under various heads — here a little, and there a Besides these three
principal
masses of extracts, a
little.
little.
William Smith - 1844 - Dictionary of Greek and Roman Antiquities - b
In the north-east the isthmus were not only sufficient to cover the expenses
of the Chersonnesus Taurica, the present Crimea, occasioned by the army, the fortifications, the wars,
was fortified in the same way as the isthmus of and the bribery of barbarians, but enough remained
Corinth, by a long wall. The Roman possessions to enable him to indulge his passion of perpetuating
along the eastem shores of the Euxine and in the bis name by public festivals, and especially by those
Caucasus were covered with forts and military beautiful buildings and monuments which were
stations ; and from the corner of Colchis to the erected by his order, and render his time con-
sources of the Euphrates, and along the river as far spicuous in the history of art. Procopius describes
as Syria, and thence along the edge of the Syro- them in his work “De Aedificiis Justiniani. ” The
Arabic desert, there was scarcely a town or a church of St. Sophia in Constantinople, that splendid
defile but was surrounded by walls and ditches, or edifice, which, though now transformed into a
shut up by massive barriers of stone, against the Turkish mosque, still excites the admiration of the
inroads of the Persians. Syria was thought to be spectator, was the most magnificent building erected
sufficiently guarded by the great desert between by Justinian. Besides this Church of St. Sophia,
the Euphrates and the Lebanon, and the fortifica- there were twenty-five other churches constructed in
tions of the Syrian towns were allowed to fall into Constantinople and its suburbs, among which were
decay, till the repeated invasions of Nushirwan the beautiful churches of St. John the Apostle and
and the sack of Antioch directed the attention of St. Mary the Virgin, near the Blachernae, the
Justinian to that quarter also. Dara, not far from latter of which he perhaps only repaired. The
Nisibis, was the strongest bulwark of the empire imperial palace at Constantinople was embellished
on the side of Mesopotamia, and constantly pro- with unparalleled splendour and taste; and his new
voked the jealousy of the Persiang.
palace with the gardens at Heraeum, near Chalcedon,
The enormous sums which the defence of the was praised as the most beautiful residence in the
empire required, together with the gold which world. The “ Antiquities of Constantinople,” by
G
## p. 666 (#682) ############################################
666
JUSTINIANUS.
JUSTINIANUS.
reforma
:
larger :
becse
Pesce
ers
the non
br. I
Valenti
Tictory
at for
were ti
Erster
of anci
while
quased
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Was
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Sail
terec
Petrus Gyllius (English translation by John Ball, much as humanity. If we look at his endless and
London, 1 729), give a description of the most re glorious wars, we should think that he was a great
markable buildings of Justinian, in Constantinople. warrior himself, or possessed at least great military
Justinian paid 45 centenaries of gold (nearly talents: but however great bis talents were, they
200,0002. ), towards the rebuilding and embellish- were not in that line ; he never showed himself in
ment of Antioch, after it had been destroyed by the field, and his subjects called him a bigoted and
an earthquake ; his native village he transformed cowardly tyrant. As a statesman lie was crafty
into a large and splendid city, to which he gave rather than wise ; yet his legislation is a lasting
his name ; and, in short, there was not a town of monument of his administrative genius, and has
consequence in his vast dominions, from the Columns given him a place in the opinion of the world far
of Hercules to the shores of the Caspian, but could beyond that which he really deserves. (Procopius,
show some beautiful monument of the emperor's with special reference to his Anecelota and De
splendour and taste. Asia Minor still contains a Aedificiis ; Agathias, Hist. ; Paulus Silentiarius ;
great number of edifices erected by Justinian, and Cedrenus, p. 366, &c. ; Zonaras, xiv. p. 60, dic. ;
our modern travellers have discovered many which Joannes Malaln, vol. ii. p. 138, &c. ; Marcellinus,
were formerly unknown. Indeed his love of Chron. ad an. 520, &c. , p. 50, &c. ; Theophanes,
splendour and his munificence in matters of taste, p. 300, &c. ; Evagrius, iv. 8, &c. in the Paris edi-
show, or luxury, no less than bis extraordinary tions ; Jornandes, De Regn. Succ. p. 62, &c. , De
power, made his name known over the world, Rel. Goth. p. 143, &c. ed. Lindenbrog; Paulus
whence he received embassies from the remotest Diaconus, De Gest. Longobard. i. 25, &c. , ii. 4, &c. ;
nations of Asia. In his reign the silk-worm was Ludewig, Vita Justiniani, &c. , Halle, 1731, is
brought to Constantinople, by some Nestorian rather too flattering; the best description of the
monks, who had visited their fellow-Christians in reign and character of Justinian is given in Gib
China,
bon's Decline and Fall. )
(W. P. ]
In 541 Justinian abolished the consulship, or,
more correctly, discontinued the old-established
THE LEGISLATION OF JUSTINIAN.
custom of choosing consuls. The consulate being
a mere title, it was but reasonable to do away with The idea of forming a complete code of law has
it, although the name was still dear to the people ; been attributed to Pompey, to Cicero, and to Julius
but it was not abolished by law until the reign of the Caesar. Such, too, was the original plan of Ther-
emperor Leo Philosophus (886–911. ) Justinian dosius the younger, although a much more limited
likewise shut up the schools at Athens and Alexan- design was ultimately carried into effect in the
dria, where the Neo-Platonists still professed dogmas Theodosian Code. [DIODORUS. ] Shortly before
which the orthodox emperor thought dangerous to the reign of Justinian, upon the submission of the
Christianity. In the time of Justinian, however, Western empire to Germanic rule, the Roman law
those schools were only a shadow of what they had was still allowed to retain its force in the West by
been in the first centuries of our era. Christian the side of a newly-introduced Germanic jurispru-
orthodoxy was one of the most important objects dence. The Lex Romana, as it was barbarously
which Justinian endeavoured to establish in his called, remained the law of the subjugated Romans,
empire, and many of his laws testify his zeal on while the Barbari, as the Germans were proud to
behalf of the church and the clergy. But his be styled, continued to live under their own Teu-
piety was exaggerated, and toleration was a thing tonic institutions. Under this anomalous system
unknown to him. He persecuted Christian sec- of personal laws, many difficulties must have arisen,
taries, Jews, and pagans, in an equally heartless and it was found necessary to make separate col-
manner, and actually endeavoured to drive them | lections of such sources of law as were to be recog-
all out of his dominions. Towards the end of his nised for the future in regulating the respective
life, however, Justinian changed his religious rights and duties of the subjugated Roman provin-
opinions so much that he was considered a com- cials and their conquerors. In the West Gothic
plete heretic. Nestorianism, which he was so kingdom, which was established in Spain and a
active in condemning at the fifth General Council, part of Gaul, a collection of Roman laws was formed
the second of Constantinople, in 553, was the during the relgn of Alaric II. (A. D. 484—507),
doctrine which he embraced.
partly from the Theodosian, Gregorian, and Her-
The character of Justinian presented a strange mogenian Codes, and partly from the works of
mixture of virtues and vices, but he was neither so jurists. This collection is known in modern times
depraved as Procopius depicts him, nor so accom- by the name Breviarium Aniani (ANIANUS), or
plished as the modern jurists of Germany and Breviarium Alaricianum. In A. D. 493 the Ostro-
France represent him in their admiration for his goths became masters of Italy, and in A. D. 500
legislation. His private life was exemplary. He Theodoric the Great published for the use of the
was frugal, laborious, affable, and generous, but his whole population of the Ostrogothic kingdom a set
mean suspicions and unreasonable jealousy never of rules based on the Roman, not the Gothic law.
allowed him to gain the love of his friends or the About the year A. D. 517 the Ler Romana Bur-
esteem of his subjects. His conduct towards Be-gundiorum was compiled for the use of the Burgun-
lisarius was execrable. Another of his vices was dian Romans. The Burgundian conquerors, who,
rapacity, and it would seem that he considered towards the middle of the fifth century, established
men created to work, not for themselves, but for a kingdom upon the banks of the Rhone, had
him alone. Thence the little regard he paid to the already a similar code of their own, called Guns
complaints of his subjects with reference to his per- dobuda.
petual wars ; and although he assisted them with Though the necessities which called for these
great liberality when they were suffering from the legislative efforts in the kingdoms of the West did
consequences of those plagues and earthquakes not exist to the same extent in the Oriental em-
which signalized his time, his motive was vanity as pire, there were not wanting other reasons for legal
bob
in the
to ha
system
and, up
of the
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at Cor
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TI
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anus
## p. 667 (#683) ############################################
JUSTINIANUS.
