1. It is as a legislator and codifier of the law that Justinian’s name is most familiar to the modern world; and it is therefore this department of his action that requires to be most fully dealt with here. He found the law of the Roman empire in a state of great confusion. It consisted of two masses, which were usually distinguished as old law (fus vetus) and new law (jus novum). The first of these comprised—(1) all such of the statutes (leges) passed under the republic and early empire as had not become obsolete; (2) the decrees of the senate (senatus consulta) passed at the end of the republic and during the first two centuries of the empire; (3) the writings of the jurists of the later republic and of the empire, and more particularly of those jurists to whom the right of declaring the law with authority (jus respondendi) had been committed by the emperors. As these jurists had in their commentaries upon the leges, senatus consulta, and edicts of the magistrates practically incorporated all· that was of importance in those documents, the books of the jurists may substantially be taken as including (1) and (2). These writings were of course very numerous, and formed a vast mass of literature. Many of them had become exceedingly scarce,—many having of course been altogether lost. Some were of doubtful authenticity. They were so costly that no person of moderate means could hope to possess any large number; even the public libraries had nothing approaching to a complete collection. Moreover, as they proceeded from a large number of independent authors, who wrote expressing their own opinions, they contained many discrepancies and contradictions, the dicta of one writer being controverted by another, while yet both writers might enjoy the same formal authority. A remedy had been attempted to be applied to this evil by a law of the emperors Theodosius II. and Valentinian HL, which gave special weight to the writings of five eminent jurists (Papinian, Paulus, Ulpian, Modestinus, Gaius); but it was very far from removing it. As regards the jus vetus, therefore, the judges and practitioners of Justinian’s time had two terrible difficulties to contend with,—first, the bulk of the law, which made it impossible for any one to be sure that he possessed any thing like the whole of the authorities bearing on the point in question, so that he was always liable to find his opponent quoting against him some authority for which he could not be prepared; and, secondly, the uncertainty of the law, there being a great many important points on which differing opinions of equal legal validity might be cited, so that the practising counsel could not advise, nor the judge decide, with any confidence that he was right, or that a superior court would uphold his view.

The new law (jus novum), which consisted of the ordinances of the emperors promulgated during the middle and later empire (edicta, rescripta, mandata, decreta, usually called by the general name of constitutiones), was in a condition not much better. These ordinances or constitutions were extremely numerous. No complete collection of them existed, for although two collections (Codex Gregorianus and Codex Hermogenianus) had been made by two jurists in the 4th century, and a large supplementary collection published by the emperor Theodosius II. in 438 (Codex Theodosianus), these collections did not include all the constitutions, there were others which it was necessary to obtain separately, but many whereof it must have been impossible for a private person to procure. In this branch too of the law there existed some, though a less formidable, uncertainty; for there were constitutions which practically, if not formally, repealed or superseded others without expressly mentioning them, so that a man who relied on the words of one constitution might find that it had been varied or abrogated by another he had never heard of or on whose sense he had not put such a construction. It was therefore clearly necessary with regard to both the older and the newer law to take some steps to collect into one or more bodies or masses so much of the law as was to be regarded as binding, reducing it within a reasonable compass, and purging away the contradictions or inconsistencies which it contained. The evil had been long felt, and reforms apparently often proposed, but nothing (except by the compilation of the Codex Theodosianus) had been done till Justinian’s time. Immediately after his accession, in 528, he appointed a commission to deal with the imperial constitutions (jus novum), this being the easier part of the problem. The commissioners, ten in number, were directed to go through all the constitutions of which copies existed, to select such as were of practical value, to cut these down by retrenching all unnecessary matter, and gather them, arranged in order of date, into one volume, getting rid of any contradictions by omitting one or other of the conflicting passages. These statute law commissioners, as one may call them, set to work forthwith, and completed their task in fourteen months, distributing the constitutions which they placed in the new collection into ten books, in general conformity with the order of the Perpetual Edict as settled by Salvius Julianus and enacted by Hadrian. By this means the bulk of the statute law was immensely reduced, its obscurities and internal discrepancies in great measure removed, its provisions adapted, by the abrogation of what was obsolete, to the circumstances of Justinian’s own time. This Codex Constitutionum was formally promulgated and enacted as one great consolidating statute in 529, all imperial ordinances not included in it being repealed at one stroke.

