Page:Catholic Encyclopedia, volume 9.djvu/112

 LAW

87

LAW

these took the fonn of edicts, mandates, decrees, and leeeripts. The edictal legislation of the magistrates (the honorary law) had b^^ome so voluminous that it was incapable of further growth; it wasj moreover, out of harmony with changed positive legislation and with changed oonditj^ons. Salvius Julianus was com- missioned py Hadrian to revise and edit it, and on this revision many of the jurisconsults made their com- mentaries ad edietum. In the literary splendour of the Augustan age the jurisconsults took high rank; their wonc was not only scientific, but literary, and it has bc»en said that, had all its other monuments perished, classical Latin would have survived in the fragments of the jurisconsults of this period. Augustus granted to the most eminent in law the startling jus respon- dendi, i. e., the right of officially giving, in the name of the prince, opinions which were legally binding upon the judge. These reaponsa were in writing and were sealed tefore delivery to the judge. Among the cele- brated jurisconsults were Capito and Labeo, foimders of rival schools (2, § 47, D. 1. 2). Others were Sal- vius Julianus and Sextus Pompomus, both represented by copious fragments in the Pandects. In the second oentu^ came Gains, of whose " Institutes " those of Justinian are only a recension. In 1816 a palimpsest was discovered by Niebuhr in the library or the cathe- dral chapter of Verona. On it were some compositions of St. Jerome, in places superimposed on an earlier writing, which proved to be a copy of the lost "In- stitutes " of Gains. Gains himsell was a contempo- mry of the Emperor Hadrian, but scientific Research has fixed the date of this copy of his great work as a little earlier than the time of Justinian^ in the sixth eentunr.

In the third century lived Papinian, "the Prince of the Jurisconsults '\ Ulpian and Paulus also were among the greatest lawyers of the period: approxi- mately onoHsixth of the Digest is made up of frag- ments from Ulpian, while raulus is represented by Siwards of two thousand fragments (Staedtler). odestinus was the last of the great series. We have in manuscript part of an elementary work by Ulpian and the Institutes of Gains. In Justinian's Digest a veiy large part of the writings of the classical jurists is to be foimd. Most of the original treatises have per- ished; two thousand of these, containing three million impunctuated and unspaced lines, were abridged to one hundred and fifty thousand lines or sentences. The originals became useless in practice, and were for the greater part soon lost. A number of classic ju- rists are represented in a collection of 341 fragments, discovered m the Vatican Library in the early part of the nineteenth century by Cardinal Mai, and edited by him at Rome in 1 823. Another edition was published in Germany in 1828, under the title "^Fragmenta Vati- oana". Fragments of the classic jurists are also con- tained in the "Collatio Mosaicarum et Romanarum Legum, known also as the "Lex Dei", compiled in the fourth and fifth centuries. They are found also in the *' Breviary of Alaric" or "Lex Romana Wisi- gothorum, which contains the Sentences of Paulus and the excerpts from Papinian's ' ' Responsa' * . Frag- ments from the iurisconsults are founa in the " Edie- tum Theodorici ' or "Lex Romana Ostrogothorum" and in the "Lex Romana Burgundionum'' (see below).

(4) From Diocletian (d. 313) to Justinian (d. 565). — The seat of an absolute monarchy was now shifted from Rome to Constantinople, and the Empire was divided into East and West. Constructive juris-

Erudence ¥ras a thins of the past, and the sources of kw were merged in the will of the prince. The edicts of the pretonan prefect were given the same effect as the imperial constitutions, which were concerned principally with public law. Private law was vast and diversified, but it had lon^ since ceased to have any stimulating growth. The jus civile, expanded by the Ancient jurists in the interpretation of the Twelve

Tables, the honorary law of the magistrates, the public legislative acts of the early empire, the mass of im- perial constitutions, and the writings of the classic Jurisconsults, composed a heterogeneous jumble of legal materials from which a systematic jurisprudence was destined to arise. An attempt was made in the early fifth century to effect a workable system, and the law of citations was adopted by which the relative authority of the classic jurists was posthumously fixed by statute. Numerical weight of authority was done away with, and the great galaxy were the recog- nized authorities, although other jurists mi^ht be cited if approved by any of the five. Collections of imperial constitutions were made at an interval of fifty years, and published upder the names of the Gregorian and Theodosian Codes respectively; the latter was republished in the " Breviary of Alaric ". Something at least, had been done for the simplifica- tion of a difficult legal situation. The Eastern and Western emperors thenceforward agreed to mutually communicate their legislative designs for simultaneous publicatioir in both empires, and these future projects were to be Known as novellcB constUuiiones.

Upon Justinian's accession there were in force two principal sources of law: the imperial constitutions and the classical jurisprudence operating under the law of citations (Staedtler). To Justinian's practical mind, the state of the law was still chaotic; the em- pire was poor, and it was a hardship for lawyers to possess themselves of the necessary MSS. The very bulk of the law produced a situation analogous to that which exists in common-law jurisdictions to-day, and which always ushers in more or less abortive efforts towards codification. Justinian undertook to make these immense materials more accessible and more responsive to the practical needs of his empire. That, in the opinion of some, he wronged posterity by destroying the original sources, is entirely beside the mark. He has been lauded as a great lawgiver when measured by the needs of his time and situation; and. on the other hand, he has been as heartily abused and reviled for an unscientific iconoclast. The first task of the commission appointed by Justinian was to edit the imperial constitutions as a code, published under the title, * * Codex Justiniani ' '. After this the emperor directed the compilation of a complete repository of the law made up of fragments of the classical writings strung together without any too scientific arrange- ment. This work is the great treasury of juridical lore, and was the most valuable part of Justinian's compilation. It was called the Digest" or "Pan- dects'*. Occasionally Tribonian, who, with two other jurists, was Intrusted with the task, complacently or ignorantly modified the text. The emperor forbade commentaries and abbreviations.

Upon the completion of the Pandects, Justinian, always intelligently interested in legal education, or- dered an abndgment of the Digest for the purposes of instruction; these are the Institutes of Justinian. The Institutes of Gains (see above, under 3) furnished a ready model; indeed, the Institutes of Gains and those of Justinian are even to-day the most essential first books of the law. The first araf t of the Code was not in complete harmony with the Digest and the In- stitutes, and a revision of it became necessaiy; this was promulgated as the "Codex Repetitae rraelec- tionis '*. The second edition of the code was intended to be final, and upon its publication Justinian an- nounced that any new imperial legislation would take the form of detached constitutions to be known as "novels" (rwvellce, i. e. "new "); of these he issued a large number, but two only (the 118th and 127th) have great importance for modern law.

The Justinian conapilation is sometimes elegantly termed the Imperial Code; it is, however, more accu- rate to refer to it as the " Corpus Juris Civilis ". It ifl the whole body of the civil law comprising the foui