2. D. (or ff.) mand. 1. si mandavero § qui aedem [=1. 22, § 6, mand. 17, 1].

3. Cod. de testamentis 1. hac consultissima § si quid autem [=1. 21, § 5 C. de test. 6, 23].

4. Auth. de hered. ab intest. § nullam vero. colla. ix. tit. j. [=Nov. 118 c. 4].

§ 11. THE ROMAN LAW IN THE BYZANTINE EMPIRE.

The collection of Law by Justinian, the original of which was certainly always more and more superseded by Greek translations, remained in the Byzantine Empire primarily in full use as a law-book and as the foundation of legal study, upon which it exercised an appreciable influence. And accordingly, as products of lectures at the law-schools, there soon appeared selections, paraphrases and exegetical commentaries upon the law-books, the scientific value of which cannot be denied. The most prominent jurists of Justinian's time were:—

Theophilus, author of a paraphrase of the Institutes, not without importance for the textual criticism and interpretation thereof;"

Thalelaeus, writer of a full commentary on the Codex, and

a Cf. Roby, pp. ccxlv., sq.

Numerous fragments have been preserved

of these two

Stephanus, author of a commentary (index) upon the first thirty-six books of the Digest, which contains detailed interpretations of the several passages. This ephemeral revival, however, was succeeded by a rapid decline of jurisprudence and of the condition works in the of Law itself, so that by the beginning of the eighth 'Basilica.' century knowledge and comprehension of Justinian's law-works had almost completely disappeared. An endeavour was made to remedy this state of things by a revision of the actual Law, which was begun by Basil the Macedonian, completed by Leo Philosophus (886-910) and published as a Statute-Book under

1 Paraphrasis graeca institut. ed. Reitz. 1751; ed. Ferrini, 1884.

the title of BASILICA' (ie., imperial laws). The 'Basilica' contain an abbreviation of Justinian's Books, which was put together from the older selections and paraphrases, according to a peculiar system, but essentially akin to that of the Codex, and in sixty books, which are divided into titles, and again into chapters. The Text was very soon furnished with scholia, which contain references and parallel passages, besides explanatory selections from the coinmentaries of earlier Byzantine jurists. These and the later scholia to the Text, and to the selections last mentioned, underwent a fresh revision in the twelfth century. The Basilica' with scholia are important especially for the criticism of the Text, and as filling up the various lacunae of Justinian's volumes, but also as affording helps to the interpretation of them, to be used with discretion, yet not to be undervalued. Forty-four books have been preserved, of which twenty-nine are almost complete.

The most recent edition is by Heimbach, tom. i.-v. 1833-1850, tom. vi. (Prolegomena and Manuale) 1870, and Zachariae a Lingenthal, supplementum ed. Basil. Heimbach, 1846.

§ 12. THE ROMAN LAW IN THE WEST. IN ITALY: GLOSSATORS AND COMMENTATORS,"

The downfall of Roman sovereignty in Italy, 568 A.D., which had been re-established a short time before, did not entirely destroy the transmission and validity of the Roman Law; but its continued existence was marred by the very imperfect knowledge there was of it through a limited employment of some few sources, nor was the scientific treatment of the Law any more satisfactory, so that Justinian's works fell into ever greater oblivion.

Of treatises upon the Roman Law, in which the special aim was to arrive at definitions, as well as to establish specific rules, and to make some systematic.

collection of legal propositions for teaching purposes, there are preserved :

:

1. The Turin Gloss on the Institutes, in the Turin MS. of that portion of the Corp. iur.," and of a ct. § 10. perhaps the sixth or of the ninth century.

Last ed. by Krueger (Zschr.

2. The Brachylogus iuris civilis s. Corpus legum,' f. R. Gesch. vii. a manual of the Roman Law in four books, and with 44, 89.). titles according to the system of Justinian's Institutes (but in the fourth book the actiones, or procedure), of the eleventh century.

Latest edition by Böcking (1829).

d Ed. by Barkow, in

ii. Anh. r.

