§ 22. 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 adopted 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 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 Gregorian and Hermogenian codes and-for courtesy's sake-a passage from Papinian by way of conclusion". The rule followed was to leave the selected passages unaltered, but to accompany them with an 'interpretatio,' which regulated 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

In the MSS. the Lex Romana Burgundionum was frequently joined on immediately 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 Bur

gundionum. Hence its name 'Papian' (i. e. Papinian), which occurs as early as the ninth century. Cp. Brunner, loc. cit. pp. 356, 357.

Cp. Fitting, ZS. für RG., vol. ii. (1873) p. 222 й.

one, an epitome, namely, of Gajus which had been prepared for § 22. 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 existing law. 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, on the other hand, the Breviarium Alarici maintained its vitality in Western Europe, in spite of the fact that, as regards Spain itself, it was set aside in the seventh century by the union of Romans and Goths under a single code, viz. the remodelled Lex Visigothorum. The Roman Breviarium Alarici became the Lex Romana of Western Europe, and, down to the eleventh century, it exercised in this capacity (though frequently only through the medium of inferior abstracts) a dominant influence upon Romance law in Southern France and some parts of South Germany (viz. Upper Rhaetia). Even in the German convent-schools (e. g. St. Gall, Reichenau) the Breviarium was used in the early Middle Ages (10th and 11th centuries), in addition to the records of German law, as the foundation of the teaching of Latin, and, at the same time, of the teaching of law. With regard to Italy, however, the conquest of that country by Justinian, though only temporary, had nevertheless resulted in its adopting the Corpus juris of the Eastern Empire. Thus, from the sixth century onwards, the Corpus juris of Alaric, king of the Visigoths, and the Corpus juris of Justinian confronted each other as rivals, the former predominating in the West, the latter in the East. Which was to be the Corpus juris civilis of the future? The question was decided in favour of Justinian's code. The

'Fitting, Z.S. d. Sav. St., vol. vii. pp. 86-90; Fitting, Die Anfänge der Rechtsschule zu Bologna (1888), p. 31.

§ 22. school of Glossators who revived the study of Roman law in Italy in the twelfth century took Justinian's Corpus juris (which was in force in Italy) as their starting-point, and with the triumphant spread of Italian jurisprudence the East-Roman Corpus juris found its way to the West. The Corpus juris of the German king was destroyed by the Corpus juris of the emperor of Byzantium.

It would, however, be erroneous to suppose that the decision in favour of Justinian's Corpus juris was due to a mere accident of history. It was rather the intrinsic value of what Justinian had achieved that found outward expression in the success which attended his work. And the intrinsic value of Justinian's compilation consisted in this that it had succeeded in mastering the juristic literature, and in grasping, and handing down, to future ages, through the excerpts embodied in the Digest, the true spirit of Roman jurisprudence. Important as the practical influence of imperial legislation had been in moulding the law, nevertheless it is not there we must look for the seat of that strength which guaranteed Roman law its indestructibility. What was so entirely unique in the achievements of Roman law was, simply and solely, its masterly treatment of the casuistry of private law, a treatment which, in tracing the laws of a particular case, exhibited, at the same time, both the elements of the case, and the principles inherent in these elements which govern all private transactions in general, and more particularly such as result in an obligation—a treatment which had solved the great problem how to reconcile a free, equitable discretion with fixed rules, a vindication of the concrete individual intention with the necessary subjection to its immutable, innate laws. It was in the writings of the Roman jurists alone that this masterpiece of Roman law had been accomplished. Whoever, therefore, had mastered the Roman jurists had mastered what was true, genuine, and imperishable in Roman law. But it was not everybody that could master and understand the jurists, as we see most conspicuously in comparing Justinian's code with the others. Even the compilers of King Alaric's code had found the great works of Papinian, Ulpian, Paulus, &c. difficult and unintelligible. They were content with the light fare with which the short 'maxims'

(sententiae) of Paulus and the Institutes of Gajus, in their abridged § 22. form, supplied them. They had thus renounced what constituted the real strength of Roman jurisprudence. In the main, therefore, the Lex Romana Visigothorum is nothing more than a collection of ukases, of imperial constitutions. Roman law, in this shape, was as unfit to be 'received' in Germany as it was in the shape of the other Leges Romanae. But it was different with the advisers and professors of Justinian; they were still qualified to read and extract the great jurists with intelligent appreciation. It was in their Corpus juris alone that Roman law stood forth in all its splendour and world-subduing power. The Corpus juris of Justinian, and it alone, has preserved, and rescued for all future ages, the great masterpiece of Roman jurisprudence. In this form, and in no other, could Roman law be received in Germany. And so it actually happened. Thus we are still living in this as in other respects on what the intellectual forces of Byzantium accomplished for us by preserving and transmitting the treasures of antiquity.

This, then, was the great feat which Justinian had achieved by his Corpus juris. Roman law, as a work of art, had been definitely finished, and had, at the same time, been cast into comprehensive form which saved it from destruction. No matter now whether the Roman state perished or not, Roman law was strong enough to survive the Roman empire.

$ 23.

CHAPTER III.

THE SUBSEQUENT FATE OF ROMAN LAW.

§ 23. Byzantium.

.

WITH the completion of the Corpus juris the energies of the East-Roman Empire were exhausted as far as the scientific treatment of law and the power to produce new law were concerned. The literature of the period was confined, for the most part, to Greek translations of single parts of the Corpus juris or to attempts (of a very superficial kind) to reproduce the contents of these parts either (abridged) in the shape of abstracts or else in the shape of explanatory 'paraphrases '.' In a few exceptional cases monographs were written dealing with particular legal topics. This tendency to prune away and dilute Justinian's mighty compilation is reflected in the legislation of the period. It supplies, indeed, the explanation of the Basilica (rà Bariká) which were composed towards the close of the ninth century. The Basilica were commenced by the Emperor Basilius Macedo (867-886 A. D.) and were carried to completion by his son, Leo Philosophus (886-911 A. D.). They consist of a reproduction, in an abridged form, of the contents of the Corpus juris in sixty books and are based on the translations and abstracts of the sixth century. Following the example of the Institutes, the Emperor Basilius prefixed an introductory part called the Пpóxeрor, which was afterwards revised and republished by Leo under the name of Ἐπαγωγὴ τοῦ νόμου. The Basilica retained

For example, Theophilus (as to whom see supra, p. 126) wrote a paraphrase of the Institutes, and Stephanus, another contemporary of Justinian, a paraphrase of the Digest.

• They have been edited by E. Heim

bach, Basilicorum libri LX, 7 voll, Lipsiae, 1833-1897. Volume ii contains a Supplementum, ed. C. E. Zachariae a Lingenthal (1846); volume vii a Supplementum alterum, ed. E. C. Ferrini, J. Mercati (1897).