Civil Law, the positive municipal law of the Roman empire, as comprised in the collections made by order of the emperor Justinian (530-'33) and published by his authority. These collections were the Institutes, the Digest (Pandects), the Code, and the Novellre, which, comprised in one work, are called the Corpus Juris Civilis, by way of distinction from the canon law. The Roman law in general comprehends all the laws which prevailed among the ancient Romans, without regard to the time of their origin. The Roman jurists used the term civil law, jus civile, to designate the law applicable to Roman citizens only, in contradistinction to the law applicable to aliens, which was called jus gentium, the laws of other nations. With regard to its object, the Romans divided the law (jus) into public and private. The public law comprehended those rules of law which relate to the constitution and government of the state, and the relations of the people to the government. The private law comprehended those rules which pertained to the judicial relations of citizens among themselves.
The private law was again divided into jus naturale, jus gentium, and jus civile (natural law, the laws of other nations, and civil law). Jus naturale was the name given to that law which is derived from the animal nature of man, and from those instincts which he has in common with the brute creation. Jus gentium denoted that law which is founded upon the rational nature of man, and which on this account was recognized by all the civilized nations of the time. By jus civile they understood that part of the private law which was established by the state, and the enactments of which, according to Ulpian, neither totally deviate from the jus naturale and jus gentium, nor entirely follow them; but which sometimes add to and sometimes subtract from them. Hence, in the jus naturale man is regarded as an animal, in the jus gentium as a rational being, and in the jus civile as a member of an individual community or body politic. The civil law was subdivided into written and unwritten. By the term written law was understood that which was actually committed to writing, whether it had originated by enactment or by custom, in contradistinction to such parts of the law of custom as were not committed to writing.
Hence among the Romans the praeto-rian edicts (edicta praeorum) and the legal opinions of jurists (responsa prudentum) belonged to the written law. The law introduced by the praetors and aediles, through their edicts, was denominated jus honorarium (honorary law), called so no doubt from the public offices with which the praetors and aediles were invested, and from which that law issued; and hence signifying law delivered by the magistrates, as contradistinguished from the strict civil law of the twelve tables and the law of custom. In order to obtain a full insight into the Roman law, and the civil law as preserved in the collections of Justinian, it is necessary to consider its origin, its history, and its gradual development. - The history of the Roman law may be divided into four periods, as first distinguished by Gibbon in his "History of the Decline and Fall of the Roman Empire." The first period extends from the foundation of Rome to the adoption of the twelve tables, A. U. C. 1 to about 300; the second thence to Cicero, about A. U. C. 650; the third, from Cicero to Alexander Severus, about A. U. C. 1000; the fourth, from Alexander Severus to Justinian, about A. U. C. 1300. - First Period, A. U. C. 1-300. During four fifths of this time the form of government was a monarchy.
A king elected for life was the head of the state, and joined to him was a senate, consisting of patricians only. The legislative power remained with the people, and was exercised by them in their national assemblies (comitia). The king and senate were each entitled to propose laws, which were then discussed and voted upon in the meetings of the people, at first by curia, which were formed solely by the patricians; in later times by cen-turiaz, of which the plebeians also were members, whereby they first obtained some political importance and share in legislation. The laws proposed, if adopted in these meetings of the people, obtained legal force, and were known as leges curiatm or centuriata. The ancient leges curiatm are said to have been collected in the time of Tarquin the Proud, the last of the kings, by a pontifex maximus named Sextus or Publius Papirius. The existing fragments of this collection are few and of very doubtful character. After the kings were expelled, A. U. 0. 244, Rome became a republic, and two consuls elected annually were substituted for the king. The adoption of laws and the election of magistrates now took place in the eomitia centuriata, in which the patricians by their rank and wealth overbalanced the plebeians.
Therefore the tribunes of the plebs (A. U. C. 260) were established, chosen from the plebeians to protect their rights. They had at first only the right to protest against the decrees of the consuls and the senate, and to render them ineffective by their veto; but they soon after acquired also the right, as chiefs of the plebeians, to propose laws to them in the eomitia tributa, which were only subjected to the discussion and suffrage of the plebeians. These laws were called plebiscite/,. Besides the tribunes, two other magistrates of their own, called aediles, were at the same time granted to the plebeians. Their duty was to take charge of the police, and attend to the public welfare in respect of certain edifices and archives. From all other higher offices the plebeians continued to be excluded, and it was not till the second period that the dignities of consul, ajdilis, curulis, dictator, censor, praetor, and at last even that of pontifex, became accessible to them. About A. U. C. 300 the celebrated law of the twelve tables was enacted. This law bears the character not of a new civil code, but rather of a constitution, being, as it were, an act of capitulation of each class to the other.
