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The present is a critical moment in the history of law and of formal legislation. The common law of England, the customary law of every European State, and the laws of Rome and Constantinople, are being brought face to face with unprecedented social needs and a call for popular Codes. In India and in Egypt the elaborate system of Mohammedan law is being confronted with its long-ignored parent, the law of the Eastern Empire, and, under the influence of Western legislation, is crystallizing into new forms. The law of nations, public and private, is being more and more assiduously translated into the common language of written law. For this task, the terminology, the classification, and the logical analogies resorted to are invariably those of the law of Rome.
I have placed before the reader of this treatise, in the most compendious form I could adopt, the whole body of Roman law, both as it presents itself at its most characteristic epoch, the age of Justinian, and as it has been formally developed from the era of the XII. Tables to that of the Code Napoléon and of its numerous family of Codes. The period covered is more than two thousand years; and yet, so far from the essential principles of the law becoming obsolete, they are found marvellously plastic to new commercial and social conditions, and seem likely to ensure for themselves a future greater and longer than their past.
When forced to select among rival illustrative topics, I have brought into relief all that has specially affected the primary elements of European civilization, such as religion, morality, and commerce. In this connection I may refer for fuller historical details on some parts of the subject to my article, less relevant here, on “Law,” in Smith's “Dictionary of Christian Antiquities.”
It has not been easy to meet at one and the same time the requirements of the professional student and of the general reader, but I have kept both in view throughout.
My experience when lecturing on Roman law, first as " tutor" to the Inner Temple, and then as Professor to the Inns of Court, was perpetually bringing home to me the need of some such comprehensive text-book as the present, originally composed in English (that is, not a translation from the French or German), and observing a due proportion between the logical and the historical aspects of the subject.
It is almost superfluous to notice that the theologian, the general historian, and the speculative jurist are seen on all sides to be resorting to the facts of Roman law and administration for the support of their theories or the confutation of their opponents.
I have preferred the term “ Civil” to “ Roman” in describing the system of which I treat, because for all modern purposes it is only the Roman law, as modified and transformed by Justinian for the use of his non-Roman provinces, with all their medley populations and governments, which has descended to the modern world. All that was nearly obsolete in the time of Gaius—that is, the middle of the second Christian century-is little more than matter of curious antiquarian research now. Most of that which lived, or was called to life, in Justinian's reign —that is, in the first half of the sixth century-is, under one form or another, living at this hour.
For some years back I had been collecting books new and old, bearing on the fortunes of the Civil law, and especially on its relations to customary law in France and England. Nearly all these books were burnt in the fire of Alexandria, in July, 1882, and I have been, consequently, prevented from verifying references in the proof-sheets, and giving particulars as to the number and dates of editions I have used. The marginal references generally are only designed for the general direction of students' reading, and not for the proof of assertions in the
text. To supply this proof to every sentence would have overloaded the margin beyond all proportion.
I need not say I have made the freest use of the latest German, French, Belgian, and Dutch textbooks, and especially of Mr. Long's articles in Smith's “ Dictionary of Greek and Roman Antiquities,” which, with Professor Hunter's exhaustive treatise on “ Roman Law,” are the best purely English authorities on the subject. In matter of classification I have usually preferred the Continental to the English methods, and the German to the French.