three years, Tribonian calculating that he had reduced nearly 2000 rolls containing more than 3,000,000 lines into a Codex of about 150,000 lines. Justinian called this book Digesta or Pandectae and directed that it should take effect as law from 3 December 533. Its somewhat irrational distribution into seven parts and fifty books was probably due to a superstitious regard to the mysterious efficacy of certain numbers. The really important division is into titles, of which there are 432.

From reverence to the old lawyers, he directed that the name of the writer and work from which an extract was taken should be placed at the commencement of it, and he had a list of the works used placed before the Digest. This list requires some correction. There were used between 200 and 300 treatises of about 40 authors, some of the treatises being very voluminous, so that over 1600 rolls were put under contribution. Over 95 per cent. of the Digest was from books written between the reigns of Trajan and Alexander Severus. Two works by Ulpian supply about one-third of the Digest: sixteen works by eight authors form nearly two-thirds: twice this number of books supply four-fifths. From some treatises only a single extract was taken. Tribonian's large library supplied many books not known even to the learned. Many were read through without anything suitable for extraction being found.

The plan which Tribonian devised appears to have been to divide the commission into three parts and give each committee an appropriate share of the books to be examined. Ulpian's and Paul's Commentaries and other comprehensive works were taken as the fullest exposition of current law and made the foundation. They were compared with one another and with other treatises of the same subject-matter; antiquated law and expressions were cut out or altered, contradictions removed, and the appropriate passages extracted and arranged under the titles to which they severally belonged. The titles were, as Justinian directed, mainly such as appeared in the Praetor's Edict or in his own code. The extracts made by the committee which had furnished the most matter for the title were put first, and the others followed, with little or no attempt to form an orderly exposition of the subject. What connexion of thought between the extracts is found comes mainly from the treatise taken as the foundation. There is no attempt at fusing the matter of text-books and giving a scientific result, nor even of making a thorough and skilful mosaic of the pieces extracted. The work under each title is simply the result of taking strings of extracts from the selected treatises, arranging them partly in one line and partly in parallel lines, and then as it were squeezing them together so as to leave only what is practical, with no more repetition than is requisite for clearness. This process done by each committee would be to some extent repeated when the contributions of the three committees came to be combined. For special reasons

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occasionally this or that extract might be moved to some other place, sometimes to form an apt commencement for the title, in one case (Book xx, title 1) by way of honour to Papinian.

L

Justinian's work was thus not a codification, as we understand the word, but a consolidation of the law, both of the jus and the leges, as it may be called, of the Common and the Statute Law. It was consolidation combined with amendment. The removal of obsolete law and of consequent reference led necessarily to innumerable corrections both of substance and of wording. Whatever criticism this mode of solving the problem may justly receive, it had two great merits. It gave the Roman world within a short time a practical statement of the law in use, cleared of what was obsolete and disputable, full in detail, terse in expression, familiar in language, and of unquestionable and exclusive authority. And it has preserved for the civilised world in all ages a large amount of the jurisprudence of the best trained Roman lawyers of the best age, which but for Tribonian would in all probability have been wholly lost.

But Tribonian was not satisfied with this achievement. In preparing the Digest it was found desirable formally to repeal parts of the old law, and for this purpose fifty constitutions were issued. On this and other accounts Justinian directed him with the aid of Dorotheus, a professor at Berytus, and of three eminent lawyers in the Courts at Constantinople to take the Code in hand, to insert the new matter, to omit what were repetitions, and thoroughly to revise the whole. This second or revised Code is what we have. It took effect from 29 December 534. The earliest constitution in it is one of Hadrian's and there are few before Severus, the jurists' writings having embodied earlier ones so far as they were of general and permanent application. Many rescripts of Diocletian are given, but none of subsequent Emperors. Many constitutions are much abridged or altered from the form in which they appear in the Theodosian Code, which itself contained often only an abridgment of the originals.