667
JUSTINIANUS.
-
ance.
never seen.
reform and consolidation. From the time of Con- | how short was destined to be the duration of his
stantine, •he fresh and vigorous spirit of the clas own new code! (Const. Summa Reipublicae. )
sical jurists seems to have vanished. Many of the At the end of the following year (Const. Deo
most active intellects were now turned away from Auctore, dated Dec. 15. A. D. 530), Tribonian,
legal to religious discussions. Jurisprudence, no who had given proof of his great ability in drawing
longer the pursuit of the minister and statesman, up the code, was authorised to select fellow-labourers
became the handicraft of freedmen. (Mamert. to assist him in the other division of the under-
Panegyr. X. 20. ) The law was oppressed by its taking — a part of Justinian's plan which the em-
own weight. The complexity of practice, the long peror justly regarded as the most difficult, but also
series of authoritative writings, the unwieldy bulk as the most important and the most glorious. Tri-
of express enactments, and the multitude of volu- bonian was endowed with rare qualifications for
minous commentators, were sufficient to be wilder such an appointment. He was himself deeply
the most resolute jurist. In the midst of conflicting learned in law, and possessed in his library a match-
texts, it was hard to find out where the true law less collection of legal sources. He had passed
lay. By the citation law of Theodosius II, and through many gradations of rank, knew mankind
Valentinian III. (Theod. Cod. l. tit. 4. s. 3), the well, and was remarkable for energy and persever-
majority of juristic suffrages was substituted for the “ His genius,” says Gibbon, " like that of
victory of scientific reasoning. (Galus, p. 196. ) Bacon, embraced as its own all the business and
The schools of law established by Theodosius II. knowledge of the age. ” In pursuance of his comº
at Rome and Constantinople (Cod. 11, tit. 18) mission, he selected the following sixteen coad-
were unable to revive the practical energy of former jutors: Constantinus, comes sacrarum largitionum;
times. A host of pedants and pretenders came into Theophilus, professor at Constantinople; Dorotheus,
existence. Some quoted at second-hand the names professor at Berytus ; Anatolius, professor at Be-
of ancient jurists, whose works they had never read, rytus ; Cratinus, professor at Constantinople, and
while others derided all appeal to scarce and anti- eleven advocates who practised in the courts of the
quated books, which they boasted that they had praefecti praetorio, namely, Stephanus, Menna,
To them the name of an old jurist Prosdocius, Eutolmius, Timotheus, Leonidas, Leon-
was no better than the name of some outlandish tius, Plato, Jacobus, Constantinus, Joannes. This
fish. (Amm. Marcell. xxx. 4; Jac. Gothofredus, commission proceeded at once to lay under contri-
Prolegomena ad Theod. Cod. i. )
bution the works of those jurists who had received
Such were the evils which Justinian resolved to from former emperors“ auctoritatem conscribenda-
remedy. In his conceptions of the measures neces- rum interpretandique legum. ” They were ordered
sary for this purpose he was more vast than all to divide their materials, under fitting titles, into
who had preceded him, and he was more successful fifty books, and to pursue the arrangement of the
in the complete execution of his plan. It seems first code and the perpetual edict. Nothing that
to have been his intention to establish a perfect was valuable was to be excluded, nothing that was
system of written legislation for all his dominions ; obsolete was to be admitted, and neither repetition
and, to this end, to make two great collections, one nor inconsistency was to be allowed. This “juris
of the imperial constitutions, the other of all that enucleati codex" was to bear the name Digesta or
was valuable in the works of jurists
. He was per- | Pandectae, and to be compiled with the utmost
sonally not unacquainted with the theory and the care, but with all convenient speed. Rapid indeed
working of the law; for, in his youth, he had de- was the progress of the commissioners. That
voted careful attention to the study of jurisprudence which Justinian scarcely hoped to see completed
at Constantinople ; and, in his manhood, had dis- in less than ten years, was finished in little more
charged the duties of the most important offices in than three ; and on the 30th of Dec. d. D. 533,
the state.
received from the imperial sanction the authority
The first work attempted by Justinian, as the of law. It comprehends upwards of 9000 extracts,
most practical and the most pressing, was the cold in the selection of which the compilers made use of
lection of imperial constitutions. This he com- nearly 2000 different books, containing more than
menced in A. D. 528, in the second year of his 3,000,000 (trecenties decem millia) lines (versus
reign. The task was entrusted to a commission of or orixou). (Const. Tanta, Const. Aédwkev. )
ten, who are named in the following order: Jo- This extraordinary work has been blamed by
annes, Leontius, Phocas, Basilides, Thomas, Tri-men of divers views on divers accounts. Tribonian
bonianus, Constantinus, Theophilus, Dioscorus, and his associates, regarding rather practical utility
Praesentinus. (Const. Haec quae necessario. ) In than the curiosity of archaeologists, did not scruple
compiling preceding constitutions, and making use at times so to adulterate the extracts they made,
of the Gregorian, Hermogenian, and Theodosian that a theorizer in legal history might easily be
Codes, the commission was armed with very ample misled if he trusted implicitly to their accuracy.
powers. It was authorized to correct and retrench, Hence the emblemata Triboniani have been to many
as well as to consolidate and arrange. The com- critics a fertile topic of reprehension. The com-
missioners executed their task speedily. In the plaints of others are levelled against scientific rather
following year, on the 7th of April, A. D. 529, the than historical delinquencies. Unity and system,
emperor confirmed the “Novum Justinianeum say they, could result only from a single complete
Codicem,” giving it legal force from the 16th of code of remodelled laws, and not from the lazy
April following, and abolishing from the same date plan of two separate collections, made out of inde-
all preceding collections. Little did he then think pendent pre-existing writings ; and though, from
the circumstances of the time, Justinian may have
been forced to adopt the latter alternative, it was
This is the adjective used by Justinian him- unphilosophical to commence with the constitutions
self. The purer Latin form would be “ Justinj- in place of the jurists. Those principles which lie
anus Codex,” like “ Theodosianus Coder. " at the foundation of jurisprudence pervade the
## p. 668 (#684) ############################################
668
JUSTINIANUS.
