THE CORPUS JURIS CIVILIS represents the Roman law in the form which it assumed at the close of the ancient period (a thousand years after the decemviral legislation of the Twelve Tables), and through which mainly it has acted upon modern times. It was compiled in the Eastern Roman Empire (the Western ceased in 476 a.d.), under the Emperor Justinian (controversies as to his character), who reigned 527-565 a.d.
The plan of the work, as laid out by Tribonian, included two principal parts, to be made from the constitutions of the Roman emperors, and from the treatises of the Roman lawyers. The constitutiones (law-utterances) of the emperors consisted of—1. Orationes, proposals of law, submitted to and adopted by the Senate; 2. Edicta, laws issued directly by the emperor as head of the state; 3. Mandata, instructions addressed by the emperor to high officers of law and justice; 4. Decreta, decisions given by the emperor in cases brought before him by appeal or otherwise; 5. Rescripta, answers returned by the emperor when consulted on questions of law by parties in a suit or by magistrates. Codes made up of imperial constitutions, selected and arranged, had been produced before, especially the Theodosian Code in the fifth century. The new Codex Constitutionum, prepared in little more than a year, was published in April, 629.
The next work was to digest the treatises of the most eminent law writers. Thirty-nine were selected, nearly all of whom lived between 100 b.c. and 250 a.d. Their books (2,000 in number) were divided among a body of collaborators (sixteen besides Tribonian), each of whom from the books assigned to him extracted what he thought proper, making the necessary changes (as to which Justinian had issued a number of decisiones for their guidance), and putting the extracts (9,000 in all) under an arranged series of heads. The Digest (or Pandects), thus produced by three years’ labor, was issued in November, 533. It was divided into fifty books, and each book into several titles. About a third part comes from the jurist Ulpian (died 228), a sixth from his contemporary Julius Paulus, a twelfth from Papinian (died 212), etc. The Digest is the longest component of the Corpus Juris, and much the most important, from the nature and variety of its contents, showing the spirit of the law, and giving illustrations of juristic reasonings and methods.
To bring the Codex Constitutionum into better conformity with the Digest, it was revised in 534, and issued as we now have it in November of that year. It was divided into twelve books, and these into titles, with the same general arrangement as the Digest. Yet it contains some topics which do not appear in the Digest, especially all those connected with Christianity and the church. In general, it contains much more of public law than the Digest; and the superior importance of the latter is partly due to this fact, it being the private, not the public, law of Rome which has obtained currency in modern Europe.
The Corpus Juris includes also an elementary text-book, the Institutiones (founded on the institutiones of Gaius, who flourished about 150, and whose works furnished many extracts to the Digest). It was prepared by Tribonian, Theophilus, and Dorotheus, and was issued with the Digest in 533. Subjects of its four books.
The Institutes, Digest, and Codex, were given, as a complete body of law, to the law-schools at Constantinople, Rome, Berytus, Alexandria, Caesarea, to be studied in their five years’ curriculum. In the courts it was to supersede all earlier authorities. No abbreviations were to be used in copying it. No commentaries were to be written on it (only translations into Greek, and summaries of its contents), lest they should give rise to controversies: futility of the prohibition.
Later statutes of Justinian, arranged in order of time, form the Novels (novellae constitutiones, most of them in Greek), the last component of the Corpus Juris.
The whole Corpus Juris too good for the age in which it appeared. Superseded in the Eastern Empire by paraphrases, abridgments, and later compilations. Its influence for several centuries confined to some parts and cities of Italy.
The subject, on which I am to give you a few lectures, is the Civil Law—the Roman Law—its History and System. My desire, of course, is to give you all the information I can, in the very scanty time allowed to us. But I shall try to remember that you are hearers only, not readers; and that I must not pack the matter too closely; that I must avoid at once a brevity of statement which you would find unintelligible, and a multiplicity of details which you would find confusing and wearisome. The subject involves, almost of necessity, a good deal that is technical and dry: I could hardly expect that my lectures would receive place in a “Library of Entertaining Knowledge.” My reliance must be on the interest and importance of the theme itself, rather than on any attraction which .1 can hope to give it by my mode of treatment. That it has importance and interest, to the student of history and the man of liberal culture as well as to the expectant lawyer, will, I hope, be apparent as we proceed; I shall not try to prove it now.