Its main purpose was to establish by law the equality of the patricians and plebeians; to define the limits of the judicial power, then in the hands of the consuls; and to regulate judicial proceedings. Moreover, a large part of the private law, as it had existed for a long time previous, was now committed to writing; and thus the twelve tables formed a compilation in writing of the customary law existing at that time. Generally speaking, details were omitted and principles only were embodied; but in some instances, as for example the rules for observance of funeral services, the laws and obligations between neighbors, and the conduct of the creditor toward his debtors, they descend into minute details. At the same time the old laws peculiar to the different tribes were merged in one national system. This law of the twelve tables, adopted in the comitia centuriata, acquired great authority, and constituted the foundation of all the public and private law of the Romans subsequently, until the time of Justinian. By way of distinction it is sometimes called lex, law, or lex decemviralis, law of the ten commissioners. The twelve tables were originally engraved upon wood or ivory, and publicly exposed before the rostra that they might be read by every one.
After the devastation of Rome by the Gauls (A. U. C. 304), they were engraved on brass, and were found thus exposed in the 3d century of the Christian era. But we have now only fragments of them, collected from the commentaries of Gaius, contained in the Pandects, from Ulpian's fragments, and from Festus De Verbo-rum Significatione. The Institutes of Gaius (discovered A. D. 1816) and the Vatican Fragments (1823) have also supplied some genuine passages previously unknown. - Second Period, A. LI. C. 300-G50. The sources from which the law of the twelve tables and the unwritten law were supplied and developed were principally two, the written law and the unwritten law, that is, the law established by custom. The improvement of the law was effected by the judges and lawyers. The written law comprised the law decreed by the people (leges), the plebiscita, and the decrees of the senate (senatus consulta). The decrees of the Roman people were laws proposed by a magistrate presiding in the senate, and adopted by the people in the eomitia centuriata. These related principally to the public law. The plebiscita were laws proposed by one of the tribunes, and passed by the plebeians alone, in the eomitia tributa, independently of the patricians.
They were at first binding only on the plebeians, until in A. U. C. 305 a law was passed that they should be binding on the whole people. The plebiscita related more to private law. The decrees of the senate had generally reference to public laws. The tribunes had. the right to protest against them. The law of custom related to private law. The kinds of this law were, the manners and customs of their ancestors, and transmitted to their descendants (mores majorum); the law which originated from the opinions and usages of the people (consuetudo); and the law formed by uniform judicial decisions in similar cases, and which the French call la jurisprudence des arrets, and the Germans call Praktik, or judicial usage (usus fori), and which is in England and the United States the common law, as declared and established by the decisions of the highest tribunals. The greatest influence upon the development of the law was exercised by the praetors and other higher magistrates through their edicts, and by the lawyers through their commentaries on them, and their practical application of them to cases. The supreme judicial power was originally vested in the kings, and afterward in the consuls, who exercised it personally.
After A. U. C. 387, a new magistrate for the administration of civil justice was established at Rome, under the title of city praetor (praetor urbanus). This word is derived from praeire, to go before, and was in use in Latium to designate the chief magistrate of a city. His jurisdiction was at first restricted to cases in which both parties were Roman citizens; but the continual increase of strangers residing at Rome led to the appointment of another praetor about A. U. C. 508, to decide in cases of lawsuits of the non-Romans among themselves, or with Romans, and who was called praetor peregrinus (the praetor for strangers). The Roman law proper was applicable to Roman citizens only. The system of general law principles acknowledged by the civilized nations of that time was called the jus gentium (law of other nations), and this law was applied to the non-Romans. It may be called a universal natural law, based on reason only. The use was soon extended to the Romans also, and the strict Roman civil law was modified by it. This change was effected chiefly by the edicts of the praetors.
From the earliest periods the consuls, and later the praetors, the curule aediles, the censors, and even the plebeian tribunes, had the right of publishing orders and notices connected with their respective functions; this right was styled the right to publish or declare (edicere). The use of this expression, however, more particularly belonged to those magistrates who had a certain jurisdiction; e. g., the praetors and the two aediles, and in the provinces the governor. Their jurisdiction consisted in the general capacity to declare the law. The praetors, when entering on their office, published an edict whereby they made known those legal principles on which they would administer law and justice, and the mode of proceeding which they would observe during the year of their office. By these edicts they seldom introduced new principles of law, but generally confirmed those which were established by usage and public opinion. Where they found deficiencies in the existing law, or deemed it no longer applicable to the times, they established the rules which they would follow in their decisions. They softened the rigor of the strict civil law, so that it might harmonize with equity.
This edict which the praetor published on entering upon his office was called the perpetual edict, because it was not made for a particular case, but, although annual, was for the perpetual jurisdiction in all cases that might come before him during his year of office. Those decisions which had been established by custom, and transmitted from edict to edict, formed what was called the honorary law (jus honorarium). This is the origin of that praetorian law which advanced parallel with the Roman civil law; it was grounded on equity and natural justice. It was a work of science, of philosophy, and of progress, and supplanted the primitive Quiritarian law. The care of the police was intrusted to the magistrates called cediles, as before stated. They, like the praetors, published their edict on entering upon their office. The law introduced by them, together with that of the praetors, belonged to the honorary law above alluded to. The lawyers assisted in developing the law by interpretation and legal opinions, called responsa. The law thus introduced by jurists was called auc-toritas prudentum or jus receptum. There are few traces of legal works of a scientific character to be found in this period.
