CIVILLAW

CIVIL LAW

Is a term applied by way of eminence to the municipal law of the Romans. This system of jurisprudence has for many ages been regarded as one of the most conspicuous monuments of human wisdom and genius; and its powerful influence on modern legislation has been felt and acknowledged by every civilized nation of Europe. Although it has long ceased to retain the full authority of written law, it can never cease to attract the attention, and to excite the admiration, of lawyers who are capable of ascending to this clear and copious fountain of juridical knowledge. The study of the civil law may formerly have engrossed a larger share of notice than it can justly claim; but there are many reasons for supposing that, in this country at least, it is too much neglected, both by professional lawyers, and by those who aspire at the reputation of general learning.

It is stated by Mr Hallam, that "the stream of literature that has so remarkably altered its channel within the last century, has left no region more deserted than those of the civil and canon law. Except among the immediate

disciples of the papal court, or perhaps in Spain, no man, I suppose, throughout Europe will ever again undertake the study of the one; and the new legal systems, which the moral and political revolutions of this age have produced, and are likely to diffuse, will leave little influence or importance to the other."¹ But in all Catholic countries, the canon law is a necessary study; and even the Protestants of Germany think it a study which cannot be safely neglected. When to a certain extent we recommend the study of the canon as well as the civil law, we at the same time make a clear distinction between the utility to be derived from the one and from the other. A familiar acquaintance with the civil law we are disposed to regard as the best foundation of all juridical science: the student, duly initiated in classical learning, may thus acquire a concise and elegant mode of reasoning on the multitudinous topics of jurisprudence; and he thus becomes familiar with those maxims of law which have extended their influence to all the civilized portions of Europe. This species of knowledge is therefore highly valuable in

¹ Hallam's Hist. of the Middle Ages, vol. iii. p. 519.

Law, itself, and it guides us to other knowledge, of more immediate application to the ordinary business of life. In several countries, the civil law continues to be studied with a degree of ardour which Mr Hallam could not fail to consider as surprising, and perhaps preposterous. But the canon law cannot claim the same pre-eminence, nor is it to be recommended to students on account of its intrinsic excellence: it is to be considered as the spurious offspring of the civil law, and as having gradually attained its full growth under the fostering care of priestly usurpation; what is most valuable, it has derived from the Roman jurisprudence, and its own peculiar maxims have all the same general tendency towards the power and aggrandizement of the church.

In those countries most remarkable for the extent and solidity of their erudition, namely, in Germany and Holland, the study of the civil law has long constituted an essential branch of a liberal education; and they persuade themselves that many advantages result from such a plan of study. Many of their professed scholars are excellent civilians, and many of their professed civilians are excellent scholars. It is sufficiently obvious that those who are acquainted with the phraseology and with the spirit of the Roman law, will readily understand many passages of the Latin classics which to others must remain obscure and unintelligible. Even the poets admit of such illustration: Plautus, Horace, and Ovid may frequently be explained from the writings of the civilians.¹

These general assertions will best be confirmed by a particular example; and the examples are so abundant that the chief difficulty lies in the necessity of making a selection. The subsequent passage in one of the epistles of Pliny may however be regarded as sufficient for our purpose. "Tu quidem pro cetera tua diligentia admones me, codicillos Aciliani, qui me ex parte instituit heredem, pro non scriptis habendos, quia non sint confirmati testamento: quod jus ne mihi quidem ignotum est, quum sit iis etiam notum qui nihil aliud sciunt. Sed ego propriam quandam legem mihi dixi, ut defunctorum voluntates, etiamsi jure deficerent, quasi perfectas tuerer. Constat autem, codicillos istos Aciliani manu scriptos. Licet ergo non sint confirmati testamento, a me tamen, ut confirmati, observabuntur."² This point of law, says Pliny, is even known to those who are ignorant of every other; but it seems nevertheless to have been completely misapprehended by Dr Adam, who has thus stated the doctrine of codicils: "When additions were made to a will, they were called codicilli. They were expressed in the form of a letter addressed to the heirs, sometimes also to trustees (ad fideicommissarios). It behoved them however to be confirmed by the testament. Plin. Ep. ii. 16."³ The first of these sentences contains a definition of a modern codicil; but, according to the civil law, a codicil was a less solemn form of a will. It might be made by a person who

was either testate or intestate; in other words, it could Civil Law. either accompany or subsist without a testament. A person might leave several codicils; whereas no pagus, that is, no person who was not a soldier, could leave more testaments than one. It was essential to the character of a testament that it should institute an heir; but a codicil was in all cases incompetent for that purpose, and could only bequeath legacies and trusts: it therefore could not disinherit one heir, or substitute another. As the law stood in the age of Caius, a legacy bequeathed by a codicil, and not ratified by a testament, was null and void;⁴ and, according to the doctrine which, in more general terms, was afterwards stated by Papinian, where the codicil was of a date prior to the will, it was held to be ineffectual unless confirmed by that will, or by another codicil.⁵ The notion of Dr Adam, that a codicil must succeed a testament, and that it must nevertheless be confirmed by a testament, cannot very easily be comprehended; but the statement of the ancient writer, when properly understood, is easily reconciled to the doctrine of the civilians. The individual whom he mentions had first made a codicil, and afterwards a testament, and had neglected to confirm in the one a legacy which had been bequeathed in the other: a direct bequest could not be effectually made in this manner, but Pliny expresses his determination to take no advantage of the legal informality.

The legislation of Rome under the regal dynasty must have been extremely simple. Of this era however very few relics have been preserved, nor are the genuine sufficiently distinguished from the spurious. The Leges Regiae have been collected by Lipsius,⁶ and other men of learning; and of the supposed laws of Romulus a separate collection was published by Balduinus.⁷

After the expulsion of the last king, the want of a regular code of laws appears to have been felt by the Romans, who were yet an inconsiderable and a rude people. According to the uniform testimony of their own writers, they had recourse to the expedient of sending a deputation to Greece, in order to procure information respecting the laws of a kindred nation. The commonly received account of this embassy was called in question by Giambattista Vico,⁸ a professor of rhetoric, who ought to have been a professor of law, at Naples: he has been followed by Bonamy,⁹ Gibbon, Niebuhr, Wachsmuth, and many other writers, both civilians and historians. The current of opinion in Germany is decidedly in favour of his conclusion, which however we are not yet fully prepared to admit.¹⁰

It is stated by Livy, and by Dionysius of Halicarnassus, that ambassadors were sent to Greece, in order to collect information respecting the laws of that country; and the same account, or nearly the same, is repeated by many other ancient writers. Angelo Mai, adopting the opinion of Vico, has urged as an objection against this account, that it is

¹ The juridical science of Ovid has been illustrated in a work published under this title: "Dissertatio philologico-juridica de insigni in poeta Ovidio Romani Juris Peritia, quam Thesibus suis inauguralibus adjectam voluit auctor J. van Iddekinge, J. U. D." Amst. 1811, 8vo.

² Plinii Epistolae, lib. ii. ep. xvi. edit. Gesner.

³ Adam's Roman Antiquities, p. 56.

⁴ Lipsii Opera, tom. iv. p. 277. Antverpie, 1637, 4 tom. fol.

⁵ Balduini libri duo in Leges Romuli, et Leges XII. Tab. quibus Fontes Juris Civilis explicantur. Paris. 1554, fol. This edition, which is not the earliest, is subjoined to the author's copious commentary on the Institutes.

⁶ J. B. Vico de Constantia Jurisprudentis, p. 224. Neapoli, 1721, 4to. See likewise the same author's Principj di Scienza nuova d'intorno alla comune Natura delle Nazioni, tom. I. p. 120, ed. Milano, 1801, 3 tom. 8vo.—"Hoc opus," says Fabroni, in allusion to the latter work, "ei in amore et dilectis fuit, et glorians affirmabat se posteris monumentum reliquisse, ex quo judicium facere possent, quantum in hoc studiorum genere valeret, quantumque elaborasset." (Vite Italorum Doctrina excellentium, tom. xii. p. 295.)

⁷ Dissertation sur l'Origine des Loix des XII. Tables, par M. Bonamy: Mémoires de l'Académie des Inscriptions et Belles Lettres, tom. xii. p. 27.

⁸ On the subject of this controversy, two articles, written by Berriat St. Prix, may be found in that valuable repository the Thèses, ou Bibliothèque du Jurisconsulte, tom. iv. p. 304. tom. vi. p. 269.

