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made Roman law what it is, was impossible.
glimpses into the legal history of his country, his descriptions of the ancient legis actiones, his account of the mancipatio, and of other old ceremonies, all throw a light on ancient history, probably clearer than that which has been shed by any other ancient author. In point of clearness of perception of what he was writing about, Gaius excels even all Roman jurists. The editors of the present translation think, and with good reason, that his commentaries are to be regarded rather as a book of practice than as an institutional treatise. Whether this be so or not, there can be little doubt that a work so complete in itself, giving a comprehensive view of the whole body of Roman law, clear and precise in its definitions (take for example, his sections on theft, and the difference between furtum manifestum and furtum nec manifestum), and yet so short, must have been used as a text-book for instruction in law. That it was so used is of course rendered the more probable from the facts that Tribonian selected it as the model for the formation of the "Institutes of Justinian," and that whole passages are transferred bodily into the latter from the former.
We have said that two of the books named at the head of this notice open up new fields to our legal students ignorant of French and German. To the third book, "Ortolan's History of Roman Law," translated by Pritchard and Nasmith, the same remark will apply. The present writer had occasion some years ago to wish to make himself acquainted with Roman legal history, and for this purpose took the trouble of examining the wonderful manuscript catalogue at the British Museum. He was unable to find a single work on the subject; and believes that none such has hitherto existed in the English language. In one or two works, as in those by Colquhoun and Graepel, he found a few pages on the subject, but these were generally imperfect. Anything, however, like a history of Roman law in English was not to be found even in that huge storehouse. We can
therefore give a welcome to this translation of Ortolan as cordial as we have extended to each of the two works named. Among those who have made Roman law a subject of study, M. Ortolan's name stands in high estimation. His "Institutes of Justinian" are a model of what such a book should be. In England, undoubtedly the best known work on the same subject is a translation from Ortolan, with substitutions, adaptations, &c., which justify the author in not calling it a translation. But in our opinion, in spite of the considerable ability which has been displayed, the work to which we are alluding does not approach in excellence to that of Ortolan. The latter author is especially successful as an elementary writer. He cares nothing about repetition. He summarises admirably. He brings out the points of importance, recapitulates wherever necessary, and adds at the end of each important division a resumè which is invaluable to the student from the careful way in which all the points of the preceding chapters are gathered together. We know of no book which in our opinion exhibits so perfect a model of what a text-book of law should be. Story could probably have given us a work on Equity jurisprudence framed on the same model; but nothing we yet possess in English can be compared as a book for legal education with Ortolan. His work on Roman law is now the text-book in the London University. It consists of three volumes, the second and third being devoted to a translation of, and explanation or running commentary on, the "Institutes of Justinian." The first volume consists of an "Histoire de Législation Romaine," and of a "Généralisation du Droit." It is this volume (which as will be seen from the title is complete in itself) that Mr. Prichard and Mr. Nasmith have translated. We have already expressed our opinion on the original work as a whole. In some respects the first volume of Ortolan is however the most valuable of the three. It is possible to gain elsewhere fair commentaries on Justinian's text, but Ortolan's excellence as a teacher and as a writer profoundly acquainted with
Roman law at its sources, as well as with the writings of modern German and other jurists comes out especially in the History and Generalisation. Besides which, it should never be forgotten that Roman law ought always to be studied in connection with its history. Nothing better shows the spirit of that law than a comparison between certain institutions as they are described in Gaius, and as we have them finally set forth 300 years later in the Institutes of Justinian. By the aid of such a comparison we can see the principle on which improvements were made, and by the light of subsequent experience can point out pretty certainly what direction of growth the law would have taken in subjects which were not fully developed even in Justinian's time. But, without a knowledge of Roman legal history, the subject becomes to a great extent one of more or less dogmatic teaching. The mistakes made through ignorance of such history are sometimes ludicrous. We recently heard a divine of some eminence inform an audience that the Roman law did not allow a citizen to make a will, because it was not until the time of the Twelve tables that such permission was given; a statement which, to say nothing about its inaccuracy, is about as reasonable as to assert that trial by jury or a writ of Habeas Corpus are not English because not mentioned in the code of Alfred.
