assigned the group of works dealing with the praetorian edict, the § 21. so-called 'Edict-group.' To the third section was assigned the group of works dealing with separate legal questions and cases, the 'Papinianian group,' so called, because in this branch the writings of Papinian and his commentators transcended all others in importance. Each section extracted the works allotted to it so far as they bore on the several legal subjects. Thereupon the whole was consolidated into one work, the excerpts of the three groups being pieced together under each rubric, while some further excerpts from writings which had, in the first instance, been overlooked or rejected were subsequently inserted (the so-called 'Appendix-group'). Inasmuch as the object of the whole undertaking was not to promote historical research, but to produce a practical code of law, the commission was empowered to make alterations in the excerpts they adopted. This is the explanation of the so-called 'interpolations' ('emblemata Triboniani') by means of which the selections from the classical jurists were brought into harmony with the law of Justinian's time. The controversies among the juristic writers were set aside, one view only being accepted -such at least was the intention-in the Digest. All individual features were swept away in favour of a uniform, self-consistent whole. It was but reasonable that Justinian and his advisers should look with pride on their achievement. Their work was, in the main, a success. The results of the development of Roman law extending over more than a thousand years had been summed up. Bluhme, ZS. für geschichtliche RW., vol. iv. (1820) p. 257 ff.-All those jurists were drawn upon to whose writings Valentinian's Law of Citations had given the force of law, i. e. the writings of the five great jurists and the writings of the authorities whom they cite. Paulus' and Ulpian's notes on Papinian (supra, note 2) were restored to validity. The Digest commission was expressly exempted from the operation of the rules of the Law of Citations which declared that, where the jurists differed, a majority of voices should decide, c. 1 § 4. 6 C. de veteri jure enucl. (1, 17). The writings of Paulus and more especially of Ulpian constituted the main body of the Digest (supra, p. 104).—As to Lenel's attempt to reconstruct the juristic writ- Cp. Eisele, Zur Diagnostik der In- By means of fifty imperial ordinances, the so-called 'quinquaginta decisiones,' the commission was supplied with the groundwork for settling the controversies in the writings of the jurists. § 21. Instead of a wilderness of juristic writings there was a uniform work, easy of survey and methodical in execution. It was forbidden to make any further use of the writings of the jurists in their original form, and the imperial selection-an epitome and, at the same time, a revival of Roman jurisprudence-was published with statutory force. Never had a code been prepared from nobler materials '. Const. DEO AUCTORE (at the head of the Corpus juris and in l. 1 C. de vet. jure enucl. 1, 17) of Dec. 15, 530 A.D., instructing Tribonian to undertake the composition of the Digest. Const. TANTA=const. Aédwkev (at the head of the Corpus juris and in l. 2 C. eod.) of Dec. 16, 533 A. D., the document promulgating the Digest with statutory force from Dec. 30 of the same year. 3. The Code (Codex). 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 Gregorian and Hermogenian codes (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. subsequent composition of the Digest and Institutes, however, which involved a number of material changes in the law 10, 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 had been admitted were arranged in chronological order under their several titles. Here again, interpolations were, when necessary, resorted to with a view to bringing • The division of the Digest into seven parts had no significance except in regard to the then system of instruction. Pars prima (para) comprises books I to 4 (general doctrines); pars secunda (de judiciis) books 5 to 11 (real actions); pars tertia (de rebus scil. creditis) books 12 to 19 (personal actions); pars quarta (umbilicus Pandectarum) books 20 to 27 (pledges, interest, evi dence, marriage, guardianship); pars quinta books 28 to 36 (wills, legacies); pars sexta books 37 to 44 (bonorum possessio, intestate succession, &c.); pars septima books 45 to 50 (miscellaneous topics, including the libri terribiles,' books 47 and 48 on criminal law). Especially through the 50 decisiones (supra, note 8). the contents of the earlier imperial ordinances into accordance with § 21. 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' had no validity except in the form of the new Code of Justinian. Const. HAEC QUAE NECESSARIO (prefixed to the Code) of Feb. 13, 528 A.D., containing orders for the composition of a new Code Const. SUMMA REIPUBLICAE (prefixed to the Code) of April 7, Const. CORDI NOBIS (prefixed to the Code) of Nov. 16, 534 a. D., the document promulgating the second edition of the Code with statutory force from Dec. 29 of the same year. The Corpus juris of Justinian was thus finished. The entire 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 A. D.). These 'Novels' were afterwards collected (supra, p. 22). 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. 822. The Result. When Justinian composed his Corpus juris, Western Europe was § 22. 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., the force of Roman private law, criminal § 22. law and law of procedure remained, on principle, unimpaired, as far as the Roman-born section of the population was concerned. 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 East-Roman Empire, viz. a codification of Roman law. It is noticeable how the tendency of Roman law, ever since the fifth century, pointed more and more markedly in the direction of codification, i. e. of a comprehensive summing up of the law in a single book which should facilitate the administration of justice. No sooner had a strong and efficient government sprung into being, whether in the East or the West-and as regards the West, the establishment of the German kingdoms was equivalent to a political regeneration-than the codification of 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 nowadays 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 respective kingdoms. 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 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. Cp. Brunner, loc. cit. p. 354 ff. On 'Breviarium Alarici'), issued by King Alaric II in 506 A.D., is the § 22. Lex Romana of the Visigoths. 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 lame attempts 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 cases, the compilers availed themselves of so-called 'summaries,' i. e. brief résumés of the authorities accompanied by explanatory notes, such as had sprung up in the literature of the fifth century in connexion 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 is left 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 |