Modestine, rescripts from the Gregorian and Hermogenian Codes,
and one later general enactment. Its date is probably soon after
the year 390, but its authorship is unknown.[1]
Fragmenta Vaticana.[2]—These fragments, discovered by Cardinal Angelo Mai in a palimpsest in the Vatican in 1821, seem to have Vatican fragments. formed part of a book of practice, compiled in the Western Empire and of considerable dimensions. The extant fragments of the Titles into which it was divided deal with sale, usufruct, dowries, donations, tutories and processional agency, and have been extracted from the writings of Papinian, Paul the Ulpian, an unknown work on interdicts, and the imperial constitutions prior to Theodosius, the latest of which is of the year 372. Its antiquity is therefore probably about the same as that of the Collatio.[3]
The Consultatio.[4]—The so-called Veteris cujusdam Jurisconsulti Consultatio was first published in 1577 by Cujas, from whom it got Consultatio. its name. It is a collection of answers by an advocate, supported by citations of texts (consultationes) upon questions of law submitted for his opinion by a solicitor, and is of value for the extracts it contains from Paul's Sentences and the three above-mentioned codes. It is thought to have been written in Gaul in the end of the 5th or beginning of the 6th century.
Syro-Roman Law-Book.[5]—This was a sort of manual of Roman law drawn up in the East, apparently in the Greek language, at an Syro-Roman Law-Book. uncertain date, but some time between Theodosius and Justinian. Translations of it into Syriac, Arabic and Armenian have come down to us, and it would seem that the work in these translations was greatly made use of in legal practice in the East (especially in the ecclesiastical Courts) for several centuries, having in some places more authority attached to it than had the Digest and Code of Justinian. As a repertory of Roman law it is of little value, as it misunderstands or varies from that law in many respects, but it is of importance as showing how firmly Hellenic law and customs maintained themselves in the East during the decay of the Empire.[6]
Light has also been thrown upon the ante-Justinian law by the numerous papyri documents, mostly in Greek, that have been in recent years recovered in Egypt (especially by Grenfell and Hunt) and elsewhere.[7] Mitteis, Gradenwitz and others have done much to elucidate these, by numerous publications. But to give anything like a consecutive account of them would occupy much space and cannot be attempted here.[8]
Romano-Barbarian Codes (Leges Romanae).[9]—Besides the collections of statutes and juristic law mentioned in this section, there Romano-Barbarian Codes. were several official collections made prior to Justinian in Western Europe, after it had fallen under the dominion of Gothic and other kings. There are three of these which require special notice—each of them compiled from documentary sources of ante-Justinian law. Though of considerable use in explicating difficulties and filling up acunae in the earlier law sources, they must be used with caution for that purpose, as they contain not a few corruptions of the original texts. They are:—
1. Edictum Theoderici.[10]—This was compiled at the instance of Theoderic, king of the Ostrogoths, not long after the year 500 (not Edict of Theoderic. later than 515). Theoderic after he had conquered Italy desired to be representative of the emperor and always acknowledged his suzerainty. He did not aim at being an independent legislator, and his Edict is therefore of limited scope and in no proper sense a code. Its materials were mainly drawn, without however indication given, from the writings of Paul, the Gregorian, Hermogenian and Theodosian Codes, and the post-Theodosian Novels. Divided into 155 chapters, with no systematic arrangement, it touches upon all branches of the law, public and private, but especially criminal law and procedure. Though it contains a certain infusion of Gothic law and was professedly intended to apply to all Theoderic's subjects, both Goths and Romans, it seems nevertheless generally admitted that this idea cannot have been fully realized, and that in some matters with which it deals, e.g. the law of the family, Gothic customs must still have continued to prevail for Gothic subjects.
2. The Lex Romana Wisigothorum or Breviarium Alarici or Alaricianum[11] (both of these titles are modern) was a much more West Gothic Code. ambitious and important collection than the one last mentioned. It was compiled by a commission of lawyers appointed by Alaric II., king of the Western Goths, with approval of the bishops and nobles, and published at Aire in Gascony in the year 506. The compilers selected their material partly from the leges (imperial constitutions after Diocletian) and partly from the vetus jus (juristic law), taking what the considered appropriate, without materially altering the text of their authorities except in the way of excision of passages that were obsolete or superseded. For the leges they utilized some 400 of the 3400 enactments (according to Haenel's estimate) of the Theodosian Code and about 30 of the Post-Theodosian Novels; for the jus they made use of Paul's Sentences, Gaius's Institutes (in a corrupt and greatly abridged form in two books dating probably from, and adapted to the law of, the 5th century), the first book of Papinian's Responses (a single responsum), and the Gregorian and Hermogenian Collections (which were treated as jus). All of these, except Gaius (for the reason mentioned), were accompanied by interpretationes (i.e. for the most part explanatory adaptations of the passages to the existing practice) which were largely borrowed from books in current use for purposes of instruction, and which resemble the interpretation of the XII. Tables in that they are often not so much explanatory of the text as qualificative or corrective. The Breviary exercised great influence in western Europe; and there is no question that, until the rise of the Bologna school in the end of the 11th century, it was from it more than from the books of Justinian that western Europe, other than Italy, acquired its scanty knowledge of Roman law.
