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ART. X.-NEW BOOKS ON ROMAN LAW.
The Commentaries of Gaius. Translated with Notes, by J.
T. ABDY, LL.D., Regius Professor of Laws in the University of Cambridge, and BRYAN WALKER, M.A.,
M.L. Cambridge: The University Press. 1870. . A Compendium of the Modern Roman Law. By FREDERICK
J. TOMKINS, Esq., M.A., D.C.L., and HENRY D. JENCKEN, Esq. London: Butterworths, Fleet Street.
1870. The History of Roman Law, from the Text of Ortolan. By ILTUDUS S. PRICHARD, Esq., F.S.S., and DAVID
, NASMITH, Esq., LL.B. London: Butterworths, Fleet Street. 1871.
subject is more interesting to those who have taken
years, for providing a higher legal education than the attention which has been given to Roman law and jurisprudence. It was lately shown in these pages,* that in England the civil law began to be studied at an early time. But this promise was not fulfilled. The study of Roman law, which on the continent never ceased until its influence culminated in the production of the French code, never took a deep hold in this country. On the continent, lawyers who were bewildered with the technicalities and the multiplicity of forms of their own systems, turned their eyes to that of ancient Rome, as to one which presented examples of order, method, and elegance. They found their own systems encumbered with legal forms. They saw how that of Rome had been so encumbered; but they saw also how the legal genius of the Latin race had shaken these encumbrances off. They saw instead, an appeal to intention, law looking to the spirit and not to the letter merely, the application to cases under discussion not of mere technical rules, but of a few simple principles, to which any number of cases might be referred. They saw confusion in their own forms; laws in one district, or in one town, differing essentially from those in another; ceremonies so complex, that they almost hid the nature of the transaction they were intended to evidence; and laws in such variety that it was impossible that any one person should be acquainted with them. But in Roman jurisprudence, order reigned instead of confusion; and the law was not only common
* See article on Vacarius.
l to all Romans, but was a true common law of races, a jus gentium, which had seemed even to the Romans themselves so characterised by simplicity and equity, that they had come in later years to regard it as a jus quod naturalis ratio docuit, a true jus naturale. Cumbrous ceremonies had not been allowed to obscure that which they evidenced. Intention had been everything, ceremony nothing.
It is not, therefore, to be wondered that continental lawyers, and especially French lawyers, should have looked towards Roman law almost as an object of affection, should have regarded it as an unattainable model to be imitated, have believed that it had been divinely inspired, have considered its decision final upon any question on which it had pronounced judgment. There came a time, as Professor Maine has pointed out, when the mass of the community came to be influenced by the jus naturale and its teachings. The doctrine 56 passed from the forum to the street.” The lawyers' belief in the system of Equity, of which they had gained glimpses, had spread among educated men, and when at length the law of nature came to be accepted as a reality by Jean Jacques Rousseau, all France, and after her all Europe and civilised America, followed his example. It is true that the new law of nature was not the old jus naturale of either Gaius or Ulpian, and that it was still more unlike the old jus gentium of early Roman jurisprudence; but as the law of nature of the later jurists had grown naturally from the old law of nations, so the law of nature of Rousseau and
the writers of modern times had sprung naturally from the jus naturale of the classical jurists. Rousseau spoke of man as being in a state of nature-the ancients as governed by the law of nature. When the classical jurists pronounced that jure naturali umnes homines æquales sunt, they meant that looking at men by the light of the theory of the law of nature all men before the law were equal; the distinction, for example, between debtor and creditor, between citizen and latinus, between paterfamilias and one under his patria potestas, in the eyes of that law had ceased to exist. But when Rousseau and his crowd of imitators in Europe and America declared that all men are equal, they meant that all men ought to be equal, and they enforced their argument by the assumption that in a state of nature all men would be equal.
