For the prevention of fraud or falsification special care was taken, and precise methods of testing the genuineness of the rescripts were prescribed. Thus L. 3, 4, 6, C. the original had to be produced, bearing the (i. 23). properly authenticated signature of the emperor; the date and year had to appear on the face of it; the colour of the ink and the nature of the substance to be written upon were exactly indicated. All rescripts resting on false allegations of fact, or found to be in violation of the public interests or common law, were ipso facto invalid. This last provision must have opened out the way to an almost indefinite amount of argument whenever a rescript was produced in court.

(4) Mandates.

Mandates, or instructions to public officials, usually the emperor's "Legates," though, undoubtedly, a source of imperial legislation, were not included in the list of sources enumerated above by Gaius and Ulpian, because of their limited importance, or because their efficacy was, at first, restricted to the particular province, the officials of which they primarily concerned. Subsequently, however, they undoubtedly obtained a wider influence, owing to the increased centralization of the government; but this influence might, no doubt, be restricted by special limiting words, or by the obvious peculiarity of the case. Most of the mandates of which a record is preserved relate to criminal law or police matters. It seems, indeed, as if mandates always had some indirect relation to the administration of a province, even when directly touching matter of private law. Thus, one mandate is cited as regulating the wills L. 1, D. (xx. of soldiers; another as forbidding the marriage 19, 1). of a functionary (qui officium aliquid gerit) with the women in his province.

§ 3-Codification.

The notion of a systematically arranged body of law had naturally presented itself to the minds of reforming

lawyers and statesmen from the beginning of the period when the Roman dominion first comprehended numerous provinces beyond Italy, and when the claims of order and centralized administration in all departments became increasingly pressing. The XII. Tables and the systematized Prætor's Edict, though overlaid by written commentaries and expanded by oral opinions, nevertheless kept before the eyes of men a continuing protest in favour of an inclusive compendium of the whole law, arranged after as regular and symmetrical a method as the somewhat incompressible materials admitted of.

It has been remarked by Sir Henry Maine that the key to the arrangement of the XII. Tables, of the Prætor's Edict, and also of Justinian's Digest, is to be found in the early prominence of procedure, which, indeed, at the very first, covers the whole field of law. Thus, if other keys could be found, it might appear that the other portions of the early codes had similar justification for their places in the several systems to which they belonged. Nevertheless the numerous distinct sources of law at Rome,—due, as has been explained, partly to historical accident, partly to prevalent legal instincts, partly to constitutional vicissitudes,-made the total reconstruction of the whole law, on an orderly basis, a matter of growing political concern. The first practical measure of systematic reform was undertaken by L. Cornelius Sulla, B.C. 82, though it related rather to public than to private law. Sir H. Maine in his "Ancient Law' explained how the conception of a classification of crimes really took its rise from the first permanent judicial commission (quæstio perpetua), established by L. Calpurnius, in B.C. 149, for investigating "claims by provincials to recover moneys improperly received by a governor-general." The next step was taken by Sulla, who gave to the same permanent commission jurisdiction over several forms of crime. Mommsen notices that from the Sullan legislation dates the distinction, substantially known to the earlier law, between civil and criminal causes. "The whole body of the Sullan ordinances as to the

Mommsen,

Hist. iii., ch. x., Eng. ed. Chap. x.

quæstiones may be characterized at once as the first Roman code after the XII. Tables, and as the first criminal code issued at all."

It was natural that Cicero, who as a writer on the art of forensic oratory, as also himself experienced in the practice of courts of law and familiar enough with the heterogeneous nature of the legal system, should crave for a systematic code. In more than one passage in his works he complains almost pathetically of the condition of the law, and the wants of the day. Thus he Cic. De Legg. says, "We have no recognized guardianship iii. 20. (custodiam) of the laws; and that is the law which the magistrates' clerks (apparitores) choose to call such : we betake ourself to professional copyists (librarii), we have no public records secured by public registers." In another place he propounds more specifically the cure for the uncertain and overburdened laws. He says, De Orat. i. 42. "For if I should be allowed myself (as I have

long intended), or if, through my occupations or death, another instead of me should undertake, firstly, to distribute the whole civil law into logically divided classes, which are very few; secondly, to break up these classes into their several component branches; thirdly, by precise language to assign a strict and consistent meaning to every term; you would have the civil law presented in a form artistically exact, and, though still copious or even exuberant, no longer intricate and obscure."

