enables one to infer to which of the two empires they more properly belong.

Certain compilations of Roman law made by the Germans who swept away the Western empire deserve a passing notice. (1) Among the Ostrogoths, whose king Theodoric (A D. 475-526) conquered Italy in A.D. 493, and ruled it as representative of the emperor at Constantinople, the Roman and German systems did not, as elsewhere, stand in opposition to one another, but the Gothic invaders resigned their own law and submitted themselves to that of Rome. The Edictum Theodorici' is a collection of the most practically important rules of Roman law arranged in statute form for the purpose of enabling the countrymen of Theodoric to know the law under which they lived, and is based on the imperial constitutions and the sententiae and responsa of Paulus. Among the Visigoths and Burgundians, on the other hand, the original subjects of the empire retained their own jurisprudence, to which their conquerors declined to submit themselves. Thus (2) the codex Alaricianus (or breviarium) was a kind of Digest of the law observed by the Roman subjects of the Visigoth king Alaric II (A.D. 484-507), comprising, besides imperial constitutions, very large portions of the commentaries of Gaius, and excerpts from the sententiae of Paulus and Papinian's liber I responsorum. (3) A compilation of Roman law for the Roman subjects of the Burgundian empire was made by order of king Sigismund about 517 A.D.; it is usually termed 'Papian' (abbreviated from Papinian, because it is said to have commenced with that jurist's liber I responsorum), and contains forty-seven Titles, part of which are taken from the code of Alaric.

Justinian, who was of Sclav descent, was at the age of forty-five (A D. 527) raised by his uncle Justinus to the position of joint ruler of the Eastern Empire, and in the same year, by the death of his partner, he became sole emperor. In the interval of somewhat less than a century which had elapsed since the legal reforms of Theodosius and Valentinian, a process of divergence had been constantly going on between the laws laid down in the code of Theodosius and the 'law of Citations,' and the law as actually applied in the tribunals. This was principally due to the small number of copies which existed of the authorized enactments and juristic literature: Homines etenim, qui antea lites agebant, licet multae leges fuerant positae, tamen ex paucis lites praeferebant, vel propter inopiam librorum, quos comparare eis impossibile erat, vel propter ipsam inscientiam, et voluntate iudicum magis quam legitima auctoritate lites dirimebantur' (Justinian in Cod.

1. 17. 2. 17). It had thus become extremely necessary that these should be multiplied, and also, if possible, recast in a more convenient form, which should enable such alterations to be made in the substantive law as circumstances demanded, and also secure the incorporation in the main work of the detached constitutions which had been published since the code of Theodosius. Theodosius had himself conceived the design of combining the writings of the authorized jurists and the imperial legislation (which had now been long contrasted under the terms ius and leges) in one comprehensive statute book ; but the idea of combination had produced no results, and of that emperor's two great reforms the one related to ius, the other to leges only. When Justinian had resolved on his great scheme of giving a new form to the Roman law, the enormous mass of the material and the convenience of dividing the labour of codification caused him to prefer the retention of the two elements of the ius scriptum in separation. He also hesitated whether to retain them in their existing shape, subject of course to such alterations as were called for by the necessity of harmonising them inter se, and with the law as at present administered, or, while preserving their tenor and substance, to completely alter their literary form; he tells us that a regard for the past, and admiration for the services which the jurists and his imperial predecessors had rendered to jurisprudence, had decided him in favour of the former alternative.

The codification of the imperial legislation, as having been in part already executed, presented the least difficulty; its claim was also the more pressing, because all imperial officers were required by law to possess copies of the existing codices. This task was accordingly first taken in hand. In A. D. 528 Justinian appointed a commission for the purpose of ten persons, among them being Tribonian, who played so important a part in the legislative work of the next few years, and who not improbably suggested to his master his whole scheme of legal reform. The work with which they were entrusted was to form a single code out of the codices Gregorianus, Hermogenianus, and Theodosianus, and the constitutions issued since A.D. 439; omitting all that was superfluous, reconciling such enactments as were inconsistent with one another, and, where convenience required, combining several into one ('colligentes vero in unam sanctionem, quae in variis constitutionibus dispersa sunt, et sensum earum clariorem efficientes'); finally, they were authorized to make any alterations in individual constitutions which they should deem necessary (' adiicientes quidem et detrahentes, immo et mutantes verba earum, ubi hoc rei

commoditas exigebat '). The separate laws were to be arranged in chronological order under generic titles, and each, so far as was pos sible, identified by date and the name of the prince to whom it owed its introduction. The work was completed in April A.D. 529, and was published under the name codex Iustinianeus with force of law from the 16th of that month. The older codices and constitutions were at the same time deprived of all validity, and it was even forbidden to appeal to any leges cited in the juristic writings, if they had been incorporated, even in a modified form, in the new code.

