Page:Harvard Law Review Volume 12.djvu/88

68 68 HARVARD LAW RE VIE W. be particularly interested in Chapters VI. and VII., which deal with the origin of property and contract. The philosophic principle which runs through all the author's investiga- tions is the conflict between the State and the clan ; this, he says, is "the key to the internal politics of the Middle Ages." He seems at times to exaggerate this struggle and to postulate with too much freedon> the sur- vival of the clan. It is difficult, for example, to follow him when he refers to the "moots of the clan" during and after the ninth century (pp. 125, 132), though he evidently means the local popular courts. Nor can we agree with him that the gild and the monastery are artificial forms of the clan (p. 309). In Chapter III. he seems to ascribe too much influence to the feudal element in developing the royal power, especially in France, and too little influence to the Romanizing legists. But we feel more inclined to praise than to criticise this volume. Mr. Jenks has, indeed, produced a book of great merit, which displays wide learning in the comparative history of the legal systems of the Middle Ages. In a work so broad in view and covering so much ground we must expect to find some errors of fact, like the statement that Hugh the Great was king of the Western Franks (pp. 85, 87) ; but such slips do not seem to be frequent. The treatise as a whole may be v/armly recommended to students of legal and constitutional history. No other English book con- tains so good and comprehensive an account of early Teutonic systems of law. c. G. The Science of Law and Lawmaking. By R. Floyd Clarke. New York : The Macmillan Co. 1898. pp. xvi, 451. Mr. Clarke's book should be welcomed as affording to the general reader an introduction to the study of law suggestive of the beauty and interest of its problems, and as giving for the first time a comprehensive discussion of the problem of codification. The book is not a complete or exhaustive treatise on " the science of law," a subject whose scope is not within such moderate limits ; but the writer has attempted merely to out- line in brief the source of law, its relation to other sciences, and its gradual development into case and code law. A bird's-eye view of the English law as it exists to-day in its various branches, with an explana- tion of the technical terms used, puts the general reader in a position to pursue intelligently the problem of " codification versus the case law sys- tem," — a question-that is strangely ignored by many of our better citizens. In advocating the cause of the case law system, the real substance of the book, the writer has accomplished his purpose well. The division of the chapters into so many headings adds little to the clearness or literary merit of the work, but the argument is, on the whole, coherent and con- vincing. By applying the principles of the decisions in the case law and the rules of the principal codes now in existence to one branch of law, contracts in restraint of trade, he demonstrates, by a comparison of the results, that a code can be brief only at the expense of accomplishing justice, or justice-giving only at the expense of all practical brevity. One great advantage of the case law system, as Mr. Clarke points out, is that a code, like a statute, must be followed according to the strict construction of the language used, while in a decided case all that is material is the