'both in prose and verse on a strange diversity of curious and abstruse 'subjects: a double panegyric of Justinian and the life of the 'philosopher Theodotus; the nature of happiness and the duties of 'government; Homer's catalogue and the four and twenty sorts of 'metre; the astronomical canon of Ptolemy; the changes of the 'months; the homes of the planets and the harmonic system of the 'world. From the bar of the praetorian prefects he raised himself to the honours of quaestor, of consul, and of master of the offices'. His gentleness and affability were admitted, but he was charged with impiety and avarice. In the sedition of 532 he was removed from office, but was speedily restored, and continued to enjoy the confidence of the emperor till his death in 546'.

CHAPTER II.

JUSTINIAN'S LEGISLATION.

OUR knowledge respecting the method adopted by Justinian in his rearrangement and codification of the law is derived from the decrees which were issued by him for the direction of the work, and which are prefixed to the several parts of it.

The first step was to compose one Code which should contain the imperial constitutions which were comprised in the Codes of Gregorian, Hermogenian and Theodosian, and those subsequently issued. But collection was not the whole task: the laws were to be edited as well. 1. Superfluous matter, not touching the real purport of the constitution, but inserted merely as preface, was to be omitted. 2. The constitutions were to be compared, and repetitions and contradictions to be removed, excepting so far as the division of the law into different parts required their preservation (praeterquam si juris aliqua divisione adiuuentur. Cf. Const. Summa). 3. What was obsolete was to be removed. 4. Additions, omissions and changes were to be made in the constitutions themselves, where convenience required it. 5. The constitutions were to be classified according to their subject matter into different titles. 6. They were

1 Condensed from Gibbon, chapp. xliii. xliv. The description of Tribonian does not rest on sure evidence.

to be arranged in each title in chronological order, with their dates appended, the absence of a date not however to detract from the authority of the constitution. 7. Rescripts addressed to individuals and pragmatic sanctions (i. e. charters addressed to communities. Cf. Cod. 1. 23. 17), if included in the Code, were to have the force of general law. This Code was to be compiled by a commission of ten persons, of whom Johannes was named first and Tribonian sixth. Seven were high officials, a professor of law at Constantinople, Theophilus, was the eighth; and two practising lawyers made up the number. The Constitution was dated 13 Febr. 528 A.D. (Const. Haec quae necessario.)

In little over a year the task was completed. On the 7th April, A.D. 529, Justinian issued a constitution announcing the completion of the Codex Justinianus, and directing it to have exclusive validity from the 16th of that month. No constitutions were to be cited in the courts, except such as were contained in the Code; and whatever alterations had been made were not to be impugned. Cases in the courts were to be decided on the basis of the old legal commentators and this Code. No constitutions not contained therein were to be valid, except such 'pragmatic sanctions' as only granted special privileges to communities or corporations, and such as dealt only with special points (pro certis capitulis factae), and were consistent with the code. (Const. Summa.)

The next step was a more difficult one. Justinian determined to do, what as he says no one had attempted before, to collect, amend and digest the authorized Roman law from the writings of the old lawyers (see below, ch. vI.). Having found Tribonian, from his labours on the Code, to be well qualified for the task, he entrusted it to him and to such colleagues, both professors and practising lawyers, as he should select. The writings of those lawyers only who had received official recognition were to be taken; all selected passages were to have the force of law equally; neither the number of authorities nor the importance of some (e. g. Papinian) were to affect the question. Contradictions and repetitions were to be cut out; even what was already to be found in the Code was not to be repeated in the Digest, except so far as circumstances might require or justify some repetitions; and such additions and corrections were to be made both in the writings of the lawyers and in any constitutions quoted in those writings, as might be necessary for the perfection of the Digest. Any obsolete laws were to be omitted, the test

being the practice of the courts and the custom of Rome, both old and new (i. e. Constantinople). No commentaries were to be written in future on the Digest, and no contractions or abbreviations to be used in writing it out, even the numbers of the books to be written in full. The matter was to be arranged in fifty books and subordinate titles, in accordance with the Code already published and the perpetual edict of Julian. This constitution is addressed to Tribonian and dated 15 Dec. 530 A.D. (Const. Deo auctore.)

In the performance of this task it was found necessary to settle a number of much disputed points, and to abolish some distinctions and obsolete practices. For this purpose Justinian issued a series of fifty decisions on disputed points, and many other constitutions for the amendment of the law (Const. Cordi § 1; Inst. 1. 5. § 3). The ground being thus cleared, Tribonian and his assistants completed the Digest. In two constitutions, one in Latin (commencing Tanta), one in Greek (commencing Aédwкev), issued for its confirmation on the 16th Dec. 533 A.D., Justinian gives an account of the work. The two constitutions are very similar, but are both originals, and sometimes one is fuller and clearer than the other. Tribonian chose for his assistants one high official, Constantinus, two professors of law at Constantinople, Theophilus and Cratinus, two professors of Berytus, Dorotheus and Anatolius, and eleven lawyers practising at Constantinople, Stephanus, Menas, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Constantinus and Johannes (§ 9). A large number of books were collected, principally from Tribonian's own library, some of the books being rare and even their titles unknown to most of the lawyers of high repute (§ 17). Some were found to contain nothing worth extracting. Those which furnished materials for the Digest are stated to be named in a list prefixed to the Digest (§ 20). This list (or at least a list of this kind) is preserved in the Florentine Ms., and contains the names of 38 authors, 207 treatises, and a total of 1544 books', i. e. volumes or rolls; many of the treatises being very voluminous. The list, however, is not quite accurate, some treatises not having supplied extracts, and some treatises which have supplied extracts not being named, but the discrepancies are not important. Tribonian had suggested to Jus

