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Labeo ; the other Sabinians, after Sabinus, a follower of Capito. Gaius, who informs us that he was a Sabinian, gives the differing opinions of the two schools on many subtle questions of law. By the labours of this succession of jurists, the law was moulded and prepared until it came into the hands of the five great luminaries of Roman jurisprudence-Gaius, Papinian, Paul, Ulpian, and Modestinus, whose writings, as we shall see, were subsequently made a distinct and special source of law. 21. Gaius, or Caius, as the name is sometimes written, was
probably born in the time of Hadrian, and wrote Gaius.
under the Antonines. Of his personal history nothing is known. He himself tells us that he was an adherent of the school of Sabinus. Besides other works which he is known or supposed to have written, he composed a treatise on the edictum provinciale (the edict of the proconsul in the provinces) and a commentary on the Twelve Tables. But the work by which he is best known to us is his Institutes. The discovery of the manuscript of this work by Niebuhr in 1816 has contributed greatly to the modern knowledge of Roman law. The manuscript had been written over with the letters of St. Jerome, and its existence was almost entirely unknown until Niebuhr brought it to light while examining the contents of the library of the Chapter at Verona. The Institutes of Gaius formed the basis of those of Justinian, who has followed the order in which Gaius treats his subject, and adopted his exposition of law, so far as it was applicable to the times in which the Institutes of Justinian were composed. The work of Gaius. therefore, showing us what was common to the two periods, and also where the law had changed, enables us to understand what the change was, and what the law had really been at the time when its system was most perfect. 22. Æmilianus Papinianus was the intimate friend of the
Emperor Septimius Severus, and held under him the Papinian.
one office of prætorian præfect, which had now become equivalent to that of supreme judge. He probably accompanied Severus into Britain, and was present at the emperor's death at York in A.D. 211. Severus commended his two sons, Geta and Caracalla, to his care. Caracalla dismissed Papinian from his office; and, after his murder of Geta, is said to have required Papinian to compose his vindication. Papinian refused, and was executed by the orders of Caracalla. He was considered the first
and greatest of jurists, and every epithet which succeeding writers could devise to express wisdom, learning, and eloquence was heaped on him in profusion. We know, from the Digest, of his Books of Questions, Books of Answers, and Books of Definitions. The fragments of his works which we possess amply justify his eminent reputation.
23. Paul, Ulpian, and Modestinus are all said to have been pupils of Papinian. Julius Paulus was a member of
Paul. the imperial council and prætorian præfect under Alexander Severus (A.D. 222). Besides numerous fragments in the Digest, we possess his Receptæ Sententice, which was long the chief source of law among the Visigoths in Spain. The most celebrated of his works, which were very numerous,* was that Ad Edictum in eighty books.
24. Domitius Ulpianus derived his origin, as he himself tells us, from Tyre in Phænicia.f He wrote several works during the reigns of Septimius Severus and Caracalla, and perished (A.D. 228) by the hands of the soldiers, who killed him in the presence of the emperor, Alexander Severus. He was prætorian præfect at the time of his death, but the exact time when he was first appointed to the office is unknown. The Digest contains a greater number of extracts from his writings than from those of any jurist. Besides these extracts, we also possess fragments of his composition in twenty-nine titles, known by the name of the Fragmenta Ulpiuni.
25. Herennius Modestinus was the pupil of Ulpian as well as of Papinian. He was a member of the imperial council in the time of Alexander Severus, but hardly anything is known of his history. One of the best known of his writings is the Excusationum Libri. We have nothing remaining of his composition except the extracts from his works given in the Digests.
26. The influence of Christianity on Roman law was partly direct, partly indirect. The establishment of a bier- Influence of archical rank, the power granted to religious corpora- Christia nity. tions to hold property, the distinction between Christians and heretics, affecting the civil position of the latter, the creation of episcopal courts, and many other similar innovations, gave rise to
• We know the names of more than seventy, embracing an extraordinary variety of subjects.
† D. l. 15. 1.
direct specific changes in the law. But its influence is even more remarkable in the changes which were suggested by its spirit, rather than introduced as a necessary part of its system. To the community which citizenship had bound together * succeeded another bound by the ties of a common religion. The tendency of the change was to remove the barriers which had formed a part of the older condition of society. If we compare the Institutes of Justinian with those of Gaius, we find changes in the law of marriage, in that of succession, and in many other branches of law, in which it is not difficult to recognise the spirit of humanity and reverence for natural ties, which Christianity had inspired. The disposition to get rid of many of the more peculiar features of the old Roman law, observable in the later legislation, was partly indeed the fruit of secular causes; but it was also in a great measure due to the alteration of thought and feeling to which the new religion had given birth. But it was not only the substance of the law that was changed under the emperor. The forms of procedure became different. Even under the formulary system the magistrate had occasionally, instead of sending the trial of an action to the judex, disposed of it himself (cognitio extraordinaria). The practice grew more frequent as the empire went on, and in A.D. 296 Diocletian ordered the presidents of the provinces themselves to try all cases. The formulary system and the exposition of the law by the prætors became a thing of the past, and the law was altered by the enactments of the emperor, and administered directly by the magistrates. 27. Before we pass to the legislation of Justinian, we must
bestow a cursory notice on the efforts made by TheoTheodosius II.
