POSTE'S GAIUS.*
A SCHOLAR who at this moment produces an edition of Gains for English readers performs an important duty. The immense sale of Mr. Austin's lectures, the success of Mr. Maine's brilliant essays, the appearance within two years of two English versions of Gaius, show that the apathy of the public with regard to speculative jurisprudence is passing away, and is likely to be followed by a lively interest in the study of Roman law. What is needed to turn this change of popular feeling to useful account is the appearance of competent instructors able to render the specu- lations of foreign jurists intelligible to English lawyers, who are now quite prepared to admire Roman law if they can find any- one to introduce them to the object of their ignorant admi- ration. A person, therefore, who comes forward to expound one of the most remarkable relics of Roman jurisprudence undertakes, as we have said, an important duty. The ignorance of his disciples places him at some disadvantage, for he must explain matters which, were his audience more cultivated, would need no explanation ; but the fact that his readers are uninstructed gives a great writer a specially good opportunity for displaying his powers, and enables him to render great services in the cause of legal science. An editor of Gaius incurs, in short, great responsibility, but also enjoys a grand opportunity. No one who knows Mr. Poste even by reputation can doubt that be is in many respects admirably qualified to perform the part he has undertaken, and turn to full advantage the great position which he occupies. The few works he has already published have given readers a high opinion of his powers, and he is known to have long made Gains the subject of his special attention. It is, therefore, impossible for the small but certainly increasing class of persons keenly interested in scientific jurisprudence not to form very high ex- pectations of an edition of Gaius published at the present time by Mr. Poste. Our object is to examine how far he has satisfied these expectations. We judge his work, we admit, by a high standard, and if we are compelled to pronounce it not an entirely satisfactory production, we would remind our readers that works which might command applause when corning from an inferior hand may be fairly open to criticism when pro- duced by an author who, like Mr. Poste, must in fairness be con- sidered a master of his subject.
Mr. Poste produces an edition of .Gaius for students, who, as a general rule, know little either of jurisprudence or Roman law. He is therefore compelled, and this must always be borne in mind in criticizing his work, to combine the two characters of a lecturer on jurisprudence and an editor of Gains. The necessity for the combination is a misfortune, but it is a misfortune for which Mr. Poste is in nowise responsible, and which, it must be added, enables him to show his peculiar intellectual merits. If, in fact, we were to sum up in a sentence the general impression which his book makes on our minds, we should say that he was an admirable teacher of jurisprudence, but an unsatisfactory editor of Gains.
As a jurist he certainly does his work extremely well. He has made himself acquainted with all the best writers on his subject, and has, in the few cases in which we possess the knowledge necessary to compare him with the authorities from which he draws, thoroughly mastered their best thoughts, and expressed them in general with great felicity ; indeed, we can only regret that he has not thought it worth while to refer in detail to the works of the authors to whom, in general terms, he candidly enough admits his obligations. When we observe that Savigny thinks it desirable in each chaper of his Obligationenrecht to refer the reader to the main authorities on the topic treated of, we confess to surprise that Mr. Poste has not seen how much he would have increased the worth of his book by following so illus- trious an example. But we do not for a moment mean to impute to him want of originality as in any sense a fault. His business was to master the great writers on Roman law, and present their speculations to the public. This task he has performed thoroughly well, and certainly on some occasions improved upon his teachers a great deal. For instance, when he writes what is avowedly a re- production of Mr. Austin's speculations, no one can doubt that Mr- Poste is much easier reading than Mr. Austin. Nor, again, is there any want of fertility or freshness of thought on Mr. Poste's part. He is, for example, extremely happy on the very per- plexed subject of status. The topic is one on which even Mr.. Austin falls (if we may venture to say so) into confusion, but all the difficulties connected with it are so happily cleared up by Mr. Poste's * Gaii Institutionum Jar& Civilis Commentarit Quatuor ; or, Elements of Roman lase by Gaius, with a Translation and Commentary. By Edward Poste, M.A., Barrister-at- Law, and Fellow of Oriel College, Oxford. Clarendon Press. 