At first only the patricians and pontifices had an intimate acquaintance with the existing law, and especially with the system of actions, the forms of proceeding, and the times at which the courts were held (dies fasti et nefasti). Cn. Flavius, a clerk of the lawyer Appius Claudius (A. U. C. 450), published a book in which Claudius had composed and arranged the law actions; this book was called Jus Flarianum. The elder Cato wrote commentaries on the civil law and legal opinions. Among other distinguished lawyers were his son Cato Licini-anus, Marcus Junius Brutus, and Manilius. - Third Period, A. U. C. 650-1000. After the battle of Actium (31 B. C.) Octavius Caesar became, as princeps reipublicae, under the surname of Augustus, the sovereign of the state, by uniting in his person the most important of the old republican offices. He still observed the old forms; but under his successors even these forms gradually disappeared; the power of the principes or emperors grew more and more absolute, and finally became despotism. The right of legislation was transferred by degrees from the people to the emperor, whose constitutiones soon began to supply the public as well as private law.
The sources of law during this period were: 1, the decrees of the people; 2, those of the senate; 3, the constitutions of the emperors; 4, the praetorian edict; 5, the legal opinions of jurists; 6, the writings of the law commentators. 1. The decrees of the people, which still continued to be either leges or plebiscita, were never made in greater numbers than in the beginning, during the civil wars. Many among them were and continued to be important to the private law, e. g., the lex Julia et Papia Popjpcea, made under Augustus. But they became fewer as the supreme power of the emperors increased; and toward the end of this period they cease to be mentioned. 2. The decrees of the senate increased in number as those of the people decreased, and acquired a much greater importance than ever before. They now began to be named after either the consul who had proposed them, or the emperor himself, who made the motion in writing or orally, and sometimes after the person who had occasioned them; for instance, senatus consultum Silanianum, under Augustus; senatus consultum Treuellianum, under Nero. 3. When the Roman state had ceased to be a republic in fact, and several of the highest offices were united in the person of the emperor for his lifetime, he began, in imitation of the ancient republican magistrates, to issue ordinances and regulations by virtue of the power conferred on him.
Such ordinances were called placita or constitutions of the emperor. When appeals from the ordinary courts came to be made to the emperors directly, they were soon induced to appoint a body composed of the higher state officers and jurists, to which they transferred the cases and questions presented to them for decision or opinion. This was called auditorium principis, and it soon became the supreme court for the whole empire. Its sentences and decisions, issued in the name of the emperor, were called deereta; and its legal opinions, given cither to private persons or officers, rescripta. There were four classes of constitutions: orations (addressed to the senate and requiring it to issue senatus consulta), edicts, mandates, rescripts, and decrees. The decrees and rescripts were generally made known through the acta diurna or daily papers, and may be compared to the arrets of the kings of France. 4. The prastors and aediles of Rome, as well as the proconsuls and propraetors in the provinces, continued during this period to publish edicts on entering upon their offices.
As many of them, however, probably took the liberty to deviate from them during their term of office, the tribune Cornelius (A. U. C. G87) procured the passage of a law prescribing that they should administer the law in accordance with their edicts. However, the importance of their edicts as a source of private law was much reduced. The praetorian edict formed for a long time a chief source of the private law, and became therefore a subject of literary disquisition and instruction. The want of uniformity in its plan, and the disregard of coherence shown in its gradual alteration and enlargement, rendered it necessary to reduce it to something like a system. The first who undertook this labor was Ofilius, a friend of Julius Caesar; but this being the work of a private jurist, it was without legal authority. A revision of such a work was needed, but was not effected until the time of Hadrian (A. I). 117-138), when it was undertaken by Salvias Julianas, a distinguished jurist, who was also praetor, by order of that emperor. He was authorized to omit, to amend, and to add. The edict of the aediles, which related chiefly to the police, was retained separately in an appendix.
Hadrian caused this new revision to be confirmed by a special decree of the senate (131). From that time the edict remained substantially the same, and became a principal subject of legal instruction. Julian himself wrote commentaries upon it; and after him many others, among whom Ulpian deserves special mention. Only fragments of the edict are left. 5. From the earliest times it was a custom among the Romans, in doubtful cases, for private individuals as well as the magistrates themselves to apply to the jurists and request their legal opinions, called responsa. Before the time of Augustus, the responses thus given were merely lawyers' opinions, and had no legal authority. Augustus first allowed several distinguished jurists, by special grant, to respond in bis name; and naturally the opinions given by them acquired a greater authority. Hadrian afterward ordered that the unanimous opinion of the jurists especially authorized to respond should have the force of law, and should be followed by the judges; but that in case their opinions disagreed, the judge should follow that opinion which ho himself considered the most just. 6. In the scientific treatment and illustration of the law, this period surpassed all others both for the variety and profoundness of its works.
