Page:The American Cyclopædia (1879) Volume IV.djvu/634

622 CIVIL LAW plundered Rome; the Alans, Vandals, and Suevi advanced through Gaul to the Pyrenean peninsula, and thence to Africa; the Franks, Burgundians, and Ostrogoths took possession of Gaul, Helvetia, and the country bordering on the Rhine ; while Britain became occupied by the Saxons, and Attila (about 450) invaded Gaul with his Huns, who everywhere carried de- struction in their path. The Western empire was at last completely terminated by Odoacer (476). The power of the Romans was now limited to the empire of the East, which con- tinued to the year 1453, when it was destroyed by the Turks. In this period the alterations of the law were almost exclusively effected by imperial ordinances and by customs. Most of them related to the administration of govern- ment, especially the finances, the war depart- ment, and the provinces ; and the few relating to private law were usually only an applica- tion of the existing law to particular cases and persons. They were either general ordinances relating to the whole people, namely, edicts or personal constitutions, establishing provi- sions for single persons, as for instance privi- leges or mandates, imperial orders and direc- tions for the officers of state, and decisions in ju- dicial cases (decreta) which had been brought by way of appeal before the imperial council (auditorium principle), or answers and direc- tions of the emperors (reseripta) upon appli- cations or questions in doubtful cases, which were given, on the opinion of the imperial coun- cil, in conformity with the existing law. Before Constantino, most of the imperial ordinances were merely decrees and rescripts; but subse- quently the edicts became very frequent, for the prevalence of Christianity had changed many of the former opinions of the nation, and the manners and language of the East, where the metropolis was placed, differed widely from those of the West. At the com- mencement of the 5th century the sources of law were at least theoretically as follows : 1, the ancient decrees of the people ; 2, the de- crees of the senate ; 3, the edicts of the Ro- man magistrates ; 4, the ordinances of the em- perors; 5, the unwritten customs. The law of the twelve tables still formed the basis of the whole, and all the laws of later times had to them the relation of additions and modi- fications. But in practice only the writings of the classical jurists and the constitutions of the emperors were used as sources. Constan- tino determined by special ordinances, what writings of the old jurists should have particu- lar authority, and what should not be regarded. He prohibited reference to the notes of Ulpian and Paulus on Papinian. A century later (426) Theodosius II. issued a similar and yet more extensive ordinance, which was intended for the Eastern empire, but soon after obtained legal force also in the Western. This ordi- nance (which is often erroneously attributed to Valentinian III., and hence called Valentinian's law of quotation) provided that all the wri- tings of Papinian, Paulus, Gains, Ulpian, and Modestinus should have the force of legal au- thority. The same authority was extended to all those older jurists whose opinions and treatises were incorporated into and explained by the writings of the five above named, with the exception only of the notes of Ulpian and Paulus on Papinian. In case of the disagreement of those authorities, the majority were to decide ; where the opinions were equally divided, that of Papinian was to have the preference ; but where he was silent, the judge was to follow his own opinion. The constitutions of the em- perors were very numerous. Two jurists, Gre- gorius and Hermogenes, or according to others Gregorianus and Hermogenianus, in the early part of the 4th century, undertook two collec- tions (codices) of imperial constitutions. Both collections, however, were almost exclusively composed of rescripts. The Codex Gregorianus contained the constitutions from Hadrian down to Constantino. The Codex Hermogenianut was only a supplement to the former, containing the constitutions of Diocletian and Maximinian. Only a few fragments are left of these collec- tions. The Codex Theodosianus was of greater importance than either of the foregoing. By an ordinance of the emperor Theodosius the Younger, a committee of 16 jurists, of whom the ex-consul and ex-prefectus prsetorio An- tiochus was the chief, made a collection of the edicts of the emperors, including however many of the rescripts. This collection was published in 438, as a code for the Eastern empire. Theodosius sent this new code to his son-in-law Valentinian III., who confirmed it in the same year for the Western empire, and pre- sented it to the senate at Rome, who received it with acclamation; It consisted of 16 books. The work has been recovered almost entire. After the completion of the Codex Theodosia- nut, the emperors Theodosius II., Valentinian III., and their successors, continued to issue new ordinances, which are termed novella, i. e., nova constitutions (new constitutions). These have been embodied in later times in the Codex Theo- dosianut, under the head of Novella Consti- tutions Imperatorum, Justiniano anteriorum, TTieodosii, Valentiniani, &c. From the time of Alexander Severus to Justinian there were hardly any writers on law of any importance. The literary productions were confined to col- lecting imperial constitutions, and compiling from the works of the old jurists. After the fall of the Roman empire several new German states were formed in the West, in which the immigrated Germans and the conquered Ro- mans lived together under the same govern- ment. The former had separate laws and cus- toms of their own, which they preserved in their new settlements ; while the subdued Ro^ mans, living among them, continued to use their own, and were judged according to them. The Germans committed to writing their prim- itive national laws, and the Romans did the same with their laws then in force. The most