Page:Dictionary of Greek and Roman Biography and Mythology (1870) - Volume 2.djvu/682

Rh 6fi8 JUSTINIANUS. writings of the Roman lawyers, and their works are in reality more full of piactical law than the constitutions to which occasional exigency gave birth. Then the arrangement of the Digest sins against science. The order of the Edict, which it followed, was itself based on theordei of the twelve tiibles, and was historical or accidental, not sys- tematic. There is no pars generalis — no connected statement of first principles — no regular develop- ment of consequences. Leading maxims are intro- duced incidentally, and matters of the greatest moment, as the law of procedure, are scattered under various heads — here a little, and there a little. The Digest is divided into seven partes, and is also divided into fifty books. The partes begin respectively with the 1st, 5th, 12tli, 20th, 28th, 37th, and 45th books. Each book is divided into titles, and each title has a rubric or heading denoting the general nature of its contents. The division into seven parts, though the late Hugo often took occasion to insist upon its importance, has been little attended to in modern times. Under each title are separate extracts from ancient jurists — sometimes only a single extract. These were not originally numbered, but they were headed by the name of the author, and a reference to his work {mscriptiones). Justinian directed that a catalogue should be prefixed to the Digest with the names of all the authors cited, and of the particular works from which the extracts were taken. Such a cata- logue, though not perhaps the genuine original, is placed at the beginning of the celebrated Floren;ine manuscript of the Digest, and is thence called tJie Florentine Index. The jurists from whom extracts are directly taken, often cite other jurists, bat seldom literally. These are, however, pure o: literal, though not direct extracts, from Q. Mucins Scae- vola, Aelius Gallus, and Labeo. There are 39 jurists, from whose works the Digest contains liberal extracts, whether made directly or at second-hand ; and these 39 are often called the classical jurists, a name sometimes extended to all those jurists who lived not later than Justinian, and sometimes confined to Papinian, Paulus, Ulpian, Gaius, and Modestinus, from the special manner in which these five are mentioned in the citation lav of Valentiniau III. Extracts from Ulpian constitute about one third of the Digest ; from Paulus about one sixth ; from Papinian about one twelfth. In Hommel's Palingenesia Pandedarum the fragments of each jurist are collected and printed separately: an attempt is made to reanimate the man — to re- store his individuality — by bringing together his dispersed limbs and scattered bones. The internal arrangement of the separate frag- ments of jurists under each title would appear at first sight to be completely fortuitous. It is neither chronological nor alphabetical ; nor does it con- sistently and uniformly follow any rational train of thought, depending on the subject treated of. Blume (as he now writes himself, or Bluhme, as the name was formerly written) has elaborately expounded a theory which, though rejected by Tigerstrcim and others, seems to rest upon the foundation of facts, and must at least be something like the truth. No one can form a sound opinion of the merits of Blume's theory without a careful examination of a great number of titles in the Digest. It is found that the extracts under each title usually resolve themselves into three masses JUSTINIANUS. or series — that the first series is headed by extracts taken from commentaries on Sabinus ; the second from commentaries on the Edict ; and the third from commentaries on Papinian. Hence he sup- poses that the commission was divided into three sections, and that to each section was given a certain set of works to analyse and break up into extracts. The masses or series he names from the works that head them : the Sabinian, Edictal, and Papinian masses ; although each mass contains extracts from a great number of other works un- connected with Sabinus, the Edict, or Papinian. Besides these three principal masses of extracts, a set of miscellaneous extracts, forming an appendix to the Papinian mass, seems to have been drawn up in order to complete the selection, and may be said to form a fourth, or supplementary mass, called by Blume the Post-Papinian. Regularly, the mass that contained the greatest number of fragments relating to any particular title appears first in that title. The total number of fragments belonging to the Sabinian mass exceeds the number in the Edictal, and the Edictal frag- ments are more numerous than the Papinian. Hence the usual order is s, E, P. By these initial letters (previously used by Blume) the brothers Kriegel in their edition of the Digest (Lips. 1833), mark the separate fragments, to denote the masses with which they are classed. The fragments be- longing to the supplementary mass are marked Pp. For the details of exceptions from this arrange- ment, and the reasons for such exceptions ; for lists of the works of ancient jurists, so classed as to show to what mass the fragments of each work be- long ; and for applications of the theory to critical purposes, the reader is referred to Blume's justly- celebrated essay on the Ordnung der Fragmenta in den Pandedenliteln, in the 4th volume of Savigny's Zeitschrifi, and to the following works : Hugo, Lehrhiuih der Digesten^ 2te Ausg. 8vo. Berl. 1828; Pcaimarus, Bemerkungen iiher die Inscriptionen- ruhen der Pandecten fragmenta, 8vo. Gotting. 1830 ; the synoptic tables appended to the Digest in the edition of the brothers Kriegel, which forms part of the last Leipzig edition of the Corpus Juris Civilis. It may seem remarkable that the credit of this discovery should be reserved to so recent a date. [ Most of the moderns who investigated the subject had sought, by reference to the actual contents of the fragments, to make out the principle on which they were arranged ; but it was an examination of the inscriptiones that led Blume to his theory. Some approximations to it had been previously made by inquirers who followed the same clue. , Ant. Augustinus had observed that, in each title, the fragments taken from different books of the same work were regularly arranged, an extract from book 2. never coming before an extract from 1 book 1. Giphanius {Oeconomia Juris, 4to, Franc. j 1606, c. ult. ) had gone further than Augustinus ; and Jac. Gothofredus, in his commentary on the I title of the Digest, "De Regulis Juris" {Opera I Minora, p. 7 1 9, 739), approaches more closely than Giphanius to Blume's discovery. It is to be remarked that most of the institutional works, and most of the dogmatic treatises on the pure jus civile of Rome — on the law of Rome as unaltered by legislation or equitable construction — furnish extracts to the Sabinian mass. The works which relate to the modifications of the original law