few books, and one must not compare the library with which Baldus was familiar with the extent of reading which would be nothing uncommon at the present day. But even when one remembers that the village schoolmaster of to-day may possess a library for which the wealthiest in Italy might have sighed in vain in the fourteenth century, one does feel astonished that some half-dozen of non-legal authors seem to have been nearly all whom Baldus knew. Aristotle, Seneca, Averroes, and St. Augustine seem to have formed his staple. To these may be added a little of Cicero, and perhaps one or two other classics. Literature and Art seem to have been far from his domain. He kept pedantically to the writing of Latin, even in private correspondence, and the new glories of his native Italian tongue, of which his immediate predecessors, Dante and Boccaccio, were the great pioneers, and Petrarch, the great living example, seem to have left him altogether unmoved. And, though he lived when men were ringing the praises of the wondrous works in religious painting and architecture, which Giotto and his school had done at Assisi and Padua and Florence, and though he was himself of a profoundly religious turn of mind, not a word of sympathy with the new movement in Art seems ever to have escaped him.

It is difficult now to weigh exactly the causes of the great reputation which Baldus had during his life, and to separate what was temporary in them from what had a permanent value as advancing legal science. Much, no doubt, was temporary, and Baldus, like many another great man, gave his mind to the doing of the work which lay ready to his hand, with little thought of influencing those who were to come after him. He seems scarcely to have written anything deliberately destined for permanent use. The only works of his which can with certainty be said to have come down to us as he wrote them are his "Concilia," or opinions. With modern counsel opinions are looked on as confidential affairs;—the opinion book is kept under lock and key, and I doubt if the public or the profession would greatly benefit were the seal of secrecy broken. It was not so in earlier times. The opinions on actual cases of the great jurists of the Middle Ages were regarded as professional and public property. Before the age of printing, they circulated widely in manuscript, and when printing began, they were among the earliest books to be printed. This was the case with the opinions of Baldus. They were printed at Milan about 1490, in handsome, unpaged black-letter folios which bear that they were edited from the papers of Baldus himself. The rest of the writings which go

under his name are almost entirely notes of portions of his lectures, taken down by his students. It is doubtful if his lectures were ever written out in full by himself. What his students noted of them has moreover suffered by its after treatment, the notes having been cut up so as to be interleaved with or written on the margins of the various passages of the Corpus Juris of which they treated. The notes of the lectures, such as they are, are also far from complete. The manuscripts from which they have been printed are seldom contemporaneous, most of them dating from the century after his death. In the course of the sixteenth and seventeenth centuries nearly all that Baldus left, whether lecture or tract, was printed, and the remains of his works fill many a stately volume on the shelves of the older law libraries.*

Truth to tell, to the modern lawyer, the works of Baldus are somewhat hard reading. In the days when they were of practical value, they well repaid study. Now, their fragmentary form makes continuous reading difficult, and though there is much that is instructive and interesting, it requires to be disinterred. His opinions are often given with the greatest conciseness. The acumen with which he hits the true solution of a question and raps it out is extraordinary, though sometimes in the citation of his authorities it is plain that there are evidences of haste. The remains of the lectures show best his greatness as a jurist, and were it only possible to piece them together in their original form, they would be marvellous works of ingenious analysis. "Qui bene distinguit bene docet" was one of the rules which he carefully applied. He would take some doctrine of law, explain exactly what it meant, get, as it were, at its essence, then distinguish it from all that was similar but really different, and thus to get at the reason or equity which was its foundation. He is perhaps at his very best, when he leaves the order of the Corpus Juris altogether, and takes up some particular topic and concentrates his whole learning and acumen on it. His tractate on Pacts is an excellent example of his style. His analysis of legal fictions, with their connection with the presumptions juris et de jure and his discussion of when they were legitimate and when illegitimate is full of pregnant ideas. The distinctness with which he applied old doctrines to new situations was sometimes startling. In commercial law, he contributed greatly to the development of the law of partnership and, in particular, to the idea of the firm being a legal person. But when asked whether it was lawful for a single individual to trade as if he were a company, or for one person without notice to trade in the name of others, his answer was

very pat: it was unlawful, because doing so was getting credit or business upon representations which were not true. It will puzzle all his successors taken together to explain this answer away. Of the satire which was so famous in his lifetime morsels have been preserved. Nothing could be happier than the way in which he hit off the fashion in which the church courts competed for jurisdiction: "Item clerici sitiunt jurisdictionem, quemadmodum cervus desiderat fontes aquarum"-though he cautiously fathers this use of the psalmist's image upon some unknown person, desirous of speaking evil of dignitaries. Of those nobles who were proud and luxurious, and of the rich who could make no better use of their wealth than to spend it on eating and drinking, he had many bitter things to say. A collection of his clever sayings, if any one had leisure enough to make it, would still supply good reading.

