*

Alexander Severus. It was the imperial legislature. The * 534 power of the comitia was transferred to this shadow of a

Roman senate, for the old constitutional senate, not being able conveniently to govern all the provinces (according to the courtly language of the Pandects), (a) gave to the prince the right to make laws.

5. Imperial Rescripts.— The judgments of the prince were called imperial constitutions, and they were usually enacted and promulgated in three ways: 1st. By rescript, or letter in answer to petitions, or to a distant magistrate. (b) 2d. By decrees passed by the emperor on a public hearing in a court of justice; and Paulus collected six books of those decrees, and from which he for the most part dissented. (c) 3d. By edict, or mere voluntary ordinances. Gravina says that these imperial constitutions proceeded not as from a single individual, but as from the oracle of the republic, by the voice of the senators, who were consulted, and were the visible representatives of the majesty of the commonwealth. (d) Many of these imperial ordinances were suggested by the best of the civilians, and do great honor to their authors; and with regard to private and personal rights, the Romans enjoyed, to a very great degree, under the emperors, the benefit of their primitive fundamental laws, as they existed in the times of the republic. The profession of the law was held in high estimation under the emperors; and during the second and third centuries, the science of jurisprudence was elevated higher than it ever has been in any other age, or among any other people. Hadrian took off the restriction of Augustus, and gave the privilege of being a public interpreter * 535 of the law to the profession at large. (a) It was restored by the emperor Severus, and the responsa prudentum assumed an air of great importance. Though in the first instance they were received as mere opinions, they gradually assumed the weight of authority. The opinions were sent in writing to the judges, and in the time of Justinian they were bound to determine according

(a) Dig. 1. 2, sec. 11.

*

(b) Code, 1. 14. 3; Gravina, de Ortu et Prog. sec. 123, 124.

(c) Gravina, ib. sec. 122; De Romano Imperio, sec. 20.

(d) Gravina, de Romano Imperio, ib. The imperial rescripta thus assumed the character and weight of judicial precedents, and were entitled to at least equal authority with the responsa prudentum.

(a) Dig. 1. 2. 2. 47.

to those opinions. (b) These responsa (of which many are preserved in the Pandects) were not of the same authority as the constitutional leges, but they were law for the case, and they were applied to future cases under the character of principles of equity, and not of precepts of law. In the ages immediately preceding Justinian, the civil law was in a deplorable condition, by reason of its magnitude and disorder; and scarcely any genius, says Heineccius, was bold enough to commit himself to such a labyrinth. As a remedy for the evil, the Emperor Theodosius the younger and Valentinian III. addressed to the senate of the city of Rome an imperial constitution, which confirmed, by decree, the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, by name, and directed that they alone be permitted to be cited in the courts of justice, with the exception of such extracts as they had transferred into their books from the ancient lawyers, and with some other qualified exceptions in favor of Scævola, Sabinus, Julianus, and Marcellus. The opinion of the majority of these five legislative characters was to govern; and where there was in any case an equal division of opinion, that of Papinian was to be preferred. (c)

* 536

* The first authoritative digest of the Roman law which actually appeared was the Perpetual Edict, compiled by Salvius Julianus, under the orders of the Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofrede, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority. (a) The prætorian edicts had been so controlled under the government of the emperors by the

(b) Inst. 1. 2. 8.

(c) Heinecc. Antiq. Rom. Jur. lib. 1, tit. 2, sec. 41; Histor. Jur. Civ. lib. 1, sec. 378. Heineccius says, that Papinian was everywhere called juris asylum et doctrinæ legalis thesaurus, and he far surpassed all his brethren, omnes longo post se intervallo reliquerit. Gaius (Inst. lib. 1, sec. 2) refers to a rescript of the Emperor Hadrian, in which the responsa prudentum were to be received as law, if they were unanimous, and if not, the judge was at liberty to follow his own judgment. At the period of Valentinian, the writings of the great jurists and the constitutions of the emperors were alone consulted as authorities. Savigny's History of the Roman Law, i. 7. (a) Gibbon's History, viii. 16. The plebiscita had ceased under Augustus, but the senatus consulta did not absolutely cease with Hadrian. They continued to enrich the civil law in matters of private right long afterwards. Hugo, Hist. du Droit Rom. sec. 284, 307.

*

opinions of the civilians, that they lost the greater part of their
ancient dignity, and Hadrian projected the design of reducing
the whole Roman law into one regular system. All that he, how-
ever, lived to perform, was to procure the compilation of those
edicts of the prætors which had stood the test of experience on
account of their authority and equity, and had received the illus-
trations of civilians. (b) Many able professors undertook, from
time to time, a digest of the civil law. Papirius Justus collected
some of the imperial constitutions into twenty books, and Julius
Paulus compiled six books of decrees, or imperial decisions. Gre-
gorius made a collection of a higher character, and he digested
into order the chief, if not the whole of the imperial rescripts,
from Hadrian down to the reign of Diocletian and his colleagues,
and which was called the Gregorian Code, and attained great
authority in the forum. Hermogenes continued this collection
under the name of the Hermogenian Code. (c) Theodosius
the younger appointed a committee of eight civilians to 537
reduce the imperial constitutions, or the edicts and re-
scripts of a succession of emperors, from the time of Constantine,
into a methodical compendium; and this Theodosian Code became
a standard work throughout the empire, and it was published in
six folio volumes in 1665, with a vast and most learned commen-
tary by Gothofrede. (a) Another century elapsed before Jus-
tinian directed Tribonian, who was an eminent lawyer and
magistrate, to unite with him a number of skilful civilians,
and to assume the great task of collecting the entire body of
the civil law, which had been accumulating for fourteen cen-
turies, into one systematic code. Whether the Roman law at
that period exceeded or fell short of the number of volumes in
which the English law is now embodied it is not easy to deter-
mine. Tribonian represented to the emperor, that, when he and
his learned associates undertook the business of digesting the
civil law, he found it dispersed in two thousand books, and in

