Roman Law

The Edict of Caracalla.—During the first two centuries of the Christian era Roman citizenship had been conferred upon great numbers of provincials. Early in the third century Caracalla declared all free inhabitants of the empire to be Roman citizens. This edict swept away the last remaining differences between civil and provincial law. Technically speaking, the empire was henceforth governed by the law of the city; but as the civil law had been completely remodeled in accordance with the principles of the jus gentium, the substantial triumph rested with the latter system.

The Later Empire and the Codification of Emperor Justinian. — The list of the great jurists is abruptly closed about the middle of the third century. After Paul but one name of note occurs, that of Modestine. The development of the law was henceforth carried on by imperial decrees or "constitutions." The breach with the old order, however, was less complete than it appears to be. Most of the constitutions issued during the last half of the third century were "rescripts." These were responses rendered in the name of the emperor to petitions requesting imperial decision of concrete cases. Such applications had been made throughout the early empire. In some cases the emperor decided these cases in council ; more frequently he assigned their decision to the ordinary judges, with instructions, however, touching the principles which should be applied. In substance, therefore, these rescripts were decisions rather than statutes. The rescripts issued in the reigns of Gordian and of Diocletian are similar in form, and not inferior in the quality of their legal reasoning, to the average responses of Ulpian and Paul. Jurisprudence had not yet sensibly waned, as it did in the fourth and following centuries, but the jurists had disappeared behind the throne, and spoke only with the voice of the emperor.

Technically, however, the rescripts, as well as the general decrees of the later emperors, were imperial laws " (leges), and were distinguished from the older law (jus) very much as we distinguish statutes from common law. The first attempts at codification were confined to the imperial constitutions. A private collection of rescripts was made at the end of the third century (codex Gregorianus), and a supplement was issued late in the fourth century (codex Hermogenianus). In the year 429 the East Roman emperor Theodosius appointed a committee of codification. It was clearly his intention to have the entire law, both the jus and the leges, brought into manageable compass ; but nothing came of his initiative except an official revision of the imperial constitutions (codex Theodosianus). This code was transmitted to the Emperor Valentinian III., and was published in both the Eastern and the Western empire in the years 438 and 439.

The Emperor Justinian (527-565) and his minister Tribonian took up the wider plan of Theodosius. A new collection of imperial constitutions was published in the year 529. A committee was then appointed to digest the juristic literature, omitting all that was antiquated and avoiding contradictions. The result of their labors was the Digest or Pandects, which consisted of more than 9,000 excerpts from the writings of thirty-nine jurists, arranged under 429 titles and grouped into fifty books. Each excerpt or fragment is preceded by the name of the writer and the title of his work. As a rule, the excerpts were literally reproduced, without condensation or other change. During the progress of this work an official text-book was drafted, intended primarily for use in the imperial law schools. It was based on the Institutes of Gaius, and bore the same title. The Institutes and the Digest were published Nov. 21 and Dec.16, 533. In the meantime the codex of 529 had become antiquated. A number of controversies had been discovered in the juristic literature, and no less than fifty new constitutions had been issued for their decision. A Codex " of the second reading " (repetitae proelectionis) was therefore published Dec. 29, 534. It contains more than 4,600 constitutions (nacre than half of them " rescripts "), arranged in twelve books. The Institutes, Digest, and Codex were declared to be henceforth the sole sources of the law, and to forestall further controversy it was made a penal offense to write commentaries upon these books. During the remaining years of his reign Emperor Justinian issued many new constitutions. Of these Novels (novellae leges) only private compilations were made.

The value of Emperor Justinian's work lies mainly in the fact that the Roman law was not codified in the modern sense of the word ; i. e. no attempt was made to set forth the entire law as a body of positive rules. In the excerpts from the tic literature which make up the Digest and in the resc contained in the Codex we have a great body of rules s only by implication, and therefore capable of reformula This gives the Roman law that elasticity which is inh in all case law. This made it possible to apply the u lying principles of the Roman law to the new and duff social conditions of the Middle Ages, and this make law-books of Justinian of value today to the study legal science. 4. ROMAN LAW IN MEDIAEVAL AND MODERN EUROPE the East.—The collections made by Emperor Justinian continued to be employed in the East Roman or Byzantine empire until the close of the ninth century, when they were displaced by a less bulky compilation, known as the Basilica (Se. ma), royal laws. This book remained nominally in until the fall of Constantinople (1453), but it was super in practice by a series of private digests and compend each briefer than its predecessor. One of these, the Hexab compiled in the fourteenth century, was extensively among the Christian subjects of the Ottoman empire was in force in the kingdom of Greece as late as the die of the nineteenth century. It is said that the R: law in its later Byzantine form exercised a considerab fluence upon the development of the Turkish law.

In the Teutonic Kingdoms.—Half a century before tinian ascended the throne at Constantinople the Wes man empire had fallen. In most of the Teutonic king established in Western and Southern Europe the conq provincials were permitted to live by the Roman law so-called system of the " personal statute "), and seve the kings had handbooks of Roman law compiled for ti of their Roman subjects. The most important of thes the so-called Breviary of Alaric II., King of the Visi (A. D. 506). It included a condensation of the Institu Gaius, a portion of the Opinions of Paul, and a con: able number of constitutions from the older codices, pa early theodosian. Local Law.—As the Romanic and Teutonic elemer Western and Southern Europe were gradually fused new nations, the system of the " personal statute " was essarily abandoned, and the Roman law became the law of those districts in which the Romanic elemen preponderant. In France, for example, the southern inces, where it was regularly applied, were known a "lands of written law " (pays de droit ecrit), in distil] from the " lands of custom " (pays coutumiers), Frankish usages prevailed. Until the latter part Middle Ages, however, the economic conditions preva throughout Europe were so simple that the Roman which was required and applied was but a slight part o jurisprudence which had grown up in the second and centuries. Until the twelfth century the Breviary w most the only source of Roman law employed in WE Europe.

The Canon Law.—Of greater importance was the revival and development of Roman law in the medieval Church. It was an unquestioned maxim that the Churuch lived by the Roman law. Its entire sacerdotal pens stood outside of the tribal and local laws which governed the laity, and in many matters which are today represented as secular (marriage and the family relations, testamentary succession, etc.) it claimed and obtained a practically exclusive jurisdiction over all Christians. From the court of bishop appeals ran to Rome and by the cisions of the popes a great body of new law was gradually built up—the jus canonicum.

Study and Reception of the Law-books of Justinian .—Toward the close of the eleventh century the rulers of Lombardy began to have recourse to the Code Justinian for the solution of questions upon which local law was silent. In the twelfth century flourishing law schools existed at Bologna and other Italian university centers in which the Roman law, both civil and canon systematically taught, and to which students from Western and Central Europe (ultramontani) thronged by thousands. In the course of the same century Roman law was taught at Paris, and at Oxford. In the following centuries it became a regular branch of instruction in au universities established in the Netherlands and in Germany. Continued ....