It is distinguished by the most eminent jurists that ever existed among the Romans, and they advanced the science of the law to a high degree of perfection, and are therefore usually called the classical jurists. Their writings contained excellent explanations and exhibitions of the law sources, and soon obtained a decisive authority in the courts, because the assistance of learned interpreters of the law was indispensable in applying the twelve tables and the edict to practice. The Pandects of Justinian were compiled from the writings of these jurists. The most distinguished jurists before Augustus were Q. Hindus Scaevola, Aquilius Gallus, M. Tullius Cicero, Sextus Papirius, Ofilius, Trebatius Testa, and others. After the time of Augustus the Roman jurists specially authorized to respond on the law seem to have divided themselves into certain schools or legal sects. These schools, however, appear to have been only separate academies or offices (stationes) for giving legal opinions. The professors and chiefs of these differed in their elementary views, and were followed therein by their scholars for several generations. Many controversies arose therefrom, which were subsequently settled by imperial constitutions or by judicial decisions.
The most eminent founders and adherents of these sects were Antistius Labeo, Proculus, Ju-ventius Celsus, and Salvius Julianas. The most distinguished jurists after the time of Hadrian were Papirius Justus, Terentius Clemens, Ul-pius Marcellus, and most particularly Gaius AEmilius Papinianus, Domitius Ulpianus, Julius Paulus, and Modestinus. Jurists of less celebrity, although their writings have been compiled from, are Tertulianus, Licinius Rufinus, Rutilius Maximus, and others. The Institutes of Gaius are his most important work to us, because they formed the foundation of the Institutes of Justinian. They were discovered in 1816 by Niebuhr in a codex rescriptus at Verona. Most of the writings of Ulpian have been quoted in the Pandects; other parts are to be found in the Fragmenta Vaticana, - Fourth Period, A. U. C. 1000-1300. After the death of Alexander Severus (235) the Roman empire hastened rapidly to its complete fall. The confusion reached its greatest height when under Valerian (253-260) the Alemanni, the Franks, the Goths, and the Heruli invaded the Roman provinces. Constantine (306-337) founded on the shores of the Bosporus a new seat of empire, where he then took up his abode.
From this time the Christian religion became predominant, and the Latin language was gradually displaced by the Greek. Such important changes could not take place without great influence upon the Roman laws. The empire was divided anew under the sons of Constantine, and again (305) under the sons of Theodosius, of whom Arcadius obtained the East and Honorius the West. In the commencement of the 5th century Alaric, king of the Visigoths, made an attack upon Italy, and plundered Rome; the Alans, Vandals, and Suevi advanced through Gaul to the Pyrenean peninsula, and thence to Africa; the Franks, Burgundians, and Ostrogoths took possession of Gaul, Helvetia, and the country bordering on the Rhine; while Britain became occupied by the Saxons, and Attila (about 450) invaded Gaul with his Huns, who everywhere carried destruction in their path. The Western empire was at last completely terminated by Odoacer (470). The power of the Romans was now limited to the empire of the East, which continued to the year 1453, when it was destroved by the Turks. In this period the alterations of the law were almost exclusively effected by imperial ordinances and by customs.
Most of them related to the administration of government, especially the finances, the war department, and the provinces; and the few relating to private law were usually only an application of the existing law to particular cases and persons. They were either general ordinances relating to the whole people, namely, edicts or personal constitutions, establishing provisions for single persons, as for instance privileges or mandates, imperial orders and directions for the officers of state, and decisions in judicial cases (decreta) which had been brought by way of appeal before the imperial council (auditorium principis), or answers and directions of the emperors (rescripta) upon applications or questions in doubtful cases, which were given, on the opinion of the imperial council, in conformity with the existing law. Before Constantine, most of the imperial ordinances were merely decrees and rescripts; but subsequently the edicts became very frequent, for the prevalence of Christianity had changed many of the former opinions of the nation, and the manners and language of the East, where the metropolis was placed, differed widely from those of the West. At the commencement of the 5th century the sources of law were at least theoretically as follows: 1, the ancient decrees of the people; 2, the decrees of the senate; 3, the edicts of the Roman magistrates; 4, the ordinances of the emperors; 5, the unwritten customs.