When at the revival of letters, Roman law spread over Europe, and when almost within two generations the poverty of the local laws was enriched by that wealth of legal learning which it had taken a people of the highest talent a thousand years to accumulate, there may have been new methods of teaching, but most of the old problems remained the same. The mos italicus juris docendi, yielded to the mos gallicus of which Cujacius was the great exponent. The glosses were mostly thrown aside, the original documents of Justinian were edited anew, and when stripped of all incumbrances, were diligently studied. But in Holland, in Germany, in Scotland and in the other countries which adopted the Roman law, the main problems were still exactly those which in the two preceding centuries had occupied the Italian universities. Roman Law in its new countries did not find a clear field, and its reception was not always friendly. The ground was largely occupied by other laws, which were like in many respects to those which Bartolus and Baldus had to harmonise. The task was almost precisely the same. The older laws could not at once be uprooted. The new law came as the jus honorarium of the Roman Praetor had come ages before, gratia adjuvandi vel supplendi vel corrigendi juris civilis. The new learning came not to supplant the old Northern customary law, but to help, to supplement and to correct it, and if in the end the new did almost supplant the old, it was only because a law which was in itself singularly wise, complete and perfect, could not help when once it was brought into contact, supplanting a law which was singularly rude, incomplete and imperfect. There is an eloquent passage in Shering in which he describes Rome as having thrice conquered the world-once in the old imperial days by force of

arms; once again after the Empire had crumbled in the dust, in the days of the great churchmen, when it held Christendom in the bond of one faith, and once yet again after the bond of faith had broken it spread its law over the length and breath of Europe by the pure power of reason. It was in this last conquest that the works of Bartolus and Baldus played so memorable a part. So much did they come to the front, that with the conservative opponents of the new learning, they became almost synonymous with the Roman Law itself. The learned dean of the University of Basle happily reminded the quincentennial gathering how it came to pass that when the Roman Law was being introduced into Switzerland, a counsel who had repeatedly been quoting Italian jurists, was at last interrupted by one of the rustic judges, to whom the very names were strange, with the exclamation, "What to us are your Bartolus and Baldus? We have no need of foreigners in Helvetia; enough for us our old customs and the laws of our forefathers." But in spite of all opposition the Roman Law made its way and shed the light of a great jurisprudence over the continent of Europe. If the works of Baldus and his teacher, Bartolus, have accomplished their purpose, and be now altogether things of the past, and if the interest of the common law countries in them be only indirect, yet I trust I have done something to show that for long their works were of critical importance and that the memory of the great mediæval jurists is still worthy of all honor. J. Dove Wilson.

CONSTITUTIONAL ASPECTS OF THE TILLMANMcLAURIN CONTROVERSY.

On the 22nd of February last, and while the Senate of the United States was engaged in considering the bill known as H. R. 5833, being a bill temporarily to provide revenue for the Philippine Islands, and for other purposes, the two senators from the State of South Carolina, Messrs. Benjamin R. Tillman and John L. McLaurin, became involved in a personal controversy leading up to a physical encounter between the two men, in which Senator Tillman was the aggressor; in consequence whereof the Senate on motion proceeded in closed, or executive session, to consider what was alleged to be a grave breach of the privileges of the Senate, and the following order was adopted by a vote of sixty-one yeas; no votes being recorded in the negative:

"FEBRUARY 22, 1902.

Ordered, That the two senators from the State of South Carolina be declared in contempt of the Senate on account of the altercation and personal encounter between them this day in open session, and that the matter be referred to the Committee on Privileges and Elections, with instructions to report what action shall be taken by the Senate in regard thereto."

Before the committee made its report, which it did on the 28th of February, the bill mentioned above came to a vote in the Senate. Before this the president pro tem. of the Senate, Senator Frye, directed the clerk to omit from the roll call the names of the offending senators, which was done, and before the vote on the bill was taken, Senator Turner, on behalf of Senator Tillman, presented a protest of the latter against the deprivation of his State from voting upon the pending measure, upon the broad ground that the Senate could not in the manner that had been attempted thus constitutionally deprive the State of South Carolina from the exercise, through its senators, of the State's right of suffrage. Nevertheless, and without calling or permitting the two senators to vote on the bill, the vote was taken, and the bill passed by a substantial majority, which majority would not have been materially affected had both the