JUSTINIANUS.
writings of the Roman lawyers, and their works or series—that the first series is headed by extracte
are in reality more full of practical law than the taken from commentaries on Sabinus ; the second
constitutions to which occasional exigency gave from commentaries on the Edict ; and the third
birth. Then the arrangement of the Digest sins from commentaries on Papinian. Hence be sup
against science. The order of the Edict, which it poses that the commission was divided into three
followed, was itself based on the order of the twelve sections, and that to each section was given a
tables, and was historical or accidental, not sys- certain set of works to analyse and break up into
tematic. There is no pars generalis— 110 connected extracts. The masses or series he names from the
statement of first principles - no regular develop works that head them: the Sabinian, Edictal, and
ment of consequences. Leading maxims are intro- Papinian masses ; although each mass contains
duced incidentally, and matters of the greatest extracts from a great number of other works un-
moment, as the law of procedure, are scattered connected with Sabinus, the Edict, or Papinian.
under various heads — here a little, and there a Besides these three principal masses of extracts, a
little.
set of miscellaneous extracis, forming an appendix
The Digest is divided into seven partes, and is to the Papinian mass, seems to have been drawn
also divided into fifty books. The partes begin up in order to complete the selection, and may be
respectively with the let, 5th, 12th, 20th, 28th, said to form a fourth, or supplementary mass,
37th, and 45th books. Each book is divided into called by Blume the Post-Papinian.
titles, and each title has a rubric or heading denoting Regularly, the mass that contained the greatest
the general nature of its contents. The division number of fragments relating to any particular title
into seven parts, though the late Hugo often took appears first in that title. The total number of
occasion to insist upon its importance, has been fragments belonging to the Sabinian mass exceeds
little attended to in modern times. Under each the number in the Edictal, and the Edictal frag-
title are separate extracts from ancient jurists—ments are more numerous than the Papinian.
sometimes only a single extract. These were not Hence the usual order is S, E, P. By these initial
originally numbered, but they were headed by the letters (previously used by Blume) the brothers
name of the author, and a reference to his work Kriegel in their edition of the Digest (Lips. 1833),
(inscriptiones). Justinian directed that a catalogue mark the separate fragments, to denote the masses
should be prefixed to the Digest with the names of with which they are classed. The fragments be-
all the authors cited, and of the particular works longing to the supplementary mass are marked Pp.
from which the extracts were taker. Such a cata- | For the details of exceptions from this arrange
logue, though not perhaps the genuine original, is ment, and the reasons for such exceptions; for lists
placed at the beginning of the celebrated Florentine of the works of ancient jurists, so classed as to
manuscript of the Digest, and is thence called the show to what mass the fragments of each work be-
Florentine Index. The jurists from whom extracts long; and for applications of the theory to critical
are directly taken, often cite other jurists, but seldom purposes, the reader is referred to Blume's justly
literally. These are, however, pure or literal, celebrated essay on the Ordnung der Fragmenta in
though not direct extracts, from Q. Mucius Scae- den Pandectentiteln, in the 4th volume of Savigny's
vola, Aelius Gallus, and Labeo. There are 39 Zeitschrift, and to the following works : Hugo,
jurists, from whose works the Digest contains literal Lehrbuch der Digesten, 2te Ausg. 8vo. Berl. 1828;
extracts, whether made directly or at second-hand; Reimarus, Bemerkungen über die Inscriptionen-
and these 39 are often called the classical jurists, ruhen der Pandecten fragmenta, 8vo. Götting.
a name sometimes extended to all those jurists 1830 ; the synoptic tables appended to the Digest
who lived not later than Justinian, and sometimes in the edition of the brothers Kriegel, which forms
confined to Papinian, Paulus, Ulpian, Gaius, and part of the last Leipzig edition of the Corpus Juris
Modestinus, from the special manner in which Civilis.
these five are mentioned in the citation law of It may seem remarkable that the credit of this
Valentinian UI. Extracts from Ulpian constitute discovery should be reserved to so recent a date.
about one third of the Digest ; from Paulus about Most of the moderns who investigated the subject
one sixth ; from Papinian about one twelfth. In had sought, by reference to the actual contents of
Hommel's Palingenesia Pandectarum the fragments the fragments, to make out the principle on which
of each jurist are collected and printed separately: they were arranged ; but it was an examination of
an attempt is made to reanimate the man—to re- the inscriptiones that led Blume to his theory.
store his individuality-by bringing together his Some approximations to it had been previously
dispersed limbs and scattered bones.
made by inquirers who followed the same clue.
The internal arrangement of the separate frag- Ant. Augustinus had observed that, in each title,
ments of jurists under each title would appear at the fragments taken from different books of the
first sight to be completely fortuitous. It is neither same work were regularly arranged, an extract
chronological nor alphabetical ; nor does it con- from book 2. never coming before an extract from
sistently and uniformly follow any rational train book 1. Giphanius (Oeconomia Juris, 4to, Franc.
of thought, depending on the subject treated of. 1606, c. ult. ) had gone further than Augustinus ;
Blume (as he now writes himself, or Bluhme, as and Jac. Gothofredus, in his commentary on the
the name was formerly written) has elaborately title of the Digest, “ De Regulis Juris” (Opera
expounded a theory which, though rejected by Minora, p. 719, 739), approaches more closely than
,' Tigerström and others, seems to rest upon the Giphanius to Blume's discovery.
foundation of facts, and must at least be something It is to be remarked that most of the institutional
like the truth. No one can form a sound opinion works, and most of the dogmatic treatises on the
of the merits of Blume's theory without a careful pure jus civile of Rome - on the law of Rome as
examination of a great number of titles in the unaltered by legislation or equitable construction-
Digest. It is found that the extracts under each furnish extracts to the Sabinian mass. The works
tiile usually resolve themselves into three masses which relate to the modifications of the original law
3
## p. 669 (#685) ############################################
JUSTINIANUS.
669
JUSTINIANUS.
introduced by the jus honorarium fall naturally into elementary works (Institutiones, Regularum libr),
the Edictal mass ; while the Papinian mass consists but none were so famous as the Institutes and Res
of fragments from works which relate chiefly to the Quotidianae of Gaius, which were taken as the
practical application of the law, e. g. cases and basis of Justinian's Institutes. Other treatises,
opinions relating to miscellaneous points in the con- however, were also made use of, and alterations
struction of wills. Those who are still opposed to were made for the purpose of bringing the new
Blume's theory think that the compilers of the treatise into barmony with the Code and the
Digest were led to their arrangement of the frag. Digest. Hence there is an occasional incongruity
ments by something like a natural development of in the compilation, from the employment of hetero-
the subject treated under each title: that they geneous materials. For example, at the very com-
inserted at the commencement of a title such pas- mencement the discordant notions of Gaius and
sages as explain the law institutionally, or such Ulpian on the jus naturale and the jus gentium are
as relate chiefly to the original principles of the brought together, but refuse to blend in consistent
jus civile: that they then proceeded to the modifi- union. The general arrangement of the work,
cations of the original law, and finally to its prac- which is divided into four books, does not mate-
tical applications. According to this theory, the rially differ from that of the Institutes of Gaius, of
principle of internal arrangement, thongh rude, which we have given a sketch under Gaius,
would lead incidentally to something like uniformity pp. 201, 202. The Institutes received the imperial
in the order of the works analysed: according to sanction on the 21st of November, 533, and full
Blume's theory, where the contents of a title pro legal authority was conferred upon them, from the
ceed from the simple to the more complex, such an 30th of December, A. D. 533, the same day from
arrangement is secondary and dependent on the which the Digest was to take effect as law.
general character of the three groups of works ana- (Prooem. Instit. ; Const. Tanta, § 23. )
lysed by different sections of the commissioners. Had it been possible to make law for ever fixed,
He admits, however, that some of the exceptions to and had the emperor's workmen been able to ac-
the general rule of arrangement which his theory complish this object, the desire of Justinian's heart
propounds result from attention to the natural order would have been fulfilled. But there were many
of ideas. Thus, at the beginniug of a title, frag questions upon which the ancient jurists were
ments are placed, severed from the mass to which divided. Under the earlier emperors, these differ-
they regularly belong if they contain definitions of ences of opinion had given rise to permanent sects
words or general divisions of the subject, or give [CAPITO); nor were they afterwards entirely ex-
a summary explanation of leading principles. tinguished, when party spirit had yielded to inde-
Considering the short time in wbich the Digest pendent eclecticism. The compilers of the Digest
was completed, and the peculiarity of its arrange- tacitly, by their selection of extracts, manifested
ment, its compliance with the requisitions of Justi- their choice ; but a Catholic doctrine, the great
nian deserves high commendation. It was not, object of Justinian's wishes, was not thus to be
however, entirely free from repetitions of the same accomplished. At the suggestion of Tribonianus,
passage under different titles (leges geminatae), nor the emperor began, while his compilations were
from the insertion of fragments under unappropriate yet in progress, to issue constitutions having for
heads (leges fugitivae or erraticae), nor from the their object the decision of the ancient controversies.
