This constitution has always been regarded as a signal proof of
the lamentable condition into which jurisprudence had sunk in
the beginning of the 5th century. Constantine, a hundred years
earlier, had condemned the notes of Ulpian and Paul upon Papinian.
There were no longer any living jurists to lay down the law
(jura condere); and, if it was to be gathered from the writings of
those who were dead, it was perhaps as well that the use of them
should be regulated. The Valentinian law proceeded so far in the
same direction. It made a selection of the jurisconsults of the
past whose works alone were to be allowed to be cited,—Papinian,
Paul, Ulpian and Modestine, the four latest patented counsel of
any distinction; Gaius, of authority previously only in the schools,
but whose writings were now approved universally, notwithstanding
that he had never possessed the jus respondendi; and all the
earlier jurists whose dicta these five had accepted. But it went yet
a step further, for it declared all of them, with the sole exception of
Papinian, to be of the same authority, and degraded the function of
the judge in most cases—so far at least as a question of law was
concerned—to the purely arithmetical task of counting up the names
which the industry of the advocates on either side had succeeded in
adducing in support of these respective contentions. It is probable
that, from the days of Hadrian down to Severus Alexander, when
the emperor in his council had to frame a rescript or a decree, its tenor
would be decided by the vote of the majority; but that was after
argument and counter-argument, which must in many cases have
modified first impressions. Taking the votes of dead men, who had
not heard each other's reasons for their opinions, was a very different
process. It may have been necessary; but it can have been so
only because a living jurisprudence had no existence,—because the
constructive talent of the earlier Empire had entirely disappeared.
ii. Ante-Justinian Collections of Statutes and Jurisprudence.
Of cardinal importance for this period were the collections of
Collections of statues.
Codification.
imperial constitutions made prior to Justinian. There
were three of these, viz. the Gregorian, the Hermogenian
and the Theodosian Codes;[1] the first two being the work of
private hands, though they afterwards received statutory
sanction from Theodosius II., the third being due to that
emperor himself
Codex Gregorianus.—This was a collection of imperial constitutions from Hadrian to Diocletian, made by a certain Gregorius about the end of the 3rd century (a. 295?), who, in Mommsen's opinion[2] was at that time a professor at the law school of Beirut. Only fragments of it have come down to us, obtained chiefly from Alaric's Breviary, the Lex Romana Burgundionum, the Consultatio, the Collatio and the Vatican Fragments mentioned below; but it was a work of considerable size divided into books and titles.
Codex Hermogenianus.[3]—This, like the Gregorian, was compiled in the Eastern Empire, apparently at the end of the 3rd century, but at any rate not later than the year 324. As, however, it contains a constitution of the year 365 there must have been subsequent additions to it. Only fragmentary remains of it are extant, obtained from the same sources as the Gregorian. Its author was a certain Hermogenianus (perhaps the jurist of that name cited in the Digest), and the work seems to have been intended as a sort of supplement to the Gregorian Code. It was a smaller work than the latter, being divided only into titles, and, unlike it, contains no pre-Diocletian constitutions. It has, however, a great number of contemporary ones, issued by Diocletian especially during the years 293 and 294. It was from this work and that of Gregorius that Justinian obtained the constitutions contained in his Code for the period prior to Constantine, and from the language he uses about the two Codes it would seem that they had been regarded in the courts before his time as the only authoritative record of constitutions during the period covered by them.
