nation, even as to real as well as personal property situated in Italy. But the Court of Cassation at Turin has decided differently. It has set asides (cassé) a judgment of the Court of Appeals of Genoa which had followed the Neapolitan decision in holding that the succession of an Italian subject must be governed by Italian law, even when it consisted of land situated in a foreign state. It has based its action upon the impossibility of carrying into effect any such judgment respecting lands in another state. "Courts should not and cannot render judgments which they know beforehand cannot be executed, for such judgments would be mere academic resolutions devoid of all practical value. The section in question can be regarded only as an invitation to other nations to extend the principle of reciprocity.” “There has been an animated discussion," say the court, “in the domain of doctrine, whether it is more conformable to reason and the principles of legal science that a succession should be regulated by the law of the decedent's domicil, or by the law of the place where the lands comprised in the succession lie. The best authors have differed upon this question; but as a matter of fact, by the international law accepted in Italy and throughout Europe, it has always been held that the application of the personal law of the deceased is limited to the movable property, and that with regard to immovables, there are as many distinct successions as there are states in which lie lands belonging to the succession."

"Considering that the opinion, by which the patrimony as an ideal entity (universitas juris) is incapable of separation from the person owning it, and is therefore so identified with the person as to be equally incapable of subdivision with the person itself, has never up to this time emerged from the domain of doctrine, and that sec. 8 of the preliminary provisions of the code is the first attempt that ever has been made to reduce it to practice: that the Italian legislator, in being the first to adopt a principle so liberal and generous, (as it was termed in the report of the code-commission,) was giving, as

8

Annali Guerispr. italiana, vol. IV. 2, 405, April 11, 1870 (the judgment at Genoa). Ibid. vol. V. T. T. 385 (the judgment at Turin reversing it).

he expressly said, to the civilized world a noble example and perhaps a stimulus, we may infer that it was an example and stimulus only that the legislator intended, and nothing more. He could not have meant, and he certainly had no power, to impose upon other states so bold an innovation, for which, as the mover himself remarked, there was as yet no precedent, and which was in contradiction with the rule heretofore universally admitted: tot hæreditates quot territoria. The Italian legislator was indeed free to adopt a foreign law; but to assume to impose the Italian law upon a foreign state is a proposition the very statement of which is its refutation."

Another controversy, or to speak more accurately, another branch of the same controversy has arisen under sec. 94 of the Italian code, which provides that when a succession takes place out of the kingdom all actions respecting the inheritance shall be brought before the tribunals of the place where the greatest amount of property is situated, and in default of such place, before the tribunals of the defendant's domicil or residence. But the Court of Cassation at Naples, holding firmly to the theory of the absolute unity of every succession, has decided that every action relative to a foreign succession must be brought before the courts of the foreign country even when the property in question, movable or immovable, is situated in Italy; and that the Italian courts have no jurisdiction in such cases. The decision is a mere application of the principle already stated; that the succession is to be regarded as forming a universitas juris, a moral entity, comprising all the property and all the rights and credits of the deceased, but having an existence of its own independent of the property, rights, etc., which compose it.

The same question coming before the Court of Cassation at Turin was heard with unusual care, all the sections of the court sitting together for that purpose; and here again they came to a conclusion diametrically different from that formed at Naples, affirming the jurisdiction of the Italian courts. will not be necessary to state the grounds on which these opinions were based, since the reader will see at once their

9 Jan. 30, 1874. Giurisprudenzia, An. XI, p. 321.

connection with those quoted above. The whole controversy indeed, as it appears to an American eye, may be stated in the following form: Admitting that the civilian view of a succession as universitas juris is the true one, is it possible to carry this out to its perfect theoretical result, in the absolute unity of a succession embracing property (and especially landed property) in several different states; or does the independence of each sovereign state, and its necessary control over its own territory, require that the rule tot hæreditates, quot territoria be maintained at the cost of a theoretical inconsistency? But an American lawyer will hardly be able to consider the subject without asking himself whether the first admission, upon which the whole controversy rests, is a necessary one. Is there any need, practical or scientific, of considering a succession, even within the limits of a single state, as an indivisible unity, universitas juris? May it not be regarded as a fortunate loss which has removed the entire doctrine from the common law, and saved English and American jurists from the infinite labor and perplexity which the proper location of the law of inheritance in their systems has cost their continental brethren? We do not presume to answer these questions, we only suggest them.

