§ 17. de vet. jure enucl. 1, 17) of Dec. 15, 530 A.D., instructing Tribonian to undertake the composition of the Digest. Const. TANTA = const. Aédwкev (at the head of the Corpus juris and in l. 2 C. eod.) of Dec. 16, 533 A.D., publication of the Digest with statutory force from Dec. 30 of the same year. 3. The Code. The Code (in twelve books) is a collection of imperial constitutions, including both the separate decisions of the old type since Hadrian, and the general ordinances of the new type; in other words, a codification of imperial law (leges). As early as 528 A.D., Justinian had ordered a new code to be compiled on the basis of the Codex Gregorianus and Hermogenianus (which in this instance, then, were counted among the 'leges '), the Codex Theodosianus and the later ordinances. This Code was finished and published in 529 A.D. The subsequent composition of the Digest and Institutes, however, which involved a number of material changes in the law, necessitated a remodelling of the Code. The Code of 529 was repealed and a new Code published in 534. The Code in this its second edition (repetitae praelectionis) is the Code of our Corpus juris. The imperial constitutions which have been admitted are arranged in chronological order under their several titles. Here again, interpolations were, when necessary, resorted to with a view to bringing the contents of the earlier imperial ordinances into accordance with the law prevailing at the time. All earlier constitutions were deprived of validity. Just as the 'jus' had no validity except in the form of the Digest, so the 'leges' possessed no validity except in the form of the new Code of Justinian. Const. HAEC QUAE NECESSARIO (prefixed to the Code) of Feb. 13, Const. SUMMA REIPUBLICAE (prefixed to the Code) of April 7, The Corpus juris of Justinian was thus finished. The entire § 17. positive law had been cast into a final shape. All three parts, Institutes, Digest and Code, though published at different dates, were to have equal validity as parts of one and the same code of law. With a view to preventing new controversies, the writing of commentaries was forbidden. All doubtful points were to be referred to the emperor himself for decision. This explains the necessity for new constitutions (novellae constitutiones) which were already issued, in fairly large numbers, by Justinian himself (535–565). The 'novels' were afterwards collected (sup. pp. 13, 14). The collection of novels which was used by the glossators at Bologna (the Authenticum) was 'received' in Germany in the sixteenth century as the fourth part of the Corpus juris. § 18. The Result. When Justinian composed his Corpus juris, Western Europe was § 18. in the hands of the German tribes who had founded their kingdoms on the ruins of the Western Empire. In these kingdoms, however, German law only applied to the conquering Germans, and not to the subject Romans, except so far as the constitution of the State came into question. Thus, in the German kingdoms of the Goths, Burgundians, Franks, &c., as far as the Roman-born section of the population was concerned, Roman private law, criminal law and law of procedure remained, on principle, in force in just the same manner as it had done before. The German kings therefore had some motive for protecting Roman law, and thus it came to pass that, even prior to Justinian, precisely the same thing was effected for the German kingdoms as Justinian accomplished for the EastRoman Empire, viz. a codification of Roman law. It is noticeable, how the tendency of Roman law, ever since the fifth century, was pointing more and more markedly in the direction of codification, i. e. of a comprehensive book of law which should facilitate the administration of justice. No sooner had a strong and efficient government sprung into being, whether in the East or the Westand as regards the West, the establishment of the German kingdoms was equivalent to a political regeneration-than the codification of 18. Roman law forced itself upon it as something necessitated, as it were, by the very nature of the circumstances. It was thus that about the year 500 A.D. (i. e. about thirty years prior to the Corpus juris of Justinian) the so-called 'Leges Romanae,' comprehensive records of Roman law, came into existence in the German kingdoms. Opposed to the 'Leges Romanae' were what we call now-a-days, the 'Leges Barbarorum,' i.e. the records of German tribe-law. The Lex Romana applied to the Roman, the record of German law (the Lex Burgundionum, Visigothorum, &c.) to the German members of the kingdom. Leges Romanae of this kind were compiled in three German kingdoms, viz. those of the Ostrogoths, Burgundians and Visigoths. The Edictum Theodorici by Theodoric the Great, which probably dates from the years 511-515 A.D., is the Lex Romana of the Ostrogoths, the Lex Romana Burgundionum (also called 'Papian '), issued by King Gundobad about 500 A.D., is the Lex Romana of the Burgundians, and the Lex Romana Visigothorum (also called 'Breviarium Alarici '), issued by King Alaric II in 506 A.D., is the Lex Romana of the Visigoths 3. The task which these German kings had set themselves to perform was the same as that undertaken by Justinian. But the difference in the results they respectively achieved was immense. The Leges Romanae of the Ostrogoths and the Burgundians are nothing more than a lame attempt to set out in a brief form the principal provisions of Roman law so far as they appeared to be of practical importance. The Edict of Theodoric attempts to formulate matters in its own way, so that, in this respect, the Lex Romana Burgundionum has a certain superiority over it, in that it adheres more closely to the Roman originals. It is possible that, in both 1 The Edictum Theodorici has this peculiarity that it was intended to apply not only to the Roman, but also to the Gothic subjects of the kingdom. The notion still prevailed here that the kingdom of the Ostrogoths formed a portion of the Roman Empire and that the Goths, being Roman soldiers, were, in their dealings with Romans, governed by Roman law as the existing law of the land. See, on this Edict, Brunner, Deutsche Rechtsgeschichte, vol. i. (1887), P. 365 ff. 2 Cp. Brunner, loc. cit. p. 354 ff. On the name 'Papian' (a mutilation of Papinian), cp. infra, n. 5. 