dealing with administration actions, than most of such cases would require. Or again, why not adopt the principle that a cestui que trust is absolutely bound, as against innocent strangers, by his trustee's misconduct. That would be an intelligible proposition; though, doubtless, it would work hardly in some cases. It is to be remembered, however, that very powerful machinery for the protection of cestuis qui trustent has recently been set up; and if settlors and beneficiaries do not choose to avail themselves of it, it will be hard to hold them not responsible for frauds on strangers which private trustees may commit. But it must again be pointed out, that the real absurdity of the doctrine on which Pilcher v. Rawlins was decided is best shown by the fact that, up till the last moment, it lay in the power of a rogue to decide, perhaps by the mere toss of a coin, which of two innocent parties should bear the consequences of his fraud. Whatever rule may be right, it seems hardly possible that a rule which leads to such a result can be right.

EDWARD JENKS.

[With regard to the assertion incidentally made by our learned contributor on p. 154, that a cestui que trust of a chattel, having custody and control thereof in fact, has not possession in law, we do not think it acceptable. If he has not possession the only alternative is that he has mere custody like a servant. But the case of a servant has always been regarded as peculiar; the inclination of the Common Law is not to separate possession from physical control. Moreover, the analogy of land held on trust, as to which there is no doubt, leads us to believe that the holder of a chattel as cestui que trust is at common law a bailee at will, and either he as actual possessor or the trustee as constructive possessor (being entitled to resume possession at will) can bring trespass.-F. P.]

157

MODERN ROMAN DUTCH LAW1.

N approaching the subject of my lectures for the legal year which has just commenced, I think it desirable at the outset to give an outline of Roman Dutch law and its history. In order properly to understand and appreciate this law as it exists at the present day, it is necessary to trace it historically, and it is from this standpoint that I shall attempt to treat it. And I venture to hope that I may be able, to some extent at least, to justify the laudable experiment of the Council of Legal Education in making provision for the teaching of one of the most important laws of the Empire.

I.

What is Roman Dutch law, and what is understood by its modern development?

Nowhere can we lay our hands on a book or digest which gives us Roman Dutch law in a form sufficiently concise to give the student a clear and complete idea of the law which the Colonies of Ceylon, British Guiana, and South Africa inherited from the Dutch colonists of the seventeenth and eighteenth centuries. This law is a growth, an historical development, temporarily arrested in its course by political and economical upheavals, then continuing it— though in somewhat other directions-with increased vigour and undiminished vitality.

Of Germanic origin, bred in the towns and Provinces of the Low Countries, it was wedded to the law of the Roman Empire, which first appeared in its Justinian attire, but of late has assumed the modern garb woven from the results of the researches of nineteenthcentury jurists. With ever renewed vigour it enjoys all the privileges of an irrepressible youth.

Its development in the Netherlands 2 may be divided into four periods, of which each possesses its own characteristics.

1. The period of the German tribes. Of this period very little is known with any degree of certainty.

2. The Frankish period. This period begins with the reign of Clovis, during which the Frankish kings succeeded in centralizing

1 An Inaugural Lecture delivered on October 23, 1907, by W. R. Bisschop, LL.D., of Lincoln's Inn, Barrister-at-Law, Lecturer on Roman Dutch law in the Inns of Court.

2 Burge, Colonial and Foreign Law, new edition, vol. i, p. 65 sqq.

their power, and attempted to establish unity of law among the different tribes over which they ruled. Proof of this were the leges -such as the Lex Salica, the Lex Saxonum, the Lex Frisionum, and the Lex ad Amorem-which codified the common law of particular tribes, together with the king's capitularia which were ordinances or statute law for the whole territory over which he reigned, and the collections of formulae and deeds which formed precedents for royal decrees and all manner of instruments. Along with these leges scriptae the King's Courts were established for the administration of the king's law, as distinguished from the tribal customs observed by the People's Courts and called the people's law.

The end of this period was signalled by the loss of the king's power, when the counts-the government officials for the administration of the country-gradually threw off their duties as such and began to exercise their administrative powers as rights which they claimed to exercise in their own name.

3. The period of the growth of independence of the Courts in the Low Countries. In the Netherlands the disintegration of the kingdom (referred to in the second period) markedly manifested itself. In this third period we find a number of counts whose territories were clearly defined. In each of these counties, duchies, seigniories, the law made its distinct development, in each a legal system grew up by itself though each of them showed traces of their common origin. The diversity of customs rendered the general view a kaleidoscopic one. In addition, new Courts were established with jurisdictions to settle disputes regarding particular relations in law or regarding particular classes of the population.

Feudal Courts, manorial Courts, the forum privilegiatum of the noblemen, were instances of separate jurisdictions besides the public Courts of the counts and of the hundreds which administered the landrechten (rural laws), and the Courts of the towns which administered the stadrechten (civic laws). Besides these there were those of smaller pretensions and of minor importance, the baljuwschappen, dijkgraafschappen, schoutambten1.