admission of actual inconsistencies or contradictions These constitutions helped to guide the compilers
(antinomiae, leges inter se pugnantes).
of the Digest and Institutes ; but, as they were
Justinian forbade all commentary on his collec-issued from time to time after the first constitutionum
tions, and prohibited the citation of older writings. codex (the greater part of them in the years 529
It is said that Napoleon exclaimed, when he saw and 530), it was found desirable, when they had
the first commentary on the Code Civil, “Mon reached the number of fifty, to form them into a
Code est perdu! ” and Justinian seems to have separate collection, which seems to have been pub-
been animated with the same spirit. He allowed lished under the title L. Constitutionum Liber. This
no explanation save the comparison of parallel pas- collection has not come down to us in a separate
sages (indices, paratitla), and the interpretation of form, for its legal authority was repealed upon the
single words or phrases. Such at least were his revision of the Constitutionum Codex; and the
original injunctions, though they were not long separate publication of the Fifty Decisions has been
obeyed. The text was to be written in letters at doubted ; but the phrase in the ancient Turin
length, all abbreviations (notae, sigla) and numeral Gloss upon the Institutes, Sicut libro L. constituti-
figures being interdicted.
onum invenies (Savigny, Gesch. des R. R. im Mit-
The emperor was desirous that the body of law telalter, vol. ii. p. 452, ed. 2), confirms the inference
to be compiled under his direction should be all in to be drawn from Const. Cordi, ý 1, and Inst. 1.
all, not only for practice, but for academical instruc- tit. 5. § 3. (Brunquell, Hist. Jur. Rom. ed. 1742,
tion ; but the Digest and the Code, though they p. 239—247; Hugo, Civilist. Mag. vol. v. p. 118
were to form part of an advanced stage of legal -125. )
education, led far into detail, which could not well Even after the publication of the fifty cisions,
be understood by beginners. It became necessary the imperfection and ambiguity of the existing law
therefore to compose an elementary work for required to be remedied by further constitutions,
students. Already in the constitution, Deo Auctore, The incompleteness of the Code of A. D. 529 was
of Dec. A. D. 530, Justinian had declared his inten- now apparent, and Justinian was not indisposed to
tion of ordering an elementary work to be written. the revision of a compilation, which, having been
The composition of it was entrusted to Tribonian, made at the commencement of his reign, contained
in conjunction with Theophilus and Dorotheus, but little of his own legislation. Accordingly, the
who were respectively professors in the two great task of revision was entrusted to Tribonianus
schools of law at Constantinople and Berytus. (who had no part in the original compilation), with
Florentinus and other Roman jurists had written the assistance of the legal professor Dorotheus, and
## p. 670 (#686) ############################################
670
JUSTINIANUS.
JUSTINIANUS.
the advocates, Menna, Constantinus, and Joannes. | very great praise. They have long exercised, and,
They were empowered to omit, to improve, and to pervading modern systems of law, continue to
add; and, in the formation of the secunda editio, or exercise, enormous influence over the thoughts and
repctita praelectin, care was taken to insert the con- actions of men. It is true that they exhibit a
stitutions of Justinian which had appeared since certain enslavement to elements originally base, for
the first edition. It is probable that all the Fifty there was much that was narrow and barbarous in
Decisions were incorporated, although we have not the early law of Rome ; but, partly by tortuous
the means of precisely identifying them. On the fictions, and partly by bolder reform, the Roman
16th of Nov. A. D. 534, Justinian issued a consti- jurisprudence of later times struggled to arrive at
tution, giving legal force to the new edition of the better and more rational rules. The Digest is
Code, from the 29th of Dec. 534. To this new especially precious, as preserving the remains of
edition, in contradistinction to the former (which jurists whose works would otherwise have been
was now superseded and carefully suppressed), has wholly lost, notwithstanding their great value as
been usually given the name Codes Hepetitae Prae illustrations of history, as materials for thinking,
lectimis. It is now ordinarily called the Code of and as models of legal reasoning and expression.
Justinian, although it is more correctly called Con- If adherence to the contents of the imperial law
stitutionum Codex, since the other collections of during the middle ages craniped on the one hand
Justinian are also entitled to the name of Codes. the spontaneity of indigenous development, it op
The earliest constitution contained in the Code is posed barriers on the other to the progress of feudal
one of Hadrian, the latest one of Justinian, dated barbarism.
Nov. 4. , A. D. 534. The matter of constitutions We proceed now to give some account of the
older than Hadrian had been fully developed in the literary history, and to mention the principal edi-
works of jurists. The Code is divided into 12 tions, separate and collective, of Justinian's com-
books, and the books into titles, with rubrics de pilations. The editions up to the end of the first
noting their contents. Under each title, the con- third of the 16th century are scarce, for, from the
stitutions are arranged chronologically. Each inconvenience of their form, and the variety of con-
constitutio is headed by an inscriptio, or address, tractions they employ, they have been subjected to
and ended by a subscriptio, announcing the place the same fate with the early manuscripts : but, like
and time of its date, The general arrangement the early manuscripts, they are often of use in cor-
corresponds on the whole with that of the Digest, recting the text.
80 far as the two works treat of the same subject, The first printed edition of the Institutes is that
but there are some variations which cannot be ac- of Petrus Schoyffer, fol. Mogunt. 1468. The last
counted for. For instance, the law of pledges and edition of importance is that of Schrader, 4to.
the law of the father's power occupy very different Berlin, 1832. This is an exceedingly learned and
relative positions in the Digest and the Code. Some elaborate performance, and is intended to form part
constitutiones, which are referred to in the Insti- of an intended Berlin Corpus Juris Civilis, which
tutes, do not appear in the modern manuscripts of is still promised, but has hitherto made no further
the Code ; and it is doubtful whether they were visible progress. Among the exegetical commenta-
omitted by the compilers of the second edition, or tors, Vinnius, à Costa, and Otto, will be found the
left out by subsequent copyists.
most useful. The Institutiones cum Commentario
Justinian, though fond of legal unity, was fond Academico, by Vinnius, first appeared 4to, Amst.
of law-making. If he had lived long enough, there 1642, and has been frequently reprinted. The
might perhaps have been a second edition of the Elzevir Vinnius of 1665 is, typographically, the
Digest. When the new Code was published, he neatest ; but the jurist will prefer those editions
contemplated the necessity of a supplement to it, which are enriched with the notes of Heineccius,
and promised that any legislative reforms which he and contain the Quaestiones Selectae of Vinnius.
might afterwards make should be formed into a (2 vols. 4to. Lugd. 1747, 1755, 1761, 1767, 1777. )
collection of Novellae Constitutiones. (Const. Cordi, The Commentarius ad Institutiones of à Costa
§ 4. ) Many such Novells (veapal diatáters), with (Jean de la Coste) first appeared, 4to. Paris, 1659;
various dates, from Jan. 1. 535, to Nov. 4. 564, but the best editions are those of Van de Water
were published from time to time, by authority, in (4to. Ultraj. 1714), and Rücker (4to. Lugd. 1744).
his life-time. The greater part were promulgated The Commentarius et Notae Criticae of Everard
in the first five years after the publication of the Otto first appeared 4to. Traj. ad Rhen. 1729; and
new Code ; and there is a marked diminution in the best edition is that of Iselin (4to. Basil. 1760).
the number of Novells subsequent to the death of The commentaries of Balduinus (fol. Paris, 1546),
Tribonian in 545. There are extant at least 165 Hotomann (Basil. 1560, 1569, Lugd. 1588), Gi-
Novells of Justinian, making many reforms of great phanius (4to. Ingols. 1596, &c. ), Bachovius" (4to.