The law of the twelve tables still formed the basis of the whole, and all the laws of later times had to them the relation of additions and modifications. But in practice only the writings of the classical jurists and the constitutions of the emperors were used as sources. Constantine determined by special ordinances what writings of the old jurists should have particular authority, and what should not be regarded. He prohibited reference to the notes of Ulpian and Paulus on Papinian. A century later (426) Theodosius II. issued a similar and yet more extensive ordinance, which was intended for the Eastern empire, but soon after obtained legal force also in the Western. This ordinance (which is often erroneously attributed to Valentinian III., and hence called Valentiniams law of quotation) provided that all the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus should have the force of legal authority. The same authority was extended to all those older jurists whose opinions and treatises were incorporated into and explained by the writings of the five above named, with the exception only of the notes of Ulpian and Paulus on Papinian. In case of the disagreement of those authorities, the majority were to decide; where the opinions were equally divided, that of Papinian was to have the preference; but where he was silent, the judge was to follow his own opinion. - The constitutions of the emperors were very numerous.
Two jurists, Gre-gorius and Hermogenes, or according to others Gregorianus and Hermogenianus, in the early part of the 4th century, undertook two collections (codices) of imperial constitutions. Both collections, however, were almost exclusively composed of rescripts. The Codex Gregorianus contained the constitutions from Hadrian down to Constantine. The Codex Herrnogenianw was only a supplement to the former, containing the constitutions of Diocletian and Maximinian. Only a few fragments are left of these collections. The Codex Theodosianus was of greater importance than either of the foregoing. By an ordinance of the emperor Theodosius the Younger, a committee of 16 jurists, of whom the ex-consul and ex-prefectus praetorio An-tiochus was the chief, made a collection of the edicts of the emperors, including however many of the rescripts. This collection was published in 438, as a code for the Eastern empire. Theodosius sent this new code to his son-in-law Valentinian III., who confirmed it in the same year for the Western empire, and presented it to the senate at Rome, who received it with acclamation. It consisted of 10 books. The work has been recovered almost entire.
After the completion of the Codex Theodosianus, the emperors Theodosius II., Valentinian III., and their successors, continued to issue new ordinances, which are termed novella, i. e., novoe constitutiones (new constitutions). These have been embodied in later times in the Codex Theodosianus, under the head of Novellae. Consti-tutiones Imperatorum, Justiniano anteriorum, Theodosii, Valentiniani, etc. From the time of Alexander Severus to Justinian there were hardly any writers on law of any importance. The literary productions were confined to collecting imperial constitutions, and compiling from the works of the old jurists. - After the fall of the Roman empire several new German states were formed in the West, in which the immigrated Germans and the conquered Romans lived together under the same government. The former had separate laws and customs of their own, which they preserved in their new settlements; while the subdued Romans, living among them, continued to use their own, and were judged according to them. The Germans committed to writing their primitive national laws, and the Romans did the same with their laws then in force.
The most important of those new Roman law collections among the German nations are: 1. The edict of Theodoric, king of the Ostrogoths, which he issued in Koine in 500, intended not only for the conquered Romans, but also for the Ostrogoths. This edict is derived entirely from the Roman law, and especially from the Codex Theodosianus, the later novels, and Pauli Sentential receptee. But these sources were used so arbitrarily, that the character of the Roman law can scarcely be traced in them.
2. The Breviarium Alaricianum among the Visigoths. Alaric II., king of the Visigoths, published in 506 a code of laws affecting only the Romans living in his kingdom, which had been collected under his order by a committee of 16 Roman lawyers, from the Codices Gre-gorianus, Hermogenianus, and Theodosianus, as well as from some of the later novels, and from the writings of Gaius, Paulus, and Papi-nianus. Most of the passages are accompanied by a paraphrase (interpretation), in very bad Latin, but which was then intelligible. This Visigothic collection is now called Breviarium Alar icianumor Brevar ium Aniani, from Anian, the private secretary of Alaric, who was ordered to authenticate by his signature the copies of the Breviarium sent to the magistrates of the counties. In the middle ages it is commonly referred to under the titles Corpus Theodosianum, Lex Theodosiana, Liber Legum, or Lex Romana.
3. Between the years 517 and 534 a Lex Romana was also published among the Burgun-dians, intended for the Roman subjects in the Burgundian empire, and which is known by the name of Papiani Liber Responsorum, or Papiani Responsum. The greater part of this collection is derived immediately from the pure sources of Roman law. After the time of The-odosius II. nothing was done in the East to facilitate the administration and study of the law until Justinian became emperor in 527. During the 38 years of his government (527-565) he made legislation and the promotion of the study of the law the principal objects of his attention; and fortunately he found jurists possessed of the knowledge and abilities requisite for his purpose. They made by his order those collections of law which continue in legal force in many countries to the present day. Justinian was the first after Theodosius who undertook a new collection of the imperial constitutions, which was intended to form a substitute for all previous collections. He appointed a committee of ten lawyers with very extensive powers.
At their head was the ex-qusestor of the palace Johannes, and among them the well known lawyer Tribonian. His instructions were to select in the briefest manner all that was still of value in the existing collections, as well as in the later constitutions; to omit all obsolete matter; to introduce such alterations as were required by the times; and to divide the whole into appropriate titles. Within 14 months the committee had finished their labors. Justinian confirmed this new code, which consisted of 12 books, by a special ordinance, and prohibited the use of the older collections of rescripts and edicts. This first code of Justinian, which is now called Codex Vetus, has been entirely lost. - The Pandects. After the above mentioned code was completed, Justinian ordered Tri-bonian (530), who was now quaestor, and 16 other jurists, to select all the most valuable passages from the writings of the old jurists which were considered as authoritative, and to arrange them according to their subjects under suitable heads.