IOWA STATE UNIVERSITY, LAw Dep't.

WM. G. HAMMOND.

VIII. BOOK REVIEWS.

THE INSTITUTES OF JUSTINIAN; with English Introduction, Translation, and Notes. By THOMAS COLLETT SANDARS, M. A., Barrister at law, late Fellow of Oriel College, Oxford. First American, from the Fifth London Edition, with an introduction by WM. G. HAMMOND, LL.D., Professor of Law in the Iowa State University. Chicago: Callaghan & Co. 1876.

This work is timely and acceptable. Readers who have already procured the fifth English edition, and who have learned to properly estimate its value, will be glad to see the work in an American dress; and if its republication here shall have the effect to bring it to the consideration of a larger number of students, the benefit to the profession will certainly be great. Few books of the law contain so much that is permanently valuable. The old work is always useful. It fitly sums up in a small compass much of the wisdom which was accumulated by the patient labors of ancient jurists during a thousand years; for it was about that period which elapsed between the law of the Twelve Tables and the publication of the "Eternal Oracles" of Justinian. At the beginning of that period the law was to be found in a comparatively small number of precepts of general application, and the discretion of the judge was almost as ample as his jurisdiction: at its close the books of the law could hardly be numbered. The marvellous fecundity of ancient law writers might surprise even the present age, which has added so immensely to our stores of legal lore. We can have but a poor and inadequate conception of the countless number of law books in existence at the time that the compilations of Justinian were made. Labeo, a celebrated lawyer of the Augustan age, could hardly have been an idler. We are told that although actively engaged in the public exercise of his profession, he left behind him four hundred books on his favorite science, the fruit of casual intervals of leisure. Of his great rival, Capito, the founder of a hostile school, the two hundred and fifty-ninth book is expressly cited; and whether this was the last of the series we have no means of knowing. There was no end to making law books; but as they increased the harmony of the law was diminished.

The clash of authorities liberated the principles involved; the judge found a support for any ruling; and once more his discretion became almost as wide as his jurisdiction, too much law producing substantially the same effect as too little. Books were too abounding for practical use; it required large wealth to buy them, and life was too short for their perusal. Under these circumstances the law drifted steadily toward chaos and confusion. This was the effect of an active civilization stimulated by unusual surroundings. It has been supposed by many that our law is taking the same course. That there are certain analogies between the two cases may easily be seen.

Long before the days of Justinian the almost boundless expansion of legal literature, and of the laws themselves, had become a sore subject to all classes of men who were anywise concerned for the correct administration of justice. During the last years of the Republic Cicero, Pompey and Julius Cæsar, each projected a general compilation of the laws of Rome. The former actually did something towards the execution of the prodigious design; the troubled days and untimely deaths of the latter two left the work unaccomplished. Imperial resources permitted Justinian to perform the work which they had contemplated. Few perhaps would have remembered that it was during his reign that the Mosque of St. Sophia was built, or that the silkworm was then first brought to Europe, or the victories of his one successful general, but his collections of the laws of Rome have made his name as familiar as those of the greatest of the rulers who presided over the destinies of the ancient world.

It is through these collections that the Roman law has for the most part been made accessible to us. That law is the mightiest relic of almighty Rome; it does not exist "in ruinous perfection” like much that marks her former grandeur; we have it in a singular state of completeness; and its vital principles still exert their influence as an important element of modern progress. Whereever the Roman eagles were borne traces are to be found of the laws which they came to establish. Northward and to the far northeast where the Roman legions rarely or never penetrated, and beyond the seas, in the east and in the west, where only the poetic vision of Seneca perceived the possibility of new worlds, the Roman law has silently diffused itself. It has amalgamated itself with systems which it could not subdue; and as it supplies the finest medium for the study of comparative jurisprudence in all