In the first place, as regards the territory of the Common Law, § 3. the law of the Pandects represents an actually existing, positive law; in other words, the doctrines which it lays down can claim to be judicially applied in all cases where local statutes or customs have not created any rules of law to the contrary.

In the second place, the law of the Pandects has some practical importance even in the countries which possess a civil code. It would be a mistake to suppose that the framers of these codes (the Prussian Landrecht, &c.) were suddenly inspired with some new and original wisdom. The codes were of course constructed on the basis of the law as it previously existed. Inasmuch, then, as prior to these codes (i. e. from the reception of Roman law in the sixteenth century down to the end of the eighteenth century) the law of the Pandects had subsidiary force as law throughout the whole of Germany, these codes must, of course, have been framed more particularly on the basis of the Pandects. The Prussian Landrecht, the Saxon and Austrian civil codes contain a large number of legal rules which are directly borrowed from the law of the Pandects. (The French civil code contains less Roman law than the others.) The study of the Pandect law, then, will supply the necessary clue without which the civil codes just referred to can never be fully and thoroughly understood.

However, the law of the Pandects is not the only law in force in Germany. For, in the first place, in the countries of the Common Law, we find, in addition to the Pandect law, a long series of local statutes and customs. When any conflict arises, in applying the law, between the statutes and customs and the law of the Pandects, the former always prevail. The majority of these local laws and customs originate not in Roman law, but in the indigenous German law which flourished before the reception of Roman law. In the second place, it should be observed that the contents of the modern codes are only partially drawn from the law of the Pandects. Thus, e. g. in the Prussian Landrecht we find not only legal maxims derived from the law of the Pandects, but also numerous other maxims whose origin is due to the indigenous German law of the Prussian provinces.

§ 3.

In order, therefore, to understand the positive private law of modern Germany, a second branch of study is required in addition to the law of the Pandects. This is the so-called German Private Law, comprising, in the technical sense of the term, those institutions of the private law of Germany which owe their origin to an indigenous German source.

Thus the study of German private law divides itself into two branches, corresponding to the twofold origin of the private law of modern Germany. In so far as this law originates in Roman law, a connected view of it is given in the books on the Pandect law; in so far as it originates in native German law, it is set forth in the books on German Private Law.

§4. The History of Roman Law.

We have seen that the study of the law of the Pandects is a branch of the study of the positive private law of Germany, as it exists at the present day. As opposed to this, the History of Roman Law and the Institutes are exclusively concerned with the history of the private law of Germany, so far, namely, as that law is itself derived from Roman sources. The History of Roman Law deals with the history of Roman private law from the oldest times down to Justinian, the author of the Corpus juris civilis (sixth century A. D.). It shows us how Roman law, growing from small beginnings, took gradual possession of the whole world. It shows us, further, how Roman law, in accomplishing this outward victory, was inwardly transformed into a great cosmopolitan system of law. It shows us, lastly, the causes to which Roman law, and the theory of Roman law, owe their greatness, and thus enables us, at the same time, to understand some of the reasons why Roman law has been received in Germany.

§ 5. The Institutes.

In the Institutes we have presented to our view the final results of the history of Roman law, to the extent to which that history

*The term 'Institutes' is used by German writers to express the modern exposition of the elements of Roman Private Law as dealt with in the Institutes of Gains and Justinian: and

therefore as equivalent to what we in England would call 'Lectures or Commentaries on the Institutes.' See the Introduction.

reached its final stage within the limits of the Roman Empire. In § 5. other words, the Institutes are concerned with the private law of Rome as it existed at the time of Justinian.

It was reserved for Justinian to sum up the results of the whole development of Roman law. The code in which he accomplished this task is the Corpus juris civilis. It stands at the goal of the history of Roman law, and at the starting-point of the history of mediaeval law. It forms, in a sense, both the coping-stone of the whole structure of antique law and the foundation-stone of the structure of modern law.

The central position thus occupied by the law of the Corpus juris civilis will explain why, in the course of legal study in Germany, it is the practice to expound it twice and in two different ways. It is dealt with, in the first place, in the Pandects, i. e. in that branch of legal study which is concerned with the law of the Corpus juris civilis in its modern form, as modified by the Canon law, the customary law of Italy and Germany, and the laws of the German Empire (§ 3). In the second place, it is dealt with in the Institutes, i. e. that branch of legal study which is concerned with the law of the Corpus juris civilis as it existed at the time of Justinian, in other words, with the law of the Corpus juris civilis in its unaltered form, or, as it is also called, the pure private law of Rome. The Pandects give us the Roman law of the nineteenth century, the Institutes the Roman law of the sixth century.

In sup

But the Institutes have yet another function to perform. plying the student with a view of the private law of Rome in its pure and unaltered form, they are designed, at the same time, to serve as an introduction to the study of law in general.

The plan of the following treatise is thus clearly marked out for us. 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, taking, by way of introduction, a brief history of Roman law, and then 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: firstly, 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

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

way of writing: § 4 I. de donat. (2, 7), the name and number of the § 6 title not being repeated.

h. t. (=hoc titulo) refers to the particular title dealing with the subject-matter in question. Thus, if the subject under discussion 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 subject-matter under immediate 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 * English writers quote briefly as follows: Dig. 17. 1. 2. pr.