Page INTERPRETATION IN ROMAN LAW. By James Williams 223 NEGLIGENCE, The Law of. By Almaric Rumsey NEWFOUNDLAND FISHERIES DISPUTE, The. By Alexander ... ... ... ... 129 ... 301 Robertson ... PRIMITIVE SOCIETY: The Horde Theory. By J. M. Gover 374 QUARTERLY NOTES: THE HOME SECRETARY AND THE PREROGATIVE OF MERCY... ... ... ... ... THE STATE AND MODERN PRIVATE LIFE TRIED PRISONERS THE BANKRUPTCY BILL, 1890 ... 87 THE PUBLIC TRUSTEE BILL, 1890 ... LEES, Small Debt Amendment Act (Scotland), 1889 LINDLEY, Partnership (5th Edition) OWEN, Declaration of War PARSONS, Principles of Partnership ... 167 RINGWOOD, Outlines of Law of Torts QUARTERLY DIGEST OF ALL REPORTED CASES. Lomax, M.A., Barrister-at-Law. THE LAW MAGAZINE AND REVIEW. No. CCLXXIV.-NOVEMBER, 1889. I. THE STATE AND PRIVATE LIFE IN ROMAN THE LAW. HE theory of State absolutism was not carried as far at Rome as it was in the Greek States and in the ideal commonwealths of Plato and Aristotle. There was, for instance, at Rome no public system of education, no fettering of choice in marriage by allowing it only as a contract entered into by the intervention of the State, there were no syssitia as at Sparta, and there was no artificial cultivation of moral virtue, as recommended by Aristotle. The physical difference between the small Greek State and the all-embracing Roman Empire is at the root of most of the differences in policy. The maxim of Aristotle oi vóμoi ἀγορεύουσι περὶ ἁπάντων* would hardly have been accepted as good law by a Roman jurist, unless with a necessary extension of vóμo to include boni mores.† Boni mores as a ground for the intervention of, at first the family and the clan, later the State,‡ rested on precedents of the highest antiquity, for instance in the superseding of private vengeance by public prosecution, in the limitation of the excessive exercise of the potestas over both women and children and slaves, and in certain provisions of the XII Tables dealing with sumptuary matters. The importance of the moral *Ethics, v., 1, 13. + See Muirhead, Roman Law, p. 21. The late Professor Hearn was of opinion that one of the main influences of Christianity was to supersede the clan by the State. Aryan Household, P. 45. INTERPRETATION IN ROMAN LAW. By James Williams Page 223 ... 129 PRIMITIVE SOCIETY: The Horde Theory. By J. M. Gover 374 QUARTERLY NOTES:- THE HOME SECRETARY AND THE PREROGATIVE OF MERCY... ... ... ... THE STATE AND MODERN PRIVATE LIFE ... ... : COUNTY COUNCILS AND COUNTY COUNSEL TRIED PRISONERS THE BANKRUPTCY BILL, 1890 THE PUBLIC TRUSTEE BILL, 1890 ... 87 90 94 ... 193 LEES, Small Debt Amendment Act (Scotland), 1889 95 ... 297 ... 411 104 300 ... 103 ... 104 298 ΙΟΙ ... ... ... 299 QUARTERLY DIGEST OF ALL REPORTED CASES. Lomax, M.A., Barrister-at-Law. ... By C. H. 296 THE LAW MAGAZINE AND REVIEW. No. CCLXXIV.-NOVEMBER, 1889. I. THE STATE AND PRIVATE LIFE IN ROMAN THE LAW. мая HE theory of State absolutism was not carried as far at Rome as it was in the Greek States and in the ideal commonwealths of Plato and Aristotle. There was, for instance, at Rome no public system of education, no fettering of choice in marriage by allowing it only as a contract entered into by the intervention of the State, there were no syssitia as at Sparta, and there was no artificial cultivation of moral virtue, as recommended by Aristotle. The physical difference between the small Greek State and the all-embracing Roman Empire is at the root of most of the differences in policy. The maxim of Aristotle of vóμol ἀγορεύουσι περὶ ἁπάντων* would hardly have been accepted as good law by a Roman jurist, unless with a necessary extension of vóμo to include boni mores.† Boni mores as a ground for the intervention of, at first the family and the clan, later the State, rested on precedents of the highest antiquity, for instance in the superseding of private vengeance by public prosecution, in the limitation of the excessive exercise of the potestas over both women and children and slaves, and in certain provisions of the XII Tables dealing with sumptuary matters. The importance of the moral *Ethics, v., 1, 13. + See Muirhead, Roman Law, p. 21. The late Professor Hearn was of opinion that one of the main influences of Christianity was to supersede the clan by the State. Aryan Household, P. 45. element appears perhaps most strongly in the infliction of punishments depending for their force on the social sanction, and falling peculiarly within the jurisdiction of the censors during the Republic, and afterwards of the Emperor as parens patriæ. The nota censoria gradually hardened into positive law, and infamia was recognised in the Edict,* though probably not until after its limits had been settled by the censors.† Punishments of this kind were sometimes the result of crimes or fraudulent or dishonourable conduct, sometimes only of a breach of boni mores, such as lack of the obsequium due to a parent or patron, or (at any rate in the case of the nota censoria) even for bad cultivation of land.§ Accustomed thus to regard the State as affecting with the legal sanction matters which in English-speaking countries are generally left to be regulated by the social sanction, the subjects of the Roman Empire, even at the time of the legislation of Justinian, were more "governed" than would have seemed expedient to an average English lawyer. Utilitas publica præferenda est privatorum contractibus¶ is a necessary maxim of Law, it is the interpretation of utilitas which will cause the principal differences in the law. Roman Law regarded mainly the utilitas, English regards as final privatorum contractus, as long as they are not abso * Dig. iii., 2, 1. + See Valerius Maximus, ii., 9. He calls the censorship pacis magistra custosque. Dig. xxxvii, 15, 2; Cod. vi., 6. Reverentia is used in a similar sense in Cod. viii., 47, 5, for the conduct due from a daughter to a father. § Dict. of Antiquities, s.v. Nota Censoria. The different functions of Prudence, Probity, and Beneficence had not then been analysed by any Roman Bentham. That they are not always distinguished even at present is obvious after a glance at the Constitution of the State of California, analysed by Professor Bryce in his American Commonwealth. ¶ Cod. xii., 63, 3. Compare the similar maxim of Dig. ii., 14, 38, jus publicum |