Civil Law. nowhere mentioned in the writings of Cicero:¹ but if we were to admit the fact, it would not be necessary to admit the inference; for Cicero might or might not find occasion to refer to an event which, so far as we can discover, no person regarded as doubtful. The following expressions however seem to contain a manifest allusion to the influence of the Athenian upon the Roman laws: "Adsum Athenienses, unde humanitas, doctrina, religio, fruges, jura, leges ortæ, atque in omnes terras distributæ putantur."² This passage occurs in one of his orations; and, in another work, Cicero notices the coincidence or identity of certain decemviral laws with those of Solon.³ In the subsequent passage, Tacitus evidently alludes to a fact which must have been considered as incontrovertible: "Creatique decemviri, et accitis quæ usquam egregia, compositæ duodecim Tabulæ, finis æqui juris."⁴ The younger Pliny thus addresses one of his friends: "Habe ante oculos, hanc esse terram quæ nobis miserit jura, quæ leges non victa acceperit, sed petentibus dederit; Athenas esse, quas adens; Lacedæmonem esse, quam regas."⁵ Pomponius has likewise adopted the same account: "Postea, ne diutius hoc fieret, placuit publica auctoritate decem constitui viros, per quos peterentur leges a Græcis civitatibus, et civitas fundaretur legibus."⁶ Many other passages of ancient writers might be accumulated, not to strengthen the original authority on which we find the fact stated, but to evince that this fact was generally, if not universally admitted.

Dr Maciejowski, professor of the civil law in the university of Warsaw, has directed the edge of his criticism against the character of Livy and Dionysius as historians;⁷ and we are not unwilling to admit that on this subject his opinion is entitled to attention. The value and importance of Dionysius's work for the early history of the Roman law, has been discussed by Dr Schulz;⁸ and with respect to the character of Livy, we only think it necessary to remark that we regard him as no incompetent authority for such a fact as he has recorded. Had the fact of such a mission been very absurd or very incredible in itself, the state of the question would have been essentially different. It is further urged by the same learned professor, that all the ancient monuments of Roman history must have perished when the city was burnt by the Gauls. But it is not to be doubted that the laws of the twelve Tables, or at least ample portions of them, survived the destruction of the city: those laws are repeatedly mentioned by Cicero, as we should now mention the Great Charter, not as what has existed, but as what still exists;⁹ at a later period they were the subject of various commentaries, nor do we meet with any hint or suggestion that such commentaries related to fragments,

instead of the entire collection. It is indeed stated by Civil Law. Livy that, after this calamity, an attempt was made by public authority to recover the regal and decemviral laws;¹⁰ and we learn from Cyprian that, during the third century, the laws of the twelve Tables were still to be found engraved on tablets of brass.¹¹ If then the laws themselves were rescued from the ruins of the city, is there any difficulty in imagining, or any absurdity in believing, that their genuine history was likewise preserved? Let us even suppose that every written monument perished in the common wreck; yet the nation itself was not exterminated; and the oral tradition of one generation became the lettered record of the next.

Some writers have involved the subject in unnecessary doubt and difficulty, by misapprehending the real state of the question; for it has been seriously asked whether the decemvirs transferred the entire laws of Solon to the twelve Tables. If any person imagines that they transferred the entire laws of Solon, or any other legislator, he manifestly entertains a very crude opinion; and he who opposes such an opinion, can only be thought to combat a phantom. Let us examine the passage of Livy as our original text: "Quum de legibus conveniret, de latore tantum discreparet, missi legati Athenas Sp. Postumius Albus, A. Manlius, Ser. Sulpicius Camerinus; jusque inclytas leges Solonis describere, et aliarum Græcæ civitatum instituta, mores, juraque noscere."¹² He soon afterwards states that those ambassadors were nominated among the decemvirs for two reasons: "His proximi legati tres habiti, qui Athenas ierant; simul ut pro legatione tam longinqua præmio esset honor; simul peritos legum peregrinarum ad condenda nova jura usui fore credebant." Nothing can be more plain and intelligible than this account. Three ambassadors, or as we might with equal propriety describe them, three messengers, were sent to Greece, with instructions to procure a copy of the laws of Solon, and to acquaint themselves with the laws and institutions of other states of Greece besides Athens. In the commission for preparing a body of laws, these three individuals were included, in order that this honour might compensate them for their former labours, and that the knowledge which they had acquired of foreign jurisprudence might be rendered useful in the compilation of a new body of laws. The expression ad condenda nova jura certainly does not suggest the idea of transferring laws already made. If therefore any enquirer should succeed in proving, what it will however be very difficult to prove, that there is not a single coincidence between any existing fragment of the twelve Tables, and any existing fragment of the laws of Athens or any other state of Greece, no argument could thence be deduced

¹ Maius ad Ciceronem de Republica, lib. ii. cap. xxxvi. p. 201. Romæ, 1822, 8vo.

² Ciceronis Orat. pro Flacco, § 26.

³ Cicero de Legibus, lib. ii. cap. xxxiii. xxv.

⁴ Digest. lib. i. tit. ii. fr. 2. § 4. These words of Pomponius, as they now stand, are at variance with the account given by Livy; and Bynkershoek very ingeniously conjectures that they ought to be transposed in the following manner: "Placuit publica auctoritate peterentur leges a Græcis civitatibus, et decem constitui viros, per quos civitas fundaretur legibus."

⁵ Maciejowski Opusculorum Sylloge prima, p. 102. Varsovie, 1823, 8vo. Having, in the first edition of his history, expressed his disbelief in the story of the embassy to Greece, his opinion was publicly controverted by Professor Ciampi, in a work entitled Novum Examen Loci Liviani, de Legatis, &c. Vilnæ, 1821, 8vo. To this antagonist he replies, but without mentioning his name, in an Excursus ad Livii Historiarum lib. iii. cap. 31. seq. See likewise the second edition of his Historia Juris Romani, p. 54. Varsovie, 1825, 8vo.

⁶ De Dionysio Halicarnassæo Historico, præcipuo Historiæ Juris Romani Fonte, Dissertatio inauguralis, in Academia Heidelbergensi præmio ornata; scripsit Phil. Frid. Schulz, Moeno-Francofurtanus, Juris utriusque Doctor. Heidelbergæ, 1820, 4to.

⁷ "Discebamus enim pueri XII. ut carmen necessarium; quas jam nemo discit." (Cicero de Legibus, lib. ii. cap. xxxiii.)
⁸ "In primis federa et leges (erant autem eæ duodecim Tabulæ, et quedam regiae leges) conquiri quæ compararent, iusserunt." (Livii Hist. lib. vi. cap. i.)

⁹ "Incisæ sint licet leges duodecim tabulis, et publice are præfixo jura præscripta sint, inter leges ipsas delinquitur, inter jura peccatur." (Cypriani Opera, p. 4. edit. Baluz. Paris. 1726, fol.)

¹⁰ Livii Hist. lib. iii. cap. xxxi.—According to some writers, they were partly indebted to the Greek colonies in Italy. See the learned work of Dempster, De Etruria Regali, tom. i. p. 445.

¹¹ Taciti Annal. lib. iii. cap. xxvii.

¹² Plinii Epistolæ, lib. viii. ep. xxiv.

Law against Livy's account of the mission. The Romans, at that period a rude and simple nation, were anxious to obtain some knowledge of the laws, customs, and institutions of a kindred people, before they attempted to reduce their own laws to something approaching to a systematic form; and in order to procure this knowledge, they adopted an expedient which must strike every person, who reflects on the state of society at that remote era, as the most obvious and practicable that could have been devised. But of the new laws with which they thus became acquainted, it is evident that many were utterly to be rejected, some to be abhorred; and they might learn what to avoid, as well as what to imitate. We might as rationally expect one nation to adopt the entire language as the entire laws of another nation. When the decemvirs were employed in their important task, the city of Rome had seen three centuries of years, and during that period had partly been governed by written, and partly by unwritten laws. It is therefore to be supposed that the twelve Tables chiefly consisted of a digest of what was regarded as the best portion of their municipal enactments and customs: customary law, which acquires its vigour and consistency in the early stages of society, was doubtless a very essential part; and some modifications, perhaps various regulations entirely new, might be derived from a foreign source. This we conceive to be the authentic history, and these the genuine effects, of the famous mission into Greece; and in the general texture of this story we find nothing that exceeds the limits of rational belief.