The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the older law contained in the treatises of the jurists. Before entering on this, however, he wisely took the preliminary step of settling the more important of the legal questions as to which the older jurists had been divided in opinion, and which had therefore remained sources of difficulty, a difficulty aggravated by the general decline, during the last two centuries, of the level of forensic and judicial learning. This was accomplished by a series of constitutions known as the “Fifty Decisions” (Quinqιιa-gintα Decisiones), along with which there were published other ordinances amending the law in a variety of points, in which old and now inconvenient rules had been suffered to subsist. Then in December 530 a new commission was appointed, consisting of sixteen eminent lawyers, of whom the president,the famous Tribonian (who had already served on the previous commission), was an exalted official (quaestor), four were professors of law, and the remaining eleven practising advocates. The instructions given to them by the emperor were as follows :—they were to procure and peruse all the writings of all the authorized jurists

(those who had enjoyed the jus respondendi) ; were to extract from these writings whatever was of most permanent and substantial value, with power to change the expressions of the author wherever conciseness or clearness would be thereby promoted, or wherever such a change was needed in order to adapt his language to the condition of the law as it stood in Justinian’s time; were to avoid repetitions and contradictions by giving only one statement of the law upon each point; were to insert nothing at variance with any provision contained in the Codex Constitutionum ; and were to distribute the results of their labours into fifty books, subdividing each book into titles, and following generally the order of the Perpetual Edict.

These directions were carried out with a speed which is surprising when we remember not only that the work was interrupted by the terrible insurrection which broke out in Constantinople in January 532, and which led to the temporary retirement from office of Tribonian, but also that the mass of literature which had to be read through consisted of no less than two thousand treatises, comprising three millions of sentences. The commissioners, who had for greater despatch divided themselves into several committees, presented their selection of extracts to the emperor in 533, and he published it as an imperial statute on December 16th of that year, with two prefatory constitutions (those known as Omnem reipublicae and Dedit nobis). It is the volume which we now call the Digest (Digesta) or Pandects (∏αvδ∈κται), and which is by far the most precious monument of the legal genius of the Romans, and indeed, whether one regards the intrinsic merits of its substance or the prodigious influence it has exerted and still exerts, the most remarkable law-book that the world has seen. The extracts comprised in it are 9123 in number, taken from thirty-nine authors, and are of greatly varying length, mostly only a few lines long. About one-third (in quantity) come from Ulpian, a very copious writer; Paulus stands next. To each extract there is prefixed the name of the author, and of the treatise whence it is taken. The worst thing about the Digest is its highly unscientific arrangement. The order of the Perpetual Edict, which appears to have been taken as a sort of model for the general scheme of books and titles, was doubtless convenient to the Roman lawyers from their familiarity with it, but was in itself rather accidental and historical than logical. The disposition of the extracts inside each title was still less rational; it has been shown by a modern jurist to have been the result of the way in which the committees of the commissioners worked through the books they had to peruse. In enacting the Digest as a law book, Justinian repealed all the other law contained in the treatises of the jurists (that jus vetus which has been already mentioned), and directed that those treatises should never be cited in future even by way of illustration; and he of course at the same time abrogated all the older statutes, from the Twelve Tables downwards, which had formed a part of the jus νetus. This was a necessary incident of his scheme of reform. But he went too far, and indeed attempted what was impossible, when he forbade all commentaries upon the Digest. He was obliged to allow a Greek translation to be made of it, but directed this translation to be exactly literal.

These two great enterprises had substantially despatched Justinian’s work; however, he, or rather Tribonian, who seems to have acted both as his adviser and as his chief executive officer in all legal affairs, conceived that a third book was needed, viz., an elementary manual for beginners which should present an outline of the law in a clear and simple form. The little work of Gaius, most of which we now possess under the title of Commentarii Institutionum, had served this purpose for nearly four centuries; but much of it had, owing to changes in the law, become inapplicable, so that a new manual seemed to be required. Justinian accordingly directed Tribonian, with two coadjutors, Theophilus, professor of law in the university of Constantinople, and Dorotheus, professor in the great law school at Beyrout, to prepare an elementary text-book on the lines of Gaius. This they did while the Digest was in progress, and produced the useful little treatise which has ever since been the book with which students commonly begin their studies of Roman law, the Institutes of Justinian. It was published as a statute with full legal validity shortly before the Digest. Such merits as it possesses—simplicity of arrangement, clearness and conciseness of expression—belong rather to Gaius, who has been closely followed wherever the alterations in the law had not made him obsolete, than to Tribonian. However, the spirit of that great legal classic seems to have in a measure dwelt with and inspired the inferior men who were recasting his work; the Institutes is better both in Latinity and in substance than we should have expected from the condition of Latin letters at that epoch, better than the other laws which emanate from Justinian.

In the four years and a half which elapsed between the publication of the Codex and that of the Digest, many important changes had been made in the law, notably by the publication of the “Fifty Decisions,” which settled many questions that had exercised the legal mind and given occasion to intricate statutory provisions. It was therefore natural that the idea should present itself of revising the Codex, so as to introduce these changes into it, for by so doing, not only would it be simplified, but the one volume would again be made to contain the whole statute law, whereas now it was necessary to read along with it the ordinances issued since its publication. Accordingly another commission was appointed, consisting of Tribonian with four other coadjutors, full power being given them not only to incorporate the new constitutions with the Codex and make in it the requisite changes, but also to revise the Codex generally, cutting down or filling in wherever they thought it necessary to do so. This work was completed in a few months; and in November 534, the revised Codex (Codex repetitae praelectionis') was promulgated with the force of law, prefaced by a constitution (Cordi nobis) which sets forth its history, and declares it to be alone authoritative, the former Codex being abrogated. It is this revised Codex which has come down to the modern world, all copies of the earlier edition having disappeared.

