emperors Theodosius II. and Valentinian III., which gave special
weight to the writings of five eminent jurists (Papinian, Paulus,
Ulpian, Modestinus, Gaius); but it was very far from removing
it. As regards the jus vetus, therefore, the judges and practitioners
of Justinian’s time had two terrible difficulties to contend
with—first, the bulk of the law, which made it impossible for any
one to be sure that he possessed anything like the whole of the
authorities bearing on the point in question, so that he was always
liable to find his opponent quoting against him some authority
for which he could not be prepared; and, secondly, the uncertainty
of the law, there being a great many important points on
which differing opinions of equal legal validity might be cited,
so that the practising counsel could not advise, nor the judge
decide, with any confidence that he was right, or that a superior
court would uphold his view.
The new law (jus novum), which consisted of the ordinances of the emperors promulgated during the middle and later empires (edicta, rescripta, mandata, decreta, usually called by the general name of constitutiones), was in a condition not much better. These ordinances or constitutions were extremely numerous. No complete collection of them existed, for although two collections (Codex gregorianus and Codex hermogenianus) had been made by two jurists in the 4th century, and a large supplementary collection published by the emperor Theodosius II. in 438 (Codex theodosianus), these collections did not include all the constitutions; there were others which it was necessary to obtain separately, but many whereof it must have been impossible for a private person to procure. In this branch too of the law there existed some, though a less formidable, uncertainty; for there were constitutions which practically, if not formally, repealed or superseded others without expressly mentioning them, so that a man who relied on one constitution might find that it had been varied or abrogated by another he had never heard of or on whose sense he had not put such a construction. It was therefore clearly necessary with regard to both the older and the newer law to take some steps to collect into one or more bodies or masses so much of the law as was to be regarded as binding, reducing it within a reasonable compass, and purging away the contradictions or inconsistencies which it contained. The evil had been long felt, and reforms apparently often proposed, but nothing (except by the compilation of the Codex theodosianus) had been done till Justinian’s time. Immediately after his accession, in 528, he appointed a commission to deal with the imperial constitutions (jus novum), this being the easier part of the problem. The commissioners, ten in number, were directed to go through all the constitutions of which copies existed, to select such as were of practical value, to cut these down by retrenching all unnecessary matter, and gather them, arranged in order of date, into one volume, getting rid of any contradictions by omitting one or other of the conflicting passages.[1] These statute law commissioners, as one may call them, set to work forthwith, and completed their task in fourteen months, distributing the constitutions which they placed in the new collection into ten books, in general conformity with the order of the Perpetual Edict as settled by Salvius Julianus and enacted by Hadrian. By this means the bulk of the statute law was immensely reduced, its obscurities and internal discrepancies in great measure removed, its provisions adapted, by the abrogation of what was obsolete, to the circumstances of Justinian’s own time. This Codex constitutionum was formally promulgated and enacted as one great consolidating statute in 529, all imperial ordinances not included in it being repealed at one stroke.
The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the older law contained in the treatises of the jurists. Before entering on this, however, he wisely took the preliminary step of settling the more important of the legal questions as to which the older jurists had been divided in opinion, and which had therefore remained sources of difficulty, a difficulty aggravated by the general decline, during the last two centuries, of the level of forensic and judicial learning. This was accomplished by a series of constitutions known as the “Fifty Decisions” (Quinquaginta decisiones), along with which there were published other ordinances amending the law in a variety of points, in which old and now inconvenient rules had been suffered to subsist. Then in December 530 a new commission was appointed, consisting of sixteen eminent lawyers, of whom the president, the famous Tribonian (who had already served on the previous commission), was an exalted official (quaestor), four were professors of law, and the remaining eleven practising advocates. The instructions given to them by the emperor were as follows:—they were to procure and peruse all the writings of all the authorized jurists (those who had enjoyed the jus respondendi); were to extract from these writings whatever was of most permanent and substantial value, with power to change the expressions of the author wherever conciseness or clearness would be thereby promoted, or wherever such a change was needed in order to adapt his language to the condition of the law as it stood in Justinian’s time; were to avoid repetitions and contradictions by giving only one statement of the law upon each point; were to insert nothing at variance with any provision contained in the Codex constitutionum; and were to distribute the results of their labours into fifty books, subdividing each book into titles, and following generally the order of the Perpetual Edict.[2]
These directions were carried out with a speed which is surprising when we remember not only that the work was interrupted by the terrible insurrection which broke out in Constantinople in January 532, and which led to the temporary retirement from office of Tribonian, but also that the mass of literature which had to be read through consisted of no less than two thousand treatises, comprising three millions of sentences. The commissioners, who had for greater despatch divided themselves into several committees, presented their selection of extracts to the emperor in 533, and he published it as an imperial statute on December 16th of that year, with two prefatory constitutions (those known as Omnem reipublicae and Dedit nobis). It is the Latin volume which we now call the Digest (Digesta) or Pandects (Πάνδεκται) and which is by far the most precious monument of the legal genius of the Romans, and indeed, whether one regards the intrinsic merits of its substance or the prodigious influence it has exerted and still exerts, the most remarkable law-book that the world has seen. The extracts comprised in it are 9123 in number, taken from thirty-nine authors, and are of greatly varying length, mostly only a few lines long. About one-third (in quantity) come from Ulpian, a very copious writer; Paulus stands next. To each extract there is prefixed the name of the author, and of the treatise whence it is taken.[3] The worst thing about the Digest is its highly unscientific arrangement. The order of the Perpetual Edict, which appears to have been taken as a sort of model for the general scheme of books and titles, was doubtless convenient to the Roman lawyers from their familiarity with it, but was in itself rather accidental and historical than logical. The disposition of the extracts inside each title was still less rational; it has been shown by a modern jurist to have been the result of the way in which the committees of the commissioners worked through the books they had to peruse.[4] In enacting the Digest as a law book, Justinian repealed all the other law contained in the treatises of the jurists (that jus vetus which has been already mentioned), and directed that those treatises should never be cited in future even by way of illustration; and he of course at the same time abrogated all the older statutes, from the Twelve Tables downwards, which had formed a part of the jus vetus. This was a necessary incident of his scheme of reform. But he went
- ↑ See, for an account of the instructions given to the commission, the constitution Haec quae, prefixed to the revised Codex in the Corpus juris civilis.
- ↑ See the constitution Deo auctore (Cod. i. 17, 1).
- ↑ In the middle ages people used to cite passages by the initial words; and the Germans do so still, giving, however, the number of the paragraph in the extract (if there are more paragraphs than one), and appending the number of the book and title. We in Britain and America usually cite by the numbers of the book, the title and the paragraph, without referring to the initial words.
- ↑ See Bluhme, “Die Ordnung der Fragmente in den Pandektentiteln,” in Savigny’s Zeitschr. f. gesch. Rechtswissenschaft, vol. iv.