Dr Dunbar has well remarked that "the Romans, while yet a rude people, disdained not to appoint an embassy to enquire into the jurisprudence of the Greeks, and to supply, from that fountain, the deficiencies in their civil code. This embassy seems to have been suggested by Hermodorus, an exiled citizen of Ephesus, who afterwards eminently assisted in interpreting the collection of laws brought from Greece. His public services met with a public reward. A statue was erected to him in the Comitium at the public expense; an honour which the jealousy of Rome would have denied to a stranger in a less generous age. But, at this period, she acted from a nobler impulse; and the statue erected to Hermodorus was erected, in reality, to her own honour. Yet the name of this Ephesian, which casts a lustre upon Rome, seemed to cast a shade upon his native city; and that people, according to Heracitus, deserved to have been extirpated to a man, who had condemned such a citizen to exile."¹ This agency of Hermodorus is not mentioned by Livy: but the erection of his statue is recorded by the elder Pliny;² and his connexion with the decemvirs is likewise stated by Pomponius: "Et ita ex accidentia appellatae sunt Leges duodecim Tabularum: quarum ferendarum auctorem fuisse decemviris Hermodorum quendam Ephesum, exulantem in Italia, quidam retulerunt."³ By the word actor, as used in this passage, we are evidently to understand a person who advised or influenced the decemvirs; and according to Pliny, his services were those of a translator or expounder. It is therefore highly probable that he was

chiefly employed in expounding to them the Greek laws, Civil Law, of which they had obtained a transcript. As he appears to have been a person of superior talents,⁴ his own comments might be useful and important; but we are by no means inclined to estimate his services so highly as Professor Gratama, who represents him as the real author of the laws of the twelve Tables.⁵

Before we dismiss the history of the twelve Tables, we are tempted to notice an opinion which another modern author has delivered respecting one of their enactments. "Ancient histories," says Lord Kames, "are full of incredible facts that passed current during the infancy of reason, which at present would be rejected with contempt. Every one who is conversant in the history of ancient nations, can recall instances without end. Does any person believe at present, though gravely reported by historians, that in old Rome there was a law for cutting into pieces the body of a bankrupt, and distributing the parts among his creditors?⁶ This is the speculation of an ingenious man, who is sometimes too precipitate in his conclusions. Annæus Robertus⁷ and Heraldus⁸ have each proposed a mitigating interpretation of this law of the twelve Tables: Bynkershoek was solicitous to prove that the creditors were entitled to divide, not the body, but the price of the insolvent debtor;⁹ and his opinion has been adopted by the learned Dr Taylor,¹⁰ and by some other civilians. But this opinion can neither be reconciled with the obvious meaning of the words, nor with the ancient mode of understanding them.¹¹ Those who consider such an enactment as altogether incredible, ought at the same time to consider the real character of the Roman people at that period of their history. They certainly were not distinguished by the gentler virtues; and if their laws were altogether silent as to the treatment of debtors, we ascertain from other sources of information that it was extremely harsh and cruel. In more rude communities, where commerce is almost entirely unknown, and where the poor are completely subjected to the rich, the insolvent debtor is very apt to be treated as a criminal. In ancient Rome, we know from historical records, not merely from the letter of the law, that he might be reduced to the condition of a slave; and it is obvious to every person acquainted with ancient history, that the unrelenting treatment of debtors was a ground of open dissension between the different orders of the people. The same laws which conferred on the father of a family the power of life and death over his wife and children, and which awarded capital punishment against the author of a satirical poem, may without much difficulty be conceived to have disposed of a poor debtor's person in the most summary manner.

It was in the 302d year from the building of the city that the decemvirs were appointed, and were invested with extraordinary powers, for the purpose of compiling a body of laws. They accordingly completed ten tables, which in the following year were confirmed by the comitia centuriata; but as some deficiencies were still to be supplied, decemvirs were again created, and the labour was thus brought to a conclusion. The laws of the twelve

¹ Dunbar's Essays on the History of Mankind in rude and cultivated Ages, p. 161. Lond. 1780, 8vo.—See likewise Dr Wallace's Dissertation on the Numbers of Mankind in ancient and modern Times, p. 238. Edinb. 1753, 8vo.

² "Fuit et Hermodori Ephesii in Comitio, legum quas decemviri scribent interpretis, [statum] publice dicta." (Plinii Natur. Hist. lib. xxxiv. cap. xi.)

³ Digest. lib. i. tit. ii. fr. 2. § 4.

⁴ See Menagii Observationes in Diogenem Laertium, p. 393.

⁵ Serpili Gratama Oratio de Hermodoro Ephesio vero XII. Tabularum Auctore. Groningæ, 1817, 4to.

⁶ Kames's Sketches of the History of Man, vol. iii. p. 253.

⁷ Roberti Rerum Judicatarum libri iv. l. 137. b. edit. Paris. 1597, 4to.

⁸ Heraldus de Rerum Judicatarum Auctoritate libri ii. p. 518. Paris. 1640, 8vo.

⁹ Bynkershoek Observationes Juris Romani, lib. i. cap. i.

¹⁰ Taylori Commentarius in L. Decemviralem de inope Debitore in partis disseccando. Cantabrigiæ, 1742, 4to.

¹¹ Dr Valpy, a learned divine, has confuted the opinion of Bynkershoek and Taylor, in a long note subjoined to his Sermons preached on public Occasions, vol. ii. p. 1. Lond. 1811, 2 vols. 8vo.

Civil Law. Tables were illustrated by the commentaries of several ancient lawyers, and among the rest by Antistius Labeo and Caius: the fragments of those laws have been collected and explained by many of the moderns, by Balduinus, Ravardus, Marcilius, Augustinus, Gravina, Funecius, Bouchaud, and others;¹ but the most able and conspicuous labourer in this province is the younger Gothofredus, whose edition of the Theodosian Code has rendered his name illustrious in the history of jurisprudence.²

Law assumed the form of a science during the latter ages of the republic; and jurisprudence, like philosophy, was at length subdivided into sects.³ The chief splendour of the Roman lawyers is to be traced from the reign of Augustus to that of Alexander Severus;⁴ and the last name of great celebrity is that of Herennius Modestinus.⁵ With this pupil of Ulpian, the oracles of the civilians became mute:⁶ the succeeding lawyers are only known as compilers or expounders; and although the law was long afterwards taught at Rome, Constantinople, and Berytus, we cannot in those declining annals discover any vestiges of ancient genius. The reign of Constantine was not conspicuous for legal science; and by fixing the seat of empire at Byzantium, he diminished all the chances or probabilities of improvement. To the great body of those who inhabited the new metropolis, the language of the law was a foreign language; nor was this the only circumstance unfavourable to the cultivation and progress of jurisprudence.

It is well known that the decisions of certain lawyers obtained the force of law.⁷ In a rescript of Constantine, dated in the year 327, we find the highest authority ascribed to the opinions of Julius Paulus,⁸ who flourished at the close of the second and the commencement of the third century. After an interval of nearly one hundred years, appeared another imperial constitution, intended to regulate the number and weight of legal opinions. In the judges themselves very little confidence seems to be reposed, nor is it difficult to imagine that their general merits are not undervalued: they are bound to decide points of law, according to the number of accredited opinions; when the numbers are equal, and the decision of Papinian can be produced on one side of a question, his authority must be allowed to preponderate, "qui, ut singulos vincit, ita cedit duobus;" and it is only in the case of a perfect equilibrium of legal opinions, that they are left to the full exercise of their own discrimination.⁹ This arrangement is so entirely mechanical, that it is manifestly

adapted to the lowest standard of attainment in those en-Civil Law trusted with the administration of the law.

Of the writings of the ancient lawyers, innumerable fragments are incorporated in the Pandects, and various others have been collected by Schulting. The recent discovery of several relics of the Roman law has given a fresh impulse to the continental civilians. New portions of the Theodosian Code have been brought to light by Clossius and Peyron. To the Vatican Fragments, published by Angelo Mai,¹⁰ we can only make a transient allusion; but the recovery of the long-lost Institutes of Caius is too remarkable an event to be noticed in the same manner. An unsatisfactory abridgement of these Institutes had long been known; but the genuine text of Caius was not discovered till the year 1816. In the library of the chapter of Verona, the celebrated Niebuhr, author of the Roman history, found a juridical manuscript of great antiquity; and when a short extract was communicated to Savigny, he easily ascertained that it formed a portion of the original work of this ancient lawyer, who flourished about the age of Antoninus. In the course of the following year, the Royal Academy of Berlin dispatched to Verona two distinguished members of the university, Professor Göschen, a civilian, and Professor Bekker, a philologist, entrusted with the important commission of executing a transcript of the manuscript; and in the performance of this very formidable task, they were greatly aided by the spontaneous and indefatigable services of Dr Bethmann Holweg, who was afterwards appointed a professor of law at Berlin. The manuscript is a codex rescriptus, and to a considerable extent his rescriptus; nor is it easy to conceive the difficulty of deciphering an ancient relic in this condition. Without the aid of a chemical process, it would have been impossible to succeed in the attempt to read what had thus been written and erased.¹¹ According to the opinion of Kopp, the learned author of the Palæographia Critica, who is allowed to possess great knowledge of ancient monuments, the manuscript must have been written before Justinian's reformation of the law.¹² After much laborious preparation, the Institutes of Caius or Gaius were published in the most able and satisfactory manner by Professor Göschen,¹³ who, since that period, has been removed to the university of Göttingen, where he now lectures to numerous audiences. He published a second edition in 1824, and several other editions have already appeared. Although the manuscript has been exposed to frequent and material mutila-

¹ See Dirksen's Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente. Leipzig, 1824, 8vo.

