Imagens das páginas

ander Severus. It was the imperial legislature. The power

of the comitia was transferred to this shadow of a Roman senate, for the old constitutional senate not being able conveniently to govern all the provinces, (according to the courtly language of the Pandects,") gave to the prince the right to make laws. The judgments of the prince were

called imperial constitutions, and they were usually enacted Imperial and promulgated in three ways: 1st. By rescript, or letter Rescripts.

in answer to petitions, or to a distant magistrate. 2d. By decrees passed by the emperor on a public hearing in a court of justice; and Paulus collected six books of those decrees, and from which he for the most part dissented. 3d. By edict, or mere voluntary ordinances. Gravina says, that these imperial constitutions proceeded not as from a single individual, but as from the oracle of the republic by the voice of the senators, who were consulted, and were the visible representatives of the majesty of the commonwealth. Many of these imperial ordinances were suggested by the best of the civilians, and do great honour to their authors; and with regard to private and personal rights, the Romans enjoyed to a very great degree, under the emperors, the benefit of their primitive fundamental laws, as they existed in the times of the republic. The profession of the law was held in high estimation under the emperors, and during the second and third centuries, the science of jurisprudence was elevated higher than it ever has been in any other age, or among any other people. Hadrian took off the restriction of Augustus, and gave the privilege of being

was imitated by the provincial governors. History the Roman Law during the Middle Ages, by Savigny, vol. 1. 87.

a Dig. 1. 2. sec. 11.
b Code 1. 14. 3. Gravina de Ortu et Prog. sec. 123. 124.
c Gravina, ibid. sec. 122. De Romano Imperio, sec. 20.

d Gravina de Romano Imperio, ibid. The imperial rescripta thus assumed the character and weight of judicial precedents, and were entitled to at least equal authority with the responsa prudentum.

a public interpreter of the law to the profession at large.a It was restored by the Emperor Severus, and the responsa pruentum assumed an air of great importance. Though in the first instance they were received as mere opinions, they gradually assumed the weight of authority. The opinions were sent in writing to the judges, and in the time of Justinian, they were bound to determine according to those opinions. These responsa (of which many are preserved in the Pandects) were not of the same authority as the constitutional leges, but they were law for the case, and they were applied to future cases under the character of principles of equity, and not of precepts of law. In the ages immediately preceding Justinian, the civil law was in a deplorable condition, by reason of its magnitude and disorder; and scarcely any genius, says Heineccius, was bold enough to commit himself to such a labyrinth. As a remedy for the evil, the Emperor Valentinian the 3d, confirmed by decree the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, by name, and directed that they alone be permitted to be cited in the courts of justice, with the exception of such extracts as they had transferred into their books from the ancient lawyers, and with some other qualified exceptions in favour of Scævola, Sabinus, Julianus, and Marcellus. The opinion of the majority of these five legislative characters was to govern ; and where there was in any case an equal division of opinion, that of Papinian was to be preferred.

a Dig. 1. 2. 2. 47. b Inst. 1.2.8.

c Heinecc. Antiq. Rom. Jur. lib. 1. tit. 2. sec. 41. Histor. Jur. Civ. lib. 1. sec. 378. Heineccius says, that Papinian was every where called Juris asylum et Doctrinæ legalis thesaurus, and he far supassed all his brethren, omnes longo post se intervallo reliquerit. Gaius (Inst. lib. 1. sec. 2.) refers to a rescript of the Emperor Hadrian, in which the responsa prudentium were to be received as law, if they were unanimous, and if not, the judge was at liberty to follow his own judg

Digests of The first authoritative digest of the Roman law which acthe civil law.

tually appeared, was the Perpetual Edict, compiled by Salvius Julianus, under the orders of the Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofred, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority. The prætorian edicts had been so controlled under the government of the emperors by the opinions of the civilians, that they lost the greater part of their ancient dignity, and Hadrian projected the design of reducing the whole Roman law into one regular system. All that he, however, lived to perform, was to procure the compilation of those edicts of the prætors which had stood the test of experience on account of their authority and equity, and had received the illustrations of civilians. Many able professors undertook from time to time a digest of the civil law. Papirius Justus collected some of the imperial constitutions into twenty books, and Julius Paulus compiled six books of decrees or imperial decisions. Gregorius made a collection of a higher character, and he digested into order the chief, if not the whole of the imperial Rescripts from Hadrian down to the reign of Dioclesian and his colleagues, and which was called the Gregorian Code, and attained great authority in the forum. Hermogenes continued this collection under the name of the Hermogenian Code.

