total number of which differs in various editions from 427 to 440. Each title, bearing a rubric to indicate its contents, is subdivided into sections, consisting of extracts from different works relating to the matter specified in the title. The articles so collected are sometimes termed laws; but as that expression is not quite accurate, they are now generally called fragments. Each fragment bears the name of the author and the title of the work from which it is taken, and is usually divided into paragraphs, which are all numbered except the first one called principium. The Digest contains at the close two instructive titles, one "De verborum significatione," and the other "De regulis juris." The method which the compilers of the Pandects followed in arranging the fragments under each title, is the subject of a learned essay by Bluhme, an ingenious German civilian.1 The order of the Digest has been often severely criticised, and not without reason. Fault has been found with the form of the extracts, and the mode in which they are ranged under the different titles. A great number of the laws appear to be misplaced, and to this disorder is attributed the difficulty of understanding them. Though the variety of subjects embraced by the Digest is immense, it has no pretensions to scientific arrangement. It is a vast cyclopedia of heterogeneous law badly arranged; everything is there, but everything is not in its proper place. Yet, with all its imperfections, the Digest is the collection in which the principles of the Roman law are most fully developed; and it has been justly described by Sir William Jones as "a most valuable mine of judicial knowledge." When Justinian published the Digest, he prohibited the works of the ancient jurists from being used for the future, either in the academies or in courts of law; and, in order to prevent new controversies, all commentaries on the Pandects were strictly forbidden. By order of Justinian, an elementary work on law, called The Instithe Institutes, was composed by two professors, Theophilus 533. 1 On this point see Zeitschrift of Savigny, t. iv. p. 257; Themis, t. iii. p. 278; De Fresquet, Droit Rom., tutes, A.D. Novels of and Dorotheus, under the direction of Tribonian. It was published at the close of the year 533, and received the force of law at the same time as the Pandects. This work, which was intended for the use of students, was chiefly founded on the Institutes of Gaius, but the topics were retouched, so as to place them in harmony with the changes which the law had undergone. The Institutes of Justinian consist of four books, each of which is divided into titles; and the total number of titles is ninety-nine. This abridgment is limited almost exclusively to matters of private law, which is considered under the three-fold division of persons, things, and actions; but at the close of the fourth book there is a title on “judicia publica," a subject omitted by Gaius. Theophilus, one of the compilers of the Institutes, wrote a Greek paraphrase upon them. No law-book has been so much admired for its method and elegant precision, and none has been so frequently printed, translated, imitated, and commented on, as the Institutes of Justinian. In 1701 a work was published by a learned professor with this remarkable title, 'On the deplorable multitude of commentaries on the Institutes.'1 And even in our day the tide has not yet turned, for hardly a year passes without adding some volumes to the camel's load." Justinian's legislation did not terminate with the publication of the Revised Code in 534. In the subsequent years of his reign, from A.D. 535 to 565, the emperor issued many ordinances, which made important changes on the law, 1 And. Homberg, De multitudine nimia commentatorum in institutiones juris. Helmstadt, 1701, in 4to. 2 Vinnius, who was professor at Leyden about the middle of the seventeenth century, published an excellent commentary on the Institutes, which was a favourite book of Pothier. Among recent works, three may be mentioned which de -- serve the attention of the student -Les Institutes nouvellement expliquées, by M. Ducarroy, 3 vols. 8vo, 1822-27; Explication Historique des Institutes, by M. Ortolan, 3 vols. 8vo, 6th edition, 1857; and the Translation of Justinian's Institutes, with Notes, by Sandars, 1 vol. 8vo, 1853. though their number became less after the death of Tribonian in 545. These new constitutions are written partly in Greek and partly in Latin, in a style somewhat obscure. They are called Novella Constitutiones, or, more shortly, Novels. They were officially published some time after Justinian's death; the whole number of Novellæ is 168, of which 154 are ascribed to that emperor, and the rest to his successors, or to prætorian prefects. A considerable part of this collection relates to matters of private law; and the 118th and 127th Novels merit particular attention, as containing the admirable rules of intestate succession devised by Justinian. Shortly after Justinian's death, Julian, a professor of law at Constantinople, published a Latin abridgment