² Gothofredus's Fragmenta XII. Tabularum are to be found in his Fontes quatuor Juris Civilis. Geneva, 1653, 4to. They are reprinted among his Opera Juridica minora. Lugd. Bat. 1733, fol.

³ Mascovii de Sectis Sabinianorum et Proculianorum in Jure Civilis Diatriba. Lipsiae, 1728, 8vo.

⁴ See the collection edited by Dr Franck, under the title of "Vite tripartitæ Jurisconsultorum veterum, a Bernardo Rutillo, Joanne Bertrando, et Guillelmo Grotio conscriptæ." Halæ Magd. 1718, 4to.

⁵ The fragments of Modestinus have been illustrated by many different civilians, and, among others, by Brenkman, in a work entitled "De Eusematis Diatriba: sive, in Herennii Modestini librum singularem De Jurisconsultorum Commentariis." Lugd. Bat. 1706, 8vo. See Bachii Historia Jurisprudentiarum Romanarum, p. 506. edit. Stockmann. Lipsiae, 1807, 8vo.

⁶ "Atque hic jurisconsultorum finis est, hic oracula jurisconsultorum obtinere; sic ut ultimum jurisconsultorum Modestinum dicere liceat, cessim et retro collapsa jam jurisprudentia." (Gothofredi Hist. Juris Civilis, p. 14.)

⁷ "Responsa prudentium sunt sententiae et opiniones eorum, quibus permisum est iura condere: quorum omnium si in unam sententiae concurrunt, id quod ita sentiunt, legis vicem obtinet; si vero dissentiunt, iudici liceat, quam velit sententiam sequi; idque rescripto divi Hadriani significatur." (Cali Institutiones, lib. i. § 7.) This is one of the numerous instances in which the Institutes of Caius reflect a strong light on the history of the Roman law. Before their discovery, this rescript of Hadrian was totally unknown to modern civilians.

⁸ Theodosiani Codicis genuini Fragmenta, p. 34.

⁹ Cod. Theodos. lib. i. tit. iv. p. 24. edit. Wenck.

¹⁰ Vaticana Juris Romani Fragmenta, Romæ nuper ab Angelo Mai detecta et edita, Gallicis typis mandaverunt ephemeridum quæ Themidis nomine publicantur, Editores. Paris, 1823, 8vo.

¹¹ Abhandlungen der historisch-philologischen Klasse der Königlich-Preussischen Akademie der Wissenschaften aus den Jahren 1816-1817, S. 307. Berlin, 1819, 4to. Thémis, tom. i. p. 267. Göscheni præf. in Galum.

¹² Zeitschrift für geschichtliche Rechtswissenschaft, herausgegeben von Savigny, Eichhorn und Göschen, Bd. iv. S. 400.

¹³ Gaii Institutionum commentarii iv. e codice rescripto Bibliothecæ Capularis Veronensis nunc primum editi. Berolini, 1829, 8vo.

Law, much remains to instruct and to interest the learned enquirer; and the book has accordingly been received by the foreign civilians with a degree of ardour and exultation, not easily conceived by those who are unacquainted with the progress of such studies among some of the continental nations. Its value in elucidating the history of the Roman law has been discussed by Schrader.¹ Caius has already been illustrated in many other publications, and, in some of the German universities, has been illustrated in separate courses of lectures. It may safely be affirmed, that the discovery of the Institutes of Caius forms a new era in the history of jurisprudence.

Before we proceed to mention the legislative labours of Theodosius, it will be proper to state that, in the compilation of a code of laws, he had been preceded by two private lawyers, Gregorius or Gregorianus, and Hermogenes or Hermogenianus, for their respective names are not completely ascertained.² From the order in which their codes are mentioned by ancient writers, it is to be inferred that the labours of Gregorius preceded those of Hermogenianus. Some fragments of both codes have been preserved by Anianus.³ Gregorius appears to have collected the imperial constitutions belonging to the intermediate reigns, from Hadrian to Constantine the Great. Hermogenianus is supposed to have formed a supplementary collection; and the remaining fragments consist entirely of the constitutions of Diocletian and Maximinian. Of the former of these compilers, the personal history is involved in complete obscurity. According to the conjectures of modern civilians, the latter must have flourished in the reign of Constantine; and he is supposed to be the same Hermogenianus whose works are quoted in the Pandects. Both compilations are apparently to be considered as the undertakings of private individuals: the ancient commentator on the Theodosian Code has indeed averred that their authority is confirmed by a law, "sub titulo de Constitutionibus Principum et Edictis,"⁴ and Gothofredus has naturally enough relied on this averment; but the commentator probably alluded to a constitution which has recently been discovered, and which certainly affords no adequate support to such an opinion. The emperor merely declares his resolution of forming a collection of imperial constitutions, "ad similitudinem Gregoriani atque Hermogeniani Codicis;" he thus acknowledges the propriety of such a model, but is silent with respect to any public sanction of those antecedent codes.⁵ It is however probable that they obtained some degree of authority in the forum.⁶ This circumstance may naturally be imputed to the intrinsic value of such a collection of laws; and we may conceive the two codes to have obtained the same degree of authority as might belong to the publication of an English author, who had prepared a digest or an abridgement of the Statutes. In either case the credit of the compiler must depend, not upon any formal sanction, but upon the fidelity with which he is generally believed to have executed his undertaking.

It appears to have been the original intention of Theodosius to compile two codes, arranged according to diffe-

rent plans; but his second code was never completed, nor Civil Law. is it easy to conjecture what specific plan he had contemplated. The emperor had thus divulged his intention in the year 429, and the Theodosian Code received his sanction on the fifteenth of February 438. This code of laws, which is sometimes erroneously ascribed to Theodosius the Great, derived its origin from his grandson Theodosius the younger. On the decease of the first Theodosius, the Roman empire was divided between his two sons, the provinces of the east being allotted to Arcadius, those of the west to Honorius. From the sovereign of the east descended Theodosius the Second: after the death of his father and of his uncle, he again united the dominions which had thus been partitioned; but conferring the titles of Cæsar and Augustus upon Valentinian the Third, who married his daughter Licinia Eudoxia, he assigned to him the western provinces of the empire. This son-in-law, who became his successor at Constantinople, was likewise his cousin, being the son of Constantius Cæsar, and of Galla Placidia, the daughter of Theodosius the Great.

The compilers of the code were eight in number, and, as Gothofredus has remarked, they all occupied stations which required an acquaintance with the laws. Antiochus, who was placed at their head, has been confounded by him, as well as by Heineccius, with Antiochus the eunuch, and likewise with a third individual of the same name.⁷ By a constitution, which has lately been discovered, and which bears the date of 435, the emperor had invested these commissioners with power to retrench what was superfluous, to add what was wanting, to change what was ambiguous, and to correct what was incongruous.⁸ Justinian afterwards invested his commissioners with more ample powers: they were even authorized to consolidate several constitutions into one; and we may presume that neither of the two codes exhibited the imperial laws, or at least a large proportion of them, in their original state. In the novel which sanctions the Theodosian Code, the emperor evidently admits that the compilers whom he had employed were not mere copyists: "Manet igitur, manebitque perpetuo, elisata gloria conditorum, nec in nostrum titulum demigravit nisi lux sola brevitatis."

This code contains the edicts and rescripts of sixteen emperors; and its chronology extends from 312 to 438, thus embracing a period of 126 years. It commences with the reign of the first Christian emperor, and there is a systematic exclusion of the constitutions issued by the military adventurers who, during that interval, were finally unsuccessful in their attempts to usurp the government; but the selection is not limited to the constitutions of the Christian princes, for here we find the apostate Julian among other imperial lawgivers. The code is divided into sixteen books, and the laws which compose each title are arranged in chronological order.

The body of laws thus prepared by the emperor of the east was immediately adopted by the emperor of the west. A very curious document, containing the "Gesta in Senatu Urbis Romæ de recipiendo Theodosiano Co-

¹ Was gewinnt die Römische Rechtsgeschichte durch Caius Institutionen? untersucht von Eduard Schrader, Professor in Tübingen. Heidelberg, 1823, 8vo.—The learned author has prosecuted similar enquiries in an article entitled "Neuentdeckte Quellen Römischer Rechtskunde," which occurs in the Kritische Zeitschrift für Rechtswissenschaft, Bd. i. S. 137. Elvers has published a very useful work under the title of Promptuarium Galorum. Göttingen, 1824, 8vo.

² Gothofredi Prolegomena ad Codicem Theodosianum, cap. i. Schultingii Jurisprudentia Ante-Justinianæ, p. 683. Menagii Juris Civilis Amencitates, cap. xi. Reinoldi Opuscula Juridica, p. 404. C. F. Pohl's Dissertatio de Codicibus Gregoriano atque Hermogeniano. Lipsiae, 1777, 4to.

