took the business of digesting the civil law, he found it dispersed in two thousand books, and in upwards of three millions of verses, (a) detached from the writings of the sages which it was necessary to read and understand, in order to make the selections. The size of these volumes, and the exact quantity of matter in these verses, we cannot ascertain. (b). It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us, (c) that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human capacity to digest.

The compilations made under Justinian, and which 538 constitute the existing body of the civil law, consist of the following works, and which I shall mention in the Corpus Juris Civilis. order in which they were originally published.

(1.) The Code, in twelve books, is a collection of all Code. the imperial statutes that were thought worth preserving, from Hadrian to Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates was, that they should extract a series of plain and concise laws, omitting the preambles, and all other superfluous matter; and they were likewise intrusted with the great and hazardous power to extend, or limit, or alter the sense, in such a manner as they should think most likely to facilitate their future use and operation. (d) (2.) The Institutes, or Elements of the Roman Law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law, in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that

Institutes.

(a) Duo pene millia librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa. Secund. Præf. ad Dig. sec. 1. (b) Professor Hugo, in his History of the Roman Law, sec 318, reduces by computation, the Roman laws to 580 volumes, of a moderate size. He allows 24 of the three millions of verses to a page, and 400 pages to a volume. The 2,000 books, judging from the books in the Pandects, will give only 280 volumes. This reasonable estimate takes away every appearance of the marvellous from the magnitude of the Roman law.

(c) Prima Præf. ad Dig. sec. 1. (d) Pref. Prima ad Cod. sec. 2.

age, and shed great lustre on the Roman jurisprudence. (a) It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions, and received the most copious and laborious illustrations. It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law. The Institutes were compiled chiefly from the writings of Gaius; and a discovery by M. Niebuhr, so late as 1816, of a rewritten manuscript of the entire Institutions of Gaius, has given increased interest to the Institutes of Justinian. (b)

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* 539 (3.) The Digest, or Pandects, is a vast abridgment, in fifty books, of the decisions of prætors, and the writings and opinions of the ancient sages of the law. This is the work which has principally excited the study, and reflections, and commentaries of succeeding ages. It is supposed to contain the embodied wisdom of the Roman people in civil jurisprudence for near 1200 years; and the European world has ever since had recourse to it for authority and direction upon public law, and for the exposition of the principles of natural justice. The most authentic and interesting information concerning the compilation of the Pandects is to be found in the ordinances of Justinian, prefixed, by way of prefaces, to the work itself.

In the first ordinance addressed by Justinian to his quæstor Tribonian, he directs him and his associates to read and cor

(a) Justinian had forbidden all schools of law but the three mentioned in the text. (b) See an account of that discovery in N. A. Review for April, 1821. The Institutes of Gaius are the prototype of Justinian's Institutes. They were discovered by Niebuhr, the historian, in 1816, in the Cathedral Library at Verona. The manuscript was a codex rescriptus, and in 62 out of 251 pages iterum rescriptus. The origi nal text had, during the dark ages, been obliterated for other matter, which, in its turn, was supplanted by the Epistles of St. Jerome. The original work was restored to the world by the skill and perseverance of Professors Goschen, Bakker, and Hollweg, of Berlin, who, upon Niebuhr's report, went to Verona. The work appeared for the first time in 1820. It awakened renewed zeal, bordering on enthusiasm, in Germany, for the study of the civil law. It led to dissertations from every quarter; and M. Boulet, in the preface to his French translation of Gaius's Institutes, says that no work ever produced a more remarkable revolution in the study of the Roman law. Institutes de Gaius, par J. B. E. Boulet, Pref. Professor Hugo makes great use of the Institutes of Gaius, as shedding new and bright light on many branches of the civil law. See Histoire du Droit Romain, par G. Hugo, sec. 329, et passim.

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rect the books which had been written by authority upon the Roman law, and to extract from them a body of jurisprudence in which there should be no two laws contradictory or alike, and that the collection should be a substitute for all former works; that the compilation should be made in fifty books, and digested upon the plan of the perpetual edict, and contain all that is worth having in the Roman law for the preceding 1400 years, so that it might hereafter be regarded as the temple and sanctuary of justice. He directed that the selection be made from the civilians, and the laws then in force, with such discretion and sagacity as to produce in the result a perfect and immortal work. And, in the anticipation of the result he declared that no commentaries were to be made upon the digest, as it had been found that the contradictions of expositors had disturbed the whole body of the ancient law.

In about three years after the publication of this first ordinance, Justinian issued another upon the completion of the work. In the latter ordinance, addressed to the senate and people, he declared that he had reduced the jurisprudence of the empire within reasonable limits, and within the power of all persons to possess at a moderate price, and without the necessity of expending a fortune in acquiring useless volumes of law. He stated, that in the compilation of the Pandects, Tribonian and his associates had drawn from authors of such antiquity that their names were unknown to the learned of that age. If defects should be discovered, recourse must be had to the emperor; and he pointedly prohibited all persons to have any further recourse to the ancient laws, or to institute any comparisons between them and the new compilation. And to prevent the system from being disfigured and disordered by the glosses of interpreters, he declared that no citations were to be made from any other books than the Institutes, the Pandects, and the Code; and that no commentaries were to be made upon them, upon pain of being subjected to the charge of the crimen falsi, and to have the commentaries destroyed.