consequence, and seriously affecting the law as laid Frank, 1628, 1661, &c. ), Merillius (4to. Paris,
down in the Digest, Institutes, and Code. Though | 1654, Traj. ad Rhen. 1739), and Hoppius (Dantz.
the imperial archives contained all the Novells 1693, &c.
of the Chersonnesus Taurica, the present Crimea, occasioned by the army, the fortifications, the wars,
was fortified in the same way as the isthmus of and the bribery of barbarians, but enough remained
Corinth, by a long wall. The Roman possessions to enable him to indulge his passion of perpetuating
along the eastem shores of the Euxine and in the bis name by public festivals, and especially by those
Caucasus were covered with forts and military beautiful buildings and monuments which were
stations ; and from the corner of Colchis to the erected by his order, and render his time con-
sources of the Euphrates, and along the river as far spicuous in the history of art. Procopius describes
as Syria, and thence along the edge of the Syro- them in his work “De Aedificiis Justiniani. ” The
Arabic desert, there was scarcely a town or a church of St. Sophia in Constantinople, that splendid
defile but was surrounded by walls and ditches, or edifice, which, though now transformed into a
shut up by massive barriers of stone, against the Turkish mosque, still excites the admiration of the
inroads of the Persians. Syria was thought to be spectator, was the most magnificent building erected
sufficiently guarded by the great desert between by Justinian. Besides this Church of St. Sophia,
the Euphrates and the Lebanon, and the fortifica- there were twenty-five other churches constructed in
tions of the Syrian towns were allowed to fall into Constantinople and its suburbs, among which were
decay, till the repeated invasions of Nushirwan the beautiful churches of St. John the Apostle and
and the sack of Antioch directed the attention of St. Mary the Virgin, near the Blachernae, the
Justinian to that quarter also. Dara, not far from latter of which he perhaps only repaired. The
Nisibis, was the strongest bulwark of the empire imperial palace at Constantinople was embellished
on the side of Mesopotamia, and constantly pro- with unparalleled splendour and taste; and his new
voked the jealousy of the Persiang.
palace with the gardens at Heraeum, near Chalcedon,
The enormous sums which the defence of the was praised as the most beautiful residence in the
empire required, together with the gold which world. The “ Antiquities of Constantinople,” by
G
## p. 666 (#682) ############################################
666
JUSTINIANUS.
JUSTINIANUS.
reforma
:
larger :
becse
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ers
the non
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at for
were ti
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terec
Petrus Gyllius (English translation by John Ball, much as humanity. If we look at his endless and
London, 1 729), give a description of the most re glorious wars, we should think that he was a great
markable buildings of Justinian, in Constantinople. warrior himself, or possessed at least great military
Justinian paid 45 centenaries of gold (nearly talents: but however great bis talents were, they
200,0002. ), towards the rebuilding and embellish- were not in that line ; he never showed himself in
ment of Antioch, after it had been destroyed by the field, and his subjects called him a bigoted and
an earthquake ; his native village he transformed cowardly tyrant. As a statesman lie was crafty
into a large and splendid city, to which he gave rather than wise ; yet his legislation is a lasting
his name ; and, in short, there was not a town of monument of his administrative genius, and has
consequence in his vast dominions, from the Columns given him a place in the opinion of the world far
of Hercules to the shores of the Caspian, but could beyond that which he really deserves. (Procopius,
show some beautiful monument of the emperor's with special reference to his Anecelota and De
splendour and taste. Asia Minor still contains a Aedificiis ; Agathias, Hist. ; Paulus Silentiarius ;
great number of edifices erected by Justinian, and Cedrenus, p. 366, &c. ; Zonaras, xiv. p. 60, dic. ;
our modern travellers have discovered many which Joannes Malaln, vol. ii. p. 138, &c. ; Marcellinus,
were formerly unknown. Indeed his love of Chron. ad an. 520, &c. , p. 50, &c. ; Theophanes,
splendour and his munificence in matters of taste, p. 300, &c. ; Evagrius, iv. 8, &c. in the Paris edi-
show, or luxury, no less than bis extraordinary tions ; Jornandes, De Regn. Succ. p. 62, &c. , De
power, made his name known over the world, Rel. Goth. p. 143, &c. ed. Lindenbrog; Paulus
whence he received embassies from the remotest Diaconus, De Gest. Longobard. i. 25, &c. , ii. 4, &c. ;
nations of Asia. In his reign the silk-worm was Ludewig, Vita Justiniani, &c. , Halle, 1731, is
brought to Constantinople, by some Nestorian rather too flattering; the best description of the
monks, who had visited their fellow-Christians in reign and character of Justinian is given in Gib
China,
bon's Decline and Fall. )
(W. P. ]
In 541 Justinian abolished the consulship, or,
more correctly, discontinued the old-established
THE LEGISLATION OF JUSTINIAN.
custom of choosing consuls. The consulate being
a mere title, it was but reasonable to do away with The idea of forming a complete code of law has
it, although the name was still dear to the people ; been attributed to Pompey, to Cicero, and to Julius
but it was not abolished by law until the reign of the Caesar. Such, too, was the original plan of Ther-
emperor Leo Philosophus (886–911. ) Justinian dosius the younger, although a much more limited
likewise shut up the schools at Athens and Alexan- design was ultimately carried into effect in the
dria, where the Neo-Platonists still professed dogmas Theodosian Code. [DIODORUS. ] Shortly before
which the orthodox emperor thought dangerous to the reign of Justinian, upon the submission of the
Christianity. In the time of Justinian, however, Western empire to Germanic rule, the Roman law
those schools were only a shadow of what they had was still allowed to retain its force in the West by
been in the first centuries of our era. Christian the side of a newly-introduced Germanic jurispru-
orthodoxy was one of the most important objects dence. The Lex Romana, as it was barbarously
which Justinian endeavoured to establish in his called, remained the law of the subjugated Romans,
empire, and many of his laws testify his zeal on while the Barbari, as the Germans were proud to
behalf of the church and the clergy. But his be styled, continued to live under their own Teu-
piety was exaggerated, and toleration was a thing tonic institutions. Under this anomalous system
unknown to him. He persecuted Christian sec- of personal laws, many difficulties must have arisen,
taries, Jews, and pagans, in an equally heartless and it was found necessary to make separate col-
manner, and actually endeavoured to drive them | lections of such sources of law as were to be recog-
all out of his dominions. Towards the end of his nised for the future in regulating the respective
life, however, Justinian changed his religious rights and duties of the subjugated Roman provin-
opinions so much that he was considered a com- cials and their conquerors. In the West Gothic
plete heretic. Nestorianism, which he was so kingdom, which was established in Spain and a
active in condemning at the fifth General Council, part of Gaul, a collection of Roman laws was formed
the second of Constantinople, in 553, was the during the relgn of Alaric II. (A. D. 484—507),
doctrine which he embraced.
partly from the Theodosian, Gregorian, and Her-
The character of Justinian presented a strange mogenian Codes, and partly from the works of
mixture of virtues and vices, but he was neither so jurists. This collection is known in modern times
depraved as Procopius depicts him, nor so accom- by the name Breviarium Aniani (ANIANUS), or
plished as the modern jurists of Germany and Breviarium Alaricianum. In A. D. 493 the Ostro-
France represent him in their admiration for his goths became masters of Italy, and in A. D. 500
legislation. His private life was exemplary. He Theodoric the Great published for the use of the
was frugal, laborious, affable, and generous, but his whole population of the Ostrogothic kingdom a set
mean suspicions and unreasonable jealousy never of rules based on the Roman, not the Gothic law.
allowed him to gain the love of his friends or the About the year A. D. 517 the Ler Romana Bur-
esteem of his subjects. His conduct towards Be-gundiorum was compiled for the use of the Burgun-
lisarius was execrable. Another of his vices was dian Romans. The Burgundian conquerors, who,
rapacity, and it would seem that he considered towards the middle of the fifth century, established
men created to work, not for themselves, but for a kingdom upon the banks of the Rhone, had
him alone. Thence the little regard he paid to the already a similar code of their own, called Guns
complaints of his subjects with reference to his per- dobuda.
petual wars ; and although he assisted them with Though the necessities which called for these
great liberality when they were suffering from the legislative efforts in the kingdoms of the West did
consequences of those plagues and earthquakes not exist to the same extent in the Oriental em-
which signalized his time, his motive was vanity as pire, there were not wanting other reasons for legal
bob
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## p. 667 (#683) ############################################
JUSTINIANUS.