³ Schultingii Jurisprudentia Ante-Justinianæ, p. 681. Lugd. Bat. 1717, 4to. Jus Civile Ante-Justinianæ, tom. i. p. 263. Berolini, 1815, 2 tom. 8vo.

⁴ Cod. Theodos. lib. i. tit. iv. l. 1.

⁵ Theodosiani Codicis genuini Fragmenta, p. 6.

⁶ Heineccii Hist. Juris Civilis, p. 478. edit. Ritter.

VOL. VI.

⁷ See Ritter ad Novell. Theod. p. 6.

⁸ Codicis Theodosiani Fragmenta inedita, p. 29.

Civil Law dice," has been discovered by Clossius. At this period the Roman senate only exhibited a shadow of its former greatness: the stern and dignified republicans had long been supplanted by the minions of an imperial court; and a senate, possessing a very slender remnant of authority, had been embodied in each of the two great divisions of the empire.¹ The senate of Rome having assembled on this occasion, one of the consuls, Anicius Acilius Glabrio Faustus, proceeded to acquaint the fathers with the legislative enterprise of the one emperor, and the zealous concurrence of the other. "Quam rem æternus princeps, dominus noster Valentinianus, devotione socii, affectu filii comprobavit." He afterwards read the constitution, which has already been mentioned, relative to the project of forming two different codes; and this recitation was succeeded by many exclamations in the highest strain of loyalty. In the midst of various expressions of kindness and regard for the consul, the senators hazarded a few suggestions respecting the custody and transcription of this new code of laws; but we perceive no vestiges of free discussion, or of real deliberation, which always implies the power of adopting either the one or the other of two conflicting opinions. They might presume to regulate certain matters of detail, but were without any real influence in the administration of public affairs. In the instance now before us, their chief functions were manifestly confined to the ready approval of what the consul informed them was the will of the emperor.

The Theodosian Code was thus promulgated in the western, as well as in the eastern empire. The Gothic conquerors of the west permitted their Roman subjects to enjoy the benefit and the protection of their own laws; and a compendium of those laws was soon prepared under the auspices of Alaric king of the Visigoths, whose dominions comprehended certain provinces of Spain and Gaul.² This collection contains an abridgement of the three codes of Gregorius, Hermogenianus, and Theodosius, together with some novels, or new constitutions, and an epitome of the Institutes of Caius, extracts from the Sententiae of Paulus, and from the books of Papinian. It was completed in the year 506, "regnante domino Alarico rege, ordinante viro inlustri Golarico comite;" and we must apparently conclude that the superintendence of the work had been committed to Golaric, who was doubtless an officer of the king's court. But it has for several centuries been known under the title of ANIANI BREVARIUM, or the Abridgement of Anianus. The different copies appear to have been attested by his signature; and, according to the opinion of Gothofredus, he presents himself, not as the compiler of the book, but merely as the king's referendary.³ "Anianus, vir spectabilis, ex

præceptione D. N. gloriosiss. Alarici regis, hunc Codicem Civilis de Theodosianis legibus, atque sententiis juris, vel diversis libris electum, Aduris anno xxii. eo regnante, edidi atque subscripsi." This attestation is followed by a date, which states the day of the month, and repeats the year of the king's reign; and such a date we may suppose to apply to the act of verifying the copy, not to that of compiling the work itself. We might indeed have expected to find the words "edidi atque subscripsi" arranged in a different order, "subscripsi atque edidi;" but this remark is alike applicable, whether we conceive Anianus to have been the compiler, or merely the collator. To the formation of this collection it is highly probable that several individuals contributed their assistance, under the general direction of Golaric.⁴ To all the books contained in the collection, with the exception of the epitome of Caius, is added an interpretatio, or explanation. The manuscripts of the Theodosian Code do not all contain the same explanation, and two different explanations are sometimes subjoined to the same law. It appears from the auctoritas, or royal sanction, that explanations were inserted by order of King Alaric, and we must suppose others to have been derived from a different source. This ancient commentary is to be found in Gothofredus's edition of the Theodosian Code; and a very cursory inspection of it seems to have betrayed Sir Edward Sugden into the error of supposing that code partly to consist of a digest of the public laws, and partly of the discussions of private lawyers.⁵ This commentary obtained so much credit, that it appears in some measure to have superseded the text. When the writers of the middle ages quote the Theodosian laws, they very commonly refer, not to the text, but to the commentary. Such ancient explanations as these are not without some degree of interest or utility;⁶ though they cannot but be supposed to bear sufficient marks of the age to which they belong.

It is only in this ancient abridgement that a considerable proportion of the Theodosian Code has apparently been transmitted to our time.⁷ For the first edition of the Code, which was printed at Basel in the year 1528, we are indebted to the commendable zeal of Joannes Sichardus. He had access to several manuscripts; but all of them appear to have been so defective, that very many titles are not to be found in his publication, and indeed several books present themselves in the most mutilated form. He has subjoined the ancient interpretatio, together with a collection of the Novella Constitutiones of Theodosius, Valentinian, and other emperors. His edition is without annotations, but in the margin he has inserted various readings. After an interval of twenty-two years, a more complete edition of the Theodosian Code was pub-

¹ M. C. Curtii Commentarii de Senatu Romano post Tempora Republicæ liberæ, p. 206. Halæ, 1768, 8vo. Del Senato Romano opera postuma del Conte Antonio Vendettini. Roma, 1782, 4to.

² C. G. Blieri Commentarii de Origine et Progressu Legum Jurumque Germanicorum, part. i. p. 290. Lipsiæ, 1787-93, 2 part. 8vo.

³ Gothofredi Prolegomena, cap. v. Brunquelli Dissertatio de Codice Theodosiano ejusque in Codice Justinianico Usu: Opuscula ad Historiam et Jurisprudentiam spectantia, p. 63. Halæ Magd. 1774, 8vo. Savigny's Geschichte des Römischen Rechts im Mittelalter, Bd. II. S. 42.—The more common opinion is however maintained by Schulting, Jurisprudentia Anté-Justiniana, præf. and by Hugo, Geschichte des Römischen Rechts, S. 732. "Codicem Theodosianum exscribi jussit," says Cironius, "ut illo uterentur quod Anianius cancellarius suus Aduris promulgavit, cum interpretationibus suis, sub titulo Legis Romane." (Observationes Juris Canonici, p. 72. Tolose, 1645, fol.)

⁴ We therefore adopt the opinion of Gothofredus, that in the following passage Sigebertus Gemblacensis has misunderstood the proper sense of the word edere: "Anianus vir spectabilis, jubente Athalarico R. volumen unum de Legibus Theodosii imperatoris edidit; et monente Oruntio episcopo librum Joannis Chrysostomi in Matthæum de Græco in Latinum transtulit." (De Scriptoribus Ecclesiasticis, p. 101. edit. Fabricii.)

⁵ Sugden's Letter to James Humphreys, Esq. p. 53. third edit. Lond. 1827, 8vo.

⁶ This collection of laws, says the archbishop of Tarragona, is accompanied "cum interpretationibus non ineptis." (Augustinus de Nominibus Propriis lib. 10 Paviae Florentini, not. col. 27. Tarracone, 1579, fol.) The merits and defects of these interpretations are minutely discussed by Gothofredus, Prolegomena, cap. vi. See likewise Savigny's Geschichte, Bd. II. S. 54.

⁷ Respecting the newly discovered manuscripts of this Breviarium, the reader will find much information in Haubold's Opuscula, vol. II. p. 897. and in the preface to the same volume.

Law. lished at Paris by Jean du Tillet, or Tillius, who has however omitted the ancient commentary. In 1566, an edition was published at Lyon by Cujacius, who, among other appendages, has subjoined the ancient commentary, and a collection of the Novels. According to the title-page, the sixth, seventh, eighth, and sixteenth books, "nunc primum prodeunt, ceteri aucti sunt innumeris constitutionibus." Another edition by the same illustrious civilian, but without his name, was published at Paris in 1586; and, in the course of the same year, his name appeared in the title of an edition printed at Geneva. These were followed by other editions of the Theodosian Code; and all the editions include other relics of ancient jurisprudence.

