TRANSLATOR'S PREFACE.

WITHIN the present century an attempt has been made to impart to English Law a scientific character. The first great worker in this field, by his contributions to an accurate English legal terminology, has vindicated the permanent value of ROMAN Law in legal education. Towards the end of John Austin's life was published Mr. (now Lord Justice) Lindley's translation of the General Part of Thibaut's 'System'; which was soon followed by a volume of Cambridge Essays containing that by Sir Henry Maine on Roman Law and Legal Education' (reprinted in his 'Village Communities'). To be told in 1856, not only that 'texts of Roman Law have been worked into the foundations of our jurisprudence,' but also that it is not because our jurisprudence and that of Roman Law were once alike that. they ought to be studied together, it is because they will be alike,' was for our lawyers to learn, though slowly, the need of radical reform in elementary professional study.

In the year 1872 we find a master of English Case Law speaking of the Roman Law as a system that more than any other exhibits the principles which ought to, and to some extent do, underlie the jurisprudence of all nations': so thought the late Lord Justice Mellish. And it seems to be admitted on all sides that an exact knowledge of legal

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).