1 One book of Paul's is named twice over.

2 These discrepancies are noted in the list drawn up by Krüger and appended to Mommsen's larger edition, vol. 11. p. 59*. It appears that one author, Aelius Gallus (from whom a single extract is taken) is omitted, as well as 26 treatises, apparently small, and usually supplying only one extract each. Of these 11 are

tinian that there were almost 2000 books containing 3,000,000 lines which ought to be examined. Instead of these three million lines Justinian's Digest contains as he states about 150,000', the matter being arranged in seven parts and fifty books (§ 1). The full powers of correction, omission and addition granted by the constitution Deo auctore were exercised, but the name of the author from whose writings the extract was taken, was invariably prefixed (§ 10). Matters dealt with by imperial constitutions were as a rule omitted from the Digest (§ 14). Any apparent contradiction would be found on attentive examination to disappear, owing to some delicate point of difference (§ 15). The Digest (with the other imperial law books) was made the exclusive legal authority, no one being allowed to compare its provisions with the writings from which it was taken, or to cite them in court or in any legal proceeding (§ 19). No abbreviations in writing the Digest and no commentary were to be allowed. No one was to cite from a copy containing abbreviations in court, and the copyist was to forfeit twice the value to the owner of the book and to incur the penalty of forgery (falsi, § 22). Under the same penalty it was forbidden to make any commentary on the Digest; only literal (karà πóda) translation into Greek, and πapáτırλa

by Paulus, 5 by Gaius, 4 by Ulpian. Alfeni Digesta is mentioned, the Epitome by Paulus is not; Labeo's Posteriores are mentioned, Javolenus ex posterioribus Lab. is not; others appear to be wrongly described. Again, one author, Sabinus, and 15 treatises are named in the Index, but no extract from them is found in the Digest. These are chiefly single-book treatises of Paulus.

1 The Florentine мs. (according to Mommsen vol. 1. p. xi.) contains, besides index and prefatory constitutions and title, 887 leaves, of 4 pages each, each page having 44 or 45 lines, i.e. in all between 156,000 and 160,000 lines.

Some estimate of the work of Justinian may be made in this way. As a basis for comparison I take Mommsen's Digest (stereotype edit.) which has 873 pages of (say) 5900 letters of text; each page averaging 2 cols × 72 lines × 41 letters). The Digest itself, apart from prefaces, &c. contains about one-third more matter than Kerr's Blackstone (1st edit.), if Kerr's appendices be disregarded and the space occupied by the notes be estimated as if filled with text. Then if the Digest is equal to 5 vols. of the average size of Kerr's Blackstone, and the ratio of the Digest to the treatises from which it was compiled was, as Justinian says, 1 to 20, we get the result that Justinian compressed a law library of 106 vols. into one of 5 vols. If there were contractions in the old books as in the мs. of Gaius, and these were compared by Justinian to his uncontracted Digest, we should have to increase the quantity in old books by an addition of one-fourth (25 per cent.)

If there were 2000 books, the average size of each book would be about 8 pages of Mommsen (=30 pages of Kerr); if there were only 1600 (see p. xxiv and note) each book would average nearly 11 pages of Mommsen. An average book of Gaius' Institutes is equal to 11 pages Mommsen; of Justinian's Institutes 13 pages; of Quintilian's Institutes 14 pages. A book of the Digest itself averages 17 pages. Hence we may guess at the length of Ulpian's Commentary on the Edict (83 books × 14 pages Mommsen =71⁄2 Kerr's vols.?)

were to be allowed (§ 21). What were παρáriτλa, Zachariae a Lingenthal has shewn by examples actually found in some Byzantine compilations. They were short summaries added to each title, giving references to other parts of the law books where the same matter was treated, and a brief account of such passages (Heimbach Proleg. ad Basil. vol. vi. p. 4). The Digest was to have the force of law from 30 Dec. 533.

To complete the reformation of the law Justinian provided for the education in the schools a new book of elements and a new course of study. In the instructions for preparing the Digest he had already hinted at the possibility of a new book of Institutes (Const. Deo auctore § 11). Accordingly he directed Tribonian, with the assistance of Theophilus and Dorotheus, to examine the institutional treatises then used, and compile, with due corrections and notices of the amending constitutions, new Institutes in four books (Const. Tanta § 11). In the preface to the Institutes Justinian says they were compiled from all the Institutes of the old writers, but especially from the Institutiones and Res cottidianae of Gaius. The constitution approving of them was dated on the 21 Nov. 533, but was to take effect from the same day as the Digest, viz. 30 Dec. 533.

Directions for a new course of study were issued on the 16 Dec. 533, in a Constitution addressed to Theophilus, Dorotheus, Theodorus, Isodorus, Anatolius, Thalelaeus, Cratinus and Salaminius, all described as professors (antecessores). Justinian describes the course of study then in use as spread over five years but badly arranged, the order of the edict being disregarded, and an injudicious selection being made out of a number of books, with useful and useless mixed together. The first year's instruction was from six books, viz. two books of Gaius' institutes (perhaps the Epitome which forms part of the lex Romana Visigothorum: cf. Dernburg, Gaius, p. 132) and his four one-book treatises (libri singulares) on Wife's property, Guardianships, Wills and Legacies. The second year was given to the matter of Justinian's first part, i.e. Jurisdiction and Procedure, and after that to portions of Justinian's second or third parts, i. e. actions in rem and commercial contracts. In the third year was taken whichever of these second and third parts was not taken before: and eight out of Papinian's nineteen books of answers (Responsa) were added, but only in short selections. This was all that the professors lectured on. The Answers of Paulus (Pauliana responsa) the students had to read by themselves in the fourth year. What was