But the great expounder of the Theodosian Code was Jacobus Gothofredus, or Godefray, who was born at Geneva in 1587, and died there in 1652. Having at an early age been appointed to a law-professorship in his native city, he acquired a very high reputation as a lawyer of deep and extensive erudition, and in this respect he is only equalled by Cujacius. To his ample stores of philological learning he added a masterly knowledge of history, both civil and ecclesiastical; his industry appears to have been indefatigable, and his reading unbounded. Uniting with his other qualifications a complete knowledge of ancient jurisprudence in all its branches, and applying to his multifarious investigations an acute understanding and a sober judgment, he has produced various works which rise very far above the ordinary standard; but the great and lasting monument of his talents and learning is his edition of the Theodosian Code, on which he bestowed the assiduous labour of thirty years. Thirteen years after his death, it was published under the superintendence of Antoine Marville, professor of law in the university of Valence, who with no small assiduity and perseverance digested his papers into a proper form.¹ If the illustrious civilian of Geneva had himself prepared this edition for the press, it would doubtless have appeared to greater advantage; but even in its present state it is a work of the highest value to the lawyer and to the historian; it is indeed an immense storehouse of juridical and historical knowledge. The commentator has collected a stupendous mass of learning, and his information is derived from every accessible source. To the text of the Code he subjoins the ancient explanation: this is followed by his notes, in which he advert to the various readings, to the emendation of the text, and to the parallel or conflicting passages in the Theodosian or Justinian laws; and the illustration of each title is completed by his ample commentary, in which he discusses the scope and tendency of the various enactments, and pours around every subject of importance an immense stream of erudition, drawn from the deepest recesses of jurisprudence and history. But in addition to his perpetual commentary, he has composed different tracts which greatly contribute to the elucidation of this collection of laws. "Immortale opus est," says Hugo, "quod Gothofredus perfecit, in quo neque præcivit ei quisquam neque ejus vestigia premere ausus est. Nemo Codicem Theodosianum illustrare studuerat; qui primus id consilium cepit, ita quoque perfecit, ut præter spicilegium nil prorsus superesse videretur."²

About seventy years after the appearance of this edition, the Theodosian Code, with the commentary of Gothofredus, was republished by John Daniel Ritter, who commenced his undertaking when he was professor of philosophy at Leipzig, and completed it after he had been appointed professor of history at Wittemberg.³ For a task of this kind he possessed eminent qualifications: being familiarly acquainted with the Roman law and history, he was equally conversant with ancient literature, and he displayed the talents of a skilful critic.⁴ To his edition he has added various prefaces, and many shorter notes, and has corrected the text by the collation of manuscripts, and of the former editions. He has reprinted the spurious appendix published by Sirmond, a French Jesuit of uncommon erudition⁵ and to the Novels, which had received no illustration from Gothofredus, he has subjoined many annotations.

The discovery of the Institutes of Caius gave a renovating and powerful impulse to the civilians of the continent; and the recesses of many libraries were explored, in the eager expectation of detecting other relics of ancient jurisprudence. In the public library at Turin, Professor Peyron discovered a mutilated and undescribed volume in large octavo; and on a more particular examination he found that it was a palimpsest. This volume, as he is led to conjecture, had formed a part of the literary relics collected in the monastery of Bobbio, which was founded by St. Columbanus, a native of Ireland, about the beginning of the seventh century. The second writing consisted of Julius Valerius's Latin version of a narrative of the exploits of Alexander the Great, written by a Greek bearing the name of Æsop. On the application of a proper acid, this version, written with evanescent ink, was very easily effaced, and the more ancient writing became disentangled. Peyron supposes that this manuscript of the Code was transcribed during the earlier part of the sixth century; but, according to Mai, the peculiarities of writing rather belong to the century following. In this manner are preserved thirteen leaves, comprehending portions of the first five books, and two pages which contain a fragment of the sixth book of the Theodosian Code. Nor are these leaves without mutilation: the vellum, in the course of its preparation for a new purpose, has been cut at one side, so that in one page the beginning, and in another the end of the lines, are regularly shorn away; and, in some instances, the tops or bottoms of the leaves are likewise curtailed.⁶

About the same period when Peyron made this discovery at Turin, a similar discovery was made at Milan by Dr. Clossius, who is now a professor of law in the university of Dorpat. In the Ambrosian Library he found a quarto volume, containing the treatise De Officiis, and several of the orations of Cicero, the Institutes of Justinian,⁷ a portion of Aniani Breviarium, and Rhythmus de Assumptione Virginis Mariæ. The manuscript, which he supposes to belong to the middle of the twelfth century, is written in small, regular, and not inelegant characters, but with pale ink; and the different works contained in the volume appear to have been transcribed by the same hand. The "Gesta in Senatu Urbis Romæ de recipiendo

¹ Codex Theodosianus, cum perpetuis commentariis Jacobi Gothofredi, &c. Lugduni, 1665, 6 tom. fol.

² Hugonis Index Editionum Fontium Corporis Juris Civilis, p. 187.

³ Lipsiae, 1736-45, 6 tom. fol. Ritter's edition was soon afterwards reprinted in Italy. Mantue, 1740-50.

⁴ See Ruhnkenii Opuscula, tom. ii. p. 770.

⁵ Appendix Codicis Theodosiani novis Constitutionibus cumulatione; opera et studio Jacobi Sirmondi, Presbyteri Societatis Iesu. Parisiis, 1631, 8vo.

⁶ Codicis Theodosiani Fragmenta inedita: ex codice palimpsesto Bibliothecæ R. Taurinensis Athenæ in lucem protulit atque illustravit Amedeus Peyron, Linguarum Orientalium Professor. Augustæ Taurinorum, 1824, 4to.

⁷ Prodrimus Corporis Juris Civilis, a Schrader, Clossio, Tafelio, Professoribus Tubingensibus, edendi, p. 53. Berolini, 1823, 8vo.

Civil Law Theodosiano Codice, which we have already recommended to the notice of our readers, cannot but be regarded as a very curious document; and, besides this historical relic, he has rescued from oblivion a considerable number of constitutions, chiefly belonging to the first book of the Theodosian Code.¹ The new materials thus prepared by Peyron and Clossius, have been incorporated with the older stock, and have received much additional illustration from Dr Wenck, the late eminent professor of the civil law in the university of Leipzig.² The first five books of the Code, which long appeared so defective and mutilated, are now exhibited in a form materially improved; nor will his annotations be despised, even by such readers as are most familiarly acquainted with those of Gothofredus and Ritter. His notes are sufficiently copious, and afford abundant proofs of the extent of his erudition, and the soundness of his judgment.

After the interval of a century, the example of Theodosius was followed by Justinian. To ten individuals learned in the laws he in the year 528 entrusted the important task of compiling a new code; and at the head of this commission he placed Tribonian, who makes so conspicuous a figure in the history of his reign.³ The materials for their undertaking were contained in the three codes which have already been mentioned, and in the constitutions of the intervening emperors. Their collection includes the edicts and rescripts of a long series of princes, from Hadrian to Justinian; and they were authorized to select what was most important, to retrench what was superfluous, to rectify what was erroneous, and even to consolidate several constitutions into one. This task they performed with sufficient dispatch: the new code, which was to supersede all the former, received the imperial sanction on the 7th of April 529. But soon after its completion, Justinian found it necessary to issue fifty new decisions, for the purpose of reconciling conflicting principles; and having in the course of a very few years promulgated various other constitutions, he granted a commission to Tribonian and other four persons to revise the code, and insert the additional laws in their proper places. The first edition was suppressed, and the new edition, Codex repetita praelectionis, was sanctioned on the 16th of November 534. It is divided into twelve books, and each book into a variety of titles.

During this interval, however, Tribonian had been engaged in a work of greater difficulty. On the 15th of December 530, he had been appointed, along with sixteen associates, to prepare a general digest of legal science, not from the edicts and rescripts of the emperors, but from the writings of those lawyers who enjoyed the highest reputation in the forum.⁴ The work which they thus compiled contains a very copious collection of legal principles and legal discussions, exhibiting one of the most remarkable specimens of ancient genius and

ancient wisdom. It is divided into fifty books. Dr Bluhme Civil Law has with much labour and ingenuity attempted to ascertain the general principle of arrangement in the titles of which the different books are composed; and his theory has obtained the approbation of Hugo, and other most competent judges. He supposes that the commissioners appointed by Justinian were divided into three sections, and that to each section was assigned the task of extracting the proper materials from a particular series of works. We are thus to expect a triple series in each title: the deviations from this general plan he conceives to be but inconsiderable; and for particular modifications he discovers an obvious and intelligible reason. The first series commences with the commentaries on Sabinus, the second with those on the Edictum Perpetuum, and the third with the works of Papinian. He has pursued his enquiries through many minute details, in which we cannot at present accompany him, but must content ourselves with referring to his elaborate Ordnung der Fragmente in den Pandectentiteln.⁵

