The Green Bag
302
needs of the English people, and even that might be misleading as a possible overstate ment. The elaboration of this historical fallacy may be traced in various forms. From the late Professor Maitland's arrange ment in parallel columns of the works of
Roman law which as illustrative of American jurisprudence might well have been included and have not been. The writer's method, however, being expository rather than illus trative, he cannot claim for his treatise.
Bracton
advantage of a commentary on Roman law likely to be of any considerable aid to students of that subject.
and
A10,
Mr.
Hughes
concludes
that the basis of Bracton is the civil law and not the common law. Scholarship has proved that of the actual content of Bracton's treatise only one-third shows any considerable trace of Roman influence, and that of that
third a considerable part consists of English material modeled upon a framework of Roman principles. (See 1 Law Quanerly Rwiew, 429, 430.)
Coke is approached in a somewhat pre judiced manner, emphasis being laid not upon his courage and independence but upon his conceit and ambition. We are told that Coke, while a learned common law lawyer, was narrow in his views, and to him the law was a tribal code, while to Bacon it was based upon principles of universal application. To follow the fallacy further, it was through
Bacon that “the jurisprudence of Rome- was under the name of equity established as the supreme law of England." An apparent inconsistency follows when Mr. Hughes, having given Bacon the credit for the estab lishment of the Roman law as the law of the land, declares (p. 33) that the legal profession, imitating Coke's course in his Institutes, "buried themselves" in the common law, and "have remained buried to the present day." The writer's mode of avoiding this apparent inconsistency, however, is by mini mizing the importance of legal precedent. Apparently he would have lawyers thrust aside precedent for principle. So much for the historical fallacy. It will thus appear that Mr. Hughes has not written, to be strictly accurate, a work on the grounds and rudiments of American law, but rather what might be called an essay on the doctrines of Roman law as illustrated by American leading cases. Yet as a work on the latter topic the volumes are by no means satisfactory. There is an offensive lack of proportion, far too little space being allotted to the substantive law and far too much to the procedural to pre serve proper symmetry of treatment. More over, the author has built his work up around a nucleus of civil law maxims, consequently there are many important doctrines of the
in the face of these
criticisms,
Mr. Hughes’ work does,
even
the
however, evince
laborious sifting of leading cases and abounds here and there in excellent reasoning. He evidently has the faculty of treating special subjects in an illuminating manner, even if he lacks a sense of proportion in assembling a group of subjects in proper relations, and
even if he may fail sometimes to distinguish fundamental from secondary rules. In his volume entitled “Datum Posts" will be found an alphabetical digest of leading cases tersely stated and accompanied by notes of less important cases, a feature which may have some practical utility. But the sub
stitution in the two volurna of ‘_‘Text-Index" of an alphabetical arrangement for a scientific classification of topics, however, is a serious defect in a work of such aims, and the typog raphy of all four volumes is of a cheapness unworthy of the text. It is with pleasure that we turn from this unacademic and only partly successful attempt to state the fundamental principles of our jurisprudence to a liberal-minded, scholarly volume like Professor Vinogradofi's “Lectures on Roman Law in Medieval Europe." These five lectures were delivered in the spring of 1909 at the University of London, and are
now issued in a small book of pocket size. Each lecture is prefaced with a list of bibli ographical sources, but Professor Vinogradofi everywhere leaves the impression of direct first-hand contact with original documents. He has compressed a vast amount of pithy information into a small space, and he presents it in a style which though learned is readable and unpretentious. The varying vicissitudes with which the decadent Roman law met in different countries in the Middle Ages in Italy, in France, in England, and in Germany, its "reception" in the two former being fairly easy, while that in the two latter was slower and less complete, are written about in a non-controversial spirit, with a happy freedom from that bias against barbaric usages which mars so much modern literature dealing with the Middle Ages.