The first object to which I call your attention is the great law-book, the “Corpus Juris Civilis,” in which the Roman law was embodied at the close of the ancient period, and through which mainly it has exercised its influence upon later ages. The Roman law has, indeed, a previous history of great length and great importance; it can be traced with more or less distinctness from the decemviral code of the Twelve Tables, four centuries and a half before Christ, to the compilation of the Corpus Juris in the reign of the Emperor Justinian, more than five centuries after Christ. Through this long period of nearly a thousand years, the Roman law was in a constant process of change and development. The alterations it underwent were never violent or revolutionary; they proceeded from point to point, with a slow, natural, and steady progress; but they amounted, in the course of centuries, to extensive and radical transformations of the system. The Corpus Juris Civilis represents only one phase, the latest phase, of this long development. It has, however, a preeminent importance, because the rules and principles of the law were then reduced to the form of a system, condensed, digested, and complete, in which they were best fitted to influence the mind and mould the institutions of modern Europe. The Corpus Juris is a product of the Eastern Roman Empire: the Western had ceased to exist, even in name, a half-century before the accession of Justinian. Germanic tribes were established as conquerors and sovereigns in all the provinces of the West: the Angles and Saxons in Britain, the Franks and Burgundians in Gaul, the Visigoths in Spain, the Ostrogoths in Italy, the Vandals in Northern Africa. Justinian, afterward, by the arms of his great generals, Belisarius and Narses, crushed the power of the Vandals and the Ostrogoths, and brought Africa and Italy into a precarious and transient connection with his empire. But Justinian himself was a barbarian; a man of Slavonic birth, he reigned over a people who spoke Greek and called themselves Romans, to whom he issued a Latin law-book which few of them could either read or understand. The character of Justinian has been the subject of earnest controversy. He has been extolled as a model of excellence, a prince of extraordinary justice, knowledge, and sagacity; and he has been decried as a prodigy of baseness, as weak, ignorant, covetous, corrupt, and profligate. It is curious that both these views have come down to us from one author, the historian Procopius, a contemporary of Justinian, the principal authority for the events of his life and reign. His histories of the Persian War, the war with the Vandals, the Gothic War, etc., are full of the praises of the emperor. But in another work, known by the name of “Historia Arcana,” and containing a scandalous record of the court of Constantinople, he paints both Justinian himself and his empress Theodora in the blackest colors. A more remarkable case of blowing hot and cold from the same mouth, at the same object, it would be hard to find in the annals of literature. It is probable that both representations, the panegyrical and the vituperative, are caricatures of the real man. It is clear that Justinian had his faults, conspicuous among which were vanity, jealousy, and greed; but he was not worse than the majority of those who preceded and followed him on the Byzantine throne. As to his talents, it is evident that he had the capacity of conceiving large things, of planning and undertaking “enterprises of great pith and moment;” and he had also the art, which many princes equally ambitious do not have, of finding the ablest men of his time to serve in carrying out his enterprises. Of his generals, Belisarius and Narses, we have just spoken; but he was no less fortunate in his great law-minister, Tribonian. The Corpus Juris is an enduring monument of the capacity and energy of the great lawyer who bore the foremost part in its construction.
Justinian came to the imperial throne at the mature age of forty-five, in the year 527. A few months later, in the year 528, he entered upon the work of collecting, revising, and systematizing, the whole body of the Roman law. This work, under the guidance of Tribonian, was divided into two principal parts, according to the materials of which the new book was to be composed. These were, first, the constitutions of the Roman emperors; and, second, the treatises of the Roman lawyers. The name constitutiones, applied to the law-making utterances of the Roman emperors, had a very different meaning from our word “constitution,” used to denote the fundamental, organic law of the state. Every official public document issuing from the emperor, and creating, declaring, or modifying law, was a constitutio. It is a general term including documents of several different kinds: thus—1. Orationes, or proposals of laws submitted to the Senate for their action, the submission being a mere form, as the Senate, of course, ratified what the emperor proposed; 2. Edicta, laws which the emperor himself put forth, in his character as highest magistrate, without invoking the authority of the Senate; 3. Mandata, directions addressed by the emperor to the prefect of the city, or the prefect of the praetorium, or to his legates in the provinces, or to other officers invested with jurisdiction, instructing them in reference to the administration of law and justice; 4. Decreta, decisions given by the emperor in law-cases which were brought before him, by appeal or by petition, for his investigation and judgment; and—5. Rescripta, answers returned by the emperor, when consulted on questions of law, either by the parties in some controversy, or, more commonly, by officers charged with the administration of justice in Italy or the provinces. All these various utterances are included in the term constitutiones; and it is hardly necessary to say that, although professing to come from the person of the emperor, they were actually composed by jurists, and usually by those who stood first in their profession. Of course, the number issued during five centuries of imperial dominion must have been very large. Three or four collections had already been made, in which the most important constitutions were selected from the mass, presented in a condensed form, and arranged according to their subjects. The last and most elaborate of these collections was the Theodosian Code, compiled about a century before the accession of Justinian; it is still in great part extant, and, next to the Corpus Juris Civilis (though proximus longo intervallo) is the most extensive monument of the Roman law. It was the first object of Tribonian, in carrying out the proposed reconstruction of the law, to prepare a new collection of imperial constitutions, selected, abridged, revised, and systematized, on the same general plan as the Theodosian Code: this latter code and the others which preceded it, were freely used in making the new compilation. By these helps, in addition to their own energy, the compilers were able to push on their task with such rapidity, that the work was completed and issued with imperial sanction in April, 529, a little more than a year from the time of its inception.