After the completion, but before the publication of the Digest or Pandects, the emperor employed Tribonian, Theophilus, and Dorotheus, to prepare a short and elementary work as a standard introduction to the study of the law. This work is professedly compiled from more ancient treatises of the same nature, and particularly from the Institutes of Caius, whom Justinian styles "Caius noster." The discovery of this latter work is of great importance in illustrating the text of the imperial Institutes, which have for so many centuries retained their place in the schools of jurisprudence, and have so generally served as models to those who in modern times have undertaken to write elementary treatises of law. "This little work," says Dr Beyer, "is so truly admirable, both for its method and conciseness, as well as for the elegance of its composition, that it has been imitated by almost every nation in Europe, that hath ever made any attempt to reduce its own laws to a regular and scientific form."⁶ It is worthy of remark, that those who are unacquainted with the Institutes and Pandects, are unacquainted with the full compass of the Latin language.⁷ The terse and appropriate phraseology with which they so frequently abound, was transfused from the productions of a purer age; nor is it wonderful that they should occasionally be debased by a grosser mixture. "It is remarkable," as Mr Hume has observed, "that in the decline of Roman learning, when the philosophers were universally infected with superstition and sophistry, and the poets and historians with barbarism, the lawyers, who in other countries are seldom models of science or politeness, were yet able, by the constant study and close imitation of their predecessors, to maintain the same good sense in their decisions and reasonings, and the same purity in their language and expression."⁸

¹ Theodosiani Codicis genuini Fragmenta: ex membranis Bibliothecæ Ambrosianæ Mediolanensis nunc primum edidit Waltherus Fridericus Clossius, Phil. et J. U. Doctor, et Juris Professor Publicus Ordinarius in Regia Universitate Tubingensi. Tübingen, 1824, 8vo.

² Codicis Theodosiani libri V. priores: recognovit, additamentis insignibus a Walthero Friderico Clossio et Amedeo Peyron reperiis aliisque auxit, notis subitaneis, tum criticis tum exegeticis, nec non quadruplici appendice instruxit Car. Frid. Christianus Wenck, Antecessor Lipsiensis. Lipsiae, 1825, 8vo.

³ J. P. de Ludewig Vita Justiniani atque Theodoræ Augustorum, nec non Triboniani. Halæ Salicæ, 1731, 4to.

⁴ Gull. Grotii Vitæ Jurisconsultorum quorum in Pandectis extant Nomina. Lugd. Bat. 1690, 4to.

⁵ Zeitschrift für geschichtliche Rechtswissenschaft, herausgegeben von Savigny, Eichhorn und Göschen, Bd. iv. S. 257.—See likewise an article by Hugo, in the Thémis, ou Bibliothèque du Jurisconsulte, tom. iii. p. 279. Bluhme's speculations have not obtained the same approbation from Dr Tigerström, De Origine et Historia Digestorum libri duo, p. 481. Berolini, 1829, 8vo.

⁶ Beyer's Hist. of the Legal Polity of the Roman State, p. 480. Lond. 1781, 4to.

⁷ Opuscula varia de Latinitate Jurisconsultorum veterum: junctim edidit, et animadversiones adjecit Carolus Andreas Dukerus. Lugd. Bat. 1711, 8vo. Ge. Casp. Kirchmaieri Opuscula VI. rarissima de Latinitate Digestorum et Institutionum. Halæ, 1772, 8vo.

⁸ Hume's Hist. of England, vol. iii. p. 300.

1 Law. The Institutes were sanctioned on the 21st of November 533; and on the 16th of December, the emperor issued two constitutions, the one in Latin and the other in Greek, by which he confirmed the Institutes, Code, and Pandects, and imparted to them the force and validity of law in the forum, and commanded them to be taught in the schools of Rome, Constantinople, and Berytus. Justinian survived till the year 565, and during that long interval he promulgated many new laws. A collection was at length formed of his Novels, or new Constitutions, to the number of one hundred and sixty-eight. The greatest part of them appear to have been originally written in Greek; some were however written in Latin, and others were at the same time exhibited in both languages.¹ These are followed by thirteen Greek edicts of Justinian, which properly conclude the Corpus Juris Civilis, although the common editions comprehend various Novels of Leo,² and some other emperors, together with other ancient documents, all of which are only to be considered as appendages.

The task of compiling the Institutes, as we have already seen, was committed to Tribonian, Theophilus, and Dorotheus, of whom the two latter are described as antecessores, or public professors of law. Whether one of these was the same Theophilus who wrote a Greek paraphrase of the Institutes, has been long and much disputed among civilians: to recapitulate all the arguments which have been urged on both sides of the question, would require too much time and space; we shall therefore content ourselves with stating, that we are strongly inclined to adopt the opinion of those writers who maintain their identity, and with referring the more curious reader to the ample discussions of Mylius and Reitz.³ Theophilus was a professor at Constantinople, and Dorotheus at Berytus. During the reign of Justinian, the two imperial cities, together with Berytus, were the only places, within the limits of the empire, where public schools of law were established, or indeed where law was permitted to be publicly taught.⁴ Berytus, which the emperor describes as a most beautiful city, was situated on the coast of Syria: here a school of jurisprudence was founded during the third century, and it was long frequented by a numerous train of students; but its prosperity was first interrupted, and was finally subverted, by some of the great convulsions of nature. In the year 384 the town was greatly injured by an earthquake, and in 554 it was visited by another earthquake, which left it a heap of ruins. Some professors and a multitude of students perished in this common calamity: the surviving professors transferred their school to Sidon, and the surviving inhabitants made a vigorous effort to raise a new city from the ruins of the old; but another calamity awaited them, and this famous seat of jurisprudence was totally consumed by fire.⁵

The paraphrase of Theophilus is of great utility and importance in explaining the text of the Institutes. He has not

servilely confined himself to the original, and his work in a Civil Law, great measure supplies the place of a perpetual commentary. It is a book indispensably necessary for every more learned and inquisitive student of the civil law. This paraphrase is not indeed entirely free from errors: Reitz conjectures, and not without a considerable degree of plausibility, that Theophilus had dictated it to the students of Constantinople, in the exercise of his functions as a public expounder of the law; and that for its transmission to posterity we are solely indebted to copies taken by his auditors, and uncorrected by himself. To this valuable relic of the attention of modern lawyers was first directed by Angelo Poliziano, who died at a premature age in the year 1494. He was a person of singular talents and attainments, who only required a greater length of days to have earned the highest reputation. To the celebrity of an Italian and Latin poet, and of a classical critic, he was solicitous to add that of a civilian; and he was likewise the first individual who attempted a collation of the renowned Florentine manuscript of the Pandects.⁶

Of the Pandects, different Greek versions have been mentioned by different writers. One version has been ascribed to Thuleleus, who was an antecessor in the time of Justinian; but Pohl and Heimbach have shewn that there are no sufficient grounds for believing that he undertook such a task.⁷ Another translation is mentioned by Matthæus Blastares as having been executed by Stephanus, an advocate of Constantinople, who had been conjoined with Tribonian in the commission for compiling the original work. The Code was likewise translated into Greek: the translator is supposed to be the person who, in the scholia of the Basilica, is repeatedly described as Καθαιμης. To many of the judges, as well as the suitors, in the eastern empire, Latin must evidently have been an unknown tongue. When the seat of empire was transferred from Rome to Byzantium, the first emperors were anxious to transfer the use of the Roman language, and for a considerable time this continued to be at least the language of the court. Teachers of Roman eloquence were established in the second metropolis, and they doubtless found many pupils among the youth who aimed at a fashionable education, or were ambitious of preferment; but it was not to be expected that the great body of the people should be induced to unlearn one language, and to acquire another.

During the interval which elapsed between the reign of Justinian and that of Basilus, there were many Greek writers on the Roman law; and not a few names have been recovered from the wreck of time by Lambecius, Suarez, Asseman,⁸ and other learned enquirers. Basilus, who has obtained a conspicuous place among the legislators of the empire, derived his lineage from Armenia, but was himself born in Macedonia, and is commonly known by the name of Basilus the Macedonian. He rose from an origin sufficiently humble, and after having been a groom, he be-

¹ F. A. Biener's Geschichte der Novellen Justinian's. Berlin, 1824, 8vo.

² C. A. Beck de Novellis Leonis Augusti et Philosophi, earumque Usu et Auctoritate liber singularis: editit C. F. Zepernick. Halae, 1779, 8vo.

³ Jo. Henrici Mylius, J. U. D. Theophilus; sive de Graecarum Juris Institutionum earundemque Auctoris Historia, Ætate, Auctoritate, Fatis, Dotibus, Nævis, liber singularis. Lugd. Bat. 1761, 8vo. Reitzii Præf. in Theophilum, p. xxv. Of this work of Mylius, the first edition appeared at Leipzig in 1730. The entire tract may be found in Reitz's edition of Theophilus, tom. ii. p. 1034. This edition, in the opinion of Haubold, is unequalled by any similar publication, except Ritter's edition of the Theodosian Code. (Institutiones Juris Romani Litterarie, p. 205. Lipsiae, 1809, 8vo.)

⁴ Const. omnes res, § 7. ad Antecessores.