1871. doctrine that while " the law of persons considers men as unequala, the law of things considers them- as equals," that we can pardon the immense capitals in which, after the manner of Charles Reade, he prints the words " equals " and " unequals." Again, we have read few things better of their kind than Mr. Poste's disquisition on the distinction made by Gains between things corporeal and things in- corporeal. The division, itself probably much older than the time of Gains, has been and still is the source of endless perplexity, and we have no doubt whatever that the origin of all the confusion is, as Mr. Poste well points out, the ambiguity of the term res, which signifies either a right or the subject of a right, or, in other words, either a man's right over his lands or goods, or the lands or goods themselves ; indeed, this confusion of ideas has become, as it were, permanently embodied in the English word " property," which (in addition to some other ambiguities) is, even by good writers, used indifferently for the things which a man owns or for his rights over those things. It would be easy to add other specimens of the neat- ness and skill with which Mr. Poste often discusses and elucidates different questions of jurisprudence, but there is the less need for drawing attention to this feature in his work, as it is just the kind of merit which the general reader is certain to notice. We are also bound in honesty to add, that even as a writer on jurisprudence Mr. Poste exhibits a curious laxity of expression, which, though it sometimes makes his pages easy reading, certainly occasionally ren- ders his statements by no means accurate. Let the reader, for instance, turn to Mr. Poste's description of the all-important dis- tinction between rights in rem and rights in personam, which Mr. Poste has, it is scarcely necessary to say, fully mastered. The reader if at all critical will, we suspect, find one or two matters for -censure. In the first place, the reference to /Eschylean furies is absurdly out of place in a dry disquisition about different kinds of rights, and looks for all the world like a reminiscence from some piece of fine writing in the essay which Mr. Poste must have composed when standing for a fellowship ; but after all, the appropriateness of these lines is a question de gustibus, and hardly worth raising. Further observation betrays an error of a much more serious character. A jus in personam is defined by Mr. Poste as a "right correlating with obligations at once particular and positive." Now if the words are taken strictly, there is here a distinct mistake, for a right against a particular person may just as well correlate to a negative as to a positive obligation ; e g., X may agree with A. either to teach A surgery or to abstain from exercising the profession of a surgeon in a particular parish. In either case A's right is a right in personam, but in the one case the obligation on X's part is positive, in the other it is negative. We do not for a moment accuse Mr. Poste of ignorance ; he fully understands the distinction in question, and some ten lines before the sentence quoted uses perfectly correct expressions in describing it. Nevertheless, he constantly talks as if rights in personam were necessarily rights to acts rather than to forbearances, and thus uses language certain to mislead ignorant readers, and which to our mind betrays a laxity in the use of words which occasionally, as in a note upon fictions (p. 427), makes his statements deplor- ably confused, and is the source of almost all the errors we have to object to in his performance of the duties which are those rather of an editor and translator than of a writer on jurisprudence.
Mr. Poste is not only the editor, but the translator of Gaius, he therefore undertakes, in common with the editor and translator of -every classical work, both to explain the knotty points presented by the language of his author, and to set him as far as may be before the reader exactly as the author really appears ; in other words, Mr. Poste's duty ia, to our minds, a perfectly plain one, and is to tell us what Gains says, and when necessary, why he says it. Now two merits Mr. Poste, looked at even as an editor, indubitably possesses. He is a thoroughly good scholar, and as little likely to misunderstand Gains as any person by whom Gahm is ever likely to be edited. Indeed, we are perfectly willing to admit that Mr. Poste rarely misunderstands his author, and that in any case in which we feel inclined to doubt his having understood the original, he is more likely to be in the right than this critic. His second merit is that, on the whole, his explanatory notes and comments are good, though occasionally they are extremely scanty. It is, for instance, difficult to explain, without imputing considerable negligence to Mr. Poste, how he can have passed over the topic of res mancipi, with very scanty com- ment upon a subject which has given rise to perhaps as much in- teresting discussion as any one problem in Roman law. But when Mr. Poste's merits, even as an editor, are admitted, it must be also stated that his work as a translator is marred by one grave defect, which (as it is certainly not the result of ignorance) may be described by the graver term of an inexcusable fault. The
fault is simply this, that he does not take the least pains, even where very little pains are needed, to represent the meaning of Gains in the words which Gains uses. What purports to be a translation is neither more nor less than a not very carefully ex- pressed running commentary. To show what we mean, let us take a case where there is no dispute whatever as to what Gaius means, and see how Mr. Poste renders his meaning. Gaius is describing the causes which led to the disuse of the older forms of action in language which might almost literally apply to the state of English pleading before the Common Law Procedure Act of 1852 :—" Sed istax legis actiones paulatim in odium venerunt. Namque ex nimia subtilitate veterum qui tune jura condiderunt eo res perducta est, ut vel qui minimum errasset Mem perderet. Itaque per legenz (Ebutiam et duas