". dosius II. to determine and arrange the law, and to promote its study. With a view to keep alive and increase the knowledge of law, he founded (in A.D. 425) a school of jurisprudence at Constantinople. He also constituted the works of the five great writers, Gaius, Papinian, Ulpian, Paul, and Modestinus, into a source of law of the highest authority, enacting by a constitution, published A.D. 426, that the judge should always be bound by the opinion expressed by the majority of these writers; if those among
• The value of citizenship was greatly lessened by the recklessness with which it was extended. Caracalla (A. D. 212) gave the citizenship to all persons not slaves, who were then subjects of the empire, leaving it, however possible, that slaves imperfectly manumitted after this date should hold the place of Latini, not of cives.
them who expressed an opinion on the point were equally divided, the opinion of Papinian was to prevail : if he was silent, the judge could use his own discretion. In A.D. 438, Theodosius published his Code, containing a collection of the constitutions of the emperors from the time of Constantine. It was made on the model of two earlier collections compiled by the jurists Gregorianus (A.D. 306) and Hermogenianus (A.D. 365).
28. The Emperor Justinian was of Sclavonic origin. His native name was Uprauda, a word said to mean upright, and thus to have found an equivalent in the Latin Justinianus. He was born at Taurisium in Bulgaria, about the year A.D. 482, and having been adopted by his uncle, the Emperor Justin, succeeded him as sole emperor in the year A.D. 527. He died in A.D. 565, after an eventful reign of thirty-eight years. Procopius, the secretary of his general Belisarius, has left us a secret memoir of the times, which, if we may rely upon his accuracy, would make us believe Justinian to have been a weak, avaricious, rapacious tyrant. His court, wholly under the influence of his wife Theodora, a degraded woman, whom he bad raised from the theatre to share his throne, was as corrupt as was customary in the empire of the East. Justinian would never have been distinguished from among the long list of eastern emperors had it not been for the victories of his generals and the legislation to which he gave his name. The successes of Belisarius and Narses have shed the splendour of military glory over his reign. But his principal claim to be remembered by posterity is his having directed the execution of an undertaking which gave to Roman law a form that fitted it to descend to the modern world.
29. In the year A.D. 528, Justinian issued instructions for the compilation of a new code, which, founded on that of,
The first Code. Theodosius, and on the earlier codes on which that here code was based,* should embrace the imperial constitutions down to the date of its promulgation. The task was entrusted to a body of ten commissioners, who completed their labours in the following
* Shortly before the time of Justinian, three attempts had been made to draw up a body of law for the use of the western barbarians and their Roman subjects. These were-the edict of Theodoric, king of the Ostrogoths (A.D. 500); the Lex Romana Burgundiorum (A.D. 500); and the Lex Romana Visigothorum (A.D. 506). These names are so well known that it is perhaps hardly proper to pass them over altogether ; but, as their assistance was not employed in the construction of Justinian's legislation, a detailed account of them is unnecessary here.
year, and in the month of April, A.D. 529, the emperor gave it his sanction, and abolished all preceding collections.
30. In the December of the following year, Tribonian, who had The Digest.
been one of the commission appointed to draw up the
* code, and who had recommended himself to the emperor by the energy and ability he had shown, was instructed, in conjunction with a body of coadjutors whom he selected to the number of sixteen, to make a selection from the writings of the elder jurists, which should comprehend all that was most valuable in them, and should form a compendious exposition of the law. In spite of the foundation of schools of jurisprudence, of which those of Rome, Constantinople, and Berytus were the most famous, the knowledge which the lawyers of the time had of the writings of the old jurists was exceedingly limited. Justinian wished not only to promulgate a body of law which should not be too bulky and voluminous for general use, but also to provide a work, the study of which should form a necessary part of legal education, The commissioners performed their task in the short space of three years, and on the 30th of December, A.D. 533, the emperor gave to the result of their labours the force of law. The compilation, termed Digesta, or Pandectæ, from its comprehensive character, was divided into fifty books, and was arranged on the model of the perpetual edict. Ulpian's work on the edict had been a textbook in the schools of jurisprudence, and probably it was this that determined the commissioners to adopt a model,* which has prevented their work having anything like a scientific arrangement. There are thirty-nine jurists from whose writings the Digest contains literal extracts, those from Ulpian and Paul constituting about one-half of the whole work. 31. The Digest was too vast a work, and also required for its
comprehension too great a previous knowledge of law, The Institutes.
de to admit of its being made the opening of a course of legal study. Justinian, therefore, determined to have an elementary work composed. He had declared his intention in the constitution of December A.D. 530, in which he directed the compilation of the Digest ; and Tribonian, in conjunction with Theophil's and Dorotheus, respectively professors in the schools of Constantinople and Berytus, were appointed to draw it up, and it received the imperial sanction on November 22 A.D. 533. This elementary
WARNKENIG, Hist. du droit romain, p. 182.