Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/735

CODIFICATION.] ROMAN LAW 711 nihods 0) ro- c ure. len- ian's v of ations. Abandonment of the Formular System of Procedure.'* The for- mular system, with its remit from the praetor to a sworn judex who was to try the cause, was of infinite advantage to the law; for the judgment was that of a free and independent citizen, un- trammelled by officialism, fresh from some centre of business, and in full sympathy with the parties between whom he had to decide. Such a system was incompatible with the political arrangements of Diocletian and Constantino ; and it is with no surprise that we find the former of these sovereigns instructing the provincial governors that in future, unless when prevented by pressure of business (or, according to a later constitution of Julian's, when the matter was of trifling importance), they were themselves to hear the causes brought before them from first to last, as had pre- viously been the practice in the extraordinariae cognitiones. The remit in such cases was not, as formerly, to a private citizen, but to what was called a judex pedaneus, probably a matriculated member of the local bar ; and for a time his delegated authority was embodied in a formula after the old fashion. But even this exceptional use of it did not long survive, for an enactment by the two sons of Constantine, conceived in terms the most compre- hensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntary. The result was, not only the formal disappearance of the distinction between the proceedings in jure and in judicio, but the practical disappearance also of the distinctions between actions in jus and in factum, and between actioncs directae and actiones utiles, the conversion of the interdict into an actio ex inter- dicto, admission of the power of amendment of the pleadings, con- demnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent, and execution accordingly by the aid of officers of the law. Under the new system a process was full from first to last of intervention by officials. The in jus vocatio of the XII. Tables the procedure by which a plaintiff himself brought his adversary into court was a thing of the past. In the earlier part of the period the proceedings commenced with the litis denuntiatio intro- duced in the time of Marcus Aurelius and remodelled by Constan- tine ; but under Justinian (though probably begun before his reign) the initial step was what was called the libellus convenlionis. This was a short and precise written statement addressed by the plaintiff to the court, explaining (but without detail) the nature of the action he proposed to raise and the claim he had to prefer ; this was accompanied with a formal undertaking to proceed with the cause and follow it out to judgment, under penalty of having to pay double costs to the defendant. If the judge was satisfied of the relevancy of the libel, he pronounced an interlocutor (i-nter- locutio) ordaining its service on the respondent ; this was done by an officer of the court, who cited him to appear on a day named, usually at a distance of two or three months. The defendant, through the officer, put in an answer (libellus contradictionis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment. On the day appointed the parties were first heard on any dilatory pleas, such as defect of jurisdiction ; if none were offered, or those stated re- pelled, they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentum calumniae), and their counsel doing the same. From this point, which marked the litis contestatio or joinder of issue, the procedure was much the same as that in judicio under the formular system. But in all cases in which the demand was that a particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution was specific and effected through officers of the law (manu militari). Where, on the other hand, the condemnation was pecuniary, the usual course was for the judge, through his officers, to take pos- session of such things belonging to the defendant as were thought sufficient to satisfy the judgment (pignus in causa judicati captum}, and they were eventually sold judicially if the defendant still refused to pay ; the missio in bona of the classical period was rarely resorted to except in the case of insolvency. The Valentinianian Law of Citations."* This famous enact- ment, the production of Theodosius (II.), tutor of the youthful Valentinian III. , was issued from Ravenna in the year 426, and was addressed to the Roman senate. It ran thus : "We accord our approval to all the writings of Papinian, Paul, Gains, Ulpian, and Modestine, conceding to Gaius the same authority that is enjoyed by Paul, Ulpian, and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scien- 1 Wieding, Der Justiniancische Libellprocess, Vienna, 1865 ; Bethmann- Hollweg(as on p. 681, note 1), vol. iii. (1866); Muther (crit. Wieding), in the Krit. Vierteljahrschrift, vol. ix. (1867), pp. 161 sq., 329 sq. ; Wieding, in same journal, vol. xii. (1870), p. 228 sq. ; Bekker (as on p. 681, note 1), vol. ii. chaps. 23, 24 ; Baron, Gesch. d. rom. Rechts, vol. i. p. 448 sq. 2 Theod. Cod., i. 4, 3; Puchta, in the Rhein. Museum f. Jurisprud., vol. v. (1832), p. 141 517., and Verm. Schriften, Leipsic, 1851, p. 284 sq. ; Sanio, Rechtshist. Abhanrll. u. Studien, Konigsberg. 