Obrázky na stránke

neglect the large infusion of Roman elements in the Scots' Law, as he may afterwards come across them in practice.

It has been no part of my plan to cite the excerpts always in the same way : beginners should be practised in methods of citation other than those which they may find prevalent in strictly English books on Roinan Law. I have cited rubrics at the first occurrence in the particular section of the title affected, and afterwards where they could conveniently, and by way of variety, be cited without the numbers for book and title. This may serve to exercise the student's memory.

I have as far as possible reproduced the Latin text printed in Dr. Salkowski's work, checking mistakes by standard editions. The same as to punctuation.

Responsibility falls to myself alone for the translation of the Latin passages.

It has been added in the interest of those for whom this English edition is chiefly intended, the large number of law-students in either branch of the profession who do not resort to the Universities, under conditions very different from those which govern legal education in Germany. Students desirous of further help upon lawyers' Latin would probably find all they need in the sixteenth chapter of Mr. Roby's Introduction.' In the rendering of excerpts from the two Roman institutional works I have been frequently indebted to earlier English translations ; in that of passages from the Digest, chiefly to Otto, Schilling and Sintenis. The lexicons of Brisson, Dirksen, and Heumann, besides German Pandekten, have of course been always at hand.

I must ask the student to make some corrections in the book from the list of Errata.

It gives me great pleasure here to thank the learned author for his supervision of this work, when his valuable book had already gained an assured position in German Universities, and for much kindness.

I have to speak of a very special obligation. It was my privilege from the first to secure the aid of the accomplished author of Henricus de Bracton und sein Verhältniss zum Römischen Rechte, to whom the volume is dedicated. His long-continued perusal of English law-books, his special study of our early writers, and the generous manner in which, during his sessional labours of 1884-5, he examined the whole of my MS. translation of the German, render an exaggeration of my debt to him impossible. When I heard him during my holidays in 1884 discourse in his classroom on a topic which has been especially developed by English lawyers, dealing with it not alone as possessed of judicial experience, but by reference to the pages of Bentham and of Best, I was reminded on the one hand of the growing combination amongst ourselves of Science and Practice, and on the other, of our indebtedness in turn to Germany in respect of Roman Law, as of almost every department of study.

Finally, I have had the scholarly help, for the correction of proof-sheets, of my friend Mr. Reginald Broughton, late Fellow of Hertford College.—The assistance I have thus enjoyed may have compensated for defects many and great inherent in work like mine, chiefly performed during the leisure hours of a business life.


January 1886.


The Roman Law has of old in all the Universities of Germany formed the basis of the study of Law, in such way that in the first half-yearly) term the lectures upon the Institutes and History of Roman Law impart the Elements and historical development of Roman Private Law; whilst lectures upon the Pandects, to which the second term is devoted, are designed for the exposition of the System of Roman Private Law, and the dogmatical consideration of its details. Then follow exegetical exercises in the sources of Roman Law, especially in the Digest. Though this arrangement of studies find first of all an historical explanation in the fact of the reception of Roman Law, by virtue of which it is still at the present day the dominant Common Private Law in Germany, it is nevertheless before all materially justified by the consideration that it seems to be the only way of accomplishing the task of University study, namely, to make the law-student a real lawyer. That which makes the lawyer is not merely possession of the knowledge of a number of statutes and legal precepts, but thorough scientific penetration into, and intellectual mastery of, the positive Law, and with that at the same time the ability always to apply the Law correctly. And if the acquisition of this mastery and capacity is the object of the study of Law in

general, the Roman Law presents itself to us as an incomparable means of education, by help of which the lawstudent ought to learn a juristic habit of thought both for exactitude and method, an acute apprehension and correct interpretation of laws and legal transactions.

It is true that the growth of the Law of England has not been so closely associated with the Roman Law as that of Germany. Not only did the germ laid, 700 years ago, for the study of Roman Law in England by magister Vacarius, the founder of the Law School at Oxford, fail to develop any promising blossom : it was soon blighted. Traces, nevertheless, of Roman Law have remained in England ; and that it did not lose all influence is shown by modern inquiries, especially those concerning Bracton. And, quite apart from the fact that the Roman Law as a whole has not been received in England, should not the study of it exercise a useful and wholesome influence upon the education of English law-students, and fruitfully affect the science of English Law ? Should not also in England this ideal, intellectual possession, which has come down to us in the Roman Law as the inheritance of antiquity, in like manner be esteemed and cultivated in a scientific spirit, as the classical remains in other departments of mental culture ? Modern efforts go to prove that more and more is a start being made in comprehending the significance and value of Roman Law for the teaching of Law and for legal education in general on English soil.

The present textbook sets itself the task of grouping and setting forth in the briefest possible and in a precise form the elements of pure Roman Law, as a guide for lectures upon the Institutes, in a comprehensive manner and according to their essential connection. It was not my object to compose a handbook or literary work, which should lay the material before the reader with detailed exposition and in an easily intelligible way, adapted for reception at one's ease, but a textbook by help of which the reader should learn ; and which on that very account—starting from the principle that we can alone truly call our own what we have ourselves acquired—must make some demand upon independent study and the mental energy of the law-student. My special object was, as far as possible, to make the sources speak for themselves. To these the beginner's attention must be drawn at the outset : he should receive stimulation for self-instruction from the passages which have been transcribed.

I cannot forbear to express my warmest thanks to Mr. Whitfield for the laborious and, having regard to the character of the book, exceedingly difficult work of translating it, by which its sphere of influence will be so largely extended.May this book succeed in introducing the 'cupida legum iuventus' to the study of Roman Law, and contribute to the knowledge of the importance of that Law so lofty, which was so skilfully elaborated; may they at the same time learn to appreciate it: then our object would be completely attained.

December 29, 1885.


« PredošláPokračovať »