667
JUSTINIANUS.
-
ance.
never seen.
reform and consolidation. From the time of Con- | how short was destined to be the duration of his
stantine, •he fresh and vigorous spirit of the clas own new code! (Const. Summa Reipublicae. )
sical jurists seems to have vanished. Many of the At the end of the following year (Const. Deo
most active intellects were now turned away from Auctore, dated Dec. 15. A. D. 530), Tribonian,
legal to religious discussions. Jurisprudence, no who had given proof of his great ability in drawing
longer the pursuit of the minister and statesman, up the code, was authorised to select fellow-labourers
became the handicraft of freedmen. (Mamert. to assist him in the other division of the under-
Panegyr. X. 20. ) The law was oppressed by its taking — a part of Justinian's plan which the em-
own weight. The complexity of practice, the long peror justly regarded as the most difficult, but also
series of authoritative writings, the unwieldy bulk as the most important and the most glorious. Tri-
of express enactments, and the multitude of volu- bonian was endowed with rare qualifications for
minous commentators, were sufficient to be wilder such an appointment. He was himself deeply
the most resolute jurist. In the midst of conflicting learned in law, and possessed in his library a match-
texts, it was hard to find out where the true law less collection of legal sources. He had passed
lay. By the citation law of Theodosius II, and through many gradations of rank, knew mankind
Valentinian III. (Theod. Cod. l. tit. 4. s. 3), the well, and was remarkable for energy and persever-
majority of juristic suffrages was substituted for the “ His genius,” says Gibbon, " like that of
victory of scientific reasoning. (Galus, p. 196. ) Bacon, embraced as its own all the business and
The schools of law established by Theodosius II. knowledge of the age. ” In pursuance of his comº
at Rome and Constantinople (Cod. 11, tit. 18) mission, he selected the following sixteen coad-
were unable to revive the practical energy of former jutors: Constantinus, comes sacrarum largitionum;
times. A host of pedants and pretenders came into Theophilus, professor at Constantinople; Dorotheus,
existence. Some quoted at second-hand the names professor at Berytus ; Anatolius, professor at Be-
of ancient jurists, whose works they had never read, rytus ; Cratinus, professor at Constantinople, and
while others derided all appeal to scarce and anti- eleven advocates who practised in the courts of the
quated books, which they boasted that they had praefecti praetorio, namely, Stephanus, Menna,
To them the name of an old jurist Prosdocius, Eutolmius, Timotheus, Leonidas, Leon-
was no better than the name of some outlandish tius, Plato, Jacobus, Constantinus, Joannes. This
fish. (Amm. Marcell. xxx. 4; Jac. Gothofredus, commission proceeded at once to lay under contri-
Prolegomena ad Theod. Cod. i. )
bution the works of those jurists who had received
Such were the evils which Justinian resolved to from former emperors“ auctoritatem conscribenda-
remedy. In his conceptions of the measures neces- rum interpretandique legum. ” They were ordered
sary for this purpose he was more vast than all to divide their materials, under fitting titles, into
who had preceded him, and he was more successful fifty books, and to pursue the arrangement of the
in the complete execution of his plan. It seems first code and the perpetual edict. Nothing that
to have been his intention to establish a perfect was valuable was to be excluded, nothing that was
system of written legislation for all his dominions ; obsolete was to be admitted, and neither repetition
and, to this end, to make two great collections, one nor inconsistency was to be allowed. This “juris
of the imperial constitutions, the other of all that enucleati codex" was to bear the name Digesta or
was valuable in the works of jurists
. He was per- | Pandectae, and to be compiled with the utmost
sonally not unacquainted with the theory and the care, but with all convenient speed. Rapid indeed
working of the law; for, in his youth, he had de- was the progress of the commissioners. That
voted careful attention to the study of jurisprudence which Justinian scarcely hoped to see completed
at Constantinople ; and, in his manhood, had dis- in less than ten years, was finished in little more
charged the duties of the most important offices in than three ; and on the 30th of Dec. d. D. 533,
the state.
received from the imperial sanction the authority
The first work attempted by Justinian, as the of law. It comprehends upwards of 9000 extracts,
most practical and the most pressing, was the cold in the selection of which the compilers made use of
lection of imperial constitutions. This he com- nearly 2000 different books, containing more than
menced in A. D. 528, in the second year of his 3,000,000 (trecenties decem millia) lines (versus
reign. The task was entrusted to a commission of or orixou). (Const. Tanta, Const. Aédwkev. )
ten, who are named in the following order: Jo- This extraordinary work has been blamed by
annes, Leontius, Phocas, Basilides, Thomas, Tri-men of divers views on divers accounts. Tribonian
bonianus, Constantinus, Theophilus, Dioscorus, and his associates, regarding rather practical utility
Praesentinus. (Const. Haec quae necessario. ) In than the curiosity of archaeologists, did not scruple
compiling preceding constitutions, and making use at times so to adulterate the extracts they made,
of the Gregorian, Hermogenian, and Theodosian that a theorizer in legal history might easily be
Codes, the commission was armed with very ample misled if he trusted implicitly to their accuracy.
powers. It was authorized to correct and retrench, Hence the emblemata Triboniani have been to many
as well as to consolidate and arrange. The com- critics a fertile topic of reprehension. The com-
missioners executed their task speedily. In the plaints of others are levelled against scientific rather
following year, on the 7th of April, A. D. 529, the than historical delinquencies. Unity and system,
emperor confirmed the “Novum Justinianeum say they, could result only from a single complete
Codicem,” giving it legal force from the 16th of code of remodelled laws, and not from the lazy
April following, and abolishing from the same date plan of two separate collections, made out of inde-
all preceding collections. Little did he then think pendent pre-existing writings ; and though, from
the circumstances of the time, Justinian may have
been forced to adopt the latter alternative, it was
This is the adjective used by Justinian him- unphilosophical to commence with the constitutions
self. The purer Latin form would be “ Justinj- in place of the jurists. Those principles which lie
anus Codex,” like “ Theodosianus Coder. " at the foundation of jurisprudence pervade the
## p. 668 (#684) ############################################
668
JUSTINIANUS.
JUSTINIANUS.
writings of the Roman lawyers, and their works or series—that the first series is headed by extracte
are in reality more full of practical law than the taken from commentaries on Sabinus ; the second
constitutions to which occasional exigency gave from commentaries on the Edict ; and the third
birth. Then the arrangement of the Digest sins from commentaries on Papinian. Hence be sup
against science. The order of the Edict, which it poses that the commission was divided into three
followed, was itself based on the order of the twelve sections, and that to each section was given a
tables, and was historical or accidental, not sys- certain set of works to analyse and break up into
tematic. There is no pars generalis— 110 connected extracts. The masses or series he names from the
statement of first principles - no regular develop works that head them: the Sabinian, Edictal, and
ment of consequences. Leading maxims are intro- Papinian masses ; although each mass contains
duced incidentally, and matters of the greatest extracts from a great number of other works un-
moment, as the law of procedure, are scattered connected with Sabinus, the Edict, or Papinian.
under various heads — here a little, and there a Besides these three principal masses of extracts, a
little.
set of miscellaneous extracis, forming an appendix
The Digest is divided into seven partes, and is to the Papinian mass, seems to have been drawn
also divided into fifty books. The partes begin up in order to complete the selection, and may be
respectively with the let, 5th, 12th, 20th, 28th, said to form a fourth, or supplementary mass,
37th, and 45th books. Each book is divided into called by Blume the Post-Papinian.
