Page:The Green Bag (1889–1914), Volume 01.pdf/170

H7 of law, and obtain an outline of its principles. It is the business of their later lives to fill up this outline with detailed knowledge, partly worked out by the exercise of their reason ing powers, which have been constantly called into requisition, and partly by the examina tion of adjudged cases. They are in a posi tion in which they can profit by such studies and trace the line of adjudication from its

original sources. It seems to be a wise and natural method in the study of other sciences to obtain an accurateoutline before crowding the mind with details. Why not in law? It is not out of place in this connection to refer to the chosen methods of acquiring the Roman law, both as sanctioned by great jurists and by impe rial authority, after an experience continuing through centuries. It cannot be denied that the system of rules worked out by the jurists of the Empire was far more scientific SAMUEL B. than those which pre vail in the common law, so far as these are not borrowed from those very jurists. The Roman jurists had "cases " to deal with, precisely as we do. They were not mere legal philosophers, but disposed of practical and " burning " ques tions of their time. They were, however, in the habit of referring back to a legal principle in disposing of a concrete case, and believed that great principles could be so stated as to win the attention of stu dents and give them a solid basis for future detailed acquisitions. Hence it happens that posterity, by the aid of the great historian

Niebuhr, has the advantage of studying the Institutes of Gaius, though in a fragmentary state, — a work compact in form, scientific in treatment, clear and accurate in its method, and persuasive in its reasoning. Assume that Gaius completed this work about the close of the life -of the Emperor Marcus Aurelius (say A. u. 178), it continued to be used for the instruction of students for three and a half centuries, down to the time of Justinian, who in the course of his reign is sued another book of Institutes based on Gaius, avowedly for the use of students. 11 is significant that this later work was largely composed in the very words of Gaius. It is reasonable to sup pose that this hap pened not from mere servility of expression, but because Gaius, like Blackstone or Kent, was a hand book in constant use for legal teaching, and so it was inexpedient to change its phrase ology, unless where it RUOGLES. became necessary to do so by reason of changes in the law, made by Justinian, prin cipally under the influence of a later public opinion. The justness of these statements is borne out by a sentence or two in the forefront of Justinian's own Institutes, Hook I., Title I. His words, no doubt composed by the law yers who made this later adaptation of the Institutes of Gaius, will bear quotation. The accurate translation of J. B. Moyle (Claren don Press, Oxford, 1883), is followed : " Our object being the exposition of the law of the Roman people, we think that the most ad vantageous plan will be to commence with