Theodosius the younger

ment. At the period of Valentinian, the writings of the great jurists, and the constitutions of the Emperors, were alone consulted as authorities. Savigny's History of the Roman law, vol. 1. p. 7. a Gibbon's History, vol. 8. p.

16. The Plebiscita had ceased under Augustus, but the senatus consulta did not absolutely cease with Hadrian. They continued to enrich the civil law in matters of private right long afterwards. Hugo, Hist. du Droit Rom. sec. 284 307.

b Gravina de Ortu et Prog. Jur. Civ. sec. 38.
c Heinecc. Hist. Jur. Civ. lib. 1. sec. 368-372.

appointed a committee of eight civilians, to reduce the imperial constitutions, from the time of Constantine, into a methodical compendium; and this Theodosian code became a standard work throughout the empire, and it was published in six folio volumes in 1665, with a vast and most learned commentary by Gothofrede. Another century elapsed before Justinian directed Tribonian, who was an eminent lawyer and magistrate, to unite with him a number of skilful civilians, and to assume the great task of collecting the entire body of the civil law, which had been accumulating for fourteen centuries, into one systematic code. Whether the Roman law at that period exceeded or fell short of the number of volumes in which the English law is now embodied, it is not easy to determine. Tribonian represented to the emperor, that when he and his learned associates undertook the business of digesting the civil law, he found it dispersed in two thousand books, and in upwards of three millions of verses,a detached from the writings of the sages, which it was necessary to read and understand in order to make the selections. The size of these volumes, and the exact quantity of matter in these verses, we cannot ascertain.” It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us, that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human capacity to digest.

a Duo pene millia librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa, Secund. Præf. ad Dig. sec. 1.

6 Professor Hugo, in his History of the Roman Law, sec. 318, reduces, by computation, the Roman laws to 580 volumes, of a moderate size. He allows 24 of the three millions of verses, to a page, and 400 pages to a volume. The 2000 books, judging from the books in the Pandects, will give only 280 volumes. This reasonable estimate takes away every appearance of the marvellous from the magnitude of the Roman law.

e Prima Præf. ad Dig. sec. 1: VOL. I.



Corpus Juris
Civilis. The compilations made under Justinian, and which con-

stitute the existing body of the civil law, consist of the fol-
lowing works, and which I shall mention in the order in

which they were originally published. Code

(1.) The Code, in twelve books, is a collection of all the imperial statutes that were thought worth preserving from Hadrian to Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates, was, that they should extract a series of plain and concise laws, omitting the preambles, and all other superfluous matter, and they were likewise intrusted with the great and hazardous power to extend, or limit, or alter the sense, in such manner as they should think most likely to facilitate their future use and operation."

(2.) The Institutes, or Elements of the Roman Law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law, in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that age, and shed great lustre on the Roman jurisprudence. It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions, and received the most copious aud laborious illustrations. It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law.

The institutes were compiled chiefly from the writings of Gaius; and a discovery by Mr. Niebuhr so late as 1816, of a re-written manuscript of the entire Institutions of Gaius, has given increased interest to the Institutes of Justinian.

a Pref. prima ad Cod. sec. 2.

b See an account of that discovery iu N. A. Review for April, 1821. The Institutes of Gaius are the prototype of Justinian's Institutes. They were discovered by Niebuhr, the historian, in 1816, in the Cathedral Library at Verona. The manuscript was a coilex rescrip

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