⁵ Heinseii Hist. Juris Civilis, p. 472. edit. Ritter. Lugd. Bat. 1748, 8vo. But see more particularly "Johannis Strauchii Berytus, seu ad tit. Cod. de Metropoli Beryto Dissertatio publica." Brunsvigae, 1662, 4to.

⁶ Bandini, Ragionamento Istorico sopra le Collazioni delle Fiorentine Pandette fatte da Angelo Poliziano. Livorno, 1762, 4to.

⁷ Suarezii Notitia Basilicorum, recensuit C. F. Pohlus, p. 66. Lipsiae, 1804, 8vo. Heimbach de Basilicorum Origine, Fontibus, Scholis, atque nova Editione adornanda, p. 25. Lipsiae, 1825, 8vo.

⁸ Assemani Bibliotheca Juris Orientalis Canonici et Civilis. Romae, 1762-6, 5 tom. 4to.

Civil Law came sovereign of the east. The eastern empire, in which the Greek language was vernacular, was governed by a collection of laws chiefly written in Latin; and the different versions which had been executed were without the sanction of public authority. It was therefore his object to select such enactments as were still in force, and having digested them into the form of a regular code, to invest them with the imperial sanction. This great undertaking he did not live to complete. He died in the year 886, and was succeeded by his son Leo, surnamed the Philosopher. The body of Greek laws was completed under his direction: the date of its promulgation has not been ascertained; but as the student is referred to it in Leo's Ecloga, which was written in the year 910, the Basilica must have been in circulation before that period. Leo ended his reign and his life in the year 911, and was succeeded by his son Constantinus Porphyrogenitus, when only seven years of age. From this learned prince the Basilica appear to have received their final revision. Theodorus Balsamon, in his commentary on the Nomocanon of Photius, describes the revised edition as την τελεταιαν ανακαταρτιν; and, according to the opinion of Heimbach, it was not divulged before the year 945.²

It has long been a current opinion that, in the western empire, all knowledge of the civil law became extinct, and was not revived till after the lapse of several centuries. "All the world knows," says Lord Kames, "that the Roman law, after being buried in oblivion for ages, came to be restored in Italy by an accident. The very books of that law were understood to be lost past recovery, till a copy of the Pandects was found in the town of Amalfi anno 1127,³ by Lotharius the emperor when he took that town, in the war he carried on against Rodger king of Sicily and Naples. The knowledge of it increased so fast, that it was taught publicly by Vacarius at Oxford about the year 1150, during the reign of king Stephen.⁴ This was as swift a progress as any science can be supposed to make."⁵ A more recent writer has added something to the old stock of speculation. "The fortunate, or perhaps unfortunate discovery of the Roman code, at Amalfi in Italy, produced a great change in the institutions of almost every country in Europe. The dignified clergy of that day immediately perceived how advantageous the adoption of the regula-

tions of Justinian would prove to them; and the popes, Civil Law who then pretended to dispose of the throne of the Cæsars, were eager to support the arbitrary edicts of emperors, who, like themselves, affected to think that both their persons and their rescripts were inviolable. The neighbouring countries cheerfully submitted to the change, and thus engrafted slavery and the civil law on that even-handed Gothic jurisprudence, which had ensured freedom to all the northern nations."⁶ This philosophic speculator, who thus attempts to twist a rope of sand, has not even arrived at the point of distinction between the Pandects and the Code. So true it is that when an English writer ventures to speak of the Pandects, he generally finds his way to be dark and slippery.

It was maintained by Taurellus, Augustinus, Brenkman, and other learned civilians, that all the copies of the Pandects known to be extant are derived from this famous manuscript, which was first deposited at Pisa, and afterwards removed to Florence.⁷ This opinion was zealously opposed by the Abate Grandi, professor of mathematics in the university of Pisa, whose Epistola de Pandectis was first printed in the year 1726.⁸ The course of his enquiries also led him to call in question the traditional tale respecting the marvellous resuscitation of the Roman law after the siege of Amalfi. Various writers had incidentally maintained the opinion which he adopts; and it had recently been maintained in a separate work by D'Asi.⁹ The story of the manuscript seized as a warlike booty, he treats as a mere fiction; and Muratori has remarked, that the earliest authority for this anecdote of the siege is Raynerius de Grancis, a writer of the fourteenth century. To Grandi's work, which attracted no small degree of attention, an answer was published by Bernardo Tanucci, professor of the civil law at Pisa;¹⁰ nor was the mathematician tardy in replying.¹¹ Tanucci soon prepared a copious rejoinder.¹² Grandi continued the controversy, under the assumed name of Bartolo Luccaberti;¹³ and his antagonist concluded his exertions, by enlarging his first epistle, and translating his second defence into Latin.¹⁴ In these disquisitions, they were succeeded by Schwartz, a learned German, who rejected the notion that all the modern copies of the Pandects are derived from the Florentine manuscript.¹⁵ Brenkman, who had devoted so much

¹ Voelli Bibliotheca Juris Canonici veteris, tom. ii. p. 814.

² Heimbach de Basilicorum Origine, p. 15.—See the article Basilica, vol. iv. p. 426.

³ In the date of this grand discovery there seems to be an error of ten years, for the siege of Amalfi is commonly referred to the year 1137. See however Brenkman's Historia Pandectarum, p. 25, 43.

⁴ See Wenck's Magister Vacarius, primus Juris Romani in Anglia Professor. Lipsiae, 1820, 8vo.

⁵ Kames's Essays upon several Subjects concerning British Antiquities, p. 15. Edinb. 1747, 8vo.

⁶ Stephens's Memoirs of John Horne Tooke, vol. ii. p. 16. Lond. 1813, 2 vols. 8vo.

⁷ Brenkman's Historia Pandectarum, seu Fatum Exemplaris Florentini: accedit gemina Dissertatio de Amalfi. Traj. ad Rhenum, 1722, 4to. Flaminio dal Borgo, Dissertazione sopra l'istoria de' Codici Pisani delle Pandette di Giustiniano Imperatore. Lucca, 1764, 4to.

⁸ Grandi Epistola de Pandectis ad cl. virum Josephum Averanium. Editio altera, notis variis, et appendice veterum monumentorum ab auctore locupletata. Florentiae, 1727, 4to. The first edition was published at Pisa during the preceding year. His endeavours were seconded by a learned professor of divinity at Pisa, whose work was published at Florence in 1727: "D. Virginii Valsechii Epistola de veteribus Pisanæ Civitatis Constitutis, ad clariss. et reverendiss. Patrem D. Guidonem Grandi." This epistle has been reprinted by Hoffmann, Hist. Juris Romanæ-Justiniæ, vol. i. app. p. 185. Lipsiae, 1726-34, 2 tom. 4to.

⁹ D'Asi dell' Uso e Autorità della Ragion Civile nelle Provincie dell' Imperio Occidentale dal dì che furono inundate da' Barbari sino a Lotario II. Napoli, 1720-2, 2 tom. 8vo.

¹⁰ Lucan, 1728, 4to.

¹¹ Grandi Vindicie pro sua Epistola de Pandectis, adversus inanes Querelas et Oppugnationes Bernardi Tanuccii. Pisis, 1728, 4to.

¹² Tanucci, Difesa seconda dell' Uso antico delle Pandette, e del Ritrovamento del famoso Manoscritto di esse in Amalfi, contra le Vindicie del P. D. Guido Grandi, Abate Camaldolense, e Lettore di Matematica nello Studio di Pisa, libri due. Firenze, 1729, 4to.

¹³ Nuova Disamina della Storia delle Pandette Pisane, e di chi prima le rammentasse, come ancora d'altre incidenti Questioni, collo Scoglimento delle Difficoltà, opposte all' Epistola de Pandectis, ed alle Vindicie del Rmo. P. Abate Grandi da Bernardo Tanucci. Dottore da Stia. Opera di Bartolo Luccaberti, divisa in parti iv. Faenza, 1730, 4to.—Fabroni informs us that Grandi was himself the author of this work. (Vitæ Italorum Doctrina excellencium, tom. viii. p. 249.) Some writers have however supposed Luccaberti to be a real person. See Eckhardt's Heremeneutica Juris, p. 76, edit. Walchii. Lipsiae, 1892, 8vo.

¹⁴ Tanucci Epistola de Pandectis Pisanis, in Amalphitana Directione inventis, ad Academicos Etruscos, in qua confutantur que Guido Grandius, Cremonensis Abbas, et Antecessor in Pisano Gymnasio, opposuit Francisco Taurellio et Henrico Brenckmanno. Florentiae, 1731, 4to.—The same volume, which extends to 557 pages, includes the Latin translation of his Difesa seconda.

¹⁵ Schwartz published a disquisition, "An omnia Pandectarum Exemplaria, que adhuc extant, e Florentinis manaverint." Altorfi, 1733, 4to.