1S45, p. 1 sq. ; Karlowa. Rom. Rechtsgesch., vol. i. p. 933 sq. tia) of those earlier writers whose treatises and statements of the law the aforesaid five have imported into their own works, Scsevola, for example, and Sabinus, and Julian, and Marcellus, and of all others whom they have been in the habit of quoting as autho- rities (omniumque quos illi celcbrarunt), provided always, as their antiquity makes them uncertain, that the texts of those earlier jurists are verified by collation of manuscripts. If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side ; if the number on each side be the same, that one shall prevail which has the support of Papinian ; but, whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two. [Paul's and Ulpian's notes on his writings, however, as already enacted, are to be disregarded. ] Where opinions are equal, and none entitled to preference, we leave it to the discretion of the judge which he shall adopt." This constitution has always been regarded as a signal proof of the lamentable condition into which jurisprudence had sunk in the beginning of the 5th century. Constantine, a hundred years earlier, had condemned the notes of Ulpian and Paul upon Papin- ian. There were no longer any living jurists to lay down the law (jura conderc) ; and, if it was to be gathered from the writings of those who were dead, it was well that the use of them should be regulated. The Valentinianiau law proceeded so far in the same direction. It made a selection of the jurisconsults of the past whose works alone were to be allowed to be cited, Papinian, Paul, Ulpian, and Modestine, the four latest patented counsel of any distinction ; Gaius, of authority previously only in the schools, but whose writings were now approved universally, notwithstand- ing that he had never possessed the jus respondendi ; and all the earlier jurists to whom those five had accorded their imprimator. But it went yet a step further, for it declared all of them, with the sole exception of Papinian, to be of the same authority, and de- graded the function of the judge in most cases, so far at least as a question of law was concerned, to the purely arithmetical task of counting up the names which the industry of the advocates on either side had succeeded in adducing in support of their respective contentions. It is probable that, from the days of Hadrian down to Alexander Severus, when the emperor in his council had to frame a rescript or a decree, its tenor would be decided by the vote of the majority; but that was after argument and counter- argument,. which must in many cases have modified first impressions. Taking the votes of dead men, who had not heard each other's reasons for their opinions, was a very different process. It may have been necessary ; but it can have been so only because a living juris- prudence had no existence, because the constructive talent of the earlier empire had entirely disappeared. II. COLLECTIONS OF STATUTE AND JURISPRUDENCE. The Gregorian and Hermogenian Codes. The first of these Codes Grego- was a collection of imperial rescripts (with a few edicts, &c.) made rian and by one Gregorianus in the very end of the 3d century, and probably Hermo- at the instigation of Diocletian, though whether in the East or the genian West critics are unable to decide. The collection of Hermogenianus, Codes. also of rescripts, seems to have been a supplement to the earlier one. As the latest enactment in it belongs to the year 365, the prob- ability is that the collection was published about that time. Both Codes, although the work of private parties, received statutory re- cognition from Theodosius and Valentiniau in their commission for the preparation of a collection of edictal law ; and from the language of Justinian in reference to them there is reason to believe that in the courts they were regarded as authoritative, even to the ignoring of all rescripts not embodied in them. The Theodosian Code and Post- Theodosian Novels. Three years Theodo- after the publication of the "law of citations" Theodosius nomi- sian Code. nated a commission to initiate the preparation of a body of law which, if his scheme had been carried into execution, would have rendered that of Justinian unnecessary. In a constitution some ten years later he explains the motives that had actuated him, that he saw with much concern the poverty-stricken condition of jurisprudence and how very few men there were who, notwithstanding the prizes that awaited them, were able to make themselves familiar with the whole range of law ; and that he attributed it very much to the multitude of books and the large mass of statutes through which it was dispersed, and which it was next to impossible for any ordinary mortal to master. His scheme was eventually to compile one single code from materials derived alike from the writings of the jurists, the Gregorian and Hermogenian collections of rescripts, and the edictal laws from the time of Constantine downwards. His lan- guage leaves no doubt that it was his intention to have this general code very carefully prepared, so as to make it a complete exponent of the law in force, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collection of edicts which he directed his commissioners to prepare, and which was to contain all that had not been displaced by later legislation, even though some of them might be obsolete by disuse, was to be