What modern literature and modern civilisation owe to Roman law, and especially to the theory of a jus naturale, it is almost impossible to over-estimate. Probably our own law owes less to it than that of any other country, and there can be no doubt that the weak points of our legal literature are exactly those which would have been improved by a more thorough acquaintance with Roman law. Our system of Equity jurisprudence, which in its doctrine of trusts, of fraud, accident, mistake, mortgages, and other portions, has been built upon the principles of the great classical system, has formed a body of law, the existence of which has rendered the working of our old Common Law system possible. To Roman law modern Europe owes also the system of international law, a system which borrows its first fundamental assertion, that all nations are equal, directly from the jus naturale. With most of the European nations, and in the States of Southern America, in the province of Lower Canada, and in one of the United States (Louisiana), Roman law constitutes the principal basis of their unwritten or Common Law. We have already said that it has had much to do with the formation of our own Equity system, while
in the jurisdiction of our Admiralty Courts its influence has been still more direct and exclusive.
“ Roman law,” says Chancellor Kent, “is now taught and obeyed not only in France, Spain, Germany, Holland, and Scotland, but in the islands of the Indian Ocean and on the banks of the Mississippi and the St. Lawrence.” On the ground, therefore, that Roman law is the basis of the jurisprudence of the civilised world it is well worthy of study. But it has other claims to recommend it. “Next to the writings of the geometricians,” says Liebnitz, “there is nothing which in force and subtlety can compare with the Roman law.” But even Liebnitz and the great men of his generation had not such opportunity of becoming acquainted with this subject as the labours of the eminent jurists of Germany have enabled us to have. previous time since the great school of Roman jurists passed away has the subject been so thoroughly taught and systematised as it is at present in both Germany and France. In England, unfortunately, it is only within the last few years that anything has been done towards providing a course of training in Roman law. Until the
Until the appearance of one work which we have named at the beginniny of this notice (MODERN ROMAN LAW) no complete systematic treatise on the modern civil law has appeared in English. The language is indeed destitute of any treatise whatever on the subject of Roman law which will bear comparison with any one of fifty works produced on the continent. We have been almost altogether dependent on translations and adaptations for anything worthy of the name of explanation or commentary, even on the "Institutes of Justinian.” Four years ago a student was utterly unable to get the slightest
. assistance in English either in the form of translation or explanatory note of the “ Commentaries of Gaius.” He had to get through the original Latin with all its technical words and phrases in the best way he could, blundering on until he discovered by native wit that words which he had learned to recognise in Cæsar or Cicero as having one meaning had quite another, and, so far as his dictionaries were concerned, an unnoted meaning here.
This difficulty will be met by the translation of Gaius, by Professor Abdy and Mr. Bryan Walker. The student has before him in this edition the original text, in its clear, manly Latin, side by side with a rendering in English. On each page are a number of carefully prepared notes, explaining to the student the difficulties of the text, with the meaning of technical words (his greatest difficulty at the outset), and giving such historical notices as are requisite for its elucidation. The edition is a very clear and definite gain to English legal literature; is, in fact, almost a model of what such a book should be. At first we were inclined to take exception to the use of the old form “ hath” for “has," but as its use is not general throughout the book, the subject is hardly worth speaking of. In one or two places the translation might, we think, have been in simpler English. Professor Maine's translation of Is emptus est hoc ere æneaque libra, “I have bought him with the copper and the scales” is preferable to (although not so literally exact) “ he has been bought by me by means of this coin and copper balance,” which is the way the passage reads in
” Professor Abdy's translation. These, however, are mere matters of detail. The great point to be noted is that this edition is carefully annotated, and possesses a faithful translation. As a student's edition it could hardly be better.
Both the books we have named open up to Englishmen an entirely new field. Our fathers, of course, knew nothing of Gaius till the fortunate discovery by Niebuhr of the famous palimpsest. As one reads its wonderful pages, stumbling at every few lines on lacunæ, denoting where some wretched monk has succeeded in effacing the legal treatise to make way for the probably wretched trash which covered it, it is impossible not to feel that without Gaius a comprehension of the spirit of Roman law, of the history which has