In regard to the writings from which they should extract, they were exempted from the Theodosian law of citation, and were not confined to the letter of the writings selected, but were allowed at their discretion to abbreviate, to add, and to make such alterations as they considered adapted to the times; and they were especially ordered to remove all contradictions of the old jurists, to avoid all repetitions, and to omit all that had become entirely obsolete. The consequence of this was, that the extracts did not everywhere truly represent the original, but were often interpolated and amended in conformity to the existing law. Alterations, modifications, and additions of this kind are now usually called emblemata Triboniani. This great work was completed by the commissioners in three years. They had extracted from the writings of no fewer than 39 jurists all that they considered valuable for the purpose of this compilation. Over every extract, which regularly consists of a prinoipium and one or more paragraphs, a heading (inscriptio) was placed, containing the name of the work from which it was derived.
The whole compilation, consisting of 50 books, was entitled "Digest or Pandects of the Eliminated Law, collected from all the ancient Law." The word Pandects is derived from the Greek all, and to receive, because all that was valuable was to be comprised in them. This work was intended for practical use. The arrangement of the titles follows as closely as possible the order of the edict. Justinian divided the whole work into seven parts. The editors of the Pandects divided into three classes all the books from which extracts were to be made, and formed themselves into three sections. The first section read and extracted from the books on the civil law, to which belonged the books on Sabinus; the second section extracted from the books on the praetorian edict, especially from Ulpian on edicts; and the third section, from practical and casuistical writings, especially from Papiniani Responsa and Paulus's legal questions. Three brandies of extracts were thus formed, the Sabinus branch, the edict branch, and the Papinian branch. From these three branches the single titles of the Pandects were composed. The foundation of each title was generally formed by that branch which furnished the most numerous and important fragments.
The Pandects were published by Justinian Dec. 16, 533; but they were not to have legal authority till Dec. 30. At the same time Justinian prohibited all further reference to the older jurists, forbade the writing of any commentaries upon the new compilation, and only permitted the making of literal translations into Greek, and the publication of parallel passages, with a summary table of their contents. In preparing the Pandects the compilers met very frequently with controversies in the writings of the jurists. Where they themselves did not venture to determine the questions in controversy, they presented them to Justinian for his special decision. Such questions, to the number of 34, had been already determined by Justinian before the commencement of the collection of the Pandects; and before its completion the decisions of this kind were increased to 50. These were embodied in the code. For the purpose of providing a more compendious book for beginners in the study of the law, Justinian ordered Tribonian, with the assistance of Theophilus and Dorotheus, to prepare a brief system of law, under the title of Institutes, which should contain the elements of legal science.
They were charged to make the law then applicable their principal object; but they were also to pay some attention to the older laws. This work was founded on the Institutes of Gaius, from which all that was entirely obsolete was omitted, and the new constitutions of Justinian, as far as they had been issued at the time, were referred to. Justinian published the Institutes Nov. 21, 533, and they obtained legal force at the same time with the Pandects, Dec. 30, 583. After the publication of the Pandects and the Institutes, Justinian undertook a revision of the code which had been published in 520, because he had issued since that time a great number of new constitutions, and especially the 50 decisions, which were not comprised in the old code, and by which the law contained in the Pandects had been augmented, altered, or defined. He therefore in 534 ordered Tribonian, with the assistance of Dorotheus, Henna, Constantinus, and Johannes, to revise the old code, and to add the new constitutions. This revision was completed in the same year, and the new edition of the code (Codex repetitae Praelectionis) was confirmed Nov. 16, 534, and the old code abolished.
This new code contains only imperial constitutions, which from the time of Hadrian up to Constantino consist almost exclusively of rescripts, but from Constantino to Justinian are chiefly edicts or general laws. The code consists of 12 books, which are subdivided into titles, and in these the single constitutions relating to the same subject are arranged in chronological order. - Manner of citing the Pandects. There still continue to be different ways of citing the Pandects. Formerly it was usual to cite, for instance: D. de jure dotium, L. prqfectitia, § Si Pater; or, vice versa, L. prof editia, § Si Pater, D, de jure dotium. From this afterward originated the following: L. profectitia 5, § Si Pater 6, 1). de jure dotium; and lastly, L. 5, § 6, D. de jure dotium. This last form is most commonly used at present, but many, more accurately, prefer Fr. (fragmen turn), instead of L.; and most jurists add at the end, in a parenthesis, the number of the book and title; thus, Fr. § 6, D. de jure dotium (23, 3). In referring to the principium of a fragment, pr. is put in the place of the mark and number of the section; for example: Fr. 5, pr.
