particular form which the law for the time being in actual force may assume. There are a number of tools, so to speak, which no working jurist can dispense with, and the Pandects were the workshop where these tools of the science of law were manufactured, stored, and carried to ever greater perfection."

It is gratifying to observe the progress made by Roman law in England in recent years. Its academical study, which, according to Professor Holland, died away by the middle of the eighteenth century, 'has been revived, and (not to mention Mr. Ledlie's admirable translation of Sohm's Institutes, the new edition of which has been already noticed) the works of Moyle, Poste, Hunter, Muirhead, and Holland, to say nothing of the great name of Sir Henry Maine, sufficiently attest the reality and vigour of the revival. We would not for one moment be supposed to minimize the importance of a sound practical and theoretical knowledge of modern law, but the value of Roman law, as furnishing a mental discipline, cannot be too strongly insisted on, especially when we remember that it is no mere collection of archaic rules, interesting only to the antiquarian, but a great legal system that has formed the groundwork of the laws of most of the States of Europe, besides serving as the foundation upon which the science of International law has been built up.

In reverting to the second English edition of Professor Sohm's Institutes we may be permitted to make the following observations. The learned author informs us (at p. 479, n. 2), in discussing the interdict de liberis exhibendis, that Antoninus Pius "bene concordans matrimonium separari a patre prohibuit" (Pauli Sententiæ, v. 6, 15). Professor Sohm does not refer to an extract from Ulpian (D. 43, 30, 1, § 5), from which it appears that the father was not to be permitted to destroy an harmonious union between husband and wife by a wanton exercise of his paternal power. Moral suasion, however (at any rate in the first instance), was to be the instrument employed if the father attempted to recover the custody of a married daughter by means of

the interdict de liberis exhibendis. Ulpian evidently has in his mind the rule of A. Pius before referred to.

Again, referring to the interdict de liberis ducendis, Professor Sohm says that it lay where the third party did not himself claim power over the child, but merely appeared as the child's "defensor," for the purpose of objecting to the father taking him home (pp. 503-4). Professor Sohm, however, has omitted to say that this interdict appears to have been granted as a kind of sequel to the interdict de liberis exhibendis, and that it forbade the employment of violence with the object of preventing a father from taking away a son whose production had already been ordered by the last-named interdict; "deinde ait Praetor: si Lucius Titius in potestate Lucii Titii est, quo minus eum Lucio Titio ducere liceat, vim fieri veto. . Itaque prius interdictum, quod est de liberis exhibendis, præparatorium est hujus interdicti; quo magis enim quis duci possit, exhibendus fuit" (Ulpian, in D. 43, 30, 3, pr. 1.).

We observe that Professor Sohm is of opinion that res mancipi were, in the earliest times, things that could be held in separate ownership, things capable of being taken with the hand, i.e., moveables, and that in the historical period they represented "the privileged things of early Roman law, the things which were regarded as constituting the staple of the farmers', and, at the same time, of the nation's property." (v. §§ 9 and 59.)

We now propose (before concluding the present article) to make a few remarks on Mr. Kelke's little epitome of Roman law. Though it is obviously only designed for the use of students at the Universities and Inns of Court, it, nevertheless, contains a great deal of valuable information in a

1 "Quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat."

2 An Epitome of Roman Law. By W. H. Hastings Kelke, M.A. Sweet and Maxwell.

London:

