jurists, that order having ceased to exist for nigh upon a hundred years. Hence it is that we find, in Justinian's Digest, so large an amount of matter quoted from treatises-dogmatical, institutional, or exegetical-which are pure text-book law: general propositions not in the least resembling individual precedents, whether actual or hypothetical, nor like answers to particular questions. I need not do more than refer to the unreasonable manner in which these general propositions are questioned or condemned by Austin (Lect. 37; see Practical Jurisprudence, p. 299), who forces them into his hidebound conception of case law.

It is not my purpose, either, to enter here into the subject of precedents proper, in Roman law-into the influence, that is, which a particular judgment has, as in our law, upon similar subsequent cases. In spite of the oft-quoted passage in Cicero's Topica (5, 28), I venture to question whether res judicata had ever the exact meaning of an individual precedent. In the case of decisions, indeed, by the Emperor, or the person to whom his supreme jurisdiction was delegated, a special principle of precedents was recognised, but with considerable variation, during the legislative period from Hadrian-possibly from the beginning of the Empire-to Justinian. It was distinctly abandoned in a constitution of Arcadius and Honorius, A.D. 398 (Cod. Theod. 1, 2, 11), but finally recognised by Justinian in his Code (1, 14, 12 pr.) A.D. 529.

Conflicts of Opinion, and the "Lex Citationum" of Theodosius.-The remaining history of the sententia et opiniones prudentium is short and fairly clear it contains, moreover, an interesting recognition of the superior merits of Papinian. The unanimity of opinions which had been required by Hadrian, for binding effect, naturally became more and more rare as the number of such opinions increased. Accordingly we find Constantine (in A.D. 321, 327) complaining of the never-ending contentiones prudentium— the authors mentioned being long dead-abrogating the notes of Paulus and Ulpian upon Papinian, but subsequently confirming all the writings of Paulus. These constitutions of Constantine were followed a hundred years later by the so-called Lex Citationum (a late designation) of Theodosius II. and Valentinian III. (A.D. 426). I give the main upshot of this enactment, avoiding its special difficulties. It confirms the entire writings of Papinian, Paulus, Ulpian, Modestinus, and Gaius, expressly giving the last-named author equal authority with the others. Validity is, at the same time, conferred upon the writings of a number of authors habitually quoted by all the above-named five-among whom, we may remark, is included Sabinus, the first licensed prudens. In case of a divergency or conflict, Papinian's view is to prevail over that of any one, but not two of the other writers; the comments upon him being again formally deprived of weight, though an absolute authority is given to the "Sentences" of Paulus. Where two jurists equal in the scale conflict, the judge is, of course, to choose.

This law is specially valuable as explaining difficulties which arise out of

the list of authors quoted in Justinian's Digest. The collection purports to be made from the books of those old prudentes to whom previous emperors had given authority for compiling and interpreting laws (conscribendarum interpretandarumque legum, Const. Deo Auctore, § 4).

Whatever condere jura originally meant, these words certainly indicate, for the subject-matter spoken of, generality of form and subsisting authority. The authors cited ought at first sight to be confined to the authorised or licensed prudentes. They are, in fact, quoted as early as Q. Mucius Scævola, who died 82 B.C., before Augustus was born. The presence, then, of this and other jurists who wrote before the licensing system is accounted for by their quotation in the writings of the five principal, or, as they are sometimes called, academic authorities specified in the Laws of Citations. The same statute, it was remarked, expressly includes Sabinus, whom we should have expected to appear in his own right. This gives a strong reason for thinking that the opinions, even of the licensed jurists, were not intended to have a binding force as precedents or general rules before the time of Hadrian's rescript, if then.

We may also infer from the language of the Lex Citationum that Papinian, Paulus, Ulpian, and Modestinus most probably did, and Gaius did not, belong to the privileged class.

The "Digest" of Justinian.-The objections are obvious to such a mechanical or arithmetical estimate of opinions as that above described. Justinian accordingly converted all the passages which he embodied in his Digest into some many leges, and placed them on an indiscriminate level (Const. Deo Auctore, § 6). As this was to be henceforth the sole book of reference, contradictions were of course not to be admitted, nor obsolete matter (ibid. §§ 8, 10)—a direction only imperfectly carried out. There are, it must be admitted, irreconcilable contradictions in the Digest, which can by no sophistry be explained away; which, on the other hand, give us, as marshalled by the date of their cited authors, many interesting examples of the gradual development which takes place in principles of practical law.

The "Feast" of Papinian.-One last word as to Papinian. In the old course of legal study which obtained down to the time of Justinian, who remodelled it in accordance with his own codification, the students were first introduced to the special reading of Papinian's Responsa in their third year, whence these third-year men were called Papinianistæ, and kept a feast or high day in honour of their author (Const. Omnem, § 4). Justinian, in order to retain in part the old study of this year, and to keep alive the respect due to that great name, contrived a somewhat artificial order and composition of the Books 20, 21, and 22, with which the Umbilicus, or central part, of his Digest begins. These books are accordingly called by certain anonymous annotators of the twelfth and fourteenth centuries (as being instead of Papinian) Antipapian or Antipapin. The former curious corruption of

the name has been mentioned above (p. 21). It is just conceivable that the

further one, of Papin, may have given rise to an honoured name in French natural science. Of any calembour suggested by Denys Papin's best-known invention I am innocent.