But the second task, which they had yet to accomplish, was one of much greater difficulty—to prepare a digest of the treatises of the most distinguished writers on law. The literature which they had to examine was of very considerable extent. The works to be digested were by thirty-nine authors, and consisted of about 2,000 books, in the Roman sense, according to which Caesar’s “Gallic War” would be reckoned, not as one book, but as eight books. It was, moreover, even in the time of Justinian, an ancient literature. Of the thirty-nine authors, the most important belonged to a period from three to four centuries before Justinian; only two of them were more recent than three centuries before; while the earliest of the number, Q. Mucius Scaevola, an older contemporary of Cicero, flourished fully six centuries before Justinian. In this long interval, the Roman law had undergone extensive changes, so that much of the contents of these works had become obsolete, and only by considerable alteration could be adapted to the present condition of the law. To guide the compilers in making the required alterations, a series of imperial ordinances was put forth, under the name of decisiones, marking out the precise features of the new law, in distinction from the antiquated elements of the earlier system. In these preliminary labors, some time was consumed, and it was not until the close of the year 530, that the preparation of the digest itself was entered on. In this work, Tribonian had the aid of sixteen associates, among whom were four law-professors from the law-schools of Constantinople and Berytus. The books to be examined were divided up among the collaborators. Each one, as he read those assigned to him, was to excerpt such passages as seemed to him deserving of insertion, making the necessary alterations in them, and arranging them under a prescribed series of titles. When this process was finished, the collections were to be brought together, and incorporated into one work, with such further rejections, additions, and alterations, as should reduce them to a harmonious system. The plan was accomplished in about three years, a space of time surprisingly small, when we consider the amount of work to be done, and the general thoroughness with which it appears to have been executed. There are found, indeed, a number of oversights: a few passages occur in places where they could only have been put by mistake; a few are inserted in more than one place, without occasion for the repetition; a few are in irreconcilable conflict with one another. The wonder, however, is, not that such blemishes should occur, but that there are not more of them.
The Digest—or Pandects (all-receiving), as it is also called from the multiplicity of its sources was issued with authority of law, in December, 533. It is divided into fifty books, and each book is divided into a number of titles (tituli), each with its appropriate heading. Under these titles stand the extracts, each one preceded by the name of the author and of the treatise from which it was taken. The aggregate number of extracts is about 9,000. Many of them are very short, consisting of one or two lines, and, in some instances, containing only part of a sentence; while others would fill several octavo pages of average size. About a third of the collection is taken from one author, Ulpian, the most prolific of Roman law-writers, who was prefect of the praetorium, in the reign of Alexander Severus, and lost his life in an insurrection of the soldiers. Julius Paulus, a contemporary of Ulpian, stands next to him in the amount of material furnished to the collection: to Ulpian and Paulus, taken together, belongs half the Digest. Next to these in the amount taken from his writings, but perhaps superior to all others in the intrinsic merit of his contributions, is Papinian, the faultless model of a Roman jurist, who was regarded by his contemporaries with a veneration which has been sustained by the judgment of succeeding ages. When the tyrant Caracalla murdered his brother Geta, he called upon Papinian to prepare an address to the Senate, in vindication of the act, promising, if he would do so, to forgive him for the favor which he had shown to Geta while living. But the jurist refused to comply with the demand, saying that it was easier to commit an act of fratricide than to defend it; no doubt, foreseeing the fate which such an answer to such a prince could not fail to bring on the man who gave it.
