ORTOLAN'S IIISTORY OF ROMAN LAW.*
Is M. Ortolan's a text-book which satisfies the wants of an English lawyer commencing the study of Roman law ? To answer this enquiry and to give the reasons for our answer is the object of the present review.
The only reply which can with honesty be given is that the History of Roman Law, though the work of a man of high reputa- tion, and though marked by considerable merits, is not a book which meets the needs of the large class of English students who, impressed with a vague faith in the merits of Roman law, wish to add to their faith-knowledge. In saying this we have not the least desire to underrate M. Ortolan's merits. His work exhibits great knowledge of the subject, and though, no doubt, he may here and there commit errors, there are certainly very few persons in England qualified to point these errors out, audit may probably be taken for granted that M. Ortolan's assertions are, in ninety-nine cases out of a hundred, correct, and that any actual mistakes into which he may have fallen are not clips of a kind which an ordinary critic is likely to discover. It must also be added that M. Ortolan writes in a clear, if not always very accurate style, and that the character of his writing seems to be fairly reproduced by his translators. But when all this, and even more, is conceded, it still remains, in our opinion, true that M. Ortolan's book is not at all the work which can with great advantage be recommended to an English student. M. Ortolan, with all his learning and clear- ness, has the one great defect that be wants the power to grasp his subject in a way which enables him to present its main points clearly and forcibly to the reader, and since what a learner needs above all things is, first, a clear and accurate statement of the general principle of Roman law, and next a distinct view of the main steps in the growth of the legal system of Rome, he will hardly get from M. Ortolan's diffuse and not very clearly arranged work exactly the kind of help which a beginner needs.
It is, indeed, a little hard to justify a criticism of this kind, since it rests not so much on the view taken of particular passages in
", The Ifiatom of Roman Law. From the Text of Ortotan'e Ristoire de la Ligtielation Romaine et Generalieation du Droit. Transhusa, with the author's permission, by Iltudua 3. Pritchard, Esq., F.B.8.; and David Nammitb, Esq., L.L.B. London: Butterworth. 1871.
the work, as upon the general impression left on the mind by the treatise as a whole. Still something may be done, if not to prove the truth, at any rate to show the meaning of our criticism, byexanna- leg one or two points in which the kind of feebleness which is M. Ortolan's radical defect is conspicuously apparent.
Let the reader take, first, what appears somewhat strangely at the end of the volume, instead of, as one would have expected, at the beginning,—" the generalization of Roman law," by which is meant a summary statement of the principles on which Roman law rests. There is, to begin with, a certain element of confusion introduced into the subject, from its not being made absolutely clear whether the " generalizations" are intended to be merely the principles actually adhered to by Roman lawyers, or the principles ou which, according to M. Ortolan's view, a sound view of law ought to be based. A far graver defect is that the so-called principles or rules are often hopelessly vague, and often, when they embody a precise idea, the notion is stated in language which is, to say the least, calculated to mislead. Thus the first rule laid down is "that Roman law must be studied as Roman law in its aspect, its language, and its genius," and this rule, vague enough, in all conscience, if it can be called a rule at all, is followed by half a page of what is supposed to be explanation, but is in reality second- rate declamation ending in the dictum, " the first essential of his- tory is truth." So, again, M. Ortolan thus states the all-important distinction between real rights and personal rights. "A personal right is that in which a person is individually the passive subject of it, a real right is that in which no person is individually the passive subject of the right." The language here, which, how- ever, is varied in other passages, is calculated to give very little information to the English student, who would, we suspect, never discover that a personal right or right in personant is simply a right available against a definite person, e.g., the right which A has against X, his debtor, that X shall pay him £20, whilst a real right or right in rein is a right available against the world generally, e.g., the right which A has that neither X, Y, nor anyone else shall assault him. But though it is lamentable to sea a distinction which Austin has made as clear as day stated in a most confused manner, there is no doubt that M. Ortolan fully sees the importance of the distinction, and we should not have commented on the terms in which it is expressed, had it not been for a remark which makes it doubtful whether he had fully mastered the distinction upon the importance of which he was insisting "It is an error to imagine, however, that personal rights do not exist in a community, in relation to all men, as well as real rights. If another man owes me money, the thing is true, not only as regards the debtor, but as regards all other men. 14ly right as a creditor has an existence, and is part of my fortune as such in relation to other men ; it will be protected, if necessary, should a third party attempt to deprive me of it. But, besides the general community, my debtor is, individually, the passive subject of that right. In the case of real rights, on the contrary, no person, except the general community, is Individually passive."
