practical legislation of recent years. Before also including Mr Dunlop in your indiscriminate censure, as to the Court of Session Bill, it might have been as well to have inquired somewhat into the facts. His amendment upon that Bill, which proposed that the Session should begin on the 15th October, was overruled by the Government in the Commons; and had he persevered in his opposition, the only result would have been, to have left the Court in a position which,-bad as it may be under the present Bill,-would have left it infinitely worse. He might perhaps have prevented the Bill passing into a law, though he could not have carried his own amendment. Will any one say that this would have been a blessing? The Second Division would have been abolished next session. How could I ever in that case hope to be a Lord, or Principal Clerk of Session ?—I am, etc., SUUM CUIQUE. THE REGISTRATION OF LEASES ACT. (To the Editor of the Journal of Jurisprudence.) WITH reference to the Registration of Leases (Scotland) Act, 1857-May I request attention to sections V. and IX., and to the relative forms of notarial instruments, No. 1 of Schedule C, and No. 1 of Schedule F? According to these forms, the heir of the original lessee, or of an assignee of a lessee, is not allowed to record the lease or assignation, unless he produce a notarial instrument, bearing that he has made up his title by service. Now, according to the law of Scotland, the full right to the lease is transmitted to the heir without any service, and why should he be required to serve before he can have it recorded? or, supposing a service to be necessary, why should the decree of service not be sufficient without a notarial instrument following upon it? By section VII. and the relative schedule E, the heir of a party vested in a lease recorded can make up his title by a writ of acknowledgment from the proprietor infeft in the lands; and according to the form of writ given, service is not necessary. It does not appear why it has been thought necessary to have a service in the case first mentioned and not in this.-I am, etc. A SUBSCRIBER. THE JOURNAL OF JURISPRUDENCE. SOCIAL SCIENCE AND ITS RELATION TO LEGISLATION. THE present depressed state of political discussion is in some respects highly satisfactory to the friends of real progress. What are by courtesy called parliamentary questions, are no longer popular; consequently, the strength which was formerly wasted in party conflict, seeks naturally a new field for the exercise of its energies. The interest once felt in the maintenance of a traditional parliamentary warfare having vanished, with the disappearance of all immediate ground of controversy, the public mind has happily turned from the consideration of matters connected with the government of the country we inhabit, to those pertaining to the constitution of the society in which we live. Strange, that this new movement, which was lately so successfully inaugurated at Birmingham, comes before us even at the present day with much of the charm of novelty. Some may have heard of Vico and his Scienza Nuova, written to show that the Divine Providence evolves itself in history through the operation of the natural laws of the human mind; and many more, ignorant of the works of the Neapolitan, will be at least familiar with the writings of the many contemporary authors who have, in this century, made social science a favourite subject of research. But, till now, no one ever dreamed of attempting to make these inquiries the basis of a systematic legislative action. And, to this neglect, we suspect, may be partly attributed the comparative failure of all our efforts to make a practical application of the truths known regarding social reform and the material comfort of the people. It is unhappily too well known, that many recent attempts at legislation regarding such questions as national education, public health, and the amendment of the law, have never met with that measure of success which was as much due to their intrinsic merits, as by the necessities of the case it was undoubtedly demanded. Pamphlets are printed, published, and forgotten; a topic is for a while diligently discussed by the press, but is never destined to attain higher honours than that transient VOL. I.—NO. XII. DECEMBER 1857. AAAA |