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THE text which I have followed is that published by Krueger in his and Mommsen's Edition of the Corpus iuris civilis (Berlin, 1877). In writing the Introductions, Commentary, and Excursus, I believe I have consulted the best and most recent authorities : perhaps my obligation throughout is heaviest to Puchta (on whose masterly Institutionen, Book II, the General Introduction is mainly based), Schrader, Baron, and Vangerow. My constant difficulty, in explaining the text, has been to know where to draw the line between notes, in the ordinary sense of the word, and a more systematic treatment of legal topics. If I seem to have been too prolix, my excuse must be the scarcity of accessible books upon the subject in our own language. A French or German edition of the Institutes might well have been far shorter, but there the reader can be referred to systematic institutional treatises upon points which hardly occur in our text. A book such as Puchta's or Kuntze's still remains to be written in English.
I have to express my thanks to Professor Bryce, M.P., the present holder of the Chair of Civil Law in this University, for constant encouragement and much actual assistance in my work. Some of it he has revised with great care, and he has benefited the whole by many valuable suggestions and criticisms.
J. B. M. OXFORD, January, 1883.
Page 4, line 18, for illustrated to quote read quoted to illustrate.
» 47, 1. 28, for exceptio read actio. , 51,1. 13, for caepit read coepit. ,, 57, l. 15, for treaties read treatises. , 59, 1. 10, for sententiae read sententias. , 68, 1. 13, for context read content. , 98 (note), 1. 10, for sententia read sententiae. ,, 121 (note), l. 35, for Dy read By. „ 193 (note), l. 17. for conditio read condictio. ,, 197 (note), last line, for comsumpti read consumpti ,, 231 (note), l. 3, for and read by. ,, 238 (note), 1. 25, for si read sic. , 251 (note), 1. 3, dele and. „ 325, last line, for rejected read ejected. „ 356 (note), 1. 6, for of hence read whence. „ 364 (note), 1. 5, for liberi read liberis. „, 370 (note), 1. 14, for servarique read servari quae. ., 376 (note), last line but one, for admistered read administered. „452 (note), l. 2, for at read ut. , 479, 1. 12, between least and might insert it. „ 481, 1. 2, for sua read tua. , 507 (note), last line but one, dele been. ,, 587 (note), l. 37, dele the comma at the end of the line.
The purpose of this Introduction is to give as full an account as is practicable, in a work such as this edition of the Institutes, of the history of Roman Law and Legislation. In order to allow the largest possible amount of space to strictly legal topics, constitutional history has been avoided, except so far as it seemed that these could not be adequately understood without occasionally touching upon it. It is of course impossible to write on the history of any legislation without taking some notice of the persons or bodies by whom legislative functions are or have been exercised; but such digressions from purely legal matters can fortunately be confined within tolerably narrow limits, because the Roman system owed so large a part of its development in point of matter to the praetor, whose powers, so far as they were legislative, were exercised indirectly, and it may almost be said covertly, and in point of form to the jurists, whose constitutional position, despite their direct influence on law, was in reality quite unimportant.
So far as legislation goes, what will here be said is little more than a commentary, written in historical sequence, on the seven sources of law from which the Roman system is said (Inst. i. 2. 3) to be derived. As regards the system itself, apart from the agencies by which it was directly developed, or viewed from within rather than from without, the principal topics which will be treated are the relation of public and private law at Rome; the influence of caste, or, more precisely, of the patrician and plebeian elements respectively on the material character of the system; the 'duplication of institutions' which resulted from the co-existence of what we may perhaps call a purely national with a cosmopolitan legislative organ; the gradual absorption by what was cosmopolitan of what was purely national; and the development and character of the Roman scientific or philosophical jurisprudence.