§ 5. between legal education and the scientific study of Roman law (which continues to be carried on with unabated vigour) and, on the other hand, to prepare the student for the proper understanding of the contents of the Corpus juris, an explanation of which will be as indispensable to a sound legal training in the future as it has been in the past. The History of Roman Law and the Institutes alone will retain the position they have heretofore occupied in the study of law in Germany. But they will be fused into a single subject, to be called the 'History and System of Roman Private Law,' and will be required, in this form, to take over part of the subject-matter previously treated of in the Pandects.

In the teaching of the Pandects as hitherto conducted the aim has been, while expounding the theory of private law, to introduce the student at the same time to the Corpus juris. In future it will be the business of the new 'Pandects' of the German Civil Law to expound the theory of private law, and the task of introducing the student to the Corpus juris will devolve to a considerable extent on the 'History and System of Roman Private Law.'

It is most important that German jurists should remain in touch with the Corpus juris. It furnishes the key without which a complete mastery of the modern law of Germany is impossible. The magnificent results which the skill of the Roman jurists enabled them to achieve are collected and exhibited in this compilation, which is a store-house of legal materials of priceless value. The road to proficiency in legal science lies through a study of the ancient jurists. As an instrument of legal education the Corpus juris is irreplaceable, and as such it should be jealously preserved.

It has been customary heretofore to conclude the history of Roman law with an account of Justinian's great code. In future its development will have to be carried several stages further. The history of Roman law will have to include an account of the fate of the Corpus juris from the date of its compilation down to the present day-a subject which till now has usually been treated of in the Pandects. It will be necessary to explain the nature of the rôle played by the Corpus juris in the entire subsequent evolution of the law; in other words, the history of Roman law will have to be

expounded in such a way as to bring out the value which the Corpus § 5. juris possesses even for modern times.

As to the so-called 'System of Roman Private Law,' its function will be to give a compendious survey of the private law contained in the Corpus juris, after the manner hitherto observed in the books on the Institutes—a survey, therefore, into which the historical element will enter to some extent. Certain matters will, indeed, have to be discussed somewhat more fully than has hitherto been the practice in the Institutes, and it will also be advisable, in reference to some points of importance, to travel beyond the Roman law of Justinian and to indicate the connecting links between the law of the Corpus juris and the modern private law of Germany. In the main, however, the 'System of Roman Private Law' will be concerned with the same private law as has hitherto been expounded in the Institutes : that is, with the pure private law of Rome in the form in which Justinian summed up the final results of its previous development. An object of the utmost importance will thus be attained, the preservation, namely, of the bond which connects the scientific study of modern law with the contents of the Corpus juris.

In order to accomplish the task thus indicated, it will be advisable to adhere in the main-in this as in other respects-to the principle hitherto observed in Institutional works, and to frame our treatise, on the whole, as an introduction to the study of law, by adapting it to the requirements of beginners. The Corpus juris will stand henceforth only at the threshold of the science of law, and when the student has passed beyond this stage his attention will be claimed, not by Roman, but by German law.

The plan and purpose of the following treatise are thus explained. We shall premise a few words on the sources of our knowledge of Roman law, and also on the fundamental conceptions of law. We shall then proceed to expound the subject-matter proper, commencing with a brief history of Roman law, and passing on to the doctrinal part, or theory of Roman law.

§ 6.

CHAPTER II.

SOURCES AND FUNDAMENTAL CONCEPTIONS.

§ 6. The Sources of Roman Law.

THE Sources of Roman law are of two kinds: first, the Corpus juris civilis of Justinian; and secondly, the pre-Justinian sources of law.

I. THE CORPUS JURIS CIVILIS.

The Corpus juris civilis of Justinian, in its modern form, consists of four parts: the Institutes, Digest, Code, and Novels.

(1) The Institutes.

The Institutes (published Nov. 21, 533 A.D.) are a short manual or text-book, the object of which is to give a brief and comprehensive summary of the whole body of law as set forth in the remaining portions of the Corpus juris, and, at the same time, to supply the student with a general introduction to the study of the Corpus juris. It must be observed, however, that this text-book has, in itself, the force of law, the Institutes being published with the same statutory force as the Digest and Code.

