Lapas attēli

Digests of the civil law.

The first authoritative digest of the Roman law which actually appeared, was the Perpetual Edict, compiled by Salvius Julianus, under the orders of the Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofred, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority. The prætorian edicts had been so controlled under the government of the emperors by the opinions of the civilians, that they lost the greater part of their ancient dignity, and Hadrian projected the design of reducing the whole Roman law into one regular system. All that he, however, lived to perform, was to procure the compilation of those edicts of the prætors which had stood the test of experience on account of their authority and equity, and had received the illustrations of civilians. Many able professors undertook from time to time a digest of the civil law. Papirius Justus collected some of the imperial constitutions into twenty books, and Julius Paulus compiled six books of decrees or imperial decisions. Gregorius made a collection of a higher character, and he digested into order the chief, if not the whole of the imperial Rescripts from Hadrian down to the reign of Dioclesian and his colleagues, and which was called the Gregorian Code, and attained great authority in the forum. Hermogenes continued this collection under the name of the Hermogenian Code. Theodosius the younger

ment. At the period of Valentinian, the writings of the great jurists, and the constitutions of the Emperors, were alone consulted as authorities. Savigny's History of the Roman law, vol. 1. p. 7.

a Gibbon's History, vol. 8. p. 16. The Plebiscita had ceased under Augustus, but the senatus consulta did not absolutely cease with Hadrian. They continued to enrich the civil law in matters of private right long afterwards. Hugo, Hist. du Droit Rom. sec. 284 307.

b Gravina de Ortu et Prog. Jur. Civ. sec. 38.

c Heinecc. Hist. Jur. Civ. lib. 1. sec. 368–372.

appointed a committee of eight civilians, to reduce the imperial constitutions, from the time of Constantine, into a methodical compendium; and this Theodosian code became a standard work throughout the empire, and it was published in six folio volumes in 1665, with a vast and most learned commentary by Gothofrede. Another century elapsed before Justinian directed Tribonian, who was an eminent lawyer and magistrate, to unite with him a number of skilful civilians, and to assume the great task of collecting the entire body of the civil law, which had been accumulating for fourteen centuries, into one systematic code. Whether the Roman law at that period exceeded or fell short of the number of volumes in which the English law is now embodied, it is not easy to determine. Tribonian represented to the emperor, that when he and his learned associates undertook the business of digesting the civil law, he found it dispersed in two thousand books, and in upwards of three millions of verses, detached from the writings of the sages, which it was necessary to read and understand in order to make the selections. The size of these volumes, and the exact quantity of matter in these verses, we cannot ascertain." It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us, that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human capacity to digest.

a Duo pene millia librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa, Secund. Præf. ad Dig. sec. 1.

b Professor Hugo, in his History of the Roman Law, sec. 318, reduces, by computation, the Roman laws to 580 volumes, of a moderate size. He allows 24 of the three millions of verses, to a page, and 400 pages to a volume. The 2000 books, judging from the books in the Pandects, will give only 280 volumes. This reasonable estimate takes away every appearance of the marvellous from the magnitude of the Roman law.

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Corpus Juris



The compilations made under Justinian, and which constitute the existing body of the civil law, consist of the following works, and which I shall mention in the order in which they were originally published.

(1.) The Code, in twelve books, is a collection of all the imperial statutes that were thought worth preserving from Hadrian to Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates, was, that they should extract a series of plain and concise laws, omitting the preambles, and all other superfluous matter, and they were likewise intrusted with the great and hazardous power to extend, or limit, or alter the sense, in such manner as they should think most likely to facilitate their future use and operation."