3. The Lex Romana Burgundionum[12]—to which erroneously, about the 9th century, owing to a mistake of a MS. transcriber, The Burgundian Code. the name Papianus (a contraction of Papinianus) was given. It is a collection which King Gundobad, when publishing his code of native law (Lex Gundobada) for his native subjects, had promised should be prepared for the use of his Roman subjects. It was published probably before his death in 516. It deals with private law, criminal law and procedure, distributed through forty-seven titles, and is arranged much in the same order as the Gundobada, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary; its juristic sources are Paul's Sentences and a work of Gaius of which we cannot say with certainty that it is his Institutes. It also contains some interpretationes of the same character as those in the Breviary, but whether taken directly from the latter or not is disputed. After the conquest of the Burgundian kingdom by the Franks this code ceased to have any direct authority, but was used in the courts as a sort of supplement to the Breviary, being often bound in the same volume with the latter.
iii. Justinian's Legislation.
Justinian's Collections and his own Legislation.—The history of Justinian outside his legislative achievements, and his Justinian's codification. collections in detail, are dealt with in the article Justinian I. Ambitious to carry out a reform more complete even than that which Theodosius had planned but failed to execute, he took the first step towards it little more than six months after the death of his uncle Justin, in the appointment of a commission to prepare a collection Of statute law (leges), among which he included the rescripts of the Gregorian and Hermogenian Codes, which were commonly at this period described as jus. It was published in April 529; and in rapid succession there followed his Fifty Decisions
- ↑ For opinions as to its author, see Girard, l.c. p. 543. He must have been an ecclesiastic.
- ↑ Collectio Jur. Antej. iii. pp. 1 seq. (ed. Mommsen); Karlowa, Röm. R. G. i. pp. 969 seq.; Krüger, Quellen, pp. 298-302.
- ↑ Mommsen, however (Collectio, iii. p. 11), thinks it was compiled about the time of Constantine.
- ↑ Collect. Jur. Antej. iii. pp. 203-20; Girard, Textes, pp. 590 seq. See Krüger, Quellen, pp. 305-7.
- ↑ Ed. by Bruns and Sachau under the name Syrisch-Römisches Rechtsbuch aus dem fünften Jahrhundert (Leipzig, 1880). See Esmein, Mélanges, pp. 403 seq.; Ferrini, Z. d. Sav. Stift. (1902), xxiii. pp. 101 seq.; Krüger, Quellen, pp. 320 seq.
- ↑ The first volume of a complete collection of the versions of the Syrian Law-Book, with a translation into German by Sachau, was published at Berlin in 1907.
- ↑ E.g. the Amherst Papyri, by Grenfell and Hunt. See Archiv für Papyrusforschung (since 1900).
- ↑ For an account of the papyri found at Sinai, containing parts of a commentary on Ulpian, ad Sabinum, supposed to have been written after A.D. 438, see Muirhead, Hist. Introd. p. 374, and Girard, Textes, p. 578. For other papyri, see Girard, op. cit. pp. 838-44.
- ↑ See Krüger, Gesch. d. Quellen, § 41; Brunner, Deutsche Rechtsgesch. (1887), i. §§ 49, 50.
- ↑ Ed. Bluhme in Pertz's Monumenta Germaniae, Leges, v. pp. 145 seq. (Hanover, 1875); see Savigny, Gesch. d. r. R. ii. pp. 172 seq.; Gaudenzi in Z. d. Sav. Stift. (Germ. Abtheil.), 1886, vii. pp. 29 seq.
- ↑ Ed. Haenel (Leipzig, 1849); Conrat (Cohn), Brev. Alaricianum (1903). This work of Cohn is a systematic arrangement of the Breviary, with the Latin text as given by Haenel, and a translation into German of the interpretatio (or, where there is none, of the text itself), and some explanatory notes. See Karlowa, Röm. R. G. i. pp. 976 seq.; Krüger, Quellen, § 40.
- ↑ Ed. Bluhme in Pertz's Momumenta German. Hist. Leges, iii. pp. 505 seq. (Hanover, 1863); de Salis Monum. Germ. Leg. sec. l. and ii. p. 1 (Hanover, 1892). See, Karlowa, Röm. R. G. i. pp. 983-985.