The Work of the "Prudentes": Its Juristic Value.-The institution of licensed prudentes is often regarded as the mere establishment of a high court of civil justice, and their opinions as practically judgments on appeal or on reserved cases, which no doubt they often were. But, if I am right in the view here taken, the work of the prudentes from an earlier period than that of the imperial licence, and the work of the licensed prudentes afterwards, was something more. It habitually included-on principle, not as a mere obiter dictum-some amount of generalisation, much wider than Austin's ratio decidendi, and, moreover, directly expressed by its author-not requiring to be inferred or extracted by the laborious processes described in Austin's thirty-seventh and thirty-ninth lectures.

The advantage, or rather the necessity, for generalisation is only too apparent for ourselves, with our enormous and increasing mass of case law. This is no doubt done, and very ably done, to some extent in the headings of our yearly Law Reports, in reviews, and from time to time in text-books-the increasing consideration for the last being a noticeable feature in our Courts. Nor are our judges now, I think, so averse from laying down general rules or delivering themselves of general maxims as they used to be, and as they are, according to Austin, in duty bound to be. But the reduction of that most important branch of law which is continually growing out of the practice of the Courts, to an amount cognoscible, to use Austin's expression, even by the profession, becomes daily farther off than ever.

With all due appreciation of the gradual building up of our legal principles and the historic value of the process, one cannot but look with envy, in the interest of general utility, on Justinian's heroic remedyto secure once for all, at whatever cost, an authoritative Digest of our present case law and make a clean sweep of the past cases. Of course case law must continue to go on, but it could be with ease subjected to a periodic authoritative revision and reduction to the form of general rules.

This, far more than the mere consolidation of Statutes, seems to me the one chance which has any hopefulness about it, of the much-talkedof Codification of English Law (see generally Practical Jurisprudence, Part II. chap. xvi.).

RUSSIAN LEGISLATION AS TO CHEQUES.

[Contributed by JULIUS HIRSCHFELD, ESQ.]

AN Imperial Commission, appointed by the Russian Government, is engaged in drafting a new Civil Code for Russia. The Commissioners have

published one part of their work containing the law of obligations resulting from contracts. This has been translated into German by Nicolaus von Seeler, advocate, and the translation published by the Stock Exchange Committee of Riga.

The New Civil Code.-The translator, in his preface, gives an extract from the memorandum which the Commissioners have issued with their work. According to this summary the subsisting laws were antiquated and therefore unjust, suffering from contradictions and gaps, want of system and an undisciplined terminology, which frequently resulted in the letter of the law being directly opposed to its spirit. The task, therefore, which the Commissioners had set themselves was twofold-viz., to bring the existing law into a clear form, and to supplement it wherever they met with any lacuna. The sources from which they had drawn were the existing Civil Code, the judgments of the Supreme Court, the Swiss law, the German Civil Code, the Code Napoléon, and the law of the Baltic provinces.

Engrafting Commercial Law.-A point to which they draw special attention is the amalgamation of the commercial with the civil law, and its incorporation in this part of the Code. The reason was that, in the absence of a mercantile community (Handelsstand) in Russia, there has been no soil for the development of a specific commercial law.

One of the nova introduced by the present Draft Code is the law of cheques, which constitutes a chapter consisting of twelve clauses.

Characteristics of the "Cheque."-Before stating its principal provisions, I may be allowed to premise that Continental jurists note three characteristic points as determining and distinguishing the system of cheque law in the various countries, viz. :—

(1) Is a cheque a species of the genus bill of exchange, as in England and America,1 or is it, as in Germany, France, Austria, Italy, an instrument of a type of its own?

The Courts in America are at pains to point out the difference between cheques and bills of exchange (cf. Byles on Bills, 15th ed. p. 17).

(2) Must the drawee of a cheque necessarily be a banker, as in England and America, or can the order be addressed to any person, as in the Continental countries of Europe?

(3) Must the drawer, in order to be entitled to draw a cheque, have a deposit available for that purpose and at least equal to the amount drawn in the hands of the drawee? The English law does not require it. The doctrine of the American law inclines towards considering it requisite. The French Act of 1865 expressly prescribes a dépôt, whilst on the other hand the practice of the French Courts recognises credit cheques as well. In Germany (in the limited sphere in which cheques are in use) an available fund is required.

Bankers as Drawees.-Now passing on to the Russian Draft Code, Clause 577 provides: "By means of a cheque the drawer orders a bank or a banker to pay to holder1 a sum certain out of the funds standing on current account at the disposal of the drawer." We see that the Russian codifiers, without giving a definition, propose to proceed on eclectic lines, adopting on the one hand the Anglo-American principle of making a banker drawee, assimilating on the other hand their system to those obtaining on the Continent by demanding a dépôt, and keeping a cheque distinct from a bill of exchange."

The Draft Code provides, further, that a cheque shall remain valid for five days (cheques not payable at the place of drawing for ten days).

When a current account is opened, it can be stipulated that cheques exceeding a certain amount shall not be payable until the day after presentation.3

Death of Drawer.-The death of the drawer shall not invalidate a cheque.

Damages. There are, moreover, provisions respecting damages in favour of drawer in case of delay in presentation, and in favour of payee in the event of non-payment of a cheque. Provisions as to crossing of cheques, or of a penal character in case of mala fides on the part of a drawer, are not contained in the Draft Code.

German Cheque Law.-In Germany a common law of cheques has not yet been passed. The nearest approach to satisfying what is a want felt there by a great number of financiers and economists was a Bill introduced by the Imperial Government in 1892. The Bill was abortive. Still, it may not be without interest to refer to a few of its provisions.

The Bill admits of any person--not only a banker-being made drawee of a cheque. The instrument must be described as a cheque, and must

1 Order cheques are also provided for (Clause 579).

2 The publication of a Bill relating to bills of exchange is in contemplation. The Bill does not state what, in such a case, the relation between drawer and payee will be.