The Pandects are supposed to have been compiled with too much haste, and they were very defective in precision and methodical arrangement. The emperor allowed ten years, and

* 541

Tribonian and his sixteen colleagues finished the work in three years. It is said that the Pandects were composed of the writ ings of forty civilians, the principal part of whom lived under the latter Cæsars; and the doctrines only, and not the names of the more ancient sages, were preserved. (a) If the work had been executed with the care and leisure that Justinian intended, it would have been an incomparable monument of human wisdom. There are, as it is, in the compilation, a great many contradictory doctrines and opinions on the same subject, and too much of that very uncertainty which Justinian was so solicitous to avoid. But with all its errors and imperfections, the Pandects are the greatest repository of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation. Justinian has given it the venerable appellation of the temple of human justice. The excellent doctrines and the enlightened equity which pervade the work, were derived from the ancient sages, who were generally men of distinguished patriotism, and sustained the most unblemished character, and had frequently been advanced to the highest offices in the administration of the government. The names of Gaius, Scævola, Papinian, Ulpian, Paulus, and Modestinus, may be selected from a multitude of civilians, as models of exalted virtue, and of the most cultivated reason and philosophy, drawn from the precepts and examples of freer and better ages. It is owing to their writings that the civil law, for the purity and vigor of its style, almost rivals the productions of the Augustan age. (b)

(a) Professor Hugo concludes that the compilers of the Pandects had never seen the original writings of Mucius Scævola, though they are referred to as if they had really been read and consulted. Hist. du Droit Rom. sec. 320. He is further of opinion that the merit of the order which is so visible in the civil law, is to be attributed to Servius Sulpicius, the friend of Cicero. Ibid. sec. 322. In the preface to Pothier's Pandects, the number of jurisconsults whose writings were employed in the compilation of the Pandects, or whose opinions are therein referred to, amounts to ninetytwo, and sketches of their lives are given.

(b) According to Hommel, a writer cited by Professor Hugo, of the 1800 pages of which the Pandects are composed, 600 were taken from the writings of Ulpian, 300 from Paulus, 100 from Papinian, 90 from Julian, 78 from Scævola, 72 from Pomponius, 70 from Gaius, 41 from Modestinus, and so on to other civilians of less note in diminished proportions.

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Novels.

(4.) The Novels of Justinian are a collection of new imperial statutes, which constitute a part of the body of the civil law. These ordinances were passed subsequent to the date of the Code, and had been required in the course of a long reign and by the exigencies of succeeding times. They were made to supply the omissions and correct the errors of the preceding publications; and they are said, by competent judges, to show the declining taste of the age, and to want much of that brevity, dignity, perspicuity, and elegance which distinguished the juridical compositions of the ancients. Some of these novels are of great utility, and particularly the 118th novel, which is the groundwork of the English and American statutes of distribution of intestates' effects. (a) The Institutes, Code, and Pandects were afterwards translated into Greek, and the Novels were generally composed in that language, which had become the vernacular tongue of the eastern empire; and, as evidence of the universality of that tongue, Justinian declared that one of his constitutions was composed in the Greek language, for the benefit of all nations. (b)

civil law.

When the body of the civil law, as contained in the Loss of the Institutes, the Pandects, and the Code, was ratified and confirmed by Justinian, it became exclusively the law of the land; and the various texts from which the compilation was made fell speedily into oblivion; and all of them, except the Theodosian code, and fragments of the other parts, disappeared in the wreck of the empire. (c) The great *543

(a) Sir William Blackstone, Com. vol. ii. p. 516, does not seem willing to admit that the statute of distributions was taken from the civil law; but when Lord Holt and Sir Joseph Jekyll declare, (1 P. Wms. 27; Prec. in Chan. 593,) that the statute was penned by a civilian, and is to be governed and construed by the rules of the civil law, and when we compare the provisions in the English statute with the Roman novel, the conclusion seems to be very fair and very strong, that the one was borrowed essentially from the other.

(b) Inst. 3, 8, 3. The Latin language, in the time of Justinian, was the official language, but it was spoken only by a small portion of the inhabitants, and the language of the church and of literature was Greek.

(c) Pothier, in his preface to his Pandectæ Justinianeæ, has given a rapid view of the progress of the Roman jurisprudence, from the Jus Civile Papyrianum, under Tarquinius Priscus, to the time of Justinian, and an interesting sketch of the series of Roman lawyers, from the earliest notice of them, far beyond the age of Cicero, down to the compilation of the Pandects. And notwithstanding the efforts of Justin