the Law as treated by the jurists made itself the more. felt. An attempt was made to satisfy this need with the libri vi. iuris epitomarum' of Hermogenianus, extracts from which appear in Justinian's Digest. They contain a systematic compilation from various writings of the classical jurists, in which the results-without the source being given-are mostly collected in aphoristic maxims. A collection of excerpts from the juristic literature and of constitutions is contained in the so-called 'Fragmenta Vaticana,' which were discovered by Angelo Mai (1820) in a palimpsest MS. of the Vatican Library, consisting of 28 leaves, in part cut through lengthwise. This private compilation for use in practice was devoid both of scientific insight and, notwithstanding the division into titles (Purchase, Usufruct, Dos, Excusationes, Donatio, Representation), of scientific method. It dates at any rate from before A.D. 426; according to Mommsen from the time of Constantine, but according to Huschke from that of Honorius. Besides constitutions, it contains extracts almost solely from writings of Papinian, Ulpian and Paulus, in which the respective passages are transmitted in their purity and integrity." a Ed.by Momm. sen (1860) with MS., and 1861. Possibly Ru A collection of maxims of the Mosaic and of the facsimile of Civil Law-indeed with the view of demonstrating the Huschke, agreement of both, or rather, the priority of the first- cit. pp. 688, sq. mentioned is found in the 'Collatio legum Mosaic- finus of Aquiarum et Romanarum s. Lex Dei,' composed about of Milan. A.D. 400 by a cleric, which in sixteen titles contains Ed. by extracts from writings of the five jurists recognised by Huschke (pp. the Law of Citation and from constitutions.c leia or Ambrose с Bluhme, 627, 897.), Dirksen (Hinterl. sqq.), Rudorff The so-called 'Consultatio veteris ICti,' composed Schrift. ii. roo, about A.D. 500, contains a series of legal opinions, in (1869), and which passages are handed down from 'Pauli sen- f. gesch. R. W.' tentiae' and constitutions.d see Zschr. X. 298,877, 309, and xiii. 1, sq. d Ed. by Huschke (pp. In the Germanic states founded in the year 476 797, sqq.). a See above upon territory of the Western Empire, in which those of German and such as were of Roman nationalityin pursuance of the principle of 'personal laws'— lived each according to the Law of their own stock, collections and records of Law were formed from the beginning of the sixth century. The most important among the 'leges Romanae' is the 'lex Rom. Visigothorum (Breviarium Alariciamum),' which was composed under Alaric II. in the year 506, and was published exclusively for the Roman subjects of the West-Gothic kingdom. Epitomized in it in the following order, but, with exception of the third, without any change in the text, are: 1. Codex Theodosianus' (one-ninth to one-eighth of all the constitutions); 2. 'Novellae Constitutiones 'a (only about onethird); 3. Gaii institutiones,' represented by an abridgement in two books (the so-called 'Gaii epitome"); 4. 'Pauli sententiae 1. v. ;' 5. 'Codicis Gregoriani 1. v.' (only twenty-two Constitutions); 6. Hermogeniani Corporis liber' (only two Constitutions); 7. Papiniani 1. i. responsa' (only one passage). § 10. JUSTINIAN'S COMPILATION OF LAW. In a more broadly comprehensive and happier manner than in earlier attempts-especially as regards the classical literature of Law-Justinian at last, by his collection of Law, solved the problem of his time as to a compilatory arrangement of the existing legal material. This now scarcely admitted of a survey, and was also difficult to make out, and therefore little used. He gave to the Roman Law the form in which it has been received by modern cultivated nations. The plan formed was to codify the practical Law in general, i.e., to make a collection by way of epitome of both the 'leges' and the 'ius.' We must in the first place consider the several parts of Justinian's collection of Law and his legislation. By the Const. Haec quae necessario of February 13th, 528, was appointed a commission of ten superior officials (amongst whom were Tribonian and the professor Theophilus) and advocates, with extensive powers to compile a new Codex from the constitutions contained in the three existing Codes and those issued of later date. The work, completed in a year, was confirmed as 'Iustinianus Codex' by the Const. Summa reipublicae of April 7th, 529. The three Codes and the various constitutions which were not adopted were at the same time repealed.