Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/736

Rh 712 ROMAN LAW [CODIFICATION. the first step in the execution of his project. For some reason or other nothing followed upon this enactment ; and in 435 a new and stronger commission was nominated to collect the edicts, but nothing was said in their instructions about anything ulterior. The work was completed in three years, and published at Constantinople early in the year 488, with the declaration that it should take effect from 1st January following ; and a copy was communicated to Valentinian, who ordained that it should come into force in the West from 12th January 439. The arrangement is in sixteen books, subdivided into titles, in which the constitutions are placed in chronological order. They cover the whole field of law, private and public, civil and criminal, fiscal and municipal, military and ecclesiastical. The private law is contained in the first five, which unfortunately are very defective. The imperial edicts subsequent to the publication of the Code got the name of Novels (novellae constitutiones). ollatio. The CoUatio, the Vatican Fragments, and the Consultatio. These were unofficial collections. The first CoUatio Legum Mosaica- rum et Jiomanarum, otherwise Lex Dei quam Dominus praecepit ad Moysen is a parallel of divine and human law, the former drawn from the Pentateuch and the latter from the writings of Gaius, Papinian, Paul, Ulpian, and Modestine, rescripts from the Gregorian and Hermogenian Codes, and one or two later general enactments. Its date is probably about the year 390, but its authorship is un- atican known. The Vatican Fragments were discovered by Mai in a palim- rag- psest in the Vatican in 1820, evidently part of a book of practice .ents. compiled in the Western empire, and of very considerable dimensions. The extant fragments deal with the law of sale, usufruct, dowries, donations, tutories, and processual agency, and are drawn from the writings of Papinian, Ulpian, and Paul, the two collections of re- scripts, and a few general enactments, the latest dating from the year 372. The compilation, therefore, may be of about the same antiquity as the Collatio. The Consultatio ( Veteris cujusdam Jiirisconsulti rasul- Consultatio) was first published by Cujas in 1577. It seems to be .tio. part of a collection of answers upon questions of law submitted for the opinion of counsel, and is of value, for the fragments it contains from Paul's Sentences and the three Codes. It is thought to have been written in France in the end of the 5th or beginning of the 6th century. omano- The Romano-Barbarian Codes. This title is usually applied to trba- three collections compiled in western Europe after it had thrown in off the sovereignty of Rome. ides. 1. The Edictum Theodorici was compiled at the instance of Theodoric, king of the Ostrogoths, in or very soon after the year 500. Its materials were drawn from the writings of the jurists principally the Sentences of Paul the Gregorian, Hermogenian, and Theodosian Codes, and the later Novels, all reduced into 154 sections, with no systematic arrangement, but touching upon all branches of the law public and private, especially criminal law and procedure. It was professedly intended to apply to all Theodoric's subjects, both Goths and Romans. 2. The Lex Romana Visigothorum or Breviarium Alaricianum was a much more ambitious and important collection. It was com- piled by a commission appointed by Alaric II., king of the Western Goths, with approval of the bishops and nobles, and published at Aire in Gascony in the year 506. The compilers selected their material partly from leges (statute law) and partly from jus (juris- prudential law), taking what they considered appropriate, without altering the text except in the way of excision of passages that were obsolete or purely historical. For the leges they utilized some 400 of the 3400 enactments (according to Haenel's estimate) of the Theodosian Code, and about 30 of the known 104 post-Theodosian Novels ; for the jus, the Institutes of Gaius, Paul's Sentences, the Gregorian and Hermogenian rescripts, and the first book of Papinian's Responses (a single sentence). All of these, except Gaius, were accompanied with an "interpretation," which re- sembles the interpretatio of the XII. Tables in that it is often not so much explanatory of the text as qualificative or corrective. Gaius is contained in an epitome in two books, believed to have been only a reproduction of an abridgment already current, and dating from about the beginning of the 6th century. The Breviary exercised very considerable influence in Europe generally; and there is no question that, until the rise of the Bologna school in the 12th century, it was from it, rather than from the books of Justinian, that western Europe acquired its scanty knowledge of Roman law. 3. The Lex Romana Burgundionum, formerly, owing to a mistake of a transcriber, called