Page:Dictionary of Greek and Roman Biography and Mythology (1870) - Volume 2.djvu/683

Rh JUSTINIANUS. introduced by the jus honorarium fall naturally into the Edictal mass ; while the Papinian mass consists of fragments from works which relate chiefly to the practical application of the law, e. g. cases and o[)inions relating to miscellaneous points in the con- struction of wills. Those who are still opposed to Blurae's theory think that the compilers of the Digest were led to their arrangement of the frag- ments by something like a natural development of the subject treated under each title : that they inserted at the commencement of a title such pas- sages as explain the law institutionally, or such as relate chiefly to the original principles of the jus civile : that they then proceeded to the modifi- cations of the original law, and finally to its prac- tical applications. According to this theory, the principle of internal arrangement, though rude, would lead incidentally to something like uniformity in the order of the works analysed: according to Blume's theory, where the contents of a title pro- ceed from the simple to the more complex, such an arrangement is secondary and dependent on the general character of the three groups of works ana- lysed by different sections of the commissioners. He admits, however, that some of the exceptions to the general rule of arrangement which his theory propounds result from attention to the natural order of ideas. Thus, at the beginning of a title, frag- ments are placed, severed from the mass to which they regularly belong if they contain definitions of words or general divisions of the subject, or give a summary explanation of leading principles. Considering the short time in which the Digest was completed, and the peculiarity of its arrange- ment, its compliance with the requisitions of Justi- nian deserves high commendation. It was not, however, entirely free from repetitions of the same passage under different titles (leges geminatae), nor from the insertion of fragments under unappropriate heads {leges fugitivae or erraticae)^ nor from the admission of actual inconsistencies or contradictions (antinomiae, leges inter se pugnantes). Justinian forbade all commentary on his collec- tions, and prohibited the citation of older writings. It is said that Napoleon exclaimed, when he saw the first commentary on the Code Civil, " Mon Code est perdu ! " and Justinian seems to have been animated with the same spirit. He allowed no explanation save the comparison of parallel pas- sages {indices, paratitla), and the interpretation of single words or phrases. Such at least were his original injunctions, though they were not long obeyed. The text was to be written in letters at length, all abbreviations [notae, sigla) and numeral figures being interdicted. The emperor was desirous that the body of law to be compiled under his direction should be all in all, not only for practice, but for academical instruc- tion ; but the Digest and the Code, though they were to form part of an advanced stage of legal education, led far into detail, which could, not well be understood by beginners. It became necessary therefore to compose an elementary work for students. Already in the constitution, Deo Aiidore, of Dec. A. D. 530, Justinian had declared his inten- tion of ordering an elementary work to be written. The composition of it was entrusted to Tribonian, in conjunction with Theophilus and Dorotheus, who were respectively professors in the two great schools of law at Constantinople and Berytus. Florentinus and other Roman jurists had written JUSTINIANUS. 66& elementary works {hmtitutiones, Regularum libn), but none were so famous as the Instituies and Res Q.uotidianae of Gaius, which were taken as the basis of Justinian's Institutes. Other treatises, however, were also made use of, and alterations were made for the purpose of bringing the new treatise into harmony with the Code and the Digest. Hence there is an occasional incongruity in the compilation, from the employment of hetero- geneous materials. For example, at the very com- mencement the discordant notions of Gaius and Ulpian on the jus naturate and the jus gentium are brought together, but refuse to blend in consistent union. The general arrangement of the work, which is divided into four books, does not mate- rially differ from that of the Institutes of Gaius, of which we have given a sketch under Gaius, pp. 201, 202. The Institutes received the imperial sanction on the 21st of November, 533, and full legal authority was conferred upon them, from the 30th of December, a. d. 533, the same day from which the Digest was to take effect as law. {Frooem. Instit. ; Const. Tarda, § 23.) Had it been possible to make law for ever fixed, and had the emperor's workmen been able to ac- complish this object, the desire of Justinian's heart would have been fulfilled. But there were many questions upon which the ancient jurists were divided. Under the earlier emperors, these differ- ences of opinion had given rise to permanent sects [Capito] ; nor were they afterwards entirely ex- tinguished, when party spirit had yielded to inde- pendent eclecticism. The compilers of the Digest tacitly, by their selection of extracts, manifested their choice ; but a Cathoic doctrine, the great object of Justinian's wishes, was not thus to be accomplished. At the suggestion of Tribonianus, the emperor began, while his compilations were yet in progress, to issue constitutions having for their object the decision of the ancient controversies. These constitutions helped to guide the compilers of the Digest and Institutes ; but, as they were issued from time to time after the first constitutionum codex (the greater part of them in the years 529 and 530), it was found desirable, when they had reached the number of fifty, to form them into a separate collection, which seems to have been pub- lished under the title L. Constitutionum Liber. This collection has not come down to us in a separate form, for its legal authority was repealed upon the revision of the Constitutionum Codex; and the separate publication of the Fifty Decisions has been doubted ; but the phrase in the ancient Turin Gloss upon the Institutes, Sicut libra L. constituti- onum invenies (Savigny, Gesch. des R. R. im MU- telalter, vol. ii. p. 452, ed. 2), confirms the inference to be drawn from Const. Cordi, § 1, and Inst. 1. tit. 5. § 3. (Brunquell, Hist. Jur.Rom. ed. 1742, p. 239—247 ; Hugo, avUist. Mag. vol. v. p. 118 —125.) Even after the publication of the fifty decisions, the imperfection and ambiguity of the existing law required to be remedied by further constitutions. The incompleteness of the Code of a. d. 529 was now apparent, and Justinian was not indisposed to the revision of a compilation, which, having been made at the commencement of his reign, contained but little of his own legislation. Accordingly, the task of revision was entrusted to Tribonianus (who had no part in the original compilation), with the assistance of the legal professor Dorotheus, and