The law as administered in these diverse communities may be learned from the old privileges which were granted by the authorities. They generally recognized the customary law, and may be found in charters, plakaten, ordinances, and instructions; also in the keuren of town and country containing the rules and regulations made by the civic authorities concerning their own affairs and by

1 For a description of these Courts, vide Kersteman, Holl. Regtsgeleerd Woordenboek, I, Voce Bailliuw, Dijkgraaf; and Fockema Andreae, Bijdrage tot de Nederlandsche Rechtsgeschiedenis, IV, 358 sqq. et seriatim.

the servants of the Crown in the country; and in the personal privileges granted to certain classes of the population.

All these feudal, rural, and civic laws were collected in books, like (a) the books of charters and placards of the different counties. (afterwards called Provinces); (b) the collections of customs and keuren of the towns and other jurisdictions; (c) the collections of old judgments, of charters and formulae; (d) the legal writings and draft codes for towns and counties; and (e) the royal ordinances.

4. The period of the Republic of the United Seven Provinces. The Republic came into existence in 1581 with the abjuration of Philip II of Spain. The change of authority from the sovereignty of the King to that of the States did not involve any marked difference as to its legal history.

The independence of the Provinces in regard to their own laws and customs remained intact; yet, there were two characteristics of this period which tended towards uniformity. One was the endeavour, more or less successful, of the Provincial States to codify the laws and customs of each Province (these codifications may be found in the so-called Landrechten). The other manifested itself in the decisions of the Courts of Appeal and the increased influence of the lawyers through whom the Roman law acquired recognition.

Originally the Courts in the Provinces were People's Courts, where the assembled freemen gave the verdict. After the people ceased to take a direct part in the administration of justice the authority of the Courts passed into the hands of the nobility and the representatives of the town. A further development placed the authority in the hands, principally, of lawyers (1) through their opinions and (2) through the Courts of Appeal of which they formed the majority 1.

Courts of Appeal were established in nearly all the Provinces, and were either developments of the council of the count or had grown out of the popular institutions which were in vogue as superior judicial assemblies in the Middle Ages.

In vain attempts were made in the course of time to establish one Supreme Court for all the Provinces. The Dukes of Burgundy endeavoured to do this through their Great Council of Mechlin. The Supreme Court established by Charles V, which was intended to act as a Court of Appeal for the Northern and Southern Netherlands, ceased to act as such on the outbreak of hostilities between Spain and the Northern Netherlands in the second half of the sixteenth century, inasmuch as the Southern Provinces, and with them Mechlin, adhered to the Spanish rule.

For the development of these Courts cf. Burge, loc. cit., i, pp. 73 $99.

The Supreme Court (Hooge Raad) which was established in April, 1580, by the States of Holland, and since the treaty of 1587 extended its authority over Zeeland as well, never possessed any authority beyond these two Provinces.

The tendency of these Courts has certainly been towards the unification of the law in each Province, and in Friesland the attempt. was undoubtedly successful, although their decisions were not binding upon one another. The doctrine of Stare decisis was never adopted in the Low Countries, and the influence of the Courts was never based on authority. As the Courts of Appeal, however, formed the last resort of the litigant, and generally consisted of lawyers of repute, their influence made itself felt, because it was known that the interpretation once adopted by them would probably be followed and logically extended to analogous cases.

But the independence of the several Provinces, and the difference in the development of their legal institutions, prevented this influence from spreading beyond the boundaries of each Province, and these, together with the great anxiety of the lower Courts to preserve the customs of the country against the influence of the Roman law, and of the towns to retain their own rights and privileges, were so many hindrances to the unification of the law by means of judicial decisions.

Roman Law. What neither legislation nor jurisdiction could effect, the Roman law did. Not at once or by force, not everywhere at the same time or to the same extent. Its work was slow, but sure. As a unifying element the Roman law had great advantages over all the others. Forming a solid substratum upon which the law could be built, it was a never failing source of clear thought and logical argument for all those who needed a guide where local law was silent or too multifarious in its diversity. While, however, its influence increased, it never disturbed the development of the customary law. It has retained this characteristic throughout the ages, and it will be my object to trace shortly the history of this evolution.

Brought to light from the monasteries, the civil law found a favourable reception at the Universities, and those who had studied law there remained lifelong admirers of the legal system and codification of the Romans. The fact that the law of Rome was handed down to posterity in a codified form, and the fact that at one time University studies were guided by ecclesiastics whose canon law was based on the civil law, and who did not recognize the laws made by any temporal power as having authority over the Church, were two important reasons for the popularity of Justinian's legislation.

The Dutch Universities have played a greater part in the develop