The Institutes are divided into four books, each book into titles, each title into paragraphs. The first sentence of each title, preceding § 1, is called 'principium' (pr.). Thus German writers usually quote as follows:

pr. I. (Institutionum) de donat. (2, 7) *.

Eod. is eodem titulo; so that § 4 I. eod., closely following another quotation (say, pr. I. de donat. 2, 7), would be a shorter way of writing: § 4 I. de donat. (2, 7), the name and number of the title not being repeated.

h. t. (=hoc titulo) refers to the particular title dealing with the

* English writers quote briefly as follows: Inst. ii. 7. pr.

subject-matter in question. Thus, if the subject under discussion § 6. were obviously gifts (donationes) pr. I. h. t. would refer to the principium of the title 'de donationibus' (Inst. II. 7). In other words, 'h. t.' refers to the title bearing on the special subject-matter under discussion; eod.' refers to the title given in the quotation immediately preceding.

(2) The Digest.

The Digest or Pandects (published Dec. 16, 533 A.D.) are a collection of excerpts or fragments' from the writings of the Roman jurists, arranged by Justinian, and endowed by him with statutory force. The Digest contains fifty books, each book being divided into titles, each title into 'fragments' or 'leges,' each fragment into a principium and numbered paragraphs. Thus German writers usually quote as follows:

L. (=lex) 2 pr. D. (=Digestorum) mandati (17, 1)*.

L. 10 § 1 eod. (eod. here=D. mandati, 17, 1).

L. 18 h. t. (Here h. t. refers to the title 'mandati,' if 'mandatum' or agency is the special subject-matter under discussion.) Books 30, 31, and 32 of the Digest all deal with the same subject, viz. legacies, and are not divided into titles. A quotation thus

runs:

L. I D. de legatis I (30).

Some modern writers apply the term 'fragmenta' specifically to the excerpts from the writings of the jurists which make up the titles of the Digest, and therefore quote the Digest briefly as follows:

fr. 2 pr. mandati (17, 1) (the D. being thus omitted). (3) The Code.

The Code (published Nov. 16, 534 A.D.) is a collection, by Justinian, of imperial decrees and laws, promulgated partly by the older emperors, partly by Justinian himself, and published (for the most part) in the shape of excerpts. The whole collection was to be regarded as one uniform code with statutory force. It contains twelve books, each book being divided into titles, each title

* English writers quote briefly as follows: Dig. 17. 1. 2. pr.

§ 6. into leges, each lex into paragraphs as above. A quotation would

thus run:

L. 11 § 1 C. (=Codicis) depositi (4, 34)*.

The term 'constitutio' (c) is sometimes applied specifically to the leges of the Code, so that the above quotation would run: c. 11 § 1 depositi (4, 34), (the C. being omitted).

Though published by Justinian at different times, these three parts of the Corpus juris, viz. the Institutes, Digest, and Code, were intended by him to constitute, in the aggregate, a single code of law with equal statutory force in all its parts. This is the Corpus juris in the form in which it was issued by Justinian. In its modern form, however, the Corpus juris differs from the Corpus juris of Justinian in that it contains a fourth part, viz. the Novels.

(4) The Novels.

The Novels are laws enacted by Justinian and some later emperors, subsequently to the completion of the Corpus juris. The great majority of these Novels were issued by Justinian between 535 and 565 A.D. Most of them have been 'received' in Germany. Being later than the Corpus juris, they take precedence, so far as they have been received, over the remaining portions of the Corpus juris. The Novels are quoted by the number, chapter, and paragraph, e. g. Nov. 118, cap. 3, § 1.

Edition of the Corpus juris :

Corpus juris civilis. Editio stereotypa. P. Krüger. Digesta, rec. Th. Mommsen. Justinianus, rec. P. Krüger. Berol., 1877. G. Kroll. Berol., 1895.

Institutiones, recensuit Berolini, 1872. Codex Novellae, rec. R. Schöll,

II. THE PRE-JUSTINIAN SOURCES OF LAW are as follows:(1) The writings of the Roman jurists in their original form. (2) The decrees and laws of the Roman emperors in their original form.

(3) The early Roman statutes and other sources of law in their original form, together with documents and incidental information in non-juristic writers.

* English writers quote briefly as follows: Cod. 4. 34. II. I.