CHAPTER III. FATE OF THE ROMAN LAW AFTER JUSTINIAN, AND REVIVAL Greek translation The Basilica. Destiny in the East. IN the Eastern empire the Institutes, Pandects, and Code of Justinian, were translated into Greek. Most of the Novels had been originally issued in that language. These translations, with abridgments and commentaries in Greek, were soon preferred in the East to the originals. The emperors of Constantinople published a great number of ordinances which modified the law of Justinian; and then a series of official works appeared in the Greek language, which, without formally abrogating the authority of the Corpus Juris, gradually led to its disuse. In 867 the Emperor Basilius the Macedonian began to form a new collection in Greek, containing extracts from the Institutes, the Digest, the Code, and the Novels of Justinian, arranged consecutively according to the subjects discussed, with the imperial constitutions of later date, and even upon some points drawing back upon the earlier and purer sources of the Roman law. This work, which consisted of sixty books, divided into titles, was completed by his son Leo the Philosopher, who reigned from A.D. 886 to 911, and was published by him under the title of Basilica.' A new edition was issued by Constantine Porphyrogenitus, about A.D. 945. The Basilica,' which maintained their authority till the overthrow of the Eastern empire, have not reached us entire. In 1647, Fabrot published them at Paris, with a Latin version. Thirty-six books are given complete, and seven incomplete, with some extracts from the remaining books. Four of the deficient books were afterwards discovered, and published, with a translation, in Meerman's Thesaurus Juris Civilis et Canonici.' The Basilica,' written in Greek, and the works of the By- Works of Byzantine zantine jurists, among which may be mentioned the Promp- jurists. tuarium' of Constantine Harmenopulus, a judge of Thessalonica, who died at Constantinople in 1382, are of great use in explaining the books of Justinian; for which purpose they have been largely drawn upon by the famous Cujas, who was the founder of the historical school of Roman jurisprudence in France in the sixteenth century.1 Destiny in the West. The Western empire had been dismembered before the reign of Justinian, and his law-books were at first only destined for his subjects in the East. They were published when the dominion of the Goths continued in Italy. From A.D. 415, the Visigoths founded a kingdom in South- Legal ern Gaul. About the middle of the same century, the Bur- the West. gundians formed a kingdom on the banks of the Rhone. Odoacer, after having overturned the Empire of the West in 476, was himself defeated in 493 by the Ostrogoths, who became masters of Italy. For these three kingdoms three legal codes appeared. First in date was the Edict of Theodoric (Edictum Theodorici '), published in 500 for the kingdom of the Ostrogoths. It contains extracts from the sources of the Roman law, very freely handled; it is short and very incomplete. After Narses had reconquered Italy in 553, the Edict of Theodoric was replaced by Justinian's legislation. The 'Lex Romana Visigothorum,' commonly called 'Breviarium Alaricianum,' which Alaric II. composed in 506 for the Romans of the kingdom of the Visigoths, contains extracts 1 Haubold, Manuale Basilicorum, Lips. 1819. Themis, t. 7, p. 165, and t. 9, p. 321. Mortreuil, Histoire du codes in Roman law never known. from the Theodosian Code, and the Novels annexed to it; from the two works of Gaius and Paulus; from the Gregorian and Hermogenian Codes; and from the Responses of Papinian. Alaric's code was in force in Spain till the middle of the seventh century. In France the same laws were followed under the kings of the first race, in the provinces conquered from the Visigoths. Of these collections the shortest and most insignificant is that which was compiled for the Burgundians, after the year 517,Lex Romana Burgundiorum,' long known by the name of 'Papianus.' This name was given to it by an error of Cujas, which he afterwards corrected, Papianus being a contraction for Papinianus, some of whose responses are given in the collection. After the fall of the kingdom of the Burgundians in 536, the Breviarium came into use.1 By the victories of Belisarius and Narses, Justinian recovered, for a time, Italy and Africa; and, by an edict in 554, he ordered his laws to be observed in the conquered territories. But these laws did not then penetrate beyond Italy into Gaul or Spain, where such of the inhabitants as lived under Roman law were governed by the codes of the Germanic conquerors, who had adopted a considerable part of the Theodosian Code, and other sources of Roman law, such as they subsisted in the Western empire at the time of its dissolution. After a short interval, the Lombards obtained possession of the greater part of Italy: and the emperors of