But it would lead us too far to notice in detail the other writers whose works are represented in this great collection. It concerns us more to observe that, while the Digest or Pandects forms much the largest fraction of the Corpus Juris, its relative value and importance are far more than proportionate to its extent. The Digest is, in fact, the soul of the Corpus, which, without it, would seem almost a cadaver, the corpse or skeleton of itself. It is the characteristic element, which distinguishes this from other codes, ancient and modern, and gives it the undeniable superiority. In most codes we have, from beginning to end, only a dry, categorical, imperative “thou shalt,” “thou shalt not,” “do this and live,” “avoid that, abstain from that, or suffer the penalty.” But in the Digest we have definitions, maxims, principles, applications, distinctions, illustrations—all in endless abundance and variety. It is as if one should make a compend of English law by selecting the most judicious and accurate statements from treatises like those of Blackstone and Kent, and the most pithy, pointed, luminous utterances from the decisions of judges like Mansfield, Scott, Marshall, and Story; and placing them together in an arrangement which, if not altogether scientific, should be, at least, practically convenient, natural, and easily comprehended. A digest constructed on this plan was in the highest degree fitted to be a teacher of law to aftertimes; for it shows the spirit of the law, the principles of equity on which it is founded, the reasonings and method by which it is built up as a rational, intelligible, orderly system. No other code has been so well adapted to stimulate, develop, and discipline the juristic sense; the great office which the Corpus Juris, operating mainly through this part of its contents, has discharged for mediaeval and modern Europe.
We have seen that the other leading component of the Corpus Juris—the Codex Constitutionum—was prepared in the year 528 and the first part of 529. It was only natural that the time and labor bestowed on the preparation of the Digest should have brought to light numerous incongruities and imperfections in the earlier work. In many points, the compilers had come to have a more distinct and a more advanced conception of the modifications which it was desirable to make in the older system. Hence, the Codex appeared, in the light of these altered views and this added experience, to be, as it were, already obsolete, not to be in harmony with the Digest, or worthy to have a place in the final and authoritative Corpus Juris. It was resolved to subject it to a thorough revision, or redaction. This task occupied another year; and in November, 534, the new Codex Constitutionum, the Codex repetitae praelectionis, was published, to take effect on the 29th of December, the former Codex being then repealed. It is in this latter form only that the Codex has come down to us. It is divided into twelve books, and these again into titles, with headings to indicate the subject of each one, under which the constitutions pertaining to that subject are arranged in chronological order, with a statement, for each, of the emperor by whom, and the year in which, it was issued. The arrangement of subjects, as might be expected, is in general the same with that of the Digest. An absolute agreement in this respect was not regarded as necessary, especially as the Codex embraced a number of topics which, by the nature of the case, could not appear in the Digest. The latter was of course silent on all matters and relations which had risen into being or importance during the two or three centuries before Justinian, as all the writers represented in it were of older date than two, nearly all of older date than three centuries before. Thus, the church, the clergy, the monastic orders, and other matters pertaining to the Christian religion, so far as they could come within the cognizance of civil law, figure largely in the Codex, as they were among the most frequent subjects of legislation for Constantine and his successors. But the series of great law-writers had come to an end some time before Christianity ascended the imperial throne; the Digest, therefore, has nothing to say of its officers and institutions.
In general, it may be said that the Codex consists, to a much greater extent than the Digest, of public law, in all its departments; that is, the law which prescribes and regulates the organism of the state, with all state institutions, whether civil or ecclesiastical. Here belongs all that relates to forms of government, modes of administration, duties of public officers, and the like. Under public law is included also criminal law, the law of crime and punishment—a crime being a wrong action viewed as affecting the rights, not of individuals, but of society, as a violation of public peace and order, as an offence against the state. On the other hand, private law is occupied with the rights of individuals, with the modes by which individuals may acquire such rights, or transfer them to others, and the ways in which individuals may obtain personal redress when these rights are impaired by fraud or violence. Now the fact which I wish to emphasize is this, that the Digest is composed of private law in a far larger proportion than the Codex. This is a fact which gives to the Digest something of the superior interest and importance which belong to it. It is mainly by reason of the private law which it embodies, that the Corpus Juris has exerted its immense influence on jurisprudence and justice in modern Europe. The public law of the Corpus Juris was something distinctively Roman, and even Byzantine, the last result of a peculiar political development, which has occurred but once in the history of the world, and can never be repeated. To modern states, founded on different principles from those of ancient Rome, and seeking widely different ends by means that differ not less widely, the public law of the flourishing or expiring empire could have only a very limited application. The private law of the Romans was, to a great extent, based on principles of natural equity and universal reason, which have not lost their force with the altered circumstances and advanced civilization of more recent times. Hence, it has been received as fundamental law by some of the most enlightened and civilized nations of modern Europe. But no modern state has received the public law of the Romans as the foundation of its own public law. All attempts to give it this position and character have failed of success. Thus, when the great German princes of the Hohenstaufen dynasty, as Frederick Barbarossa and Frederick II., were endeavoring to build up a new Roman Empire, a Holy Roman Empire, in Germany and Italy, the Italian jurists of the famous school of Bologna supported the imperial pretensions with texts and rules drawn from the storehouse of the Corpus Juris. They regarded, practically at least, its public and private law as parts of the same system, and therefore equally authoritative. But the feudal lords of Germany and the free cities of Italy insisted on making a distinction between the two, and denying to the one an authority which they accorded to the other.