It will be seen from these two passages that Cicero completely apprehended the two distinct functions of a Code in the modern meaning of the term, namely, that of reducing to definite written language all the law, from whatever source derived, so as to exclude, as far as possible, all indecision as to whether a rule of law applicable to any given subject or situation exists or not; and also that of distributing the law as so written into classes and subclasses in such a way as may best conform to the requirements at once of abstract logic and of convenient reference for the different orders of persons, professional and others,

in the community who may have occasion to inform themselves as to the state of the law. It will be seen that one or other, and often both, of these functions of a Code always held their place in the minds of all systematical codifiers of Roman law up to, and including, the times of Justinian.

It seems that the task of systematically codifying the law was contemplated both by Pompey and Julius Cæsar in turn, but not proceeded with by either. The former was said to have "wished to reduce the laws to writing (redigere in libris), but did not persevere for fear of detractors," who Isodore Orig. might, it may be presumed, misrepresent his motives. Suetonius says of Julius Cæsar that "he had designed to reduce the civil law to definite proportions, and out of the enormous and scattered abundance of laws to collect what was best and alone essential and to digest it into as few written volumes as possible."

v. c. i, § 5, cited by Puchta i., § 107.

Suet. Jul. iv. 4.

Between the time of Julius Cæsar and that of Diocletian, that is, during the continuance of the undivided empire, no systematic effort seems to have been made either by private lawyers or by the government to deal with the law as a whole, though individual lawyers made, as has been already seen, numerous collections of imperial constitutions of particular kinds, and the work of statutory legislation through the medium of these constitutions generally was incessantly proceeding. Between the time of Diocletian and that of Justinian the work of codification of a more or less thorough and comprehensive kind made great advances, till it terminated in the sort of passion for legal systematizing which characterized the reign of Justinian. The successive efforts at partial or complete codification during this period may be reviewed under the following heads :1. The private collections of Gregorianus and Hermogenianus.

2. The Theodosian code and Theodosius' further projects for a more comprehensive code.

3. Certain collections of laws casually preserved in a fragmentary form, eg. the "Vatican Fragments."

4. The "Barbarian" codes: the Breviary of Alaric;

'Papian," or the law of the Burgundians; the Edict of Theodoric.

5. Compilations of Justinian.

I. THE PRIVATE COLLECTIONS OR CODES OF GREGORIANUS AND HERMOGENIANUS.

Among the various collectors of imperial constitutions Gregorianus and Hermogenianus stand conspicuous. Their two works seem to have been more methodical and exhaustive than those of their contemporaries, and, perhaps, on the ground of these merits they were taken by the framers of the Theodosian code as the type to be imitated. Thus the imperial oratio to the Senate, which forms the introduction to the Theodosian code, contains among its first words the passage, "We decree that, following the example of the Gregorian and the Hermogenian codes, all the L. 5, C. Th. constitutions be collected together which Con- (i. 1). stantius, his successors, and we ourselves have enacted."

The number of constitutions which have been preserved as forming part of the Gregorian code is about seventy. It appears that the work was divided into books and titles. The period of time covered by the constitutions is from A.D. 196 to A.D. 296. The first constitution is one of the Emperor Septimius Severus, and the last that of Diocletian and Maximian. It is probable, therefore, that the collection was made at the close of Diocletian's reign or in the course of Constantine's. Nothing further is known of the author, Grego- Droit Roman, § 176. rianus, himself.

Ortolan i.

459, Rivier

The code of Hermogenianus is preserved through the medium of still more sparse and mutilated fragments. There are only thirty-two constitutions, without any sign of division into books, but only into titles with their rubrical heading. All the constitutions belong to the reigns of Diocletian and Maximian, and of Diocletian and Constantine, or the seventeen years between A.D. 287 and A.D. 304. There are, however, found in the ninth chapter of the "Consultatio veteris jurisconsulti" (a genuine juridical treatise