-Before a start was made with the compilation of the 'ius,' a series of constitutions were issued in which, on the one hand, controversies were decided which arose out of the older Law, on the other, obsolete rules of law were abolished and others were remodelled. -permisimus, resecatis tam supervacuis . . praefationibus quam similibus et contrariis . . . illis etiam quae in desuetudinem abierunt, certas et brevi sermone conscriptas ex tribus codicibus, novellis etiam constitutionibus leges componere et congruis subdere titulis, adiicientes quidem et detrahentes, immo et mutantes verba earum, ubi hoc rei commoditas exigebat.-Const. Haec quae, § 2. By the Const. Deo auctore of December 15th, 530, Justinian enjoined a Commission of sixteen members under the presidency of the Quaestor S. Palatii Tribonian, and in which were included the lawprofessors Theophilus and Cratinus of the school at Constantinople, and Dorotheus and Anatolius of that at Berytus, to make a systematic collection of extracts 1 ... We have commissioned them to reject as well superfluous preambles . . . as repetitions and contradictions . . . and also such things as are already obsolete, to compose concise and positive laws from the three Codes and the new constitutions, and reduce them under suitable titles, besides adding or subtracting, altering too the language where this appeared to suit the purpose. a Hence the Cf. § II. of whatever was still of practical use" from the writings of the recognised 'iuris auctores' without reference to the Valentinian Law of Citation. A discretion was allowed the Commission as well in respect of the elimination of what was superfluous, antiquated and contradictory as with regard to editorial and substantive alteration of the passages adopted-interpolations, socalled 'emblemata Triboniani'—-but in other respects these passages were to retain their character as extracts. The source from which they were derived was to be mentioned. At the same time, in order to prevent corruption of the text, and to preclude the repeated growth of a 'ius controversum' in place of the 'ius certum ac receptum,' the use of abbreviations (sigla) as well as the composition and publication of commentaries to the work (after the manner of the libri ad Edictum, Sabinum, etc.) was forbidden for the future under pain of punishment. This somewhat hastily completed body of law, by a proclamation of December 16th, 533 (Const. Tanta and Aɛdwker), received statutory confirmation under the title Iustiniani iuris enucleati ex omni vetere iure collecti DIGESTORVM S. Pandectarum libri. -An end was at the same time put to the validity of all juristic works. 1 nemo . . audeat commentarios . . . adnectere nisi tantum si velit in Graecam vocem transformare sub eodem ordine eaque consequentia, sub qua et voces Romanae positae sunt (hoc quod Graeci κarà Tóda dicunt), et si qui forsitan per titulorum subtilitatem adnotare maluerint et ea quae aparirλa nuncupantur componere; alias autem legum interpretationes, immo magis perversiones eos iactare non concedimus, ne verbositas eorum aliquod legibus nostris adferat ex confusione dedecus. Const. Tanta, § 21.' that no one . . . dare to add commentaries: unless alone he desire to make a Greek translation with the same arrangement, and in that order in which the Latin words are rentinus.' Excerpts appear in the Digest from thirty-nine jurists, in unequal distribution. The most numerous Index Floare those from Ulpian, one third; then from Paulus, one sixth; from Papinian, one eighteenth; from Iulian, one twenty-first; from Pomponius and Cervidius. Scaevola, one twenty-fourth; from Gaius, one twentyeighth; from Modestinus, one forty-fifth; from Marcellus, one sixtieth, or thereabouts. That which has been preserved represents about one twentieth of the whole legal literature extracted. The Digest, which is in general arranged according Early Law and Custom,' to the system of the Edict, is divided into fifty books, cf. Maine, and these with the exception of Bks. 30-32 (de legatis) into titles, very unequal, with rubrics under PP. 369, 8q. which the several excerpts (leges, fragmenta) are gathered, and a statement as to the book from which they are taken. A collateral division, corresponding The division to the arrangement of the Edict and to legal instruc- into paragraphs tion, is that into seven parts: Bks. 20-22 bear the special name of Antipapinianus' (in the Byzantine jurists); Bks. 23-36 (in which are treated Marriage and Dowry, Guardianship, Testaments and Legacies) that of 'libri singulares;' Bks. 47-48 (Delicts and Criminal Law) that of 'libri terribiles.'-The extracts are not arranged by с placed (called by the Greeks κarà móda); or if any happen to prefer to add a note because of the obscurity of the titles, and to compose what are called Tapárrλa. But we do not permit them to hazard other interpretations, to say nothing of perver sions, of the Law, lest their verbosity should bring our laws into disrepute because of confusion. F of the extracts was not made until later on. |