But we have not yet considered all the component parts of the Corpus Juris. It was thought desirable that an introduction to the study of the law, an elementary text-book for instruction, should be included in the plan. The work prepared for this purpose was a brief treatise, in extent but little more than a twentieth of the Digest, to which it stands in the place of an introduction. It bears the name of “Institutiones,” i.e., instructions, viz., for the beginner; a name significant of the purpose which it was designed to serve. It was founded on a work of the same name (“Institutiones”), composed by Gaius, in the time of the Antonines, about four centuries before the reign of Justinian. Gaius is very often cited in the Digest; only Ulpian, Paulus, Papinian, with a fourth writer named Pomponius, stand before him in this respect. Yet, strangely enough, nothing whatever is known as to his personal history; his very name is irrecoverably lost, for Gaius is only a praenomen; it is as though Milton were only known as John, or Shakespeare as William. Perhaps nothing more was known of him in the days of Justinian. It would seem, however, that his Institutions had been, from the time of its appearance, a popular book for law-students at the outset of their course, and this popularity may have served to buoy up the other compositions of its author. Of these other compositions, one—named “Res Quotidianae” (daily cases)—was used in connection with the “Institutiones,” in preparing the Institutiones of Justinian. The task of preparation was executed by Tribonian, with the assistance of the law-professors Theophilus and Dorotheus. The processes of omission, insertion, modification, were, of course, adopted here, as in other parts of the Corpus Juris, to bring about a conformity with the altered system of the law. The little treatise was finished and published at the same time with the Digest, in November, 533. It consists of definitions and elementary statements, and is divided into four books. The first book treats of family relations, as the relation of master and slave, father and child, guardian and ward. The second treats of property and the modes of acquiring it, ending with the subject of inheritance. The third treats of obligations, i. e., relations in which one man is bound to give something to, or do something for, another man; relations which usually arise from an express or implied contract between the two men, but sometimes from violations by the one of rights pertaining to the other. The fourth treats of actions, i. e., suits at law, the legal remedies by which a man whose rights have been violated may seek redress for the wrong.
Thus, at the close of the year 534:, Justinian had accomplished the work of reorganization or reconstruction of the law, on which he had entered seven years before, at his accession to the throne. The Institutiones, the Digest or Pandects, and the Codex Constitutionum, formed together a complete system of law and jurisprudence, which was assumed to be sufficient for all practical ends in the administration of justice. As such it was given to the law-schools as the exclusive subject of professional study. The principal law-schools of the empire were those of Constantinople, Rome, and Berytus, while institutions of inferior note were found in Alexandria, Caesarea, and other places. The course of study, as prescribed by Justinian, in an ordinance of December, 533, consisted of five years. The students of the first year had hitherto been called by the nickname of dupondii (two-penny men); they were now to be designated as novi Justinianei (Justinian’s freshmen); they were to read the Institution’s, and to make a beginning with the Digest. The second, third, and fourth years were also given to the Digest, but without proceeding further than through thirty-six out of the fifty books. The instruction of these four years was carried on by lectures and recitations. In the fifth and last year, the students were left to themselves, and read (or were supposed to read) the remainder of the Digest, and the Codex Constitutionum. To the courts of justice the new Corpus was given, as superseding all former authorities. No ancient jurist must be cited, no earlier constitution appealed to, except in the words of the Corpus Juris. The exact preservation and transmission of its text was an object which excited the special solicitude of the emperor. The abbreviations, which were used by ancient scribes much more than by modern, and were especially common for technical phrases and formulas of frequent recurrence, often led to confusion and mistake. The copyist was expressly prohibited from using them in the transcription of this venerable work. But commentators were more dreaded than copyists. Justinian rigorously forbade the writing of any commentary on the books of the Corpus Juris. He conceded the privilege of making Greek translations, which, indeed, were almost indispensable in an empire composed in great part of Greek-speaking populations; but they must be close and literal versions, following the original faithfully from step to step (i. e., from sentence to sentence). He allowed also the formation of brief summaries, presenting the contents of a book or title in a compendious shape, a syllabus or synopsis, with references to other parts of the work, and citation or collation of parallel passages. The reason for prohibiting commentaries was the apprehension that they would suggest new controversies or revive old ones, and thus bring the law again into that unsettled, uncertain condition from which so much pains had been taken to raise it. Perhaps, also, he may have feared that some commentary might arise which would eclipse the original; as, in the literature of English law, Coke upon Littleton is much more famous than Littleton himself. In any case, the object which he aimed to accomplish was neither attainable nor desirable. To enforce any system of law, it is necessary to find out what the system is, to ascertain its meaning, to interpret and expound it. Ambiguities of language are unavoidable, even in the most carefully constructed documents. Even if the language is unambiguous in itself, its application to new circumstances and conditions will involve uncertainties and queries. To resolve these doubts and difficulties, there must be a constant process of commentation, oral if not written. And if the process must go on, if commentation is unavoidable, it is well that it should be written; for in this form it will generally be more cautious and exact; and the best results, when they are arrived at, will not be lost in air, but will be recorded and permanent, to the great advantage of succeeding inquirers. Controversies on points of legal doctrine are, indeed, the inevitable result of mental activity applied without restraint to legal questions and relations. To stifle thought and to suppress freedom are the only effectual means of avoiding such controversies. But, in a community where freedom is suppressed and thought is stifled, what rights can be secure? What is the worth of law without either intelligence or liberty?