3 Cp. Karlowa, Röm. RG., vol. i. p. 976 ff; Brunner, loc. cit. p. 358 ff; Krüger, G. d. Quellen, p. 309 ff. cases, the compilers availed themselves of so-called 'summaries,' i. e. § 18. brief résumés, with explanations of the sources of law, such as had sprung up in the literature of the fifth century in connection with the teaching of law. But the spirit of Roman law has completely vanished from both these codes. What is here presented to us is a mere wreck. In the great invasion of the barbarians, which swept like a hurricane over the West, only the coarsest part of the materials has been rescued; all that is implied in artistic treatment, beauty of form and wealth of ideas has perished. What remains is but a tarnished torso, mutilated and insignificant. Not a trace of the grandeur and splendour of bygone times. In fact the self-consciousness of Roman law itself has perished. In both Leges we observe a strong tendency to absorb ideas of German law. German law already constitutes the stronger portion of the codes; its victorious career is about to commence. Nor had it any cause to dread the rivalry of such Roman law as was embodied in these two Leges Romanae. Roman law of that kind would never have subdued the world. From the Lex Romana Visigothorum, however (the so-called 'Breviarium Alarici '), we carry away a somewhat different impression. Thanks to its geographical position Spain had enjoyed a greater immunity from the ravages of the Germanic invasion than any other portion of Western Europe. It was in Spain, then, together with that part of Gaul which lay south of the Loire, and which belonged to the Visigoths till 506 A. D., that the genuine spirit of Rome maintained its last energies. King Alaric, in composing his Corpus juris Romani, had very different intellectual powers at his disposal from Theodoric, though the kingdom of the latter included Rome itself. Hence the wide difference between the Hispano-Gallic Corpus juris and that of the Ostrogoths. The system upon which the Lex Romana Visigothorum was composed was similar to that subsequently observed by Justinian. Without attempting to expound Roman law in a form of their own, the compilers preferred to collect excerpts from the traditional sources of Roman law which were well We still possess 'summaries' of the Codex Theodosianus of this kind. Cp. Karlowa, Röm. RG., vol. i. p. 963. § 18. fitted to preserve not only the substance of Roman law, but also its classic form. The greater part of the Lex Romana Visigothorum consists of the Codex Theodosianus together with the post-Theodosian novels in an abbreviated form, a number of constitutions being omitted. The Codex Theodosianus (which represents the 'leges') is followed by portions of the 'jus,' viz. the Institutes of Gajus in an abridged form, compressed into two books (the socalled 'Gothic Epitome of Gajus'), the 'Sententiae' of Paulus, portions of the Codex Gregorianus and Hermogenianus and-for courtesy's sake-a passage from Papinian by way of conclusion 3. The rule followed was to leave the selected passages unaltered, but to accompany them with an 'interpretatio,' which regulates in a sensible manner the application of Roman law in the kingdom of the Visigoths (a kind of Gothic Usus modernus Pandectarum), the compilers perhaps availing themselves-in parts, at least-of summaries such as were to be found in juristic literature. The 'liber Gaji' alone has no interpretatio, because the form in which the commission had found and adopted it was already an abbreviated one, an epitome, namely, of Gajus which had been prepared for purposes of contemporary legal instruction. It was therefore thought that, taken in this form, no further explanations' were required to adapt it to the existing state of the law, and the general understanding of the people. We see, then, that the sources of law which were here drawn upon and reproduced, were very different from those used in the Leges Romanae of the Ostrogoths and Burgundians. The best portions, at any rate, of the imperial law were saved, and an attempt, at least, was made to preserve some parts of classical Roman jurisprudence for the legal system. The consequence was that, with the destruction of the kingdoms of the Ostrogoths and Burgundians, their codes ceased to have any further practical importance, whereas, In the MS. in which it was first discovered, the Lex Romana Burgundionum was joined on immediately and without any break to the Lex Romana Visigothorum, so that the heading of the last section of the Lex Visigothorum (Papinian. lib. i. responsorum) was taken to refer also to the Lex Romana Burgundionum. This is why it is some. times called Papian,' i. e. Papinian. Cp. Brunner, loc. cit. pp. 356, 357. 6 Cp. Fitting, ZS. für RG., vol. ii. (1873), p. 222 ff. |