I), de jure dotium (23, 3). Many, however cite only by numbers: Fr. 5, § 6, D. 23, 5. To indicate the Pandects the sign ff. is used, which is supposed to be derived from the Greek II, or from the symbol of the copyists representing D. The Institutes consist of four books, each of which contains several titles; each title commences with a principium, after which the single paragraphs follow. Formerly the Institutes were cited by the heading of the title and the initial words of the paragraphs; thus: § Fratris zero, J. de nuptiis. At present it is usual to give the heading of the title and the number of the paragraph: F. § 3, J. de nuptiis; or by numbers only: § 3, J. 1,10; or, § 3, J. de nuptiis (1, 10). In referring to the prineipia of a title the abbreviation pr. is used: pr. J. de nuptiis (1, 10). The manner of citing the code is like that of the Pandects: L. 22, C. mandati vel contra. It is more correct to use Const, (con-stitutio) instead of L., and to cite simply: Const. 22, C. 4, 35; or, Const. 22, C. mandati vel contra (4, 35). The novels are cited simply according to their number: Nov. 113, cap. 1. - During the long continuance of Justinian's government after the publication of the Codex repetitm Pradectionis (535-565), he issued at different times a great number of new constitutions, by which the law on many subjects was entirely changed.
The greatest part of these new constitutions were written in Greek, in obscure and pompous language, and published under the name of Novellw Constitutiones. Soon after his death a collection of 168 novels was made, 154 of which had been issued by Justinian and the others by his successors. Afterward the glossators brought the novels into a collection of nine parts; in which, however, they embodied only 97 novels, because the others were considered no longer applicable. Soon after Justinian's death Julian composed a copious Latin extract from 125 novels, which is known under the name of Epitome Novellarum or Liber Xorellarum. About the same time a Latin translation of the novels was made by an anonymous author, which contains only 134 novels. This translation, now termed Versio vulgata, was called by the glossators the Corpus authenticum, in order to distinguish it from the Epitome Juliani. - As the Latin language was not generally used among the Byzantines, Justinian's law collections were translated into Greek. Numerous constitutions were issued by his successors; and although he had expressly forbidden comments on his collections, the later jurists disregarded this prohibition, and a great number of Greek commentaries on Justinian's law collections were published, which had special reference to the alterations made in the East after his time.
Hence the science of law became again so diffuse, that three centuries later (887) a new collection of the laws then applicable was made to supply this deficiency. In 870 the emperor Basil I. ordered an abridgment of the Roman and Greek law to be prepared for use as a text book. He afterward appointed a committee of jurists to make a compilation of the practical law in the Greek language, and for this purpose to reduce Justinian's law collections, and the constitutions issued by him and his successors, to a system embracing the whole. His son, Leo the Philosopher, completed and published it. This Romano-Greek code is called the Basilica. About 945 the emperor Constantine Porphyro-genitus undertook a new edition of the Basil-ics, which has been preserved to us. - During the anarchy of the middle ages arts and sciences declined, and so did the scientific study of the law. In the 12th century the study of the Roman law revived, especially at the law school of Bologna. Irnerius delivered lectures there, and founded the reputation of this school. He illustrated the text of Justinian's collections by brief annotations on their subjects and language, which were called glosses, and were placed in the margin at the side and partly under the text.
Irnerius was followed in this manner of illustration by his pupils and successors; thence they are called glossators. The glossators also tried to facilitate the study of the law by inserting extracts from the novels of Justinian into those constitutions which were altered or modified by them. These quotations of the novels were afterward called authenticae. Soon after the revival of the study of the Roman law in Italy by the glossators, an equal zeal for it arose in the law schools and courts of France, and since the 10th century in Spain and the Netherlands, and in Germany since the 14th century. With most of the European nations, and in the new states in Spanish America, and in Louisiana, the Roman law constitutes the principal basis of their own law. In England the Roman law has never been adopted as a general subsidiary law. In Scotland the civil law has at all times been cultivated and taught. In Germany universities were established after the 14th century on the model of those in Italy, and professors of the Roman law were appointed. The authority of the Roman law in Germany is not based on a formal reception by the legislative power, but on its gradual introduction as a law of custom since the commencement of the 13th century.
In 1495, in establishing the court of the imperial chamber, its members were ordered to administer justice in accordance with the imperial and common laws; by the latter the Roman and canon laws were understood.
The Roman law forms in Germany, in some; branches, the principal law, in so far as the I German law does not add to or modify it. In other branches it is only supplementary, that is, it only supplies the deficiencies of the German law. Only those parts and passages of Justinian's law collections are of force which are glossed, and only those of the glossed passage are binding which contain the latest legal rule. Those precepts of the Roman law which relate to Roman manners and institutions unknown in Germany are inapplicable there, though glossed; and the Roman law does not admit of application to such objects and transactions as were unknown to the Romans, and are purely of German origin. With the restrictions above enumerated, the Roman law has been adopted as common law in a body, and not by single principles. Therefore, he who can refer to a precept of the Roman law in support of his case has, as the practitioners call it, a fundata intentio; that is, the presumption is in favor of the validity and applicability of the precept referred to, until his adversary proves that it is included in one of the above mentioned exceptions, or that it can no longer be applied, or that it had been abolished by later law.
