Roman territory as identical in the times of the Gracchi and in those of Marcus Aurelius, than to handle as one system the law as it was in the undivided empire of the days of Gaius and the law as it was three centuries later in the eastern empire of the days of Justinian.

The attempt to record the history of the substance of Roman law apart from the whole history of the government and the people, though often made, is an impossible and almost a frivolous one. What can be made of the repeated agrarian laws, the criminal legislation of Sulla, the Julian laws, the laws in prevention of celibacy, and the rest of the Augustan reforms, apart from all reference to current social facts, wants, and conditions?

The effort to isolate legal facts from all other facts is thus doomed to disappointment, as it is the sure avenue to an untruthful representation of facts. What can be done, and what ought to be done, is to demonstrate the steps of a purely technical sort by which the various kinds of written and unwritten law actually came into being. This narrative of the formation of law can be to some extent isolated from the rest of the history, though even then not without perilous liability to error. The student need not be misled, provided he is aware of the inherent defects of the method of separate treatment and keeps on his guard against them. On the other hand, without some account of the historical evolution of law from the beginning, it is almost impossible to understand the ideas, institutions, and terms, which belong to its final stages.

In presenting a system of law at a special epoch, when that system is imbedded, like the Roman, in statutes and case-law, the question at once presents itself as to how far the leading principles and rules can, for the sake of brevity and of provisional study, be separated from the detailed application of the law, as given in reported decisions. The choice must be a matter of discretion, and in travelling over so vast a surface of law as that of the "Corpus Juris" it cannot be supposed that any two persons would draw the line in exactly the same way.

The

"Corpus Juris" itself is so voluminous and, to the superficial eye, so destitute of systematic arrangement, that a guide may well be welcomed. This task of guidance has too often been evaded, especially in England, by simply republishing the superficial sketch contained in Justinian's Institutes, which, though in its day and now (for different reasons) a precious monument of the law, was, in Justinian's own scheme of legal studies for his universities, treated as wholly insufficient, apart from the study of the Digest, even for students in the first of their five years' course.

The object of the ensuing account of the law is to give an exact and comprehensive exhibition of all the legal rules actually in force in Justinian's time, for the use of those who have no opportunity nor desire to study their minute applications; and at the same time to afford a trustworthy guide to those who propose to study the "Corpus Juris," or parts of it, exhaustively.

The purposes which students may propose to themselves in studying Roman law, apart from the compulsion or strong encouragement of educational institutions, are so various that it is difficult to anticipate them all. But among these purposes certainly that of comprehending, through an indispensable medium, the notions, language, and arrangement of all European codes, of international law, and even of ecclesiastical law in England, is no unworthy one.

There have been two special mechanical difficulties in preparing this treatise. One has been that of translating technical law terms; the other has been that of appending notes of the authorities for statements contained in the text.

A choice had to be made whether to translate a technical Latin law term by the corresponding English law term; to make (where possible) exclusive use of colloquial English terms; to modify the Latin term conformably to analogy, as in such words as mandate, inofficious testament, pacts; or whether not to translate the Latin term at all, but to reproduce it simply in italics. The best course seemed to be to use, where possible, approximate English law

terms, or well recognized technical terms when they are not misleading, and are so far in common use as to be intelligible to the ordinary English reader. Where there is danger of misapprehension, special precautions are taken to guard the interpretation.

As to references generally, it would simply have crowded the pages to repletion to have provided all the references to the "Corpus Juris " on some passage or other of which every sentence in the expository portion of this treatise is based. The preferable course has seemed to be only to add a reference when it is especially desirable for the reader to study the whole passage in the original, or when some statement is made which is so unexpected as to seem to need special justification. The urgent need of an English translation of the Digest to open out to students and legal practitioners belonging to English speaking populations the enormous body of matchless case-law and deductive logic contained in the Digest is still unsatisfied. For access to these fountains of legal knowledge a special training in the Law Latin of a particular period ought not longer to be an indispensable requisite. The like need has long been satisfactorily provided for in France and in Germany.

PART I.

THE HISTORY OF THE FORMATION OF ROMAN LAW UP TO THE DEATH OF JUSTINIAN, A.D. 565.

In spite of the fact that Justinian did his utmost to digest and codify every portion of the law existing in his time, whether unwritten or written in the unsystematic form of prevalent text-books, isolated statutes or partial statutes, it is none the less impossible to comprehend the whole of the law, as finally republished, without reverting to the history of the several distinct elements out of which it had grown.

Justinian's assistants in his great work seem themselves to have been fully conscious of this, inasmuch as in the Digest they preserved on all occasions a mention of the authorities and ultimate sources from which the rules of law were, on each occasion, extracted, however much they mutilated them, broke them into fragments, and cut them short. An anomaly was, indeed, thereby created, which still perplexes the student of Justinian's laws.

In the course of recurring to the works of the older writers, who commented upon the law as it was in their day, —that is, at a date usually at least three hundred years earlier than the time of the composition of the Digest,many institutions, customs, practices in procedure, and rules of law are alluded to as if they were in full force. In Justinian's day, and especially as his own legislation progressed by force of the very impulse which originated the Digest itself, many or most of these had either become obsolete, were entirely transformed by time and later legis

lation, or had been positively annulled. This is the case, for instance, with all the numerous rules of practice, relating to the several sorts of interdicts contained in the forty-third book of the Digest, and mostly extracted from works, in the shape of commentaries by Ulpian and Paul, written in the beginning of the third century. In Justinian's time,—as will be seen hereafter in the historical review contained in the chapter on Procedure, the Prætor no longer existed as the chief judicial officer, and the process of issuing an interdict had given place to a merely general power of peremptory orders of all sorts, which every judge possessed for the purpose of facilitating the administration of justice. Nevertheless, it was eminently desirable, in the interests of uniform law throughout the empire, and of public order, that the exercise of this power of peremptory command should, as far as possible, be regulated by reference to intelligible and long recognized principles, such as even the emperor himself professed to defer to when intervening in the administration of justice. Such principles could be found imbedded in the older law and in rules of practice as explained and applied by the best writers in the best days; and, if they were found implicated with institutions no longer existing, they could easily be disentangled, and no real danger of confusion was hazarded.

The same kind of observations apply to the frequent mention of the XII. Tables, and of the innumerable comments upon them and upon the Prætor's Edict. It was scarcely supposed that, at Constantinople in the sixth century, the broken and oracular fragments of the primitive republican code had still direct force as law, or could be cited as still binding, in an argument before a court of justice; nor could even the Prætor's Edict, as finally settled and closed in Diocletian's reign, be still held to occupy anything like its ancient place. But in the juristical comments, both on the XII. Tables and on the Edict, were contained principles of the broadest character and highest importance, which were far too deeply infused into the spirit and essence of the whole Roman system of law-even as reconstructed in Justinian's day and by him-