A similar course has been found necessary in every system of law, and the prediction may be ventured that our law must soon be restated in more scientific form and order.

The compilation of the Code and Pandects was, however, not his chief contribution to the science of law, for in these there is little regard to system and arrangement. An institutional work was needed in order to facilitate the study of the law. He therefore caused Tribonian, with the assistance of Theophilus and Dorotheus, to prepare a brief system of law under the title of Institute, which should contain the rudiments of jurisprudence (36). This work was professedly founded on the Institutes of Gaius, so that Justinian's Institutes are in fact no more than a new edition of that work, which up to that time had been used as a first book for the study of Roman law, much of which, however, was obsolete at Justinian's time. In this new edition of Gaius' Institutes the wholly obsolete matter was omitted (37).

§ 37. The principle of legal analysis. It is necessary at the outset to discover the principle lying at the basis of all legal analysis. That principle, so far as it has been applied to any feasible attempt at classification or arrangement, is that the rules of law are to be classified according to the subject-matter of the rule of law, or as

36 See Sandars' Justinian, pp. 63-65.

37 Mackeldy, Roman Law, Int., 60; Sandars' Justinian, Int., sec. 34, p. 2.

we may otherwise put the same idea, laws are to be arranged according to the objects to which they relate (38). Classification of the Roman Law. Gaius, one of the celebrated Roman jurists, said: That all laws relate to persons (39), to things, or to actions. No great use was made of these principles in the Roman code or pandects, and it is apparent to any one who gives that body of laws close examination that those books have not been arranged in conformity with these principles (40). While the divisions pointed out by Gaius are observed, the external arrangement of the law of Rome was never made to conform to this internal arrangement (41).

§ 38. Method of the institutes. The greatest application of the principles and the nearest approach to system is found in the arrangement of the Institutes (42), which was a work designed for the use of students, and meant to give an outline or introduction to the laws of Rome as found in the Code and the Digest. Judge Tucker truly remarked that in arbitrary governments questions concerning the constitution rarely occur, and are still more rarely discussed, and hence in such governments the study of the law merely as a profession does not seem necessarily to require the study of the constitution; the former

38 Bowyer, Com. on Civil Law, ch. 8; Mackeldy's Roman Law, p. 117, sec. 124; Austin's Jurisprudence, 761. See Story's Conflict of Law, § 13.

39 Persona, i. e., condition or status.

401 Stephen's Com., p. xi.; Thibaut's System Lindley's Trans. *5. *See Hastie's Outlines Jur. 238.

41 Sandars' Justinian, Introduction, p. 24; Thibaut's System, Lindley's Trans. *5.

42 The Institutes of Gaius are referred to as such; those of Justinian are universally cited as the Institutes.

being limited to such controversies between individuals as do not involve in them any question of the authority of the government itself, and the latter being supposed to be a theme too exalted for the comprehension of the private individual, and as such discouraged and neglected (43). This is undoubtedly the reason why the arrangement and discussion of the Institutes does not embrace the relation of magistrate and people.

The following taken from Spence's "Equitable Jurisdiction," shows sufficiently the arrangement of the Institutes: "The laws of the Romans may be classed under five general divisions: First. Those which concern the distinctions of persons and the relations which existed between individuals. Second. Those which related to property or things. Third. Those which related to the rights of individuals in respect to their transactions with others, and to the claims arising from the conduct of individuals one to another, or the laws relating to obligations. Fourth. Those which related to the enforcing by legal means the rights and claims of individuals, or the laws which concerned the machinery of actions. Fifth. The laws relating to public offenses.'

§ 39. Blackstone's disposition of these subjects. A comparison of this analysis of Roman law with Blackstone's analysis of English law shows that Blackstone has reproduced, in his Commentaries, all excepting the third division. The first division, under "Rights of Persons" (book 1); the second division, under "Rights of Things" (book 2); the fourth division, "Of Actions and

43 Preface to Tucker's Black., xvi,

Defenses of Actions" (book 3), under the head of "Private Wrongs," and the fifth division, in book 4, under the title "Of Public Wrongs." What, then, becomes of the third head, namely, "Obligations?"

Obligations were those which related to the rights of individuals in regard to their transactions with each other, and the claims arising from the conduct of individuals one to another.

In the Roman law these obligations arose by reason of, first, contracts, express or implied, which Spence has designated by the words "transactions with others;" or second, from torts or wrongs, as understood in English or American jurisprudence, expressed by Spence as arising from conduct of individuals one to another, which the Roman called delicts.

All that part of obligations arising from contracts is logically treated by Blackstone under "The Rights of Things," as all such contracts affected property, and conduct imposing an obligation was some wrongful act of one person against another, amounting to a tort.

§ 40. Universality of the principle of analysis. These principles of Gaius, and their application in the Institutes, lie at the basis of every systematic analysis of modern law, and it is obvious that, if the principles are sound, they are applicable alike to all systems (44).

44 Perhaps this should not be passed by without proof or illustration. Is it not a fact now obvious that in all societies there is an understructure of arrangement which is identical-that is, a body of rules relating to the exercise of magistracy, another of family law, another of property rights, another of remedies, and a body of criminal law? However the details may differ the classification is always there.

Blackstone says, in the introduction to his analysis of the laws of England: "The most early and, indeed, most useful of those who have labored in reducing our laws are Glanville, Britton, Bracton and Fleta." (Bracton's system was to book 3, tract 1, substantive and fundamental rules; the balance, legal procedure, was professedly following the Roman law.) Fitzherbert and Brooks, and the subsequent authors of abridgments, have chosen a method the least adapted of any to convey the rudiments of a science; namely, that of the alphabet. Dr. Cowl follows the Institutes of Justinian. He then says: "Of all the schemes hitherto made public for digesting the laws of England, the most natural and scientific of any, as well as the most comprehensive, appeared to be that of Sir Matthew Hale in his posthumous analysis of the law."

Critical Examination of the Principle. It is important to ascertain clearly the principles lying at the basis of each analysis, and also to see how far they are applicable to our law.

We have asserted that the principle lying at the basis of the various analyses is that the laws are to be classified according to the objects of the rules. Austin, speaking of Gaius, says: "That he divided jus, or law, into jus gentium and jus civile, and, having shown the various sources of the assumption of law, or jus, proceeds to divide that same subject according to the objects or subjects with which it is conversant" (45).

45 Austin's Jur., p. 761.