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BOOK to collect and arrange the whole Jus Honorarium, I. which consisted of the edicts of the Prætors and Edictum Ediles, called afterwards the Edictum perpetuum Perpetuum Salvii Juliani. The term perpetuum means the

Salvii

Juliani.

Institutes

A.D. 169.

continuous unbroken series of edicts which had been preserved from the earliest times1.

Gaius, a distinguished lawyer, flourished during of Gaius, the reign of the Antonines. He compiled the Institutes of the Roman Law in four books. Haubold assigns the year 169 A.D. to this work. Though it was known to have existed, it was considered as lost, and was only brought to light in the year 1816 by Professor Niebuhr, who discovered it in the library of the chapter at Verona. The Institutes of Gaius preceding those of Justinian by more than 350 years, and being composed in the most palmy days of the Roman law, enable us to compare the two periods, and to understand much that was before obscure.

Codices

et Hermo

More than three hundred years had elapsed Gregoriani between the establishment of the Empire by geniani, Augustus and the reign of Constantine the Great: A.D. 306. during that time the Constitutiones Imperatorum had swelled to a vast bulk; and in his reign these were arranged and codified by Gregorianus. Another code was also published about the same time by Hermogenianus. Nothing can be stated with certainty respecting these codes. Bach3 considers they were compiled for the private use of the parties whose names they bear, and afterwards received the Imperial sanction. They are said to have contained the constitutions of all the heathen emperors from Augustus to Constantine the Great.

Codex Theodosianus.

In the year A.D. 438 the Emperor Theodosius the younger employed eight of the most distinguished Jurisperiti to compile a code, revising those of Gregorianus and Hermogenianus, and adding the constitutions of the Christian emperors down

1 See post, ch. 2.

2 Vol. II. 63.

3 Bach, 284.

to his own time. This work consisted of sixteen CHAP. books, eleven of which only now remain entire'.

I.

The Novells of Theodosius were such constitu- Novells of tions as he issued after his Code was completed, Theodoand were probably afterwards incorporated with the Code of Justinian.

nian.

Justinian became emperor, succeeding his ma- Accession ternal uncle Justinus I. in the year A.D. 527. He of Justi resolved upon a revision of the whole Roman law, a confused mass, presenting a wide field of doubt and uncertainty. Tribonianus, a distinguished lawyer, was selected by the Emperor to conduct this arduous and important work?. In the month of April, A.D. 528, having nine other jurists asso- Codex Jusciated with him, he commenced the revision of the tinianus. codes of the imperial constitutions, viz. those of Gregorianus, Hermogenianus and Theodosius. The object was to reject every thing that had become obsolete or contradictory, and to consolidate without altering the law. They performed their work with extraordinary, and, apparently, unnecessary haste, for in April, 529, they produced a code in twelve books which was confirmed by Justinian. It was found afterwards to abound with inaccuracies, and was cancelled.

In December, 530, seventeen lawyers, of whom Tribonianus was the chief, commenced the compilation of the Digest or Pandects from the Digest. works of those jurists whose writings were considered authoritative law. It is said that this work was condensed from 2000 different treatises. Ten years were allowed for the performance, but it was finished in December, A.D. 5333. It is comprised in fifty books, which are divided into titles, laws, and paragraphs. Each law has the name of the author prefixed from whose work it was extracted.

Previous to the publication of the Digest the Institutes. Institutes or Elementa juris were compiled by

1 Warnk. Com. Vol. I. 32.

2 Gibbon, c. 44. 3 Gibbon, c. 44.

1

BOOK Tribonianus assisted by Theophilus and Dorotheus. I. This work is an abridgement of the whole Roman law, and was intended for academical instruction. The compilers took the Institutes of Gaius1 as a model, following his arrangement, and in many instances copying his very words. It was published together with the Digest. It is divided into four books, which are again subdivided into titles and paragraphs.

Codex repe

lectionis.

The commissioners then again turned their attite pra- tention to the Code which, inaccurate from the haste in which it had at first been compiled, had become more so from the number of constitutions issued by Justinian during the three years occupied in the compilation of the Digest. It therefore underwent an entire revision, and was republished 15 November, A.D. 534, under the title of the Codex repetitæ prælectionis. Between this period and his death, which took place in the year 565, Justinian issued 168 new constitutionsNovella constitutiones or Novells. These changed or modified the law on many points as settled in the revised Code.

Novells.

Justinian died in the year 565. His laws were compiled for the Eastern Empire, where the language of the people was Greek, consequently they would soon have become useless had they not been translated into the vernacular tongue. This appears to have been done during Justinian's lifetime, and with his authority. Theophilus published a Greek paraphrase of the Institutes as early as the year A.D. 534*.

We may assume that the Eastern Empire continued to be governed by Justinian's laws for 300 years after his death. In the year A.D. 886 Basilius Macedo became emperor, and he soon after ordered the compilation of a work from the Institutes, Digest, and Code of Justinian, introducing such additions and changes as had arisen from the

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I.

Novells of subsequent emperors. This volume was CHAP. divided into six parts, and sixty books, and was called the Basilica'; and by this the Byzantine Basilica. empire continued to be governed till its destruction by the Turks in the year 1453.

We may therefore sum up the Jus Civile Romanum from the foundation of the city to the fall of the Byzantine Empire as follows:

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BOOK
I.

Canon

law.

THE CANON LAW.

THE origin of the Canon law may be referred to the earliest period of Christianity. The early Christians were an isolated body, and as a Church was formed a system of social government based upon Christian principles was constituted, which was necessarily confined within the Church, for out of it there could be no executive, its rules and regulations not being recognised by the temporal power. It therefore became necessary that complaints arising from the infraction of ecclesiastical discipline and doctrine should be decided and arranged within the bosom of the Church itself. Thus a system of ecclesiastical polity was early developed in the Church. These ecclesiastical laws and regulations were framed and administered by the presbyter or bishop by virtue of his office and influence. Thus by degrees arose what is now called the Canon law. The separate unities of Church and State were established; each began to subsist apart from the other with an independent system of government. The Emperor Justinian admits the separate existence of the two powers in the commencement of the sixth Novell, addressed to Epiphanius, archbishop of Constantinople, where he recognises the Sacerdotium et Imperium: illud quidem divinis ministrans, hoc autem humanis præsidens.

At first the jurisdiction of the ecclesiastical authorities was limited to matters of religion; afterwards the spiritual tribunals gradually enlarged their pretensions, and assumed the cognizance of all causes touching an ecclesiastical matter, or person. Thus the Canon law gradually encroached upon the province of the civil magistrate, and ultimately assumed the most arrogant pretensions.

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