The constitutions contained in it number 4652, the earliest dating from Hadrian, the latest being of course Justinian’s own, A few thus belong to the period to which the greater part of the Digest belongs, i.e., the so-called classical period of Roman law down to the time of Alexander Severus (244); but the great majority are later, and·belong to one or other of the four great eras of imperial legislation, the eras of Diocletian, of Constantine, of Theodosius II., and of Justinian himself. Although this Codex is said to have the same general order as that of the Digest, viz., the order of the Perpetual Edict, there are considerable differences of arrangement between the two. It is divided into twelve books. Its contents, although of course of the utmost practical importance to the lawyers of that time, and of much value still, historical as well as legal, are far less interesting and scientifically admirable than the extracts preserved in the Digest. The difference is even greater than that between the English Reports of Cases decided since the days of Lord Holt and the English Acts of Parliament for the same two centuries.

The emperor’s scheme was now complete. All the Roman law had been gathered into two volumes of not immoderate size, and a satisfactory manual for beginners added. But, as the appetite comes with eating, Justinian and Tribonian had grown so fond of legislating that they found it hard to leave off. Moreover, the very simplifications that had been so far effected brought into view with more clearness such anomalies or pieces of injustice as still continued to deform the law. Thus no sooner had the work been rounded off than fresh excrescences began to be created by the publication of new laws. Between 534 and 565 Justinian issued a great number of ordinances, dealing with all sorts of subjects, and seriously altering the law on many points,—the majority appearing before the death of Tribonian, which happened in 545. These ordinances are called, by way of distinction, new coastitutions, Novellae constitutiones post Codicem {reαρo.l διaτdξeιs), Novels. Although the emperor had stated in publishing the Codex that all further statutes (if any) would be officially collected, this promise does not seem tp have been redeemed. The three collections of the Novels which we possess are apparently private collections, nor do we even know how many such constitutions were promulgated. One of the three contains 168 (together with 13 Edicts), but some of these are by the emperors Justin II. and Tiberius II. Another, the so-called Epitome of Julian, contains 125 Novels in Latin; and the third, the Liber Aτdhenticarum or Vulgata Versio, has 134, also in Latin. This last was the collection first known and chiefly used in the West during the Middle Ages; and of its 134 only 97 have been written on by the glossatoτcs or mediaeval commentators; these therefore alone have been received as binding in those countries which recognize and obey the Roman law,—according to the maxim Quicquid non agnoscit glossa, nec agnoscit curia. And, whereas Justinian’s constitutions contained in the Codex were all issued in Latin, the rest of the book being in that tongue, these Novels were nearly all published in Greek, Latin translations being of course made for the use of the western provinces. They are very bulky, and with the exception of a few, particularly the 116th and 118th, which introduce the most sweeping and laudable reforms into the law of intestate succession, are much more interesting as supplying materials for the history of the time, social, economical, and ecclesiastical, than in respect of any purely legal merits. They may be found printed, in any edition of the Corpus Juris Civilis.

This Corpus Juris, which bears and immortalizes Justinian’s name, consists of the four books described above :—(1) the authorized collection of imperial ordinances {Codex Constitutionum) ; (2) the authorized collection of extracts from the great jurists {Digesta or Pandectae) ; (3) the elementary handbook {Institutiones) ; (4) the unauthorized collection of constitutions subsequent to the Codex {Novellae).

From what has been already stated, the reader will perceive that Justinian did not, according to a strict use of terms, codify the Roman law. By a codification, we understand the reduction of the whole pre-existing body of law to a new form, the restating it in a series of propositions, scientifically ordered, which may or may not contain some new substance, but are at any rate new in form. If he had, so to speak, thrown into one furnace all the law contained in the treatises of the jurists and in the imperial ordinances, fused them down, the gold of the one and the silver of the other, and run them out into new moulds, this· would have been codification. What he did do was something quite different. It was not codification but consolidation, not remoulding but abridging. He made extracts from the existing law, preserving the old words, and merely cutting out repetitions, removing contradictions, retrenching superfluities, so as immensely to reduce the bulk of the whole. And he made not one set of such extracts but two, one for the jurist law, the other for the statute law. He gave to posterity not one code but two digests or collections of extracts, which are new only to this extent that they are arranged in a new order, having been previously altogether unconnected with one another, and that here and there their words have been modified in order to bring one extract into harmony with some other. Except for this, the matter is old in expression as well as in substance.

Thus regarded, and even omitting to remark that the Novels, never having been officially collected, much less incorporated with the Codex, mar the symmetry of the structure, Justinian’s work may appear...