It was no easy matter for a prince who had legislated so long and so much, to stay his hand and rest content with the work already accomplished. The appetite for legislation, like other appetites, is apt to grow with what it feeds on. The compilers of the Corpus Juris must have felt that in the new law-system, however much improved, there were still incongruities and inequalities which called for further improvement; that there were necessities, either not provided for at all, or not in the best manner, by any rules contained in it. From many sources must have come a real or apparent demand for further law-making. Thus we find that Justinian, after the completion of his great legislative work, issued a large number of new constitutions, especially in the years from 535 to 545, in the last of which he lost his able and active minister Tribonian. Many of these constitutions made little alteration in the existing law; but there were some which introduced extensive and important changes Justinian did not think it necessary to work over the whole Corpus Juris so as to bring it into harmony with the rules and doctrines thus established. He may have dreaded the expenditure of time and toil necessary for the recasting of a law-book so voluminous: he may have shrunk from calling on his subjects to throw away the heavy and costly tomes which he had compelled them to procure in order to replace them by others equally heavy and costly: he may have felt that the revocation of a law-system so laboriously constructed and so solemnly promulgated only a few years before, would lead people to regard the entire law as something uncertain, fluctuating, and transient. At all events, he contented himself with bringing these later ordinances, as fast as they were issued, into a separate collection, where they stood in chronological order, without any attempt to give them a logical arrangement. This collection bore the name novellae constitutiones (recent enactments): in all editions of the Corpus Juris, it stands as the concluding part, and by English writers is generally called the Novels, a name identical in spelling, though any thing but identical in what it designates, with that which we use for the compositions of Bulwer, Dickens, or Trollope. In these Novels, the language generally used was the Greek; some, however, were issued in Latin, and not a few in Greek and Latin at the same time. In the last case, it is curious to note that Justinian himself declares that the Latin form must be taken as the authentic and authoritative original, and the Greek as only its translation; the Latin was still regarded, by the force of old tradition, as the proper official language of the empire. The actual use of Greek as the prevailing language of the Novels distinguishes this from the preceding portions of the Corpus Juris. In the Codex the large majority of the constitutions are in Latin, and Latin is the language of thirty-eight out of the thirty-nine writers embraced in the Digest.
In regard to this whole body of law, the construction and outward appearance of which have thus been described—and especially in regard to the Digest, its largest and most characteristic part—one may say, in general, that it was too good for the age in which it appeared. It was produced in a period of great and progressive decline, by men whom a study of older and better models had raised above the general level of their time. Apparently they hoped that, by bringing these same models into a form and position in which they could be generally known and studied, it would be possible to arrest the downward tendencies in the profession and practice of the law. In the reign of Justinian, at least in its earlier part, men were Loping for a good time coming. It seemed as if the clouds which had settled down on the Roman world were beginning to break away; as if the storm of barbarian invasion and conquest had spent its force, and the empire of the Caesars was to recover its ancient power and glory. The legislation of Justinian shows the influence of such anticipations. The old law, freed from the obsolete elements which encumbered and concealed it, was to have the ascendency which it exercised in the prosperous times of the earlier empire. These hopes, we know, were doomed to disappointment. The anticipated good time of restoration and revival never came. The downward tendencies of society were too strong to be arrested. The great law-book of Justinian seems to have gained no very wide currency among those for whom it was intended. It was, to a great extent, superseded in practice by paraphrases and abridgments, of the whole or of particular parts. An inquirer two or three centuries later, looking at the fate of this Justinian legislation, might have said that it was a splendid and elaborate failure. In the reign of Leo the Isaurian (717-741), the books of the Corpus Juris were hardly used at all in their original form; and even the paraphrases and abridgments founded on it were so ill adapted to the existing state of the law, that this emperor thought it necessary to issue a compendious code of his own. This was the state of things in the Eastern Empire. In Western Europe the Corpus Juris had never found currency, except in Italy: and here, in some parts and cities of the peninsula, it still enjoyed an obscure and precarious influence. How it emerged from this condition to one of world-wide note and commanding authority, will appear in the next lecture.
