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.' novellae constitutiones :' 'Si quid in posterum melius inveniatur et ad Constitutionen! necessario sit redigendum, hoc a nobis et constituatur, et in aliam congregationem referatur, quae novellarum nomine constitutionum significetur' (Just, in Cod. cordi nobis, § 4). The first of Justinian's Novels was enacted very shortly after the publication of the Code; their total number was at least 165, but they were never authoritatively collected and published in a connected form by their author. Though most of them relate to administrative business and ecclesiastical matters, there are some by which individual institutions of private law were entirely remodelled; the most important of these will be noticed in the commentary below.

The subsequent history of the Roman law in the West and East, the labour which the glossators and the modern civilians have spent upon its interpretation, and the acumen with which, especially in Germany, they have adapted it to modern social conditions, is too large a subject to be here entered into; all that can be done is very briefly to explain the form in which the Justinian legislation at present exists in the countries where it still possesses the force of law. Since Dionysius Gothofredus, in 1583, published it in its entirety with the name 'Corpus iuris civilis,' this has been regarded as its proper technical title, especially in contradistinction to the ' Corpus iuris Canonici,' or Canon law. As positive law, Justinian's three great compilations, the Institutes, the Digest, and the Code (along with the Novels, their natural appendix), form a system apart by itself, and as such they were viewed by the glossators, who divided them into five volumes, each distinguished by a separate name. The first three volumes comprised the Digest, and were known respectively as Digestum vetus, infortiatum, and novum. In the Digestum vetus was contained the Digest up to Book 24, Title 2; it thus ended with the title 'de divortiis et repudiis.' The 'infortiatum' began with the third title of Book 24, and ended with Book 38. The Digestum novum contained the remaining books (39-50) of the Digest of Justinian. The fourth volume of the glossators' corpus iuris comprised the Code, with the exception of Books 10-12, which were not discovered till later, and was entitled ' Codex repetitae praelectionis;' the fifth (called 'volumen parvum' or 'volumen' simply) contained the Institutes, and, eventually, also the last three books of the Code.

This division into five volumes is still found in the oldest editions of the Corpus iuris; but in the more modern ones, in which it is discarded, the Institutes are placed first, and are followed by the Digest, the Code, and the Novels in the order named. Many of these editions also contain certain extraneous fragments which properly do not belong to the work at all; among these are thirteen so-called 'edicts' of Justinian, which are in reality novels of merely local or particular import; fifteen constitutions of Justin the younger; several of the younger Tiberius; one hundred and eighteen novels of Leo; one of Zeno; a series of constitutions of various emperors, under the common titles imperatoriae constitutiones — canones sanctorum et venerandorum apostolorum—libri feudorum; some constitutions of Frederic II; two ordinances of Henry VII (extravagantes); and a 'liber de pace constantiae.' Sometimes also there is to be found an attempt to reconstruct the Twelve Tables, the Praetorian Edict, and other celebrated monuments of the older ius civile1.

1 It will have been observed that little or nothing has been said in these pages of the history of judicial institutions and civil procedure. This is briefly supplied in an excursus at the end of the volume.


Institutiontm Sive Elementorum



The first two Titles of this book are merely introductory, and afford no clue to the principle on which it is intended to distribute the rules of the private code. Title 1 is derived in the main from the 'Institutions' of Ulpian; it contains definitions of Justice and Jurisprudence, determines the scope of the work as a treatise on private law, and draws the distinction between ius naturale, gentium, and civile, which has been adverted to in the general Introduction (p. 27 sq., supr.). In the second Title ius naturale is defined after Ulpian, and then ius civile and ius gentium are distinguished in the words of Gaius, though, as has been pointed out elsewhere, the latter contrast is the true and important one, and in other parts of the work ius gentium and ius naturale are identified. The sources of the positive law of Rome are then specified and each briefly described.

In the opening words of the third Title we meet with the significant statement of the principle upon which the arrangement of the Institutes is to proceed. That principle, and, accordingly, that arrangement, is taken literally from Gaius, and an exposition of its meaning will be as important for the work of the jurist as for that of the prince. 'The whole law by which we are governed relates either to persons, or to things, or to actions.' The division of the Institutes into these three departments is perfectly clear; the 'ius quod ad personas pertinet' occupies Bk. i. Title 3, to the end; the 'ius quod ad res' extends from the beginning of Bk. ii to Bk. iv. Title 5; the remainder of Bk. iv 'pertinet ad actiones.' In this particular point the Gaian distribution is more satisfactory, as it makes the break between res and actiones at the end of the third commentary, and devotes the whole of the fourth to the latter subject; in the Institutes the formal division of Books tends somewhat to obscure the material classification of the system. This, however, though 'inelegans,' presents no obstacle to our comprehension of the system itself; but we are at once met by difficulties, and by great differences of opinion among the commentators, when we attempt to discover the meaning of the

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