the East lost what remained to them-the Exarchate of Ravenna-in 752. The researches of Savigny have disproved the popular story, wholly un- which had already been discredited by Muratori and other writers, that the Roman law had remained for centuries buried in oblivion, till it was suddenly revived, and spread over Europe, by the discovery of the Florentine copy of the Pandects, at the sack of Amalfi, in 1135. There can be no doubt that the Roman law, such as it subsisted in the Western empire at the time of its dismemberment, never lost its authority, but was received in the new Gothic, Lombard, and Carlovingian kingdoms as the rule of those who by birth and 1 Maynz. § 85. choice submitted to it. Besides, the works of Justinian, and particularly the Pandects, were known and studied in different parts of Europe long before the siege of Amalfi. In the countries of the West, Justinian's compilation seems to have superseded the Theodosian Code, at some period not quite fixed between the ninth and the eleventh century; and Peter of Valence, in a law-book published by him in the eleventh century, made use of the Institutes, the Pandects, the Code, and the Translation of the Novels by Julian.' Revival of Roman Law in Europe. A.D. 1120. The revival of the Roman law as a science in Europe, cor- School of responded with the rise of the Italian cities. "To Italy, the cradle of the Roman law," says Lerminier," was reserved the honour of being the theatre of its scientific revival." Irnerius was the founder of the school of law at Bologna, where he gave lectures about the year 1120. The early jurists of Bologna chiefly confined themselves to writing glosses, which were short notes explaining what was ambiguous or obscure in the original texts. These glosses were collected and recast by Accursius of Florence, whose work has been severely criticised by some authors, who do not make sufficient allowance for the ignorance inevitable to the age in which he wrote. From the famous school of Bologna, the knowledge of Roman law spread rapidly over Europe. The absurdities. which prevailed at that time in the administration of justice, may be conceived from the authentic monuments which remain of the ancient barbarian laws; and nothing tended more to recommend the study of the Roman law, than the extreme imperfection of that jurisprudence which preceded it among all the European nations." Vacarius, a Lombard, went to England, and delivered a course of lectures at Oxford, so early as 1149. He wrote a work intended for poor students, consisting of extracts literally taken from the 1 Lerminier, Histoire du Droit, p. 462. 2 Ibid., p. 33. C 3 See Hume's History of England, vol. iii. p. 300. Scholastic jurists. French school in sixteenth century. Pandects and parts of the Code, with this title: Liber ex universo enucleato jure excerptus, et pauperibus præsertim destinatus.' King Stephen interdicted Vacarius from teaching the Roman law in England, and ordained all manuscripts on that subject to be destroyed; but this edict had little effect, and the study of the civil law was promoted by the clergy, who engrossed all the learning of the times, and filled the most important offices in the kingdom. To the Glossatores succeeded the Scholastic lawyers, who figured from the thirteenth to the end of the fifteenth century, and among whom Odofredus, Bartolus, and Baldus are conspicuous. They are sometimes called Bartolists, and are charged with sacrificing the authority of the original texts of the Roman law to the private opinions of the commentators; their tiresome prolixity, idle subtleties, and barbarous style, have now almost condemned their works to total oblivion. During four centuries the cultivation of the science of law in Europe was chiefly confined to the schools of Italy, where jurisprudence flourished by the side of literature and poetry. Dante was born five years after the death of Accursius; Petrarch and Boccaccio were contemporaries of Bartolus; and when the Greeks were driven from Constantinople, some noble exiles repaired to Italy, where they diffused a taste for polite literature as well as for history and antiquities, and, by raising the standard of learning, greatly improved jurisprudence. Angelus Politianus, who died in 1494, takes high rank as one who powerfully contributed to unite classical literature with the study of law. In the sixteenth century, the science of theoretical law passed from Italy to France. On the invitation of Francis I., Andrew Alciat of Milan went to Bourges, where he delivered lectures on Roman law, and attracted great crowds of students. He was one of the first who combined the study of law with polite learning and the knowledge of antiquities. Bayle describes Alciat as a tall burly man, of a restless disposition, very fond of money and good living, and says he died of a surfeit at Pavia in 1550. 1 See Bayle's Dict. Hist., voce Alciat. |