Codex Theodosianus.—In the year 429 the emperor Theodosius nominated a commission of nine persons to collect the constitutions Theodosian Code. issued by the emperors from Constantine to his own reign. From the terms of the edict appointing them he seems to have intended to initiate the preparation of a body of law which, if his scheme had been carried into execution, would have rendered that of Justinian unnecessary. In a constitution about ten years later he explains the motives that had actuated him: that he saw with concern the poverty-stricken state of jurisprudence and how few men there were who, notwithstanding the prizes that awaited them, were able to make themselves familiar with the whole range of law; and that he attributed it very much to the multitude of books and the large mass of statutes through which the law was dispersed, and which it was next to impossible for any ordinary mortal to master. His scheme was eventually to compile one single code from materials derived alike from the writings of the jurists, the Gregorian and Hermogenian collections of rescripts, and the constitutions from the time of Constantine downwards. His language leaves little doubt that it was his intention to have this general code carefully prepared, so as to make it a complete exponent of the existing law, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collection of constitutions which he directed his commissioners meantime to prepare, and which was to contain even those that were merely of historical interest (provided only it was made clear how later enactments had affected them), was to be the first step in the execution of his project. For some reason or other nothing followed upon this enactment, and in 435 a new commission of sixteen persons was nominated to collect the constitutions, but nothing was said in their instructions about anything ulterior. They were directed, however, to deal with their material in a systematic way, as by arranging the constitutions chronologically under definite titles, separating, where necessary, any constitutions dealing with more than one matter into parts, so as to bring each matter, under its proper title, and with power otherwise to make such omissions, additions and alterations as seemed good to them for the same object. The work was completed in less than three years and published at Constantinople early in the year 438, with the declaration that it should take effect from the 1st of January following, and a copy was sent to Valentinian, who notified it to the senate at Rome and ordained that it should come into force in the West from the 12th of January 439. The arrangement is in sixteen books, subdivided into titles with rubrics in which the constitutions are as a rule (though not consistently) placed in chronological order. They cover the whole field of law, private and public, civil and criminal, fiscal and administrative, military and ecclesiastical. The private law is contained in the first five books. This code was usually called in later documents “Theodosianus,” without codex adjected. All constitutions since Constantine not contained in it were abrogated. The manuscripts in which it has come down to us are very defective, but many lacunae have been filled up from other sources, especially from Alaric's Breviary. Unfortunately the lacunae are principally in the books relating to the private law.[4]
Novellae Post-Theodosianae.—The imperial constitutions subsequent to the publication of the Theodosianus got the name of Novels Post-Theodosian Novels. (novellae leges). There were three collections of these, all made in the Western Empire, and they are generally known as post-Theodosian Novels. The first collection containing edicts of Theodosius himself, sent by him to Valentinian III. in 447, was published by the latter emperor in the following year. The second collection contained in addition to edicts of Theodosius some edicts of Marcian and other emperors of the East, and also some of Valentinian, Majorian and other emperors of the West. The third collection was published in abridged form in Alaric's Breviary. These collections are not extant, but from Alaric's Breviary, with additions from manuscript sources, modern editions of the Novels have been prepared.[5] There was also a collection of constitutions, issued between the years 331 and 425, nearly all relating to church matters, first published by T. Sirmondus in 1631, and now known as the Sirmondian Constitutions.[6]
Besides the collections of statutes just mentioned there were a Jurisprudential collections. number of juristic works of this period, containing both statute law (leges) and common law (jus) in combination, made by private individuals. Of these the following, which have come down to us in a more or less imperfect condition, are the most important:—
The Collatio Legum Mosaicarum et Romanarum[7]—or, as its title bears, Lex Dei quam praecipit Dominus ad Moysen—is a parallel Collatio. of divine and human law, especially in the matter of delicts punishments, the former drawn from the Pentateuch, and the latter from the works of Gaius, Papinian, Paul, Ulpian, and
- ↑ Mommsen suggests (Z. d. Sav. Stift., 1889, x. pp. 345 seq.) that the name codex (meaning a volume) was given to them because, instead of being written on papyrus rolls, they were originally written in the form of tabulae publicae and bound together as a parchment volume. Private collections of Constitutions had been made even earlier than Gregorian (e.g. by Papirius Justus).
- ↑ Z. d. Sav. Stift. xxii. pp. 139 seq.
- ↑ Mommsen, Z. d. Sav. Stift. (1889), x. pp. 347 seq.; Kipp, Gesch. d. Quellen, pp. 78-79. The fragments of both this and the Gregorian Code, edited by Krüger, are given in the Collectio Juris Antej. by K. M. and S., vol. iii. pp. 236-245.
- ↑ There have been several editions of the Theodosian Code. That of J. Gothofredus, published after his death in 1652 (ed. with additions by Ritter in 7 vols., Leipzig, 1736-41), is a work of monumental learning and still indispensable on account of its commentary. But the latest and best edition is that of Mommsen, being the last work from the pen of that great master. It has been published at Berlin in 1905 under the title, Theodosiani libri xvi. cum constitutionibus Sirmondianis et leges novellae ad Theodosianum pertinentes ediderunt Th. Mommsen et Paulus M. Meyer: I. Theodosiani libri xvi. cum constitutionibus Sirmondianis edidit, adsumpto apparatu P. Krugeri, Th. Mommsen (1905).
- ↑ These Novels, so far as preserved, have been published as a second part of Mommsen's edition of the Theodosian Code. II. Leges ad Theodosianum pertinentes edidit adjutore Th. Mommseno Paulus M. Meyer (1905).
- ↑ These are contained in the Mommsen-Meyer edition of the Theodosianus.
- ↑ Collectio Juris Antejustiniani, by Krüger and Mommsen, iii. pp. 107 seq.; Girard, Textes, pp. 543 seq.; Krüger, Quellen, pp. 302 seq.