3. Petri Exceptiones legum Romanorum,' belonging to the end of the eleventh century, a manual of the Law as settled by Justinian, in four books.d The Roman Law first awoke to new life by the Law Savigny, Gesch. School, dating from c. 1100, at Bologna, where the study of Law, based upon the Books of Justinian that had been again brought to light, appeared as a kind of legal revelation, and quickly attained to a high degree of success in the hands of the Glossators. From Bologna the Roman Law was soon spread over Europe. In contrast with their predecessors, the Glossators pursued a new, exact method, by their subjecting the whole of the Justinianean Law to a thorough exegetical treatment, and from their interpreting every single passage by reference to others. In this way they endeavoured at the same time to grasp the systematic connection of the substance of Law. By investigation of the sources, pursued with great intellectual energy and perseverance, they acquired a familiarity with and power over the subject-matter scarcely attained again, and thus prepared the way for the legal science and legal study of after-times. Besides the interpretation of individual passages, which as Glossae were attached to the Text-at first 'interlineares,' then 'marginales -the Glossators also inaugurated the systematic treatment of Law in their Summae upon particular titles and whole books of Justinian's collection, besides setting forth the Law of Procedure (ordo iudicarius) and

publishing collections of 'controversies' and treatises

a Ed. by Hae- thereon." The most prominent Glossators were:—

nel, 'Dissen

siones dominorum,' 1834.

Irnerius, the founder of the School.

Bulgarus, Martinus, Jacobus, Hugo, the four socalled Doctores,' about the middle of the twelfth century. Contemporary with them was Vacarius, founder of a Law School at Oxford.

Placentius, founder of the Law School at Montpellier, and Johannes Bassianus, towards the end of the twelfth century.

Azo, pupil of the last mentioned, who flourished at the beginning of the thirteenth century; under him the School of Glossators reached their climax.

Franc. Accursius (Accorso), the last Glossator, about the middle of the thirteenth century, who in a rather uncritical and careless manner arranged a compilation of the existing glosses into a new redaction which almost completely superseded the original glosses. This was called 'Glossa ordinaria,' or simply 'Glossa.'

After Accursius, a deep decline of Jurisprudence set in, which is evidenced by the fact that the Gloss soon acquired an inordinate and almost legal authority, and became a kind of source of Law, upon which men even began to write commentaries, the result of which was that the Text of Justinian's law-books was always more and more lost sight of. Under the dominion of the scholastic method an empty formalism came to prevail in Jurisprudence, so that men on the one hand in their treatment of the Law relapsed into a prolix and subtle casuistry in consequence of their misuse of dialectic forms; on the other, in blind reliance upon authority, confined themselves to a spiritless collection. of the opinions and interpretations of predecessors upon which they commented. Amongst these commentators the following deserve notice :

Odofredus, ob. 1265.

Cinus, ob. 1314.

Bartolus, ob. 1357, called 'iuris monarcha,' as the

most celebrated of all the commentators, of paramount influence upon the practice of his time and of the centuries following."

a He was a professor at Pisa

Baldus, ob. 1400, second only to the last men- and Perugia tioned in authority.

Fulgosius, ob. 1427, sometimes in exegesis in advance of the rest.

Paulus de Castro, ob. 1441.

Jason de Mayno, ob. 1519.

Their comprehensive works, of scarcely any scientific value, but important through their influence upon the development of practice, consist of Commentarii' and 'Lecturae' upon Justinian's Works, and of Consilia.'

Of relatively greater value are the works of the practical men of this period, of whom the most important was Durantis (author of the Speculum iudiciale'), ob. 1296.

§ 13. THE RECEPTION OF THE ROMAN LAW IN

GERMANY.

From the Universities of Italy the knowledge of Roman Law spread to Germany, where, in the form of Justinian's Works, it was in the course of the fourteenth to the sixteenth century 'received,' i.e., taken as Common (though subsidiary) Law. But this was done subject to the limitation received from the Glossators, Quidquid non and by way of usage, although not without manifold agnoscit glossa, opposition, especially to the foreign doctors' and the curia."" innovations in forensic procedure which rendered it more tedious.

The acceptance of the Roman Law finds its expla

nation

(1) in its universal character, copiousness and

b

nec agnoscit

scientific completeness, as compared with the C. §§ 7-9. abruptness, insufficiency and clumsiness of the indigenous Law, which was poor in general conceptions and legal principles, and no longer availed to