(b) Gravina, de Ortu et Prog. Jur. Civ. sec. 38.

(c) Heinecc. Hist. Jur. Civ. lib. 1, sec. 368–372.

(a) The great merit of this edition of the Theodosian Code, and the fitness of Gothofredus for the task, by his extraordinary industry, erudition, and judgment, are forcibly stated by Dr. Irving, in his Introduction to the Study of the Civil Law, 4th ed. London, 1837,- a work well worthy of the attention of the student in the civil law, for its historical and biographical learning, and the critical sagacity of the author.

upwards of three millions of verses, (b) detached from the writings of the sages, which it was necessary to read and understand in order to make the selections. The size of these volumes, and the exact quantity of matter in these verses, we cannot ascertain. (c) It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us (d) that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human. capacity to digest.

*538

6. Justinian.* The compilations made under Justinian, and which constitute the existing body of the civil law, consist of the following works, and which I shall mention in the order in which they were originally published.

His Code. The Code, in twelve books, is a collection of all the imperial statutes that were thought worth preserving, from Hadrian to Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates, was, that they should extract a series of plain and concise laws, omitting the preambles, and all other superfluous matter; and they were likewise intrusted with the great and hazardous power to extend, or limit, or alter the sense, in such a manner as they should think most likely to facilitate their future use and operation. (a)

His Institutes. The Institutes, or Elements of the Roman Law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that age, and shed great lustre on the Roman jurisprudence. (b) It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions,

(b) Duo pene millia librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa. Secund. Præf. Dig. sec. 1.

(c) Professor Hugo, in his History of the Roman Law, sec. 318, reduces by computation the Roman laws to 580 volumes, of a moderate size. He allows 24 of the three millions of verses to a page, and 400 pages to a volume. The 2000 books, judging from the books in the Pandects, will give only 280 volumes. This reasonable estimate takes away every appearance of the marvellous from the magnitude of the Roman law.

(d) Prima Præf. Dig. sec. 1.

(a) Prima Præf. Cod. sec. 2.

(b) Justinian had forbidden all schools of law but the three mentioned in the text.

and received the most copious and laborious illustrations. It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law. The Institutes were compiled chiefly from the writings of Gaius; and a discovery by M. Niebuhr, so late as 1816, of a rewritten manuscript of the entire Institutions of Gaius has given increased interest to the Institutes of Justinian. (c)

*His Pandects. The Digest, or Pandects, is a vast *539 abridgment, in fifty books, of the decisions of prætors, and the writings and opinions of the ancient sages of the law. This is the work which has principally excited the study and reflections and commentaries of succeeding ages. It is supposed to contain the embodied wisdom of the Roman people in civil jurisprudence for near 1200 years; and the European world has ever since had recourse to it for authority and direction upon public law, and for the exposition of the principles of natural justice. The most authentic and interesting information concerning the compilation of the Pandects is to be found in the ordinances of Justinian, prefixed, by way of prefaces, to the work itself.

In the first ordinance addressed by Justinian to his quæstor Tribonian, he directs him and his associates to read and correct the books which had been written by authority upon the Roman law, and to extract from them a body of jurisprudence in which there should be no two laws contradictory or alike, and that the collection should be a substitute for all former works; that the compilation should be made in fifty books, and digested upon the

(c) See an account of that discovery in N. A. Review for April, 1821. The Institutes of Gaius are the prototype of Justinian's Institutes. They were discovered by Niebuhr, the historian, in 1816, in the Cathedral Library at Verona. The manuscript was a codex rescriptus, and in 62 out of 251 pages iterum rescriptus. The original text had, during the dark ages, been obliterated for other matter, which, in its turn, was supplanted by the Epistles of St. Jerome. The original work was restored to the world by the skill and perseverance of Professors Göschen, Bekker, and Hollweg, of Berlin, who, upon Niebuhr's report, went to Verona. The work appeared for the first time in 1820. It awakened renewed zeal, bordering on enthusiasm, in Germany, for the study of the civil law. It led to dissertations from every quarter; and M. Boulet, in the preface to his French translation of Gaius's Institutes, says that no work ever produced a more remarkable revolution in the study of the Roman law. Institutes de Gaius, par J. B. E. Boulet, Pref. Professor Hugo makes great use of the Institutes of Gaius, as shedding new and bright light on many branches of the civil law. See Histoire du Droit Romain, par G. Hugo, sec. 329, et passim.

VOL. I.

- 40

[ 625]