THE GERMANIC TRIBES WHICH became masters of Gaul, Spain, and Italy, in the fifth century, kept their Germanic law-customs for themselves, but suffered the conquered populations to remain under the old Roman law. Hence a system of personal, rather than territorial law. Persons were sometimes allowed to choose their own law by a professio. The multiplicity of systems was increased by the growth of an ecclesiastical law, founded on the Roman, but with features peculiar to itself, for ecclesiastical persons and relations.
In Britain, on the contrary, the Saxons and Angles, driving out the native inhabitants, became sole occupants of the conquered districts, and thus had no Roman law existing with and acting upon their own.
Some of the Germanic chiefs (Alaric the Visigoth, Theodoric the Ostrogoth, Sigismund the Burgundian) issued, for the use of their native subjects, summaries of the Roman law, drawn from the Theodosian code and other earlier sources. These appeared shortly before the Corpus Juris of Justinian, and were vastly inferior to it in extent and value.
It was formerly believed that the knowledge of the Corpus Juris in Western Europe began with the discovery of a copy (the Florentine MS.) of the Digest, said to have been found by the Emperor Lothar II. at the taking of Amalfi in 1136. But Savigny has shown that the Corpus Juris, introduced into Italy during the reign of Justinian, never ceased to be known and used in parts of that country. But about 1100 (opening era of the Crusades) we find a greatly revived and extended study of the Roman law, carried on especially at Bologna, by a series of acute and profound law teachers, called glossators, from the marginal glosses or comments which they wrote on their copies of the Corpus Juris. A voluminous collection of these glosses, made by Accursius, one of the last glossators (died 1260), is printed in old editions of the Corpus Juris.
As the effect of these studies, the Corpus Juris came to be received as law, as the main (though not exclusive) source of private law, first in Italy, then in Southern France (pays de droit écrit), and at length (from the close of the thirteenth century) in Germany. In the last, it was favored by sovereigns who claimed to be chiefs of a Roman Empire, successors of Augustus, Constantine, and Justinian.
In Northern France (pays de coutume), the old customary law of the provinces—an unwritten body of Germanic usages, mixed with Roman elements and many things of later origin—maintained its leading position; but with this, to supply its deficiencies, the Corpus Juris was received as auxiliary law. In Spain, too, it was received in much the same way.
In England, the Roman law has never been received, even as auxiliary law. The common law (mainly an unwritten customary system, founded ultimately on Germanic usages) claims to supply its own needs by the extension of its own principles and analogies. Some of its expositors, as Blackstone, have shown an unreasonable jealousy of the Roman law. Yet the common law has been largely influenced by the Roman, in various ways: 1. Through the ecclesiastical courts, their canon law being founded on the Roman. 2. Through the court of chancery, all the early chancellors being ecclesiastics, and therefore familiar with the canon law, if not with the Roman system. 3. Through the development of commercial law in its various departments. The old common law was mainly a (feudal) law of real estate. When personal property rose into greater importance, and complex relations of business and trade had to be provided for, it was natural to adopt principles from the civil law as developed and applied on the continent of Europe.—(Early borrowing from Roman law sources seen in Bracton.)
The position of the Roman law in some countries has been lowered in appearance by the formation of new codes. A general code for the states of Prussia, projected by Frederick the Great in 1746, was prepared many years later, 1784-’88, and went into effect in 1704. In France, the changes caused by the Revolution seemed to call for a new code, but not much was done toward it until Napoleon became head of the state. The Code Napoleon, prepared in little more than two years, was proclaimed in 1804. It was followed in 1811 by a code for the German hereditary states of the Austrian monarchy. Yet, in all these countries, a knowledge of the Roman law is still regarded as essential to a proper understanding of their legal systems, and therefore as the necessary basis of a legal education.