In this passage a statement is made which is either actually erroneous or certain to suggest an error. Turn it which way you will, the right of A against X. to be paid £20 by him is a right against X only. It is not a right against the community, though the existence of this right may entail the existence of other rights against the world generally. X should not be hindered from pay- ing,- or be induced not to pay A; but this right is totally distinct from A's right against X, and any attempt to represent personal rights as rights against the general community is certain only to
confuse the essential distinction between rights in persona in and rights in rem.
It should be noticed that the apparent looseness of Al. Ortolan's expressions when dealing with legal principles is occasionally due not to the author, but to his translators. Thus, one is astonished to see it laid down that every right is engendered by an act, but astonishment ceases when one discovers that M. Ortolan's language is " fau," which certainly ought to have been translated "fact," not "act." So, again, an obligation is defined by the English translators as "the legal necessity imposed by one person towards another to make a payment," This definition is much too narrow, if the word "payment" be taken in its ordinary English sense but is quite intelligible when it is observed that payment is meant to be the translation of the word " prestatiou." These errors may not be great in themselves, but lead students into grave mistakes, and suggest that the translators of M. Ortolan are not aware of the necessity for precise accuracy in translating technical expressions. The main part, however, of the History of Roman Law consists of history, and not of the enunciation of legal principles, and there is no doubt that M. Ortolan appears in a more favourable light as a legal historian than as a jurist. His great knowledge and his easy style can be here fully displayed, and diffuseness of language, as well as laxity of thought, are of less importance in historical narration than in the definition of principles. Still, here, as else- where, his characteristic vices appear. You can, for one thing, never tell whether he is writing a history of Rome or a history of Roman law, and like almost all the writers greatly influenced by Niebuhr, he displays a tendency to dwell at most unfortunate length on early Roman constitutional history,—a portion of his- tory which must, from its nature, be the field for futile conjectures on which it is impossible to base any sound inferences. The truth, indeed, seems to be that what little can be known of the early state of Rome must be chiefly known by examining into the nature and history of Roman law, whilst comparatively little light can be thrown on the progress of law from the few problematical facts eked out by bold conjectures which make up the mass of early Roman history. Still, though we confess to a very limited interest in the real or imaginary reforms of Servius Tullius, we should have little objection to M. Ortolan's wandering into the mist of early Roman history, did he link firmly together and bring into a clear view the facts which mark the progress of Roman law. As far, indeed, as his knowledge goes, there is no ground for com- plaint. Anyone who already knows something of the history of Roman law from other sources will easily see that M. Ortolan knows most of what is to be known, but the duty of a teacher is not only to know, but to bring forth his knowledge and impress, it on others, and in this respect M. Ortolan fails. His failure arises in part from what we may with strict accuracy call the preposterous plan of placing first the history and the principles of which this history is supposed to show the growth. The three points beyond all others which ought to be impressed upon students, and which, for instance, such a writer as Packta brings out with most admirable precision, are, first, the progress in all the departments of Roman law, from the rule of forms to that of principles ; secondly, the position of the juris prudentes ; and, thirdly, the almost unique position occupied by Roman magis- trates. On all these points much valuable information is to be found in M. Ortolan's book, but an ordinary student might read it without realizing the importance of any of the three topics to which allusion has been made. The last point especially, the position of the magistrates, who combine some of the merits both of laymen and lawyers, and who, subject to the restraint exercised by election for a short period, and by the co-ordinate power of their colleagues, wielded almost unlimited powers with- in their own sphere, is of supreme importance, both as being in some respects the source of the progressive character of old Roman law, and as throwing great light on the real character of the Empire, which, looked at from some points of view, was not so great an innovation on Roman customs as at first it might appear.
An intelligent reader might, it is true, get considerable instruc- tion from M. Ortolan, though he might with less trouble get the same information from other works. But when it is remembered that all readers are not iutelligent, and almost all students are some- what careless in reading, it will, we suspect, hardly be contested that M. Ortolau, with his wordy style and lax mode of thought, is not an author whose books can with advantage be placed in the haudis of young men reading for the Bar.
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