However, the special civil codes in several German states, as in Prussia, Austria, Baden, and Saxony, and in France the civil code of Napoleon, have in a great measure supplanted the Roman law; but these codes, again, have in a great degree been based on the principles of the Roman law. - The principal editions of the Corpus Juris are: I. Glossed: that published at Lyons by the brothers Sen-neton (5 vols, fol, 1549-'50); that of Ant. Cortius (5 vols. 4to, Paris, 1576); the Corpus Juris Civilis Glossatum, ex recensione Diony-sii Gothofredi (6 vols, fol, Lyons, 1589, without the title, Corpus Juris, etc.; with the title, 1604; enlarged and improved, 1012). II. The non-glossed editions are subdivided into those which contain explanatory notes of later ju-rists, and those which contain only the text, with or without the various readings. The best editions with notes are: that of L. Rus-sard, Jus Civile (2 vols, fol., Lyons, 1560-'61; Antwerp, 1506-'67, and in 7 vols. 8vo., 1509-'70); that of Dionysius Gothofredus (4to, Lyons, 1583; Frankfort, 1587; 2d ed., improved, 2 vols, fol, 1590; 3d ed., 4 vols, fol., Geneva, 1602; 4th ed., Lyons, 2 vols, fol., 1007; 4to, Geneva, 1014, and fol., 1015); the fifth and most complete edition was edited by his son, Jacob Gothofredus (fol., Geneva, 1024); this has been frequently published since; the edition of Antonius (4to, Lyons, 1052 and 1002) deserves particular mention.
One of the best and most elegant editions with notes is that of Simon van Leeuwen from the last edition of Gothofredus, containing, besides Gothofredus's notes, the annotations of many others (fob, Frankfort, 1663; 2 vols. 4to, Leipsic, 1705, 1720, and 1740). Without explanatory notes are: the Amsterdam edition, printed by Elzevir (8vo, 1664, 1681, 1687, and 1700); editions by G. C. Gebauer and G. A. Spangenberg (Gottingen, 1776 and 1797), containing various readings and explanatory notes; Pothier, Pandectae Justiniance in novum Ordi-nem disgesta, etc. (3 vols, fol., Paris, 1748-'52, and 1818-'21); Schroder (Berlin, 1832). Several editions of the text and most important readings, without notes, have been published at Leipsic; among them that of Beck (2 vols., 1829-'37), and another of Kriegel brothers (1828-'37); Kriiger's Justiniani Institutiones (1807); and Mommsen's Digesta Justiniani (1868). Valuable works on the history of the civil law, and on the different branches of the law, are: Hugo, Lehrbueh der Geschichte des Bbmischen Bechts, of which there is a French translation; Savigny, Geschichte des Bdmischen Bechts im Mittelalter, which has been translated into French and English; Guizot, Histoire de la civilisation en France; Puchta, Institutionen (Berlin, 1832), and his Pandekten (1852); Pardessus, Memoire sur Vorigine du droit coutumier en France et sur son Stat jusqu'au treizieme siecle (1834); A. F. Justus Thibaut, System des Pandektenrechts (8th ed., 1837); Savigny, Das heutige Romische Recht (8 vols, and 2 vols.); Obligationenrecht (1840-'53); Laferriere, Histoire du droit francais (6 vols., 1846); Giraud, Essai sur l'histoire du droit francais au moyen age (1846); Laferriere, Essai sur l'histoire du droit francais depuis les temps anciens jusqu'a nos jours (2 vols., 1859); Seuffert, Daspraktische Pandektenr echt (3 vols., 7th ed., 1860-'64), and Das praktische gemeine Civilrecht (3 vols., 3d ed., 1868); Vangerow, Lehrbueh der Pandekten (2 vols., 7th ed., 1863-'9); Keller, Pandekten (2d ed., by Lewis, 1866); Puchta, Pandekten (10th ed., by Ru-dorff, 1866); Arndts, Lehrbueh der Pandekten (6th ed., 1868); Mackeldey, Handbuch des neuen Civilrechts; "Gaius's Commentaries on the Roman Law, with an English translation and annotations," by Tomkins and Seniors (London, 1869); Tomkins and Jencken, "A Compendium of the Modern Roman Law, founded upon the treatises of Puchta, Von Vangerow, Arndts, F. Mohler, and the Corpus Juris Civilis"'(London, 1870); Ortolan, Histoire de la legislation ro-maine et generalisation du droit (Paris, 1870; translated into English by Prichard and Nas-mitli, London, 1871).