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reaction from the indifference formerly felt for this system of law were running into the opposite extreme. Instead of saying, We admit that our English law is not the only excellent law, but that the Roman law too has its great merits, the English jurist argues in this way: The Roman law is a most exquisite law, consequently our English law is based in great part upon Roman law. Finlason's “ Introduction” is a warning example of the perversities and errors to which such a preconception may lead. German jurists would be the last to deny to Roman law an indirect influence upon English law. But they do not look for this influence where Finlason is especially fond of tracing it, in the domain of public law, but rather in the juridical treatment of individual principles of private law. It would be equally impossible for any one familiar with the later Roman law and the history of German law to adopt Finlason's account of the reception of Roman law in England.
Finlason gives in the “ Introduction " a description of the Roman law, which amounts to little more than a general panegyric. The Status libertatis and Status civitatis, Connubium and Commercium, Jus Italicum and Jus Latinum, and many other things, are talked about, which make the reader concerned at the length of the road which is to introduce him to the History of the English Law. This premature anxiety, however, the editor scatters to the winds on the next pages, where, by a marvellous tour de force, we are transferred from the sphere of Roman law in order to make a deep plunge into English law. We read of the land-grants to Roman soldiers, and learn that these (because a military tenure) are the germ of the English feudal system. The Courts Baron are traced back to a jurisdictio domestica, which the Roman landlord exercised upon his estates. The municipal constitutions of England are of course similarly of Roman origin, and likewise the division of the country into hundreds. The Roman judicial constitution is discussed at length, with its distinction between jus and judicium, magistratus and judices. The latter are made the prototypes of the English jurors, who are mentioned even in Bracton as judices facti. On page xxi. of the “Introduction” we read: “ At all events trial by jury, so often supposed to be essentially of English origin, was part of the Roman system.” Evidences of a Roman paternity are offered for many other English institutions. The instances already given are sufficient, however, to show the worth of these evidences.
The historical connection of English law with Roman law is not referred to a “reception " in the Middle Ages, but is attributed to the transplanting of Roman life and Roman law into the individual provinces of the Roman empire, to which of course Britain belonged. The proof that Roman law struck deep root among the Romanized and non-Romanized population in Britain is found by Finlason in the laws of Hoel the Good, which seem doomed by fate, now that they have been made the theme of historico-legal nonsense. The laws of this Welsh legal monument are traced back to a Roman origin. They could not have originated among the Britons, for these were barbarians; nor could the Britons have borrowed them from the Anglo-Saxons, who were simply nomadic and plundering warriors, not much better than savages. Furthermore, the Roman law maintained itself in Britain after the arrival of the Anglo-Saxons. All the usages and customs peculiar to the latter were suited only to wandering and uncivilized tribes, but not to the conditions of civilized life. From the time of the Saxon invasion a struggle may be traced, we are told, between the principle of reason, represented by the Roman law, and the principle of custom, represented by the rude usages of the barbarians. As the latter became gradually civilized, they naturally adopted more and more of the Roman law. Moreover, the written laws of the AngloSaxons should not be looked upon as an exhaustive ordering of the then legal relations, but simply as an addition to the extensive Roman customary law that had continued to prevail from the Roman times. The law, too, administered by the Normans, was built up upon the principles of the Roman law, Glanville's civil procedure for instance being essentially Roman. Bracton, of course, with his Romanizing tendencies, is water for Finlason's mill. It is surprising, on the other hand, that he should be totally ignorant of Güterboek's monograph, Henricus de Bracton und sein Verhältniss zum römischen Rechte, a book that has been translated into English.
We should lay ourselves open to criticism if we attempted to show by further instances that the “ developments” of the editor are not worth a serious refutation. We will pass, then, from the “Introduction " to Finlason's second contribution, his notes to the text of Reeves.
The notes made by Reeves are indicated, by figures, and are placed below those of the editor, which are marked by the letters of the alphabet. This device for distinguishing the two sets of notes is almost superfluous, for independently of their contents, which bring out in strong relief the personality of the editor, his notes in the first and second volumes are conspicuous from the fact that in nearly all of them — it is safe to wager ten to one upon it the Mirrour of Justice in the English translation is cited as an authority. The Mirrour is in Finlason's hand the magic key for all the enigmas of English legal history; with its aid he lords it over Reeves, and occasionally over Glanville also, and where ideas fail, a citation from the Mirrour is sure to turn up at just the right time. The Mirrour is a legal source of Edward II.'s time, and parts of it are of very doubtful worth. Together with much valuable information, it contains numerous statements about the historical origin of individnal legal principles, that have the stamp of falsity on their face. Institutions which, according to all trustworthy evidences, were established after the Conquest, especially in the reign of Henry II., are referred back to the AngloSaxon period, and then of course the credit of originating these much-admired Norman institutions is given by tradition to Alfred the Great. .
