Obrázky na stránke
PDF
ePub

principle—for which the Corpus Juris'affords such treasure -should from the beginning of his career be cultivated by every one seeking a place in the legal profession; not least, perhaps, by those to whom will be entrusted the initiative in law-business. The statement, however, of Mr. F. Harrison, that an effective knowledge of Roman Law has been introduced into the ordinary education of every lawyer' (Fortn. Rev. Jan. 1879), is still subject to so much exception as to afford only slight satisfaction. Mr. Harrison could of course refer alone to the state of things created by such examinations as the Bar Pass, under regulations, at that time, of less than ten years' standing. Of this examination another authority writes : “The slight knowledge of the subject requisite to pass will have no direct value to the student in his after course, and indeed will probably soon be forgotten.' In the Law Schools of Oxford and Cambridge it is now far otherwise. But Roman Law as yet forms no part of the necessary acquisitions of the large body of our articled clerks,' provision not having been made for this subject in examinations controlled by the Law Society. Accordingly, no instruction in that Law under official auspices is open to them, no encouragement extended to the student to travel beyond what to him in most cases are 'dry' textbooks of our own Law.

Few would venture to maintain that legal education is at present carried far enough in point of thoroughness. . The history of each branch of English Law should be studied by those who seek to obtain a clear idea of such Law in its present, largely confused, shape. Who can expect to work with comfort at the Law of Real Property without the help of some such book as Mr. Digby's ?

As to Common Law, it would be impossible to speak of any portion as dry in the hands of writers like Mr. Justice Holmes or the present Professor of Common Law at the Inns of Court. Again, a distinguished Judge has written a History' which no student of the Criminal Law can long leave unread. For LAW as a study being second to none, I may perhaps rely upon the striking testimony of Dr. Arnold (Life and Correspondence, vol. ii. p. 81).

A healthy sentiment now happily prevails amongst law-students themselves, which found expression at the Congress, representing some 4,000 of those in England and Wales, in June of last year. Advance in this direction is of primary importance to lawyers as such, for it underlies discussions as to some proposals for administrative reforms of the utmost magnitude. If to such be added that orderly arrangement of English Law towards which our jurists are steadily working, Law as appropriately administered must with us ere long be neither cumbersome nor protracted, and will be not merely cheap but good.

Manuals of Roman Law, for the most part explanatory of its rules represented by, and according to the order-such as it is of the Institutes of Gaius and Justinian, have during the last thirty years appeared in rapid succession. Whilst Austin was still alive, Mr. Sandars may be said to have led the way with his well-known textbook. Then in the year when the illustrious Savigny died, Sir H. Maine began the publication of a set of works which connect the ideas of ancient and modern life. Dr. Hunter has recently been able to put forth a second edition of his Roman Law in the order of a Code'; and in 1884 Mr. Roby enriched the

literature with his ‘Introduction to the Digest. By such books as these English students are being left without excuse for their neglect of the subject.

In studying Roman Law I had found that best progress could be made through use of German treatises. That now published in English represents what may be the fifth edition of a book' which is recommended by the Oxford Board of Legal Studies. It exhibits a modern arrangement of so much of that Law as is of chief importance to English lawyers.

The plan of the original work I must leave my author to describe in his own words. I have broken up his paragraphs and placed the Latin passages in immediate conjunction with that part of the explanatory text which relates to them; consulting in this the convenience of the English reader. The author's parenthetical references have been here transferred to the margin, and I have, as far as I could, cited authorities rather than the sections in the original, sub-sections) in which they occur, not having preserved Dr. Salkowski's subdivisions of either text or excerpts. The student will find such passages by reference to the first Index.

The parenthetical notes have in most cases also been placed in the margin, and to these I have added occasional references to approved English manuals, in lieu of the continuous sectional references to German textbooks, as those of Puchta and Böcking, in the original work. For Scotch Law, I have commonly referred the reader to Bell's Dictionary. An English student of Roman Law should not

1 Lehrbuch der Institutionen und der Geschichte des Römischen Privatrechts, für den akademischen Gebrauch. Von Dr. Carl Salkowski (Vierte Auflage, 1883).

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.

132 Hiru STREET, OXFORD,

January 1886.

« PredošláPokračovať »