Julius sublatax sunt istax legis actiones effectumque est, ut per concepta verba, id est per formulas litzlqaremus." (p. 423.) Now hear Mr. Poste :— " But all these actions of the law fell gradually into great discredit, because the over-subtlety of the ancient jurists made the slightest error fatal, and they were abolished by the lex (Ebutia and the two leges Julia', which introduced in their stead the system of formulas or written instructions of the praetor to the judex." Now observe that we have here, it is true, no distinct error, but the translation does not say what Gains says, and says what Gains did not say. Gains, for example, tells us that " things were brought to that pass that the party who made even the least error lost his suit." Mr. Poste tells us that the " over-subtlety of the ancient jurists" (rather a summary translation, by the by, of the words of Gains) " made the least error fatal." Mr. Poste, on the other hand, tells us something about the prmtor and the judex, neither of whom is mentioned by Gaius ; Gaius, again, tells us that the actions were abolished "because" of the over-subtlety which had prevailed. Mr. Poste fails to render the word itaquc, and thus breaks the whole logical connection of the passage. Of course if this case were a single one it would not be worth mentioning, but it is a perfectly fair specimen of the whole style of Mr. Poste's translation. The effect of Mr. Poste's laxity is that Gains, one of the clearest, most logical, most precise of writers, is presented to the ordinary English reader—and no one but a person who does not understand Latin can really need the translation— as a diffuse, slipshod writer, who falls into the error, too common among English authors of the present day, of disconnecting each sentence from those which precede or follow it. Nor is it the only evil of Mr. Poste's rendering that it does not reproduce the characteristic style of the original. It has the further defect that it often substitutes for the precise assertions made by Gaius statements which, though true, are pre-eminently vague and un- satisfactory. "But in some actions," writes the Roman commentator, "the prmtor gives formulas, both of law and of fact, as, for example, in the actions of deposit and of loan for use." " Some actions," says Mr. Poste, " may be instituted by formulas, either of law or of fact, as, for instance, the actions of deposit and loan for use." It is at least an open question whether the sense of the original has been fairly given, but even granting that it is rightly rendered, any critic of the least accuracy of mind must feel that there is the widest difference between the precise assertion "prsetor formulas proponit" and the vague phrase, "actions may be instituted." The truth is Gains writes like a practical lawyer, and his translator like a modern scholar who understands Latin, but has no notion of the importance of precision and a3cu- racy in legal statements. We should, indeed, have dwelt much less strongly on Mr. Poste's shortcomings were they attributable to ignorance, but it is quite manifest that their cause is not ignor- ance, but a theory of translation which is, to say the least, quite inapplicable to works on law. This theory is, we take it, that the object of a translation should be to give the general sense of an author in readable modern English, and not, as far as possible, even at the risk of crabbedness, to repeat the very words he uses wherever such repetition is possible. On this view, a translator's object is not so much to repeat what Gaius actually wrote, as to give us what he supposes Gaius would have written if he had been addressing English readers of the nineteenth centuary. Now this view of a translator's duty is, if not the best, certainly a maintainable theory, when applied to the rendering of poems or other works of imagination, but is palpably absurd when applied to the transla- tion of a treatise on law. When so applied it produces two most injurious effects. In the first place, it fails to give the reader any real conception of the original writer's style or mode of thought. In the second place, it inevitably leads a person who trusts to the translation to attribute to the original author statements which are at best merely the most plausible explanations of his meaning.
We have spoken throughout in the plainest terms both of the merits (which are very conspicuous) and of the demerits (which are considerable) of Mr. Poste's performance. In parting, however, from his book we wish distinctly to state that it is a work which in spite of the defects with which it is marred will confer great benefits on English students of Roman law. If it is not all that an edition of Gains might be, it is still an edition of a great writer brought out by a very scholarly and intelligent editor. No doubt, young men who wish to be jurists without the trouble of becoming lawyers may use the work to their own ruin, and cram up from its pages a little superficial knowledge about jurisprudence, and a little still more superficial knowledge about some points of English law. But any sensible student may derive solid benefit from the book. Even the translation, though objectionable as a translation, is often good as a commentary, and we entertain great hopes that in the future editions which the work is certain to pass through Mr. Poste will take an opportunity of either omitting the transla- tion altogether, or of so altering it as to make it more of a transla- tion and lees of a running commentary.
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