§ 5. of Roman private law; in other words, what it signifies is this, that the jurists and the students of Germany have been devoting their best strength to a dead law. Such a state of things cannot be allowed to continue. Science exists for the sake of the living; and it is the business of German science to serve German law. What is needed above all things is a science which shall devote all its strength, willingly and unreservedly, to the living, positive law of Germany.

It was only natural that German scientific lawyers should take but a distant interest in the development of the modern law of Germany, so long as the existing law offered them no alternative to the received Roman law but a number of 'particular' systems of private law. A Saxon legislature might indeed create a Saxon Civil Code, but it could not create a Saxon legal science. Even Prussia failed to establish an independent legal science of her own, although the territory of the Prussian Landrecht was a comparatively large one. There is, in fact, no such thing as a Saxon or a Prussian legal science, but only a German legal science, and its representatives could not be expected to single out any one of the 'particular' systems as the object of their special attention. Accordingly German jurists continued to devote themselves to the law of the Pandects (and of course to 'German Private Law,' in the narrower sense). Even for the territories where the law had been codified, it was only in the lectures on the Pandects that the general theory of the private law was scientifically dealt with. In other words, the only genuinely scientific training which practical lawyers received was in the application of a law which, as far as the territories referred to were concerned, had no actual existence; and even in the territory of the common law itself the practical validity of the Pandect law had been very largely curtailed by State legislation and-in the most recent times-by Imperial Statutes.

These circumstances will explain the nature of the change which is bound to take place, and which is in fact taking place, in the study of law in Germany. The new German Code marks the decisive turning-point in this development. What distinguishes the Code from the various 'particular' codes is above all things the fact that

it is able, by virtue of its greater inherent vitality, to determine the § 5. course of German legal science. The living law of modern Germany has at last taken definitive shape as a national private law, and it is in the main to this law that the attention of scientific students of the private law will henceforth have to be devoted. A meeting-ground will thus be found on which theory and practice can join hands in a permanent alliance.

It would indeed be strange if centuries of training in Roman law were to profit nothing, and Germans were never to be able to become masters of their own law. Is there really any reason why the art of legal thinking, which has hitherto been acquired and applied with so much success in connexion with the 'phantom of the Pandect law,' should not be equally well taught and practised on the materials furnished by the new Civil Code ?

The abolition of the law of the Pandects will necessarily put an end to the study of the Pandects, as hitherto conducted. The Pandects of Roman law will no longer stand at the centre of the science and the study of the private law of Germany, and their place will be taken by the Pandects of the German Corpus juris civilis, that is, by the German Civil Code. The old home of the Pandects will be broken up, but the spirit of scientific inquiry of which the Pandects were the centre will live on, and will find yet ampler scope within the new sphere opened up by the national private law. The future science of the private law of Germany will succeed both to the office hitherto performed by the law of the Pandects and to the wealth of scientific materials which has accumulated round the Pandects. The great training-school of legal thought will be transferred from the Pandects to the new discipline, with this signal advantage to the student, that the intellectual equipment hereafter provided for him will fit him to gauge the full significance, not of a dead law, but of the living law of his country.

The study of Roman private law as such will in future only occupy an introductory stage in the legal curriculum. Pandects of the old kind will disappear, though Pandects in an abbreviated form, dealing with the fundamental principles of the former science, will remain, and will serve, on the one hand, to maintain the existing connexion

§ 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.

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.