Papianus, is the collection which King Gundobald, when publishing his code of native law (Lex Bur- gundionum or Gundobada), had promised should be prepared for the use of his Roman subjects. It deals with private law, criminal law, and judicial procedure, distributed through 47 titles, and is arranged very much after the order of the Gundobada, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary ; the jurisprudential authorities referred to are Gaius and Paul, the latter in his Sentences, and the former (only three times altogether) in some other book than his Institutes. III. THE JUSTINIANIAN LEGISLATION. Justinian's Collections and his own Legislation. It is Justin- unnecessary to revert to the history of Justinian outside i his legislative achievements, or even to speak of his collec- c. tions in detail, for both have already been described in lon ' the article JUSTINIAN I. (vol. xiii. p. 792 sq.). Am- bitious to carry out a reform more complete even than that which Theodosius had planned but failed to execute, he took the first step towards it little more than six months after the death of his uncle Justin, in the appointment of a commission to prepare a collection of statute law (leges), among which he included the rescripts of the Gregorian and Hermogenian Codes. It was published in April 529; and in rapid succession there followed his Fifty Decisions (529-532), his Institutes (21st November 533), his Digest of excerpts from the writings of the jurists (16th December 533), and the revised edition of his Code, in which he incor- porated his own legislation down to date (16th November 534). From that time down to his death in 565 there followed a series of Novels (novellae constitutiones), mostly in Greek, which were never officially collected, and of which probably many have been lost. Taking his enactments in the Code and his Novels to- His ow gether we have of Justinian's own legislation about 400 euact - constitutions. Diocletian's contributions to the Code are m( about three times as numerous; but most of them professed to be nothing more than short declaratory statements of pre-existing law, whereas Justinian's, apart from his Fifty Decisions, were all reformatory enactments, many of them as long as an average Act of Parliament, and dealing with diverse matters under the same rubric. They cover the whole field of law, public and private, civil and criminal, secular and ecclesiastical. It cannot be said that they afford pleasant reading : they are so disfigured by redun- dancy of language, involved periods, and nauseous self- glorification. But it cannot be denied that many of those which deal with the private law embody reforms of the highest importance and of most salutary tendency. He sometimes loved to pose as the champion of the simplicity and evenhandedness of the early law, at others to denounce it for its subtleties ; sometimes he allowed himself to be influenced by his own extreme asceticism, and now and again we detect traces of subservience to the imperious will of his consort ; but in the main his legislation was dictated by what he was pleased to call humanitas so far as the law of persons was concerned, and by naturalis ratio and public utility so far as concerned that of things. The result was the eradication of almost every trace of the old jus Quiritium, and the substitution for it, under the name of jus Romanum, of that cosmopolitan body of law which has contributed so largely to almost every modern system. Amendments on the Law of the Family. With the Christian Law of emperors the last traces disappeared of the old conception of the family familia as an aggregate of persons and estate subject absolutely to relatior the power and dominion of its head. Manus, the power in a hus- band over his wife and her belongings, was a thing of the past ; both stood now on a footing of equality before the law ; perhaps it might be more accurate to say, at least with reference to the Justinianian legislation, that the wife was the more privileged of the two in respect both of the protection and the indulgence the law accorded her. With manus the old confarreation and coemption had ceased, marriage needing nothing more than simple interchange of consent, except as between persons of rank or when the inten- tion was to legitimate previous issue ; in the latter case a written marriage settlement was required, and in the former either such a settlement or a marriage in church before the bishop and at least three clerical witnesses, who granted and signed a certificate of the completed union. The legislation of the Christian emperors on the subject of divorce, largely contributed to by Justinian in his Novels, has already been referred to. In regard to dowries many new pro- visions were introduced, principally for curtailing the husband's power of dealing with the dowry while the marriage Tasted, enlarging the right of the wife and her heirs in respect of it, and simplifying