titles, and each title has a rubric or heading denoting Regularly, the mass that contained the greatest
the general nature of its contents. The division number of fragments relating to any particular title
into seven parts, though the late Hugo often took appears first in that title. The total number of
occasion to insist upon its importance, has been fragments belonging to the Sabinian mass exceeds
little attended to in modern times. Under each the number in the Edictal, and the Edictal frag-
title are separate extracts from ancient jurists—ments are more numerous than the Papinian.
sometimes only a single extract. These were not Hence the usual order is S, E, P. By these initial
originally numbered, but they were headed by the letters (previously used by Blume) the brothers
name of the author, and a reference to his work Kriegel in their edition of the Digest (Lips. 1833),
(inscriptiones). Justinian directed that a catalogue mark the separate fragments, to denote the masses
should be prefixed to the Digest with the names of with which they are classed. The fragments be-
all the authors cited, and of the particular works longing to the supplementary mass are marked Pp.
from which the extracts were taker. Such a cata- | For the details of exceptions from this arrange
logue, though not perhaps the genuine original, is ment, and the reasons for such exceptions; for lists
placed at the beginning of the celebrated Florentine of the works of ancient jurists, so classed as to
manuscript of the Digest, and is thence called the show to what mass the fragments of each work be-
Florentine Index. The jurists from whom extracts long; and for applications of the theory to critical
are directly taken, often cite other jurists, but seldom purposes, the reader is referred to Blume's justly
literally. These are, however, pure or literal, celebrated essay on the Ordnung der Fragmenta in
though not direct extracts, from Q. Mucius Scae- den Pandectentiteln, in the 4th volume of Savigny's
vola, Aelius Gallus, and Labeo. There are 39 Zeitschrift, and to the following works : Hugo,
jurists, from whose works the Digest contains literal Lehrbuch der Digesten, 2te Ausg. 8vo. Berl. 1828;
extracts, whether made directly or at second-hand; Reimarus, Bemerkungen über die Inscriptionen-
and these 39 are often called the classical jurists, ruhen der Pandecten fragmenta, 8vo. Götting.
a name sometimes extended to all those jurists 1830 ; the synoptic tables appended to the Digest
who lived not later than Justinian, and sometimes in the edition of the brothers Kriegel, which forms
confined to Papinian, Paulus, Ulpian, Gaius, and part of the last Leipzig edition of the Corpus Juris
Modestinus, from the special manner in which Civilis.
these five are mentioned in the citation law of It may seem remarkable that the credit of this
Valentinian UI. Extracts from Ulpian constitute discovery should be reserved to so recent a date.
about one third of the Digest ; from Paulus about Most of the moderns who investigated the subject
one sixth ; from Papinian about one twelfth. In had sought, by reference to the actual contents of
Hommel's Palingenesia Pandectarum the fragments the fragments, to make out the principle on which
of each jurist are collected and printed separately: they were arranged ; but it was an examination of
an attempt is made to reanimate the man—to re- the inscriptiones that led Blume to his theory.
store his individuality-by bringing together his Some approximations to it had been previously
dispersed limbs and scattered bones.
made by inquirers who followed the same clue.
The internal arrangement of the separate frag- Ant. Augustinus had observed that, in each title,
ments of jurists under each title would appear at the fragments taken from different books of the
first sight to be completely fortuitous. It is neither same work were regularly arranged, an extract
chronological nor alphabetical ; nor does it con- from book 2. never coming before an extract from
sistently and uniformly follow any rational train book 1. Giphanius (Oeconomia Juris, 4to, Franc.
of thought, depending on the subject treated of. 1606, c. ult. ) had gone further than Augustinus ;
Blume (as he now writes himself, or Bluhme, as and Jac. Gothofredus, in his commentary on the
the name was formerly written) has elaborately title of the Digest, “ De Regulis Juris” (Opera
expounded a theory which, though rejected by Minora, p. 719, 739), approaches more closely than
,' Tigerström and others, seems to rest upon the Giphanius to Blume's discovery.
foundation of facts, and must at least be something It is to be remarked that most of the institutional
like the truth. No one can form a sound opinion works, and most of the dogmatic treatises on the
of the merits of Blume's theory without a careful pure jus civile of Rome - on the law of Rome as
examination of a great number of titles in the unaltered by legislation or equitable construction-
Digest. It is found that the extracts under each furnish extracts to the Sabinian mass. The works
tiile usually resolve themselves into three masses which relate to the modifications of the original law
3
## p. 669 (#685) ############################################
JUSTINIANUS.
669
JUSTINIANUS.
introduced by the jus honorarium fall naturally into elementary works (Institutiones, Regularum libr),
the Edictal mass ; while the Papinian mass consists but none were so famous as the Institutes and Res
of fragments from works which relate chiefly to the Quotidianae of Gaius, which were taken as the
practical application of the law, e. g. cases and basis of Justinian's Institutes. Other treatises,
opinions relating to miscellaneous points in the con- however, were also made use of, and alterations
struction of wills. Those who are still opposed to were made for the purpose of bringing the new
Blume's theory think that the compilers of the treatise into barmony with the Code and the
Digest were led to their arrangement of the frag. Digest. Hence there is an occasional incongruity
ments by something like a natural development of in the compilation, from the employment of hetero-
the subject treated under each title: that they geneous materials. For example, at the very com-
inserted at the commencement of a title such pas- mencement the discordant notions of Gaius and
sages as explain the law institutionally, or such Ulpian on the jus naturale and the jus gentium are
as relate chiefly to the original principles of the brought together, but refuse to blend in consistent
jus civile: that they then proceeded to the modifi- union. The general arrangement of the work,
cations of the original law, and finally to its prac- which is divided into four books, does not mate-
tical applications. According to this theory, the rially differ from that of the Institutes of Gaius, of
principle of internal arrangement, thongh rude, which we have given a sketch under Gaius,
would lead incidentally to something like uniformity pp. 201, 202. The Institutes received the imperial
in the order of the works analysed: according to sanction on the 21st of November, 533, and full
Blume's theory, where the contents of a title pro legal authority was conferred upon them, from the
ceed from the simple to the more complex, such an 30th of December, A. D. 533, the same day from
arrangement is secondary and dependent on the which the Digest was to take effect as law.
general character of the three groups of works ana- (Prooem. Instit. ; Const. Tanta, § 23. )
lysed by different sections of the commissioners. Had it been possible to make law for ever fixed,
He admits, however, that some of the exceptions to and had the emperor's workmen been able to ac-
the general rule of arrangement which his theory complish this object, the desire of Justinian's heart
propounds result from attention to the natural order would have been fulfilled. But there were many
of ideas. Thus, at the beginniug of a title, frag questions upon which the ancient jurists were
ments are placed, severed from the mass to which divided. Under the earlier emperors, these differ-
they regularly belong if they contain definitions of ences of opinion had given rise to permanent sects
words or general divisions of the subject, or give [CAPITO); nor were they afterwards entirely ex-
a summary explanation of leading principles. tinguished, when party spirit had yielded to inde-
Considering the short time in wbich the Digest pendent eclecticism. The compilers of the Digest
was completed, and the peculiarity of its arrange- tacitly, by their selection of extracts, manifested
ment, its compliance with the requisitions of Justi- their choice ; but a Catholic doctrine, the great
nian deserves high commendation. It was not, object of Justinian's wishes, was not thus to be
however, entirely free from repetitions of the same accomplished. At the suggestion of Tribonianus,
passage under different titles (leges geminatae), nor the emperor began, while his compilations were
from the insertion of fragments under unappropriate yet in progress, to issue constitutions having for
heads (leges fugitivae or erraticae), nor from the their object the decision of the ancient controversies.
