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AN INTRODUCTION

TO THE

STUDY OF JURISPRUDENCE;

BEING A TRANSLATION OF THE GENERAL PART OF

intere Fredich. Justus

THIBAUT'S SYSTEM DES PANDEKTEN RECHTS.

With Notes and Illustrations

By NATHANIEL LINDLEY,

OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW.

LONDON:
WILLIAM MAXWELL, 32, BELL YARD, LINCOLN'S INN,

Law Bookseller and Publisher.
HODGES AND SMITH, GRAFTON STREET, DUBLIN.

1855.

Forty

LONDON:
BRADBURY AND EVANS, PRINTERS, WHITEFRIARA,

Rec. 4 ct 12, 1577

TRANSLATOR'S PREFACE.

The present work is not of a speculative character, nor does it in any way discuss the principles upon which laws should be founded. Its sole object is to lay before the student the most general of those principles upon which the laws of all countries in fact more or less depend.

The importance to students of English law of some acquaintance with the principles of Roman jurisprudence is no longer insisted upon by a few, but is recognised by the majority of the leading men of the day. The appearance, therefore, for the first time, of an English translation of the best summary of the elementary principles of Roman law which has ever appeared scarcely requires apology. Nevertheless, an explanation of the more immediate objects which the translator has had in view seems requisite, as well to prevent disappointment on the part of the reader, as to justify the translator in the course he has adopted.

Whoever reflects for a moment upon the present condition of English law, and upon the enormous quantity of the materials from which alone a useful knowledge of its actual state is obtainable, cannot fail to see that no person who has to master them will have time at his command seriously to study the details of the Roman, or any other system of jurisprudence. Such a study is itself sufficient to engross the whole time and attention of any person, even if he be endowed with more than ordinary capacity. On the other hand, it is highly desirable, and perfectly feasible, for him who makes it the serious business of his life to study and practise any particular system of law, to possess as part of his general education a knowledge of the leading principles of other systems, and especially of the Roman, the basis of them all.

To an English barrister knowledge of this kind is, no doubt, rather indirectly than directly useful, although its direct use is probably greater than is ordinarily supposed. Indirectly, the greatest advantage to be derived from a study of the Roman law, and of the works of continental jurists, appears to the writer to be the acquisition of a habit of classification, and consequently of duly appreciating points of resemblance and of difference. The great skill with which many of the writers on Roman law have combined and systematised the immethodically arranged contents of the Corpus Juris Civilis contrasts in a striking manner with the defective arrangement observable in the works first placed in the hands of an English student. This observation is not intended to imply that there is no well-arranged English law book, but only that there is no work in which due attention is paid to the distinction between the general and the particular, and in which the great principles of our jurisprudence are so brought together that the more simple precede the more complex, and the most nearly related stand closer to each other than to the more distantly allied. This is the more to be regretted, as from the great subdivision of labour characteristic of our own system, a student is only too likely to be bewildered by the acquisition of particular facts which he is wholly unable to systematise.

Of all the works which have appeared upon the Roman law, there is none of more universally admitted excellence than that of which a portion is here translated. In order that its merits may not be deemed too highly appreciated by one who may be considered an interested witness, the writer transcribes the opinion of Mr. George Long, than whom no person in this country commands or is entitled to more respect upon such matters. “ The two works,” says he, in an introductory lecture to a course on jurisprudence and the civil law, “which I shall chiefly use for my purpose, are the ‘System des heutigen Römischen Rechts,' an unfinished work by Savigny, 5 vols., 8vo, and the System des Pandekten Rechts’ of Thibaut. It is nothing extravagant, when I say, that any praise which could be bestowed on these two works by any man the most competent to judge would not be exaggerated. They are characterised by a soundness of knowledge, clearness of expression, perspicuity of arrangement, and a subtlety and depth of thought that have seldom been equalled by any writer on the subject and cannot be surpassed. The reader is never bewildered with useless distinctions, or deceived by specious generalities, which so often mean nothing; everything has a definite object, and while the mind is filled with knowledge it is prompted to activity and fertilised with suggestions. The general is never conceived without an adaptation to the particular, and the particular is always in its proper place, subordinate to the general.”*

The translation is from the text of the ninth German edition, published after the author's death, and edited by Dr. Buchholtz. The arrangement is that of the same edition, except that $ $ 80a, 806, 80c, 117a, 1171, 1170, 117d, which by the German editor were placed elsewhere are brought back by the translator to the position in which the author left them. The greatest care has been taken to render the author's meaning truly, and where this has appeared doubtful Thibaut's own essays and the references

* Two Discourses delivered in the Middle Temple Hall, by George Long. London : Knight, 1847, pp. 40, 41.

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