There is a wide difference in the effects of a conquest, according as the conquerors are superior in civilization to the conquered, or inferior. When the Romans, under the lead of Caesar, had become masters of Gaul, the old Celtic language of the country soon disappeared, and with it the old customs, laws, and institutions of the people. The language, laws, and institutions of the Romans took their place. In the course of a few generations, Gaul was thoroughly Romanized. Against a superior civilization armed with the force of political and military ascendency, the inferior had no chance of maintaining itself. But when the political and military ascendency is on one side, and the superior civilization on the other, the contest is more evenly balanced. When Romanized Gaul was overrun and subjugated by Germanic tribes in the fifth century, the conquerors did not impose either their language or their laws on the conquered people. In communicating with one another they continued for a considerable length of time to use their German mother-tongue: even Charlemagne, three centuries after Clovis, habitually spoke German. But in time they gave up their old language, and adopted the corrupt Roman of the country. Their laws they retained for their own use, as might have been expected, with much greater tenacity; but even these they did not attempt to impose upon the native population. Though naturally attached to their own long-established usages, and unwilling to abandon them, they seem to have felt that these usages were suited only to themselves; that the requirements of civilized society, of settled and peaceful life, were better fulfilled by the highly-developed, complex jurisprudence of the Romans. Hence arose a very curious state of things, a system of personal, rather than territorial, law: the law to which a man was subject depended not so much on the place where he lived, as the race to which he belonged. The principle was, “German law for the Germans (i. e., the Franks, Burgundians, etc.), and Roman law for the Romans (i. e., the descendants of Romanized Gauls).” Thus two neighbors living side by side would be subject to wholly different systems, because one was of Gallic origin and the other of Germanic. Indeed, the principle was carried even further. The Franks were divided into two great sections, each of which had its own system of legal rules and customs, the Salian, or Western, and the Ripuarian, or Eastern, Franks. Now a Salian, wherever he might be, in whatever part of France, was judged by the Salic law; and in like manner a Ripuarian, by the Ripuaric. In the case of a married woman, however, the law was determined, not by her nationality, but by her husband’s, her legal existence and personality being regarded as merged in his. Where the parties to a lawsuit were of different nationalities, the law to be applied by the court was determined, sometimes by the person of the plaintiff who could claim that rights given him by his law had not been respected by the other party, and sometimes by the person of the defendant who could maintain that in all his dealings with the other party he had only exercised rights conferred upon him by his law. In some cases a person had the privilege of making a professio, as it was called, i. e., of declaring publicly by what law he would live and be judged. Of the confused and motley character of such a system (if the word system thus applied is not a misnomer) it is difficult to form an adequate conception. The complication was further increased by the separate position of the clergy; all clerical persons, of whatever nationality, being subject to an ecclesiastical law, which, though in the main derived from the Roman, had many elements and features peculiar to itself.
The state of things here described, as subsisting in Gaul under the Franks, was not confined to that province. It prevailed with little difference in Spain under the Visigoths, and in Italy under the Lombards. The condition of Britain was essentially different. That remote dependency of the empire, among the last to be gained, among the first to be abandoned, had never been but very partially Romanized. And its conquest by the Germanic invaders, unlike that of the continental provinces, was a very slow and gradual one, proceeding from step to step for a hundred and fifty years. As one district after another became untenable, it was deserted by the old inhabitants, who by a journey of one or two days could escape from the detested presence and power of the conquerors. Hence the Angles and Saxons became to a great extent sole tenants of the regions which they held in their possession. They were not settled—as were the contemporary Franks, Goths, and Lombards, and as the Normans of a later day in Britain—in the midst of a large native population, who by force of superior numbers, if not of superior civilization, must exert an immense influence on political and social relations. While in the continental provinces the dominant races gradually lost their old Germanic idioms, the Saxons and Angles in Britain preserved theirs with very little mixture either of Roman or of Celtic elements. While in the former the great body of the people had a law-system of their own, which could not fail in time greatly to affect and modify that of the conquerors, in Britain the old Germanic maxims and usages of law were exposed to no such modifying influence. I call particular attention to this peculiarity in the Anglo-Saxon conquest of Britain—the absence of any numerous conquered people, more or less imbued with Roman civilization, to react on the language and institutions of the conquerors—because it lies at the foundation of that wide difference which even now separates the common law of England and our own country from the other law-systems of Western Europe.
Lex Romana, VisigothorumBreviarium AlaricianumEdictum Theoderici,