admission of actual inconsistencies or contradictions These constitutions helped to guide the compilers
(antinomiae, leges inter se pugnantes).
of the Digest and Institutes ; but, as they were
Justinian forbade all commentary on his collec-issued from time to time after the first constitutionum
tions, and prohibited the citation of older writings. codex (the greater part of them in the years 529
It is said that Napoleon exclaimed, when he saw and 530), it was found desirable, when they had
the first commentary on the Code Civil, “Mon reached the number of fifty, to form them into a
Code est perdu! ” and Justinian seems to have separate collection, which seems to have been pub-
been animated with the same spirit. He allowed lished under the title L. Constitutionum Liber. This
no explanation save the comparison of parallel pas- collection has not come down to us in a separate
sages (indices, paratitla), and the interpretation of form, for its legal authority was repealed upon the
single words or phrases. Such at least were his revision of the Constitutionum Codex; and the
original injunctions, though they were not long separate publication of the Fifty Decisions has been
obeyed. The text was to be written in letters at doubted ; but the phrase in the ancient Turin
length, all abbreviations (notae, sigla) and numeral Gloss upon the Institutes, Sicut libro L. constituti-
figures being interdicted.
onum invenies (Savigny, Gesch. des R. R. im Mit-
The emperor was desirous that the body of law telalter, vol. ii. p. 452, ed. 2), confirms the inference
to be compiled under his direction should be all in to be drawn from Const. Cordi, ý 1, and Inst. 1.
all, not only for practice, but for academical instruc- tit. 5. § 3. (Brunquell, Hist. Jur. Rom. ed. 1742,
tion ; but the Digest and the Code, though they p. 239—247; Hugo, Civilist. Mag. vol. v. p. 118
were to form part of an advanced stage of legal -125. )
education, led far into detail, which could not well Even after the publication of the fifty cisions,
be understood by beginners. It became necessary the imperfection and ambiguity of the existing law
therefore to compose an elementary work for required to be remedied by further constitutions,
students. Already in the constitution, Deo Auctore, The incompleteness of the Code of A. D. 529 was
of Dec. A. D. 530, Justinian had declared his inten- now apparent, and Justinian was not indisposed to
tion of ordering an elementary work to be written. the revision of a compilation, which, having been
The composition of it was entrusted to Tribonian, made at the commencement of his reign, contained
in conjunction with Theophilus and Dorotheus, but little of his own legislation. Accordingly, the
who were respectively professors in the two great task of revision was entrusted to Tribonianus
schools of law at Constantinople and Berytus. (who had no part in the original compilation), with
Florentinus and other Roman jurists had written the assistance of the legal professor Dorotheus, and
## p. 670 (#686) ############################################
670
JUSTINIANUS.
JUSTINIANUS.
the advocates, Menna, Constantinus, and Joannes. | very great praise. They have long exercised, and,
They were empowered to omit, to improve, and to pervading modern systems of law, continue to
add; and, in the formation of the secunda editio, or exercise, enormous influence over the thoughts and
repctita praelectin, care was taken to insert the con- actions of men. It is true that they exhibit a
stitutions of Justinian which had appeared since certain enslavement to elements originally base, for
the first edition. It is probable that all the Fifty there was much that was narrow and barbarous in
Decisions were incorporated, although we have not the early law of Rome ; but, partly by tortuous
the means of precisely identifying them. On the fictions, and partly by bolder reform, the Roman
16th of Nov. A. D. 534, Justinian issued a consti- jurisprudence of later times struggled to arrive at
tution, giving legal force to the new edition of the better and more rational rules. The Digest is
Code, from the 29th of Dec. 534. To this new especially precious, as preserving the remains of
edition, in contradistinction to the former (which jurists whose works would otherwise have been
was now superseded and carefully suppressed), has wholly lost, notwithstanding their great value as
been usually given the name Codes Hepetitae Prae illustrations of history, as materials for thinking,
lectimis. It is now ordinarily called the Code of and as models of legal reasoning and expression.
Justinian, although it is more correctly called Con- If adherence to the contents of the imperial law
stitutionum Codex, since the other collections of during the middle ages craniped on the one hand
Justinian are also entitled to the name of Codes. the spontaneity of indigenous development, it op
The earliest constitution contained in the Code is posed barriers on the other to the progress of feudal
one of Hadrian, the latest one of Justinian, dated barbarism.
Nov. 4. , A. D. 534. The matter of constitutions We proceed now to give some account of the
older than Hadrian had been fully developed in the literary history, and to mention the principal edi-
works of jurists. The Code is divided into 12 tions, separate and collective, of Justinian's com-
books, and the books into titles, with rubrics de pilations. The editions up to the end of the first
noting their contents. Under each title, the con- third of the 16th century are scarce, for, from the
stitutions are arranged chronologically. Each inconvenience of their form, and the variety of con-
constitutio is headed by an inscriptio, or address, tractions they employ, they have been subjected to
and ended by a subscriptio, announcing the place the same fate with the early manuscripts : but, like
and time of its date, The general arrangement the early manuscripts, they are often of use in cor-
corresponds on the whole with that of the Digest, recting the text.
80 far as the two works treat of the same subject, The first printed edition of the Institutes is that
but there are some variations which cannot be ac- of Petrus Schoyffer, fol. Mogunt. 1468. The last
counted for. For instance, the law of pledges and edition of importance is that of Schrader, 4to.
the law of the father's power occupy very different Berlin, 1832. This is an exceedingly learned and
relative positions in the Digest and the Code. Some elaborate performance, and is intended to form part
constitutiones, which are referred to in the Insti- of an intended Berlin Corpus Juris Civilis, which
tutes, do not appear in the modern manuscripts of is still promised, but has hitherto made no further
the Code ; and it is doubtful whether they were visible progress. Among the exegetical commenta-
omitted by the compilers of the second edition, or tors, Vinnius, à Costa, and Otto, will be found the
left out by subsequent copyists.
most useful. The Institutiones cum Commentario
Justinian, though fond of legal unity, was fond Academico, by Vinnius, first appeared 4to, Amst.
of law-making. If he had lived long enough, there 1642, and has been frequently reprinted. The
might perhaps have been a second edition of the Elzevir Vinnius of 1665 is, typographically, the
Digest. When the new Code was published, he neatest ; but the jurist will prefer those editions
contemplated the necessity of a supplement to it, which are enriched with the notes of Heineccius,
and promised that any legislative reforms which he and contain the Quaestiones Selectae of Vinnius.
might afterwards make should be formed into a (2 vols. 4to. Lugd. 1747, 1755, 1761, 1767, 1777. )
collection of Novellae Constitutiones. (Const. Cordi, The Commentarius ad Institutiones of à Costa
§ 4. ) Many such Novells (veapal diatáters), with (Jean de la Coste) first appeared, 4to. Paris, 1659;
various dates, from Jan. 1. 535, to Nov. 4. 564, but the best editions are those of Van de Water
were published from time to time, by authority, in (4to. Ultraj. 1714), and Rücker (4to. Lugd. 1744).
his life-time. The greater part were promulgated The Commentarius et Notae Criticae of Everard
in the first five years after the publication of the Otto first appeared 4to. Traj. ad Rhen. 1729; and
new Code ; and there is a marked diminution in the best edition is that of Iselin (4to. Basil. 1760).
the number of Novells subsequent to the death of The commentaries of Balduinus (fol. Paris, 1546),
Tribonian in 545. There are extant at least 165 Hotomann (Basil. 1560, 1569, Lugd. 1588), Gi-
Novells of Justinian, making many reforms of great phanius (4to. Ingols. 1596, &c. ), Bachovius" (4to.
consequence, and seriously affecting the law as laid Frank, 1628, 1661, &c. ), Merillius (4to. Paris,
down in the Digest, Institutes, and Code. Though | 1654, Traj. ad Rhen. 1739), and Hoppius (Dantz.
the imperial archives contained all the Novells 1693, &c.