The task of dealing in a similar manner with the writings of the jurists was not commenced till the end of the year A.D. 530, but the intervening months had been employed in a preparatory labour which could not be dispensed with, and the purpose of which was a rough settlement of the points in controversy between the prudentes. This had been done by a series of fifty constitutions, known as the quinquaginta decisiones, which were regarded as a separate compilation: 'Postea vero, quum vetus ius considerandum recepimus, tam quinquaginta decisiones fecimus, quam alias ad commodum propositi operis pertinentes plurimas constitutiones promulgavimus, quibus maximus antiquarum rerum articulus emendatus et coartatus est.' Subject to these, the commission appointed to execute the work, which consisted (besides Tribonian, who superintended it throughout) of sixteen persons, possessed the same powers of omission, alteration, and modification as had been exercised by the compilers of the Code. They were instructed not to limit themselves to the five leading jurists who occupy so prominent a position in the law of Citations,' but to select whatever was valuable in the works of all the 'iuris auctores.' The only exception to this was their admission of Arcadius Charisius and Hermogenian, both of whom lived after Modestinus, and accordingly had not possessed the ius respondendi. The total number of jurists upon whom they drew for their materials was thirty-nine. Justinian had directed that the commission should arrange the result of their labours in fifty books, which were divided into seven parts in an order based partly on that of the code, partly on the system of the edictal commentaries. The first part, called πрŵra, comprised the first four books; the second (de iudiciis) the next seven; the third (de rebus sc. creditis) books twelve to nineteen; the fourth (umbilicus) books twenty to twenty-seven; the fifth (de testamentis) books twenty-eight to thirty-six; the sixth and seventh, the contents of which were very miscellaneous, contained respectively books thirty-seven to forty-four, and forty-five to fifty. Each book again was divided into Titles, headed

F

by a brief indication of their respective subject-matter, and the excerpts from the writings of the jurists, of which the Titles consisted, were distinguished by the name of the jurist and of the specific work from which they were taken. Not unfrequently a single sentence was made up out of several extracts, consisting each of a very few words which depend for their meaning on a context supplied from one or more other jurists'. The further division of longer excerpts into a principium and numbered paragraphs, which is found in modern. editions of the Corpus iuris, is of far later origin.

The whole work was called Pandectae or Digesta, the latter name being derived perhaps from Justinian's expression in the ordinance appointing the commission ('codex in quinquaginta libros digestus'), or more probably from a work of Salvius Julianus which bore the same title. It was published on Dec. 16th, 533, with statutory force from the 30th of the same month, and the use of the juristic writings from which it was compiled was for the future interdicted; along with the Code and the Institutes, it was intended to form the exclusive authority for the earlier law. Though the names of their authors had been prefixed to the individual excerpts, Justinian ordained that they should be taken to be immediately enacted by himself, and to derive their force from him, not from the reputation of the jurist or from the emperor who had conferred on him the ius respondendi; finally, in order to prevent all controversies in the future, he forbade all commentaries on the Digest, allowing only Greek paraphrases and summaries of the contents: Omnibus similiter interdicimus, ne quis audeat hominum, qui sunt nunc, aut in posterum erunt, commentarios scribere harum legum, praeterquam si velit quis in Graecam linguam haec transferre, quem etiam volumus sola secundum pedem seu karà móda nuncupata uti legum interpretatione, et si quid secundum nominatorum paratitlorum, ut conveniens est, adscribere voluerit usum. Aliud autem nihil omnino ne tantillum quidem circa ea facere, nec rursum dare seditionis et dubitationis, aut infinitae multitudinis legibus occasionem' (Justinian in Const. ' dedit nobis,' 21).

With the completion of the Code and the Digest, which between them exhausted all the sources of Roman law, Justinian's plan was

1

1 E. g. Dig. 6. 2. 3–7 (Ulp. lib. 16 ad edict.) item si res ex causa iudicati sit tradita; (Paul. lib. 19 ad edict.) vel solvendi causa; (Ulp. loc. cit.) vel ex causa noxae deditionis, sive vera causa sit sive falsa; (Paul. loc. cit.) item si servum ex causa noxali quia non defendebatur, iussu praetoris duxero, et amisero possessionem, competit mihi Publiciana; (Ulp. loc. cit.) sed et si res iudicata sit, Publiciana actio competit.

fully executed. These bulky works, however (as Justinian himself observes in Inst. Prooem. 3), were ill-suited for the elementary instruction of students. Accordingly, as the commentaries of Gaius and the other books which had long formed the curriculum of the schools had been deprived of all force, and their very study forbidden, or at least discouraged, it was necessary to bring out a new work in lieu of them. Upon this there had been engaged, even during the composition of the Digest, a small committee consisting of Tribonian, Theophilus, and Dorotheus, the two latter being professors of law at Constantinople and Berytus respectively, and already members of the Digest commission. The book which they produced was called Institutions of Justinian,' though in England it is better known as 'the Institutes;' in form, and to a great extent also in substance, it was founded on the commentaries of Gaius, but also contained large extracts from the 'res quotidianae' of the same writer, as well as from the Institutiones' of other jurists (e.g. Ulpian, Marcian, and Florentinus); finally, by apt references to the Code, it was so 'brought up' to the present date as to give the student a general conspectus of the rules of private law then binding.

It will here perhaps not be unprofitable to inquire briefly, from the point of view of general jurisprudence, what is the field and what the subject-matter of private as distinguished from public law; and in pursuing this inquiry the method and terminology of Savigny seem preferable to those of the English analytical school of jurists, not only because the student, if not already familiar with the latter, can easily become so by reference to standard works1, but also because a consideration of the German arrangement will enable him to understand more fully the logical completeness and the interconnection of the parts of the Roman system. Savigny represents jurisprudence as the science of legal relations, and a legal relation is a relation between person and person defined and determined by a rule of law: this determination by a rule of law consisting in the assignment of a sphere or province to the individual will, in which it is supreme and independent of every other will. Private law then will be the aggregate of those positive rules which define and determine the relations between men in their private capacity, and its subject-matter will be fully discovered by ascertaining the possible kinds of legal relations. This is done by reverting to the effect of a rule of law on the relation between man and man; that is to say, by considering the objects on

1 Especially Austin's Lectures, and Holland's Jurisprudence.