The subject may be demonstrated thus, taking Blackstone's Analysis as the illustration: He says he made it his first endeavor to mark out a plant of the laws of England, so comprehensive as that every title might be reduced to some or other of its general heads (21). In his Commentaries he fills up that analysis by stating a rule of law, and commenting upon its origin, growth and change, and giving illustrations of its application in decisions. In pursuing this plan he states under a particular head the rules applicable to a subject, without regard to whether the source of the rule was a statute of parliament, a custom of the country, a constitutional document like Magna Charta, or was simply evidenced by some legal decision (22) which was itself based upon reason and supposed policy (23).

§ 33. The principal heading for the outline. It is obviously necessary that some term be selected as the basis of the analysis, so comprehensive that every subordinate subject may be embraced within this general head. Here it is proper to remark that in the discussion of a legal subject, as well as any other, each word used should be selected with a natural appropriateness of the term used to convey the desired idea. We must also bear in mind that there is a mutation in language, as there is a development of thought; and language, as the vehicle of thought,

21 Preface to Analysis, p. 4.

22 Black., p. 68; Analysis, ch. 2, sec. 3

23 Such, for example, as Coggs v. Bernard (1704), Lord Raymond, 909; s. c., 1 Sm. L. C. 369; s. c., Great Opinions by Great Judges, 40; 8. c., Laws L. C. Simp. 194; s. c., Shir. L. C. 41-the great case in which Lord Holt elucidates the law of Bailments.

must, to keep pace with the progress of thought, either invent new words or ascribe a new meaning to the old

ones.

§ 34. New meaning of old words. Throughout the nomenclature of the law will be found words which have come down to us from the Roman or Saxon period, or some intervening time, but the meaning which now attaches to a word may, and quite frequently does not, correspond to the meaning which was given to it originally (24). The body of the law which we are to analyze was framed by men of bold conceptions and upon new lines.

The matter is more plainly put and more directly applied to the subject in hand in the opinion to which we have before referred (25). "It is hardly possible to make any innovation in our philosophy concerning the mind and its operations without using new words and phrases, or giving a different meaning to those that are received. With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious as has been done by 'states' and 'sovereigns' in politics and jurisprudence (26); in the politics and jurisprudence even of those who wished and meant to be free. In the place of those ex

24 See Holland, Jur., 3, 4.

25 Chisholm v. Georgia, 2 Dall. *419.

28 Wilson, J., Chisholm v. Georgia, 2 Dall. *454.

pressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those for which they have hitherto been frequently used" (27).

§ 35. The beginning of legal analysis. Gaius. Gaius was a lecturer and writer upon law living about one hundred fifty years before Justinian. "As the opinions of Gaius are not quoted by the subsequent jurists whose fragments are preserved in the Digest, it has been inferred that Gaius was a public teacher of jurisprudence (jus publice docens), who never in his lifetime obtained the highest distinction of the legal profession, the title of juris auctor (jus publice respondens). Valentinian, however, after his death raised Gaius to the position of juris auctor, that is, gave to his writings pre-eminent auctoritas, or exclusive legislative authority, equal to that of four other jurists, Papinian, Ulpian, Paulus, and Modestinus" (28).

The renown of Gaius rests mainly upon his announcing the principles upon which all legal analysis has subsequently proceeded. He recognizes as sources of law the law of nature and the law of nations and the jus civile of the Romans (29). He agreed with the other Roman jurists of the second century in the assumption, "on the authority of Greek philosophy, that there was a lex naturae binding upon them because it was a lex,” and they endeavored to work up the dictates of this law

27 See Tennessee v. Davis, 100 U. S. 263, 1 Ham. Blk. 137-141. 28 Poste's The Elements of Roman Law-Gaius, vi.

29 Sardars' Justinian, Int. 25.

and the jus gentium, together with the provisions of the old jus civile, into a whole (30). He was the first to see that whatever the source of the law might be, the whole body of the law was subject to an arrangement upon another principle, viz., the object operated upon by the rule: that to which the law "relates" was the touchstone of his analysis (31). This was showing that this body of rules as a whole was capable of a separation into classes of differing genera between which there was, however, a natural relation, and an interdependence. It was a great step in the progress of law as a science. This is the splendid period in the development of scientific jurisprudence. Says Mackeldy: "The scientific treatment of the law at this period (32) attained its highest excellence" (33). Again he says: "Jurisprudence, which had attained its meridian under Hadrian, the Antonines and their immediate successors, soon ceased to progress or to have life after the internal destruction of the empire subsequent to the death of Alexander Severus. All the science decayed, and the old Roman spirit expired beneath the oppression of despotism and the corruptions of morals" (34).

It may be truly said that the science of government never under the Romans attained to the Greek model. There is still one more period in the development of the

30 Id.

31 See Poste's Gaius, 39.

32 Of Cicero, Hadrian, and the Antonines, Mackeldy, Roman Law, Int., § 40, p. 60; Poste's Gaius Pref. vi.

33 Mackeldy, Roman Law, Int., sec. 51. 84 Mackeldy, Roman Law, Int. sec. CO.

science of law or jurisprudence under the Romans, viz., the age of Justinian.

§ 36. Justinian and the institutes. Justinian's merit is not in the destruction of the old and invention of new principles. In the Code and the Digest his agents or commissioners compiled and collected, not all of the applications of the principles of the preceding ages, but, as they supposed, all the living principles of the Roman law.

The evolution of Justinian's Corpus Juris is thus stated by Poste: "In the course of centuries the accumulation of juristic writings of coordinate authority was a serious embarrassment to the tribunals. To remedy this evil, A. D. 426, Theodosius and Valentinian enacted what is called the law of citations (Cod. Theodosianus, 3), limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of those juris auctores. In case of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. A. D. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which he gives legislative authority. Every sentence, accordingly, of these passages is called a lex, and the remainder of their writings is pronounced to be absolutely void of authority” (35).

85 Poste's The Elements of Roman Law, Gaius, p. 38.