Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/828

794 JUSTINIAN Justinian s work; however, he, or rather Tribonian, who seems to have acted both as his adviser and as his chief executive officer in all legal affairs, conceived that a third book was needed, viz., an elementary manual for begin ners which should present an outline of the law in a clear and simple form. The little work of Gaius, most of which we now possess under the title of Commentarii Institutionum, had served this purpose for nearly four centuries; but much of it had, owing to "changes in the law, become inapplicable, so that a new manual seemed to be required. Justinian accordingly directed Tribonian, with two coadjutors, Theophilus, professor of law in the university of Constantinople, and Dorotheus, professor in the great law school at Beyrout, to prepare an elementary text-book on the lines of Gaius. This they did while the Digest was in progress, and produced the useful little treatise which has ever since been the book with which students commonly begin their studies of Roman law, the Institutes of Justinian. It was published as a statute with full legal validity shortly before the Digest. Such merits as it possesses simplicity of arrangement, clear ness and conciseness of expression belong rather to Gaius, who has been closely followed wherever the alterations in the law had not made him obsolete, than to Tribonian. However, the spirit of that great legal classic seems to have in a measure dwelt with and inspired the inferior men who were recasting his work ; the Institutes is better both in Latinity and in substance than we should have expected from the condition of Latin letters at that epoch, better than the other laws which emanate from Justinian. In the four years and a half which elapsed between the publication of the Codex and that of the Digest, many important changes had been made in the law, notably by the publication of the " Fifty Decisions," which settled many questions that had exercised the legal mind and given occasion to intricate statutory provisions. It was therefore natural that the idea should present itself of revising the Codex, so as to introduce these changes into it, for by so doing, not only would it be simplified, but the one voluni3 would again be made to contain the whole statute law, whereas now it was necessary to read along with it the ordinances issued since its publication. Accord ingly another commission was appointed, consisting of Tri bonian with four other coadjutors, full power being given them not only to incorporate the new constitutions with the Codex and make in it the requisite changes, but also to revise the Codex generally, cutting down or filling in wherever they thought it necessary to do so. This work was completed in a few months ; and in November 534, the revised Codex (Codex repetitge prsdectionis) was pro mulgated with the force of law, prefaced by a constitution (Cordi nobis) which sets forth its history, and declares it to be alone authoritative, the former Codex being abro gated. It is this revised Codex which has come clown to the modern world, all copies of the earlier edition having disappeared. The constitutions contained in it number 4652, the earliest dating from Hadrian, the latest being of course Justinian s own. A few thus belong to the period to which the greater part of the Digest belongs, i.e., the so-called classical period of Roman law down to the time of Alexander Severus (244) ; but the great majority are later, ami-belong to one or other of the four great eras of imperial legis lation, the eras of Diocletian, of Constantino, of Theodosius II., and of Justinian himself. Although this Codex is said to have the same general order as that of the Digest, viz., the order of the Perpetual Edict, there are considerable ditferences of arrangement between the two. It is divided into twelve books. Its contents, although of course of the utmost practical importance to the lawyers of that time, and of much value still, historical as well as legal, are far less interesting ami scientifically admirable than the extracts preserved in the Dir/e*L The difference is even greater than that between the English Reports of Cases decided since the days of Lord Holt and the English Acts of Parliament for the same two centuries. The emperor s scheme was now complete. All the Roman law had been gathered into two volumes of not immoderate size, and a satisfactory manual for beginners added. But, as the appetite comes with eating, Justinian and Tribonian had grown so fond of legislat ing that they found it hard to leave off. Moreover, the very sim plifications that had been so far effected brought into view with more clearness such anomalies or pieces of injustice as still continued to deform the law. Thus no sooner had the work been rounded off than fresh excrescences began to be created by the publication of new laws. Between 534 and 565 Justinian issued a great num ber of ordinances, dealing with all sorts of subjects, and seriously altering the law on many points, the majority appearing before the death of Tribonian, which happened in 545. These ordinances are called, by way of distinction, new constitutions, Novellas consti- tutioncs post Codiccm (Veapat 8jaTaeis), A ovcls. Although the emperor had stated in publishing the Codex that all further statutes (if any) would be officially collected, this promise does not seem tp have been redeemed. The three collections of the Novels which wo possess are apparently private collections, nor do we even know how many such constitutions were promulgated. One of the three con tains 168 (together with 13 Edicts), but some of these are by the emperors Justin II. and Tiberius II. Another, the so-called Epitome of Julian, contains 125 Novels in Latin ; and the third, the Liber Authenticarum or Vulgata Versio, has 134, also in Latin. This last was the collection first known and chiefly used in the "West during the Middle Ages ; and of its 134 only 97 have been written on by the glossatorcs or mediasval commentators ; these therefore alone have been received as binding in those countries which recog nize and obey the Roman law, according to the maxim Quicquid non agnoscit glossa, ncc agnoscit curia. And, whereas Justinian s con stitutions contained in the Codex were all issued in Latin, the rest of the book being in that tongue, these Novels were nearly all pub lished in Greek, Latin translations being of course made for the use of the western provinces. They are very bulky, and with the exception of a few, particularly the 116th and 118th, which intro duce the most sweeping and laudable reforms into the law of intes tate succession, are much more interesting as supplying materials for the history of the time, social, economical, and ecclesiastical, than in respect of any purely legal merits. They may be found printed in any edition of the Corpus Juris Civilis. This Corpus Juris, which bears and immortalizes Justinian s name, consists of the four books described above : (1) the authorized col lection of imperial ordinances (Codex Constitutionum] ; (2) the authorized collection of extracts from the gi eat jurists (Digcsta or PandectsB) ; (3) the elementary handbook (Institutiones) ; (4) the unauthorized collection of constitutions subsequent to the Codex (Novellas). From what has been already stated, the reader will per ceive that Justinian did not, according to a strict use of terms, codify the Roman law. By a codification, we under stand the reduction of the whole pre-existing body of law to a new form, the restating it in a series of propositions, scientifically ordered, which may or may not contain some new substance, but are at any rate new in form. If he had, so to speak, thrown into one furnace all the law con tained in the treatises of the jurists and in the imperial ordinances, fused them down, the gold of the one and the silver of the other, and run them out into new moulds, this would have been codification. What he did do was some thing quite different. It was not codification but consoli dation, not remoulding but abridging. He made extracts from the existing law, preserving the old words, and merely cutting out repetitions, removing contradictions, retrenching superfluities, so as immensely to reduce the bulk of the whole. Arid he made not one set of such extracts but two, one for the jurist law, the other for the statute law. He gave to posterity not one code but two digests or collec tions of extracts, which are new only to this extent that they are arranged in a new order, having been previously altogether unconnected with one another, and that here and there their words have been modified in order to bring one extract into harmony with some other. Except for this, the matter is old in expression as well as in sub stance. Thus regarded, and even omitting to remark that the Novels, never having been officially collected, much less incorporated with the Codex, mar the symmetry of the structure, Justinian s work may appear to entitle him and Tribonian to much less credit than they have usually-