Ortolan's definitions are master-pieces, and his explanations leave nothing to be desired. Of the translation before us it is enough to say, that it is a faithful representation of the original. There are a few places where the exigencies of translation have pressed hardly on the translators, as, for example, in their definition of one of the meanings of persona, 66 every being considered as capable of having or owing rights,"* &c. The original is, we believe, capable d'avoir et de devoir des droits, an expression singularly neat but incapable, as our readers will see, of being readily rendered into English. The word droit, like the German recht and the Latin jus * Page 567.
signifies duty as well as right, just as in old English the word right, still commonly used in this sense in the north of England, as in, “He has a right to make it good," meaning, it is his duty to make it good, had the double meaning. These are small blemishes, for for which the language is responsible and not the translators. In one respect we could have wished that the translators had imitated M. Ortolan;-in the cheapness at which his book is published. The three volumes, containing upwards of 2000 pages, are brought out in Paris for 224 francs. It is true that the French edition is on that thin blotting paper with which we are all familiar in French books, and that it is ill stitched, and in paper covers. But, on the other hand, we get for less. than nineteen shillings a mass of matter in good type such as in England we could get in no law book whatever under at least two or three times that amount. At the same time, it is only just to Mr. Prichard and Mr. Nasmith to say that, comparing their books with other English law books, it is singularly cheap at the price. As a mere specimen of publishing its get-up is admirable and is a credit to Messrs. Butterworth. The same remark will apply also to the Modern Roman Law of Messrs. Tomkins and Jenckens. Ortolan's History is furnished with a chronometrical chart, which will be of great use to students of Roman legal history, and for which its readers are indebted to Mr. Nasmith, whose admirable chart of English History is well known.
The question of what proportion of time ought to be devoted by the English law student to Roman law is one which is too wide to be discussed on the present occasion. We, however, cannot refrain from expressing our regret that in the course marked out by the Council of Legal Education, a greater share is not given to it. One Reader takes international law, jurisprudence and Roman law. Dr. Tomkins may well regret that no time is given to modern Roman law, but we plead for more time to the general subject. The educational term contains, we believe, about twenty lectures,
and there are three such terms in the year. The mere statement of the case is sufficient to show that the time devoted is too short. While on the subject it is impossible to refrain from expressing our very cordial agreement with the authors of "Modern Roman Law" in their remarks on the necessity of an improved style of lecturing. Our readers must have fresh in their memory what was said in these pages, by another writer, of the lecturing of Von Vangerow. Such lecturing is of immense value, but a lecture on any legal subject, which is a mere formal reading, is simply a waste of time. A student can still make more progress in almost any subject of study with the aid of a tutor than solely by the aid of books, provided the tutor does not attempt a formal lecture. Mr. Haynes has published his admirable lectures on Equity before the Incorporated Lay Society, and very useful and even pleasant reading they form for an Equity student. But it is surely better that he should have them before him in a printed form, in his own chambers, so that he may read a sentence again, and get a complete grip of the whole subject in the exact words of the lecturer, than that he should have to make, possibly, many long journeys to hear them delivered, and come away with a few imperfect notes.
We are not prepared to say that lectures may not be useful. There are men at the Bar who have paid attention to special subjects, who are full of curious knowledge on particular points, and whom a considerable number of the profession would be glad to hear. These men have gathered information from a great variety of sources and are possibly averse to writing. In any case, such information as they have to give can be more pleasantly received viva voce than from reading, even though the lecturer himself can be induced to commit his researches to paper. But the case is altogether different with a student of elementary law. It is not merely that he has to waste time in attending lectures, and any one who has had experience in attending the lectures of the Council of Legal Education, or who will take the trouble to