Finlason takes all these fables and tales for genuine coin; it is an established fact with him that Alfred had forty-four Saxon judges hanged in one year for pronouncing sentence of death when the jury that gave the verdict had not been properly sworn, or had not been unanimous, or for other similar, but at that time impossible offences. Finlason is convinced that this statement is true, because it is given in too much detail to be a fabrication, and moreover the names of the judges are all Saxon, and are not to be found among the judges of the Norman period as given by Foss in The Judges of England. That the author of the introductory dissertation should have a special fondness for the Mirrour is easily intelligible, for its fictions chime admirably with his views. They show the existence in the Saxon period of the later English institutions, and thus the Roman customary law, from which the Eng.
lish law is derived, is brilliantly proved by ancient documents. Finlason several times reproaches Reeves while correcting him for not having read the Mirrour. Reeves was certainly thoroughly acquainted with this source. We could wish that Finlason had read the work which he edited to as much purpose as Reeves read the Mirrour. Reeves (vol. ij. p. 236) says, with his usual accuracy, of this source: “ This book should be read with great caution." Had Finlason taken these words to heart, he might have spared himself the bulk of his notes.
To be sure, there is chaff enough besides. The following instance, taken at random, illustrates the pedantic narrow-mindedness of the glossarist. Glanville speaks once of avunculus ex parte patris and ex parte matris. That grates against Finlason, who has his school-boy's Latin still in mind, as an incorrect expression. Avunculus must mean maternal uncle. The proper word for paternal uncle would be patruus. Reeves must have carelessly overlooked this. Did Finlason ever ask himself the origin of the word "uncle," which certainly means patruus as well as avunculus ? Ought not the English word to have suggested the fact that the mediæval Latin of England and France, when it is not imitating a Roman model, employs avunculus in the sense of patruus ?
Enough has been said to show that the editor is a stranger to the German and English works upon English law, or that he has not digested them, and that Kemble and Palgrave have written in vain, so far as he is concerned. It was especially surprising to us, however, to find no mention of Nichols’s new edition of Britton, and to notice that the Year Books are made to begin with Edward II., in utter disregard of Horwood's edition of the Year Books of Edward I., published among the Scriptores rerum Brittanicarum.
The book is defaced by numerous misprints, where the compositor did not have the old edition before him. These misprints are very perplexing in the case of citations. On page vii. we find a Roman “ Lex jurica." On page xlvi., note 3, the enigmatical Hynden of the Anglo-Saxon laws is comiically identified with Turba (Enquête par turbe, to prove a custom) of the French law, and we find there the citation: “ Louel lib. v. tit. 5, c. 13." The reader is likely to be puzzled a long time before discovering that Loisel's Institutes Coutumières are meant.
Whoever has an old edition of Reeves can easily dispense with the new one. One who has not an old edition may procure Finlason's ; only he must not expect any particular increase of knowledge from Finlason's additions. A man who pretends to understand the history of English law must have read something more than Guizot and Montesquieu, Tacitus and the Mirrour. Reeves was truly worthy of a new edition. But his thoroughness merited a better fate than that he should fall into the hands of the present editor.
The Law of Contracts. By THEOPHILUS PARSONS, LL.D. 3 vols. Sixth
edition. Boston: Little, Brown, & Co. 1873.
Ir is twenty years since the first edition of Parsons on Contracts was published; it appeared in two volumes. The fifth edition, published nine years ago, became, for practical purposes, a new work, by reason of adding a third volume, and obliterating the paging of the earlier editions. On the title-page of the present edition we miss for the first time the familiar designation of the learned author as the “ Dane Professor of Law in Harvard University,” and are thus reminded that he has closed within a few years his long and honorable term of service in that office. There are very many lawyers in all parts of the country who will recall this change in the position of their old instructor with a sincere regret, and in whom it will call up a sentiment of affectionate remembrance and respect. But Professor Parsons, after these many years of active and laborious service, is well entitled to the honorable repose which he has sought.
This work on contracts has been singularly popular; it is one of the most useful of all law books, and comes near being quite indispensable to the practising lawyer. It is one of the books that every beginner sets down on his list, to be purchased as soon as he can get it. It was originally prepared with great labor and with the co-operation of some of the ablest young men of their time, at the Law School; and the author has never ceased, we believe, to bring into his service the best of their successors whom he could command. The successive classes of young men at the Cambridge Law School have spread a knowledge of the merits of the book all over the country, and it has had a great sale. We hope it may long continue to have it.
