The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-06-26
LIT E r A T u r E.


Doctor OF Civil Laws, AZ Henry D. Joncken, Esq,
Bauister. London: Butterw orths. 1870
The profound utJerance OF d'Aguesseau, that "the
grand iestlnles of Rome not yet accom- plished
she reigns throughout the world by her reason aftcr
having ceased to reign by authority has received
Its strongest endorsement from the history OF the
jurisprudence OF Europe for The last half century.
Led on by the enlightened and distinguished Sa-
vigny, a class OF profound scholars the
Continent have applied themselves 10 the
scientific study OF the Roman civil law,
and as the result OF their as vet unfinished
abors they have already contributed to the Libraries
OF the world more than hundred volumes upon
that subject Nor has TINS ardent revival OF the
study OF this branch OF the law, surpassed only at
the period Immediately succeeding the discovery OF
tho Pandects at Amalnl In 1887, been peculiar to
the Continent OF Europe. IL has penetrated Eng
land and awakened there an interest which Is best
illustrated in the Individual labors of Mr.. Tomkins,
who within an incredibly short space of time, has
written the Constitutes Of the Roman Law" trans
lated the commentaries OF Gaius," and jointly con-
triDnted 10 the work now before US.
The subject OF the Roman law, II regarded In no
other light than the never-alng fountain for the
SO utlon OF many OF the numerous Unprecedented
legal problems which are daily presented to our
courts Ii 80 important 10 the community at large
that we regret being confined In our present obser-
vatlons by the necessarily narrow limits OF news
paper critiquc for anything approaching thorough
and attractive review of the grounds covered by
this book would require more space than the
crowded columns or the HERALD can afford. Yet as
this book IS the first complete systematic trcatise'
In the English language on tho modern civil law
we shall endeavor to present such statement as
may tend 70 awaken tho interest Of ut least the
legal community, and nluce them to read the work
Ia
argument OF its editors in favor or the systematic
teaching OF the Roman civil law In those countries
where the comm on Law prevails In the absence OF
statutory regulation.
The Jurisprudence Of Rome presents three dis
tingushed cras. The first OF these, embracing the
long stretch OF time between the reign OF Its
founder and the adoption OF the twelve Tables.u
has generally been denomln ated Its ancient period.
The history Of the formation and adoption OF these
celebrated "iables," by which the Roman law was
Tor the first time reduced TO definite rules, Is well
known. After governing the people Tor a long time
they gradually fell into dsuse and were soon lost
sight OF altogether. BY the direction OF Justlnlan
the entire body or the Roman law, which hal been
accommodating for fourteen centuries, anu which was
contained III more than TWO thou ianl volumes, was
collected into o systematic code ana called the
CORPUS Juris Clyllis''-the whole embodying a
mass OF profound reasoning upon almost every con-
ceivabe legal topic and strongly indicating the
high moral and intellectual condition OF the Romans
at various periods ia their history. There no
systems oil law instituted after this and 1t
not long ere a government which had existed
amid such viclsstudes for 80 many centuries
tottered and fell. Suddenly sinking out Of sight 1t
left the world IN darkness ignorance and despair.
More than five hundred years afterward at Amaln, III
the smoke ana confusion OF battle, the entous dis
ma ia n,lt nf
Roman empire had survived It's destruction ana the
dry fields of Jurisprudence were again watered with
the copious wisdom OF the "Pandecs." From that
time the Roman law gradually and silently infused
inself into the laws OF most Of the States OF Europe
and now 1t Is difficult to find q judicial system In
any country making prettnsions TO civilization that
Is not more or less governed by us principles.
In Germany as we have intimated, 1t has been
made special branch OF legal study, and the pro-
found tieatises OF Won Vauserow and others. which
hope 10 see before long translated into English,
are taken as basis Tor the or Messrs. Tom
kins and Jencken-the former OF whom was pupil
OF Won vaugerow, and imblbed his enthusiasm for
the subject from the lips OF that eloquent teacher.
BY the term "modcrn civil law'' 10 meant the sys-
tematIc exhibition OF the Roman JustlnIan law, as
1t actually exists on the European Continent. Ill
tered through the experience and refined by the
progress OF the ages which have interviewed since its
discovery at Amal1. Silence In lectures the
Pandects II IS not the theory OF pure Roman law
that is given but the Roman law as applied at the
present tlme." The inquiry here arises as to what
the present generation can have to do, except as an
interesting historical question, with system OF
laws established so lar back in antiquity and under
the auspices OF government so arbitrary and tyran
meal in many OF Its features that OF JustnlanY
This can be easily and satisfactorily ans wered.
The .Corpus llris Civili5'' collection OF the
wisdom OF ages. 1t contains legal principles which
were first examined by the most skiliul masters in
the science Of casuistry, and then tested and ap-
proved In the fires OF actual experience. As the
editors or the Compendium say In their introtuc-
uon:-"The Roman law has been adopted into the
legal systems or European and other nations, not
by means OF external force but because the princi.
pies OF the Roman jurisprudence have been found
to be readily suitable In every age to the require
ments Of an advancing civilization" Saved by
mere accident from tine beleaguered city OF Amalf,
where it had been probably kicked aside more than
once worthless by soldiers intent upon obtaining
only substantial plnnder, iis leaves had hardly been
opened ere its respendent wisdom, after having
been shut out from human eyes for ages. beamed
forth with renewed force and guided men In their
reciprocal duties. There Is no portion OF the law
that has not been pervaded and enriched by Its IN
nuence In the highly important cases frequently
arising under equity and admiralty jurisdiction it
applies with particular force. Even the law regu.
Iating real estate, wnlcn comes TO masse from
the fcudal system OF England, Is greatly indebted
to the Roman law. The law OF servitudcs and
easements and the rules for the descent OF property
In cases of collateral relationship are prominent
examples. In o word In every branch ana depart
ment OF the law are using the reason of ancient
Rome, only under garbs adapted to q different con.
dition OF society.
blackstone defines the common law OF England to
be collection OF unwrit en- usages and customs,
adopted by tacit and universal consent and prevail
Ing as law. Forming very considerable portion of
that law he tells US, Is the Roman civil law which
mas ut different times been adopted into the laws OF
England. Therefore, when the learned editors OF
the book which we are reviewing press upon the
profession and universities the necessity OF syste-
atIc sfudx of the amndern Roman law y they asl