254 



CIVIL LAW. 



crees are called tenatus constilta}. In the beginning, 

 the provinces of the two were so separated, that each 

 one passed decrees only upon its own affairs and re- 

 lations; but very soon it became necessary to ac- 

 knowledge mutually a common authority (lex Horten- 

 sia, A. U. C. 468). However, as long as Rome re- 

 mained a republic, the interferer.ee of the senate in 

 the enactment of laws was comparatively rare. After 

 the great internal convulsions had broken out, the 

 conquerors endeavoured to establish their authority 

 more firmly, and to gain the favour of the people, by 

 making important reforms in the laws, particularly 

 1 1 m-,. which concerned the punishment of crimes and 

 political offences, the regulation of legal processes, 

 and some abuses in the public administration. This 

 was done by Sylla (leges Cornelia, A. U. C. 673), by 

 Caesar (A. U. C. 708 710), but much more by Au- 

 gustus, in whom, from the year of Home 723, the 

 power of all the branches of government, and the di- 

 rection of the senate and of the meetings of , citizens 

 were united (leges Juliae). To the laws, strictly so 

 called, previously customary (the leges, approved by 

 the citizens), and the decrees of the senate, now were 

 added the special ordinances (constitutiones) of the 

 emperors, besides which the pretors in Rome and in 

 the provinces still retained the right of contributing, 

 by their edicts, to the development of the legal sys- 

 tem. As soon, however, as the monarchical govern- 

 ment became settled, the forms of the republic gra- 

 iually disappeared. In the reign of Tiberius (A. U . C . 

 767 790, A. D. 14 37), no leges are to be found 

 after the year 777, and, 200 years later, the senatus 

 contulta, also,merged entirely in the imperial decrees, 

 constitutions, and rescripts. The annual edicts of the 

 pretors, till then customary, were collected under 

 Adrian (A. U. C. 884, A. D. 131), by the juriscon- 

 sult Salvius Juliauus, into a form which was made 

 unchangeable, called the edictum perpetuum. It is 

 worthy of remark, that though, after Augustus, the 

 most absolute despotism had become established in 

 all public relations, and the penal laws had been 

 made mere instruments of despotism, this very time 

 is the most brilliant period of the scientific develop- 

 ment of the civil law. This period begins with 

 Augustus, but the brightest part of it falls under the 

 Antonines (from twenty-three B. C. until 180 A. D.) 

 and one or two succeeding emperors. The great 

 names of Caius, Papinian, Ulpian, Paulus, belong to 

 this last period. When the political privileges ofthe 

 citizen had no guarantee but the good disposition of 

 the emperors, which often proved a very imperfect 

 security, the laws which regulated the relative rights 

 of individuals, and protected themfrom mutual wrong, 

 were continually approaching perfection. This sub- 

 ject deserves a more thorough investigation than it 

 has yet received. All legal relations were expressed 

 with admirable skill and consistency in distinct de- 

 finitions, and the whole system was developed from a 

 few principles, which run through the whole, and the 

 distinctness and simplicity of which are proved by 

 the adoption of the Roman law among so many dif- 

 ferent nations. The process of development was in 

 so far historical, as it was always connected with an 

 adherence to the old forms, but it was entirely philo- 

 sophical and rational, as it always strove to find out 

 Uie real principles of rights and obligations, and to 

 make the formal law dependent upon them. After 

 the age of the Antonines (from 180 A. D.), such a 

 political confusion took place, that the scientific spirit 

 was lost. The judicial system was now continued 

 only by the imperial constitutions, which treated but 

 rarely of private law, while they entered much and 

 often into the subject of public relations. The 

 opinions of the ancient jurisconsults of the better pe- 

 riod were regarded almost as legal authorities, and, 



to remedy the difficulties arising from their different 

 views, it wns provided by Valentinian III. (426 A. D.), 

 that the majority of opinions should decide. The 

 number of the constitutions became such, that collec- 

 tions of them were made, first by private persons 

 (codex Gregorianus et Hermogenianus , about 3(>5 

 A. D.), then an official one by Theodosius II. (codex 

 Theodosianus,438 A. D.), in sixteen books, of which 

 the eleven last have been preserved entire ; of the 

 five first, however, only fragments are extant. The 

 latter have been recently discovered at Turin by 

 Peyron, and at Milan by Clossius. (See Hermes (a 

 German periodical), xxv. 314.) There was also an 

 abridgment of this code, made in 606, for the use of 

 the Visigoths (the breviarium j4laricianumi). Far the 

 greater part of these decrees relates to the public 

 law. (Jac. Godefroi wrote an excellent commentary 

 on this code, wliich, together with the commentary, 

 was published by Ritter, Leipsic, 1736.) Injurious 

 consequences necessarily resulted from the cessation 

 in the development of the Roman law after the time 

 of the Antonines. It may be seen, from the expres- 

 sions of Justinian, into wliat subtilties, wliat verbal 

 and formal niceties, the lawyers liad fallen in his time 

 a state of things, in some respects not unlike the 

 present state of law in England, from similar reasons. 

 The public administration, at least as far as regarded 

 its external form, had been reduced into tolerable 

 order since the time of Diocletian and Constantine. 

 Theodosius II. (408 450) had conceived the idea of 

 arranging the immense mass of rules and authorities 

 relating to the private law, but the difficulties, on ex- 

 amination, were considered too great, and no sove- 

 reign till Justinian (527 565) had the courage to 

 meet them. He first ordered the imperial constitu- 

 tions, wliich still remained in force, to be put into a 

 new collection (codex Justinianus, commenced in 

 527), and decided, in and after the year 530, fifty legal 

 questions, which had been, till then, left doubtful. 

 At the same time, a systematic abridgment of the 

 writings of the jurisconsults was made by seventeen 

 commissioners, embracing fifty books of digests or 

 pandects, and an introduction to the study of juris- 

 prudence was prepared (institntiones) : both works 

 were published December 30, 533, and invested with 

 legal authority. In the following year, a new col- 

 lection of imperial decrees (codex repetita pralectionis) 

 in twelve books, was published, and from that time 

 another series of single decrees (thirteen edicts and 159 

 novellae constitutiones), by wliich the Roman law may 

 be considered as completed, because it was deprived of 

 its capacity of further development, and left to man- 

 kind as a rich but lifeless treasure. The opinions 

 respecting this work of Justinian are very various. If 

 we consider merely the practical utility of his la- 

 bours, as regards his age and people, it will not be 

 denied, that he conferred a great benefit on his sub- 

 jects, and the changes themselves, wliich were made 

 in the existing regulations, proceeded mostly from a 

 sound view of the higher objects of the law. The 

 abolition of antiquated and useless forms, the simpli- 

 fication of legal relations and legal processes, must 

 be acknowledged to have been the principal objects 

 of the changes made ; and these changes were ex- 

 ecuted with judgment. If there are decrees of little 

 value among them, these imperfections are not 

 greater than we find in all ancient and modern codes. 

 Justinian has been particularly blamed by modern 

 jurisconsults for combining into one mass, into a kind 

 of code, all the existing works on law, which were 

 acknowledged as authorities. These critics would 

 prefer to liave the writings themselves rather than 

 the extracts, perhaps, in some cases, perverted from 

 their original meaning. But it is very possible, that 

 if it had not been for the compilation of Justinian, no 