very accessible form. We venture to make the following criticisms-At p. 15 Mr. Kelke says that the judex "decided issues of fact." What about a formula in jus concepta? Again (at p. 26), he describes Bonitarian ownership as "actual possession;" this is rather inadequate, if not actually misleading. At p. 142 the Proctor is said to have granted bonorum possessio of half freedman's goods to patron "as against intestate's children "; it ought to be as against intestate's adoptive children" (v. Gaius iii. 41, Inst. 3, 7, 1). At p. 184 we notice a serious mistake: the author says that in the actio de peculio et in rem verso the principal, provided he had profited in fact, was liable, but only to the extent of so much of the peculium as was invested in the business (mcrx peculiaris). This is incorrect; so far as the principal had profited, in fact he was liable in solidum; so far as he had not profited in fact he was liable to the extent of the peculium, not merely to the extent of so much of the peculium as was invested in the business (mera peculiaris). Vide Inst. 4, 7, 4. Again, at p. 196, culpa in abstracto is put for culpa in concreto, and vice versa. Again, at p. 203, Mr. Kelke says that condictio indebiti did not lie in cases where a false denial of liability doubled damages, nor in the case of certain legacies; but the legacies he refers to are instances of lis crescens (vide Dr. Moyle on Inst. 3, 27, 7). We would recommend Mr. Kelke to make a careful revision of his book on the first opportunity. Subject to these oversights it is remarkably full and clear. Again (at p. 239), it is stated that the interdict utrubi "was granted to him who at date had had longest possession in immediately preceding year;" the condition "nec vi, nec clam, nec precario ab adversario” is omitted (vide Inst. 4, 15, 4). At p. 241 we are informed that under Justinian, "so-called interdict was mere preliminary step, like Eng. 'interlocutory Order,' in course of ordinary action for possession." It would be more correct

to say that in the time of Justinian the interdict was an ordinary action (vide Moyle, on Inst. 4, 15. Sohm, p. 310).

We observe that Mr. Kelke adopts the view that in jure cessio, as a form of conveyance, was not so old as mancipatio; also that he holds that res mancipi were the "usual objects of commerce among primitive agricultural proprietors."

The concluding "notes on words and phrases," and the appendix-containing references to authorities, analysis, and tables of events, jurists, emperors, laws, &c.—are likely to prove of great assistance to students.

T. W. MARSHALL.

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V. THE ORIGIN AND HISTORY OF THE KING'S BENCH DIVISION.

IN

N England, as in other countries which either wholly or in part adopted the Feudal system, a standing council assisted the Sovereign in administering justice, managing the revenues and generally transacting the business of the State. Called in this country the Curia Regis, it corresponded in many respects to the Cour de Roy, an ambulatory court evolved under Hugh Capet out of the ancient French Parliament, which became a fixed tribunal when Philip the Fair in 1302 located one branch in Paris and another at Toulouse. Similar, too, in many ways, were the Aulic Council of the German Empire, and the Curia Regis of Scotland, from which in later times emerged the Courts of the Exchequer for fiscal, Session for civil, and Justiciary for criminal matters.

The English Curia Regis gave birth in a somewhat similar manner to the three great Courts of Common Law -the King's Bench, the Common Pleas and the Exchequer which are now united and merged into the King's Bench Division of the High Court of Justice. The early history of those courts is surrounded with difficulties.

For one thing, the general term Curia Regis is an exceedingly confusing one. It is used indiscriminately to denote the Common Council of the realm, which for present purposes may be called the Curia Regis A: the select council, with duties both of an administrative and judicial character, which may be called the Curia Regis B: andat any rate from the reign of Henry II.— the King's Bench, which may be called the Curia Regis C. But what makes the matter yet more complicated is that each, even after its separate existence, still at times arrogated to itself the name of Curia Regis, while the King had so free a hand in such matters that more than one experimental system was tried by Henry II. As an explanation, however, it must be remembered that in all early constitutions the distinction between the administrative and judicial functions was exceedingly vague; and thus it happened that the Curia Regis B-which, as a matter of fact, was little else than a standing committee of the Curia Regis A - not only combined those functions, but was, in addition, a legislative assembly. Still, vast as its powers were, it was not in those days regarded as an anomaly. For, as in the case of the King, it was considered only natural that it should perform those different and conflicting duties. To its existence, in any case, nearly all the administrative and judicial institutions of this country owe their origin.

At the time of the Norman Conquest, the judicial systems of the two races had little in common. The main feature of the Norman was centralisation, and of the Saxon, decentralisation. Yet their system of procedure had this in common. Neither had yet emerged from the primitive stage in which supernatural intervention was sought for in difficult cases. Our first Norman King, however, interfered with existing Saxon institutions no more than he considered necessary for the establishment of his authority,