of 125 Novels, under the title Epitome Novellarum.' Another Latin translation of the Novels afterwards appeared, called 'Corpus Authenticum;' and this was the collection which the Glossatores adopted, as having the authority of law. It was the object of Justinian to comprise in the Code and the Pandects a complete body of law; and Savigny has remarked, that these two works "ought properly to be considered as the completion of Justinian's design. The Institutes cannot be viewed as a third work independent of both; it serves as a sort of introduction to them, or as a manual. Lastly, the Novellæ are single and subsequent additions and alterations; and it is merely an accidental circumstance that a third edition of the Code was not made at the end of Justinian's reign, which would have comprised the Novellæ that had a permanent application."1 Juris The Roman law, as received in Europe, consists only of Corpus what is called the Corpus Juris Civilis-that is, according to Civilis. the modern arrangement, of the Institutes, the Pandects, the Code, and the Novels-and that in the form which was given to this body of law in the celebrated school of Bologna. According to Savigny, "It was in that form that the Roman law became the common law of Europe; and when, four 1 Savigny, Geschichte des Röm. Rechts im Mittelalter, vol. i. p. 14. Antinomies or contra dictions. Mode of citing centuries later, other sources came to be added to it, the Corpus Juris of the school of Bologna had been so universally received, and so long established as the basis of practice, that the new discoveries remained in the domain of science, and served only for the theory of law. For the same reason the Antejustinian law is excluded from practice." Besides, even with reference to the sources generally recognised, it is conceded that the public law has no application in our days, and that there are many matters of private law, such as those relating to slavery and stipulation, which are entirely rejected in modern times.1 Where contradictions occur in different parts of the Corpus Juris, we must bear in mind that the new law takes precedence of the more ancient. The Novels have higher authority than the Institutes, the Pandects, and the Code; and among the Novels themselves the last in date are preferred to the earlier ones. The Revised Code prevails over the Institutes and the Pandects, because it is more recent. If there be a discrepancy between the Institutes and the Pandects, it is not easy to solve the difficulty, as they both received the force of law on the same day. No general rule can be laid down; each case must be considered with reference to its own particular circumstances; and a similar course must be followed when contradictions are found between passages occurring in the same part of Justinian's Collection.* The mode of citing the Institutes, the Pandects, and the Roman law. Code, anciently in use, consisted of reciting the first words of the rubric of the title, as well as of the law and the paragraph. This rendered it necessary to consult the index to Justinian's Collection, which comprehends upwards of twelve hundred titles. In modern times, the manners of citing are very various; but in this country we generally adopt what Gibbon calls "the simple and rational method of numbering the book, the title, and the law." Instead of the term law, some writers think it more correct to use the 1 Savigny, Droit Romain, vol. i. p. 68. 2 Mackeldey, § 77, p. 47. Maynz, vol. i. p. 176, note. word fragment in reference to the Pandects, and constitution in reference to the Code. As to the Novels, they were cited by the Glossatores under the name of Authenticæ, or by the abbreviation Auth. In modern times they are usually distinguished by their number and chapter, thus:-Nov. 118, ch. 1. Justinian's On the merits of Justinian's Collection the most opposite Opinions on opinions have been expressed. By some it has been de- works. nounced as a vast unshapely mass of legal lumber, which has long ceased to have any practical utility. By others it is extolled as the most beautiful monument raised by the genius of man. One enthusiast has carried his idolatry so far as to declare that, with the single exception of the Holy Scriptures, there is no work comparable to the Corpus Juris. On both sides of this controversy there has beer. much exaggeration, and the truth will probably be found to lie between these two extremes. Even the most ardent admirers of Justinian's compilation admit its great faults and imperfections; and, after the lapse of thirteen centuries, it can excite no surprise that a large portion of it is now wholly inapplicable to the exigencies of modern society. But, with all these drawbacks, this great body of jurisprudence, viewed as a system of private law, has unquestionably exercised the most beneficial influence, both on moral and political science, and has introduced more just and liberal ideas concerning the nature of civil government, and the administration of justice, in all the nations of modern Europe, which rose on the ruins of the Roman empire. |