PREFACE.

No book on law is better known than the Institutes of Justinian. No other legal work has obtained a reputation so high, or an influence so enduring. Designed simply as an elementary treatise, wherein the rudiments of law were to be found, and intended solely for the use of youthful students, it has lasted for 1300 years a standard authority on the leading doctrines of the Roman Law and an object worthy of the attention of advanced jurists. The text has been carefully revised and reprinted, its subject-matter has been exhaustively criticised and commented on, its scientific or systematic arrangement has been approved as the model of innumerable treatises on Law and Jurisprudence, and the very name of him under whose auspices it appeared has been inseparably linked with it.

In the prefaces to our edition of the Commentaries of Gaius and the Rules of Ulpian, we drew attention not only to the special nature and characteristics of those works, but to the peculiar influence of the lawyers of Rome during the period of 250 years, which intervened between the reign of Augustus and that of Alexander Severus. To this golden age of Jurisprudence, as we then showed, the world has been indebted for rich stores of wealth in the province of Jurisprudence and Law. With the close of that golden age, the learning, the skill and the fame of the Jurists of Rome ceased, and for nearly 300 years Roman Law shared the fate of Roman art and literature, and of Roman political and social life.

It would be out of place here, even if our space permitted it, to dwell on the devastation, the misery and the profligacy of the years that intervened between Diocletian and Justinian.

The history of the fate and fortune of the law would be but a record of weakness and decay. Among the lawyers of the West and East not one name of note is to be found; among the rulers of the different divisions of the Empire none save Valentinian III., for his Law of Citations, and Theodosius II., for his celebrated Code, are worthy of notice. Nay to such a contemptible condition had the science of law fallen that Theodosius himself lamented: "Quod tam pauci extiterint qui juris civilis scientiâ ditarentur et soliditatem verae doctrinae susceperint."

Yet, strange to say, while the Roman lawyer was mute and the Roman ruler, with the two exceptions above named, careless and ignorant, the barbarian invaders of the empire, by whom Roman civilization had been ruined and Roman society destroyed, became active agents in the preservation of the Roman Laws. In the edict of Theodoric, in the Breviary of Alaric, in the Papiani Responsa or Lex Romana, the Ostrogothic, Wisigothic and Burgundian conquerors preserved a large portion of the text as well as the principles of Roman Jurisprudence.

The golden age of Jurisprudence, it is true, had given way to an iron age of lawlessness and ignorance. To the debasement of manners and morals throughout the whole Roman empire, and to the utter contempt of virtue, honour and social decorum pervading all ranks, from the Emperor to the lowest subject, was added a wave of invasion such as no time or country has ever seen. Under the overpowering influence of these destructive forces the whole fabric of Roman civilization was shaken, and Roman life as well as the old Roman Law, once so famous, seemed about to pass away for ever. Fortunately there were counteracting agencies at work, and under their influence the impending destruction was averted. Among those agencies the learned author of The History of Civilization in Europe has pointed out four.

The first sprang from that instinct by which man in the depth of his rudeness and ignorance is so powerfully influenced by a longing for better things, and a consciousness of

other powers than his own interests and passions. This agency was that love of order and of progress inherent in man's nature, and under which the barbarian conquerors of Italy and Gaul were led on to aspirations after civilization and social life.

The second agency was derived from what these barbarians saw around them, the wrecks of Roman civilization, the majestic ruins of Roman life and Roman law.

The third agency was Christianity. Here the influence was exerted first upon morality and order, and next upon social habits and political life. "Christianity attacked barbarism, as it were, at every point, in order to civilize by ruling over it 1."

Lastly, and here we quote the very words of the eloquent historian of Civilization, "there was a fourth agency, one which it is impossible fitly to appreciate, but which is not therefore the less real, and this is the appearance of great men. No one can say why a great man appears at a certain epoch, and what he adds to the development of the world; that is a secret of providence, but the fact is not therefore less certain. There are men, men whom the spectacle of anarchy and stagnation strikes and revolts, who are intellectually shocked therewith, as with a fact which ought not to exist, and are possessed with an unconquerable desire of changing it, a desire of giving some rule, somewhat of the general, systematic and permanent to the world before them. A terrible and often tyrannical power, which commits a thousand crimes, a thousand errors, for human weakness attends it; a power nevertheless glorious and salutary, for it gives to humanity and with the hand of man a vigorous impulse forward, a mighty movement." Let us say a few, a very few words on each of these solvents of barbarism.

In proof of the first it is enough to point to the very codes, or attempts at codes, we have named, to show that, in the midst of the havoc they created, the barbarian conquerors of the West sought for something like rule and order,

1 Guizot, History of Civilization.

with the view of founding a society durable and regular. Their efforts to reform the material world and themselves might be, and for a long period of time doubtless were, unproductive of permanent success. Their national characteristics were too overpowering to reconcile them easily and quickly to a condition approximating to regular, orderly social life. Perhaps "that need of justice, foresight and development, which agitates man even under the yoke of the most brutal selfishness," would have failed altogether in producing its effect, but for the fortunate influence of the second agency by which they were directly and vividly affected, that of a system of existing law forcing itself upon their attention, hallowed by long use, and recommended by the shrewd common sense which lay at the bottom of all its rules and precepts.

Sir Henry Maine has pointed out the remarkable influence of English Law as a system, upon native usage and native life in India'. He has shown how primitive customary law has been affected in that quarter of the world by the importation of a body of express rules or principles, in number nearly sufficient to settle the disputes occasioned by increasing activity of life and multiplying wants.

Of a similar nature was the influence which the old Roman Law exercised upon the imagination of the northern invaders of Europe. They found express rules ready to hand and capable of settling all their disputes; they found judges engaged in the work of applying these rules to the suitors in their courts; they saw law-books in abundance, and lawyers ready to explain them; and they found that it was by no means difficult to appropriate these rules and make use of these books even to the extent of amalgamating them with their own usages and customs. One beneficial result at all events ensued, viz. that a large portion of the Roman Law was preserved from the destruction that awaited every other Roman institution.

1 Village Communities, Lect. III. p. 74.