The well known peculiarity of Professor Parsons's books — that of citing many cases and giving numerous and full quotations from them in the footnotes — has made them valuable to all lawyers who live at a distance from large libraries. The mere list of cases cited in this edition covers one hundred and seventy-four pages, printed in double columns, or more than a fifth of the first volume. But the great benefit that is obtained by these numerous quotations, citations, and references, 'is bought at a serious cost; this is easily seen, if one considers that the names on this list are all repeated again in the notes, with the addition of book and page, — many of them several times over; and if one also observes how many and how long the quotations are that swell this great bulk of notes. The book has grown into three volumes instead of two, and the price is now given as $22.50.
The author states in the preface that " in this edition the whole work has been thoroughly revised; new chapters on the law of Patents, Copyright, Trade-mark, and Telegrams inserted; additions made to almost every section, and more than thirteen hundred recent cases quoted from or cited.” It might be added that room for these changes has been made by omitting the chapter on “ Stamps." The omission is certainly judicious.
With all the improvements, however, that have been made, we observe a considerable number of faults. Why is nothing said on the subject of “ Accident Insurance”? And why is so little added in all these years to the chapters or the notes on " Divorce," or on some parts of the law of “ Damages”? There has been some interesting discussion of late as to the effect of what is popularly known as a “ Western Divorce,” outside of the state where it is granted; but one looks in vain for the case of Cheever v. Wilson, 9 Wallace, 109; the case of Cutting v. The Grand Trunk R.R. Co., 13 Allen, 381, is not cited, nor is any reference made to the interesting and much-considered points in the law of damages involved in that case.
The index also seems to be carelessly prepared; for instance, under the title “Mortgage of Real Estates to be Stamped," we are referred to "jïi. 329," and it is added, “ See STAMPS.” But there is no such page in the book as 329, and no such title in the index as “ STAMPS;” both have been dropped out of this edition. This mistake, however, is found only in the first part of the edition, and has been corrected in subsequent editions. And we observe, finally, that the Table of Contents refers to the paging peculiar to the present edition, viz., that at the foot of the page, while the index refers to the star paging; and the reader is left to find out this troublesome diversity for himself.
Wharton and Stille's Medical Jurisprudence. Third edition. Vol. II., Parts
I. and II. Philadelphia: Kay & Brother, 17 & 19 South Sixth Street. 1873.
The first volume of the present edition of this work, embracing the subjects of mental unsoundness and psychological law, was noticed in our April number. The matter contained in the remainder of the work now before us has not been as thoroughly recast and rewritten as the recent developments of science on the subject of mental unsoundness rendered necessary, in the opinion of the author, in the case of the first volume, but the subjects herein contained have been much extended and amplified in their treatment, so that each part of what is called the second volume of the work makes by itself a book of something like six hundred pages. The plan adopted in the inception of the work, of having the more purely medical topics treated by mem. bers of that profession, is adhered to in this edition. The chapters on subjects relating to the foetus and new-born child, and to questions arising out of the difference of sex, comprising Books II. and III., are by Dr. Samuel Ashhurst, of Philadelphia; those on poisons, by Dr. Robert Amory, of Brookline; and those on wounds and signs of death, by Dr. Wharton Skinner, of Philadelphia. These chapters comprise about four-fifths of the work. The remaining portion, embracing questions relative to identity and its legal relations, survivorship, medical malpractice, legal relations of homicide, fæticide, and infanticide, and legal relations of experts, with some legal notes scattered through the work, is by Dr. Wharton. From the nature of the several subjects discussed, and the relative space allowed them respectively, it will be seen that this is not a book of legal precedent. The medical part decidedly predominates, and from the beginning to the end of this volume there are less than two hundred decided cases cited. The value of such a work consists chiefly in the use that may be made of it in the preliminary stages of judicial inquiry, such as coroners' inquests and the like, in what Bentham called the præjudicial processes. The mass of valuable information for such purposes contained in this book is enormous, and it is such as can be found nowhere in such available shape as here. Commendation of Dr. Wharton's books would seem to be a work of supererogation. Their sale is said to be very great; and they are referred to by way of illustration, and even seem to be cited as authority by judicial tribunals, to a degree unexampled, except perhaps in case of the analogous works of Mr. Bishop. This fact is perhaps due as well to the character of the subjects as to the admirable manner in which they are treated. We do not like, however, this author's habit of referring, in support of a proposition laid down in one of his books, to another of his works, as ultimate authority. It is often the case that we find, on turning to tho passage indicated, that the proposition there laid down is supported by a proper reference to an adjudged case, and