(2.) The Institutes, or Elements of the Roman Law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law, in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that age, and shed great lustre on the Roman jurisprudence. It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions, and received the most copious aud laborious illustrations. It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law. The institutes were compiled chiefly from the writings of Gaius; and a discovery by Mr. Niebuhr so late as 1816, of a re-written manuscript of the entire Institutions of Gaius, has given increased interest to the Institutes of Justinian.b

a Præf. prima ad Cod. sec. 2.

b See an account of that discovery in N. A. Review for April, 1821. The Institutes of Gaius are the prototype of Justinian's Institutes. They were discovered by Niebuhr, the historian, in 1816, in the Cathedral Library at Verona. The manuscript was a coder rescrip

(3.) The Digest, or Pandects, is a vast abridgment, in Pandects. fifty books, of the decisions of prætors, and the writings and opinions of the ancient sages of the law. This is the work which has principally excited the study, and reflections, and commentaries, of succeeding ages. It is supposed to contain the embodied wisdom of the Roman people in civil jurisprudence for near 1200 years; and the European world has ever since had recourse to it for authority and direction upon public law, and for the exposition of the principles of natural justice. The most authentic and interesting information concerning the compilation of the Pandects, is to be found in the ordinances of Justinian, prefixed, by way of prefaces, to the work itself.

In the first ordinance addressed by Justinian to his quæstor Tribonian, he directs him and his associates to read and correct the books which had been written by authority upon the Roman law, and to extract from them a body of jurisprudence in which there should be no two laws. contradictory or alike, and that the collection should be a substitute for all former works; that the compilation should be made in fifty books, and digested upon the plan of the perpetual edict, and contain all that is worth having in the Roman law for the preceding 1400 years, so that it might

tus, and in 62 out of 251 pages iterum rescriptus. The original text had, during the dark ages, been obliterated for other matter, which, in its turn, was supplanted by the Epistles of St. Jerome. The original work was restored to the world by the skill and perseverance of Professors Göschen, Bakker, and Hollweg, of Berlin, who, upon Niebuhr's report, went to Verona. The work appeared for the first time in 1820. It awakened renewed zeal, bordering on enthusiasm, in Germany, for the study of the civil law. It led to dissertations from every quarter, and M. Boulet, in the preface to his French translation of Gaius's Institutes, says, that no work ever produced a more remarkable revolution in the study of the Roman law. Institutes de Gaius, par J. B. E. Boulet, Pref. Professor Hugo makes great use of the Institutes of Gaius, as shedding new and bright light on many branches of the civil law. See Histoire de Droit Romain, par G. Hugo, sec. 329.—et passim.

thereafter be regarded as the temple and sanctuary of justice. He directed, that the selection be made from the civilians, and the laws then in force, with such discretion and sagacity as to produce in the result a perfect and immortal work. And, in the anticipation of the result, he declared, that no commentaries were to be made upon the digest, as it had been found that the contradictions of expositors had disturbed the whole body of the ancient law.

In about three years after the publication of this first ordinance, Justinian issued another upon the completion of the work. In the latter ordinance, addressed to the senate and people, he declared that he had reduced the jurisprudence of the empire within reasonable limits, and within the power of all persons to possess at a moderate price, and without the necessity of expending a fortune in acquiring useless volumes of laws. He stated, that in the compilation of the Pandects, Tribonian and his associates had drawn from authors of such antiquity that their names were unknown to the learned of that age. If defects should be discovered, recourse must be had to the emperor; and he pointedly prohibited all persons to have any further recourse to the ancient laws, or to institute any comparison between them and the new compilation. And to prevent the system from being disfigured and disordered by the glosses of interpreters, he declared, that no citations were to be made from any other books than the Institutes, the Pandects, and the Code; and that no commentaries were to be made upon them, upon pain of being subjected to the charge of the crimen falsi, and to have the commentaries destroyed.

The Pandects are supposed to have been compiled with too much haste, and they were very defective in precision and methodical arrangement. The emperor allowed ten years, and Tribonian and his sixteen colleagues finished the work in three years. It is said that the Pandects were composed of the writings of forty civilians, the principal part of whom lived under the latter Cæsars; and the doctrines only, and not the names of the more ancient sages, were

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