1. The Koran and its more authoritative commentaries.

2. Traditions (sunna) of words, acts, and silence of the prophet, preserved by his companions and their contemporaries, and by the first four caliphs.

3. Authoritative treatises on the Koran.

4. Special treatises on the Law of Succession.
5. The opinions of the mufti or

jurists (fetwa).

more renowned

Out of these sources of Mohammedan law it has been seen how much and how little the Koran contributes expressly. It has also been seen (excluding from consideration the direct pontifical legislation of the Ottoman Sultans) how complex and exact a structure of law has been erected on the original foundations, and yet that tradition and learned treatises or opinions have been the only recognized instrument of legal reform. When it is found, then, that it was in countries in which schools of Roman law, text-books of Roman law, Roman law courts, and magistrates and officials imbued with Roman law from their early college days existed, that all this elaborate system of rules and ideas grew up,-reproducing, with a curious mixture of sameness and variation, the essential principles of the latest phase of Roman law,-the conclusion is irresistible that the system is nothing else than Roman law itself very slightly transformed. Indeed, if, as Emanuel Deutsch said and seemed to establish, the Mohammedan religion is nothing but Hebraism adapted to an Arabian soil, it seems also true that Mohammedan law is nothing but the Roman law of the Eastern Empire adapted to the political conditions of the Arab dominions.

In this way the history of Roman law in the East is brought up to modern times through two distinct channels, that of the relics of the Greek Empire, surviving in modern Greece and in the Sclave provinces of Eastern Europe, and that of Mohammedan law wherever it prevails.

CHAPTER II.

THE CIVIL LAW IN THE WEST.

§ 1.-General Representation of the Progress of Roman Law from the Era of the Barbarian Codes to the Period of the Middle-Age Universities.

THE history of Roman law has been traced through the Theodosian Code up to the embodiments of parts of that code and other earlier treatises in the remarkable systems of law published by such conquerors as Alaric and Theodoric for the use of their Roman subjects, and often known as the laws and codes of the barbarians. The Breviary of Alaric probably both survived the conquest of the Visigoths by the Franks in A.D. 507 and also took the place of the Roman code published by the Burgundians when, in A.D. 534, the Franks took their place. The edict of Theodoric succumbed, at the fall of the Ostrogoths in Italy, to the publication of Justinian's laws in Italy, in A.D. 554.

It thus appears that in the middle of the sixth century two distinct streams of Roman law were simultaneously carrying its influence forward into the coming centuries. One of these streams proceeded from the Theodosian Code and such parts of the elementary treatises of Gaius, Ulpian, and Paulus, as had been incorporated in the "Breviary," the "Roman law" of the Burgundians, and the Edict of Theodoric. The other stream proceeded from the legislation of Justinian, including his Institutes, Digest, Code, and Novells. Besides these two ascertainable and emphatic

modes of influence, there were the detailed civic practices, the town and provincial organization, the modes of administering justice, the old laws of Wills, marriage, guardianship, conveyances, and contracts, which the unbroken. use of centuries must, throughout not a few of the Roman dominions, have translated into popular usages, and which could only have been interrupted, rather than obliterated, by the barbarian conquests. Corruption and disintegration, indeed, must have gradually set in as the central Roman energy was proved to be paralyzed; but enough would remain to afford a machinery for the use of the new governments, and to hand on the memory of what was most characteristic in Roman law to the time when legal education, as revived in the Universities of the twelfth century, should build up the edifice afresh.

The diagram on p. 418 will exhibit the various modes. in which the influences of Roman law, in their different relations to each other, were brought to bear on the States of modern Europe.

There will be found printed at the end of the Corpus Juris, after what are known as the "Novells of Tiberius," among some scattered constitutions of Justinian, a "Pragmatic sanction," of which the eleventh chapter is in the following terms:

"Furthermore, we decree that the laws or enactments inserted in our codes, which, some time ago, we sent into Italy and published by edict, shall have full force and we command by a general edict that those constitutions, too, which were promulgated later shall have force also in Italy from the time at which they were promulgated, so that, since the republic is become one through the will of God, the authority of our laws also may be extended everywhere."

In the constitution (L. 2, § 24, C. (i. 17)) De vetere jure enucleando, by which the Digest was enacted as law, Justinian commands all his judges, according to their several jurisdictions, to use the Institutes, Code, and Digest, both in Constantinople and within the limit of their jurisdictions, wherever they were (easdem leges suscipiant, proponant).

ORIGINAL ROMAN LAW AS EXISTING IN THE TIME OF AUGUSTUS.

It may thus be assumed that at the close of Justinian's reign the Institutes, Digest, Code, and Novells, of Justinian were circulated throughout Italy; and-the law contained in them harmonizing as it did with the laws already in useit may be supposed that it needed scarcely more than a single generation of judges and administrators to make them thoroughly familiar to the people, and especially to the professional lawyers in the courts.

The limits of Justinian's Empire in Italy were, within a very few years, cut short by the Lombards. Without following the political events of the two or three centuries which succeeded the death of Justinian, it is sufficient, for the present purpose, to notice that, counting from the submission of the whole of Italy to Justinian, in A.D. 554, the dominion of the Eastern Empire in Rome continued for 172 years, when it was brought to an end by the successful insurrection against Leo the Iconoclast, in A.D. 726. The Empire continued in what was known as the Exarchate of Ravenna (which, it is important to notice, included the seat of the future University of Bologna) for 198 years, that is, till the conquests of the Lombards, in A.D. 752. Finally the Eastern Empire still held a place in Naples and in the Greek towns of Southern Italy well into the ninth century, when these towns gradually enfranchised themselves, the Eastern dominion in Italy, with all the legal and judicial influence which that dominion implied, being thus brought down to a period some 300 years beyond the death of Justinian. In the meantime, the compilations of Justinian, especially in their Greek forms, had undergone no integral change in the centre of the Eastern Empire, the Basilica not being published till the opening of the tenth century.

There were many circumstances which tended to prolong the existence and memory of the old Roman law, even in the part of Italy and the Western Empire which had been fully reduced under the power of the barbarians. It was inevitable, for instance, that Roman law should continue to preside over all transactions which took place in towns. The separate and independent organization of towns had always