A manual for students (the Institutes) founded largely on Gaius'✔ Institutes (which have come down to us in a palimpsest luckily discovered at Verona by Niebuhr in 1816) was also sanctioned by Justinian, and took effect as law from the same day as the Digest. An authoritative course of study was ordained at the same time, and law schools were sanctioned, but only in Constantinople, Rome, and Berytus, those existing in Alexandria, Caesarea, and elsewhere being suppressed, under the penalty for any teacher of a fine of 10 lbs. gold and banishment from the town.

Justinian did not end here his legislative activity, but issued from time to time, as cases brought before him or other circumstances suggested, new constitutions for the amendment of the law or regulation of the imperial or local administration. Of these 174 are still extant, about half relating to administration and half to private law and

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Justinian's Novellae.

Slaves

procedure. About forty deal with the law of the family and of succession to property on death. Some are careful consolidations of the law on one subject, some are of miscellaneous content. These constitutions with a few issued by his near successors are called Novellae, and as being the latest legislation supersede or amend some parts of the Digest, Code, and Institutes, which with them form the Corpus Juris1 as received by European nations. Almost all are written in Greek, whereas very little Greek occurs in the Digest (chiefly in extracts from the third-century lawyer, Modestinus) and not much relatively in the Code. An old Latin Version of many of the Novels, probably prepared in Justinian's lifetime, is often quoted by old lawyers under the name of Authenticum. It is a significant fact that only eighteen of the Novels, and those almost wholly administrative, are dated after the year of Tribonian's death (546), though Justinian survived him nearly twenty years. One may be sure that it was Tribonian who suggested and organised this great reform of the law, though no doubt it owed much also to the good sense and persistence of the Emperor.

It would not be practicable to give anything like an adequate summary of Justinian's law books within the limits which can be assigned to it in a general history. His own Institutes contain an authoritative and readable account, which however on some matters, especially marriage and inheritance, requires correction from the Novels. But summary information may be given here on such topics as the position of slaves, freedmen, and serfs; of the power of the head of a family; of marriage, divorce, and succession to property; of some leading principles of contract, of criminal law, and of procedure.

In Rome the household comprised SLAVES as well as freemen, and slaves gave occasion to a great deal of legal subtlety. Theoretically they were only live chattels, without property or legal rights, absolutely at the disposal of their owner, who had full power of life and death over them. But at all periods, more or less largely, theory was modified in practice, partly by natural feeling towards members of the same household, partly by public opinion. Antoninus Pius, either from policy or philosophic pity, so far interfered between master and slave as to make it a criminal offence for a master to kill his own slave without cause, and he required one who treated his slave with intolerable cruelty to sell him on fair terms. Constantine (319) went still further and directed any master who intentionally killed his slave with a club or stone or weapon or threw him to wild beasts or poisoned or burnt him to death to be charged with homicide. But discipline was not to suffer, and therefore

1 On a rough estimate the Corpus Juris would fill about four such volumes (of 800 pages) as this History: and of the four the Digest would fill more than half. It is the Digest that comes nearest to the popular notion of Justinian's Code.

by another law (326) chaining or beating in the ordinary way of correction for offences, even if the slave died of it, was not to justify any inquiry into the master's intentions or to found any charge against him. Justinian in his Code reproduced only the former constitution, and retained in the Digest the duty imposed on the city praefect and provincial governors of hearing the complaints of slaves who had fled from cruelty, starvation, or indecency, to the refuge of the Emperor's statues. To give such protection, said Antoninus (152), was required by the interests of masters, whose full command over their slaves should be maintained by moderate rule, sufficient supplies, and lawful tasks. On the other hand any offences of slaves which came under the animadversion of the State were visited with severer punishments than those of a freeman.

The economical position of slaves requires some notice also. In theory they were simply instruments of their master; what they acquired passed at once to him; they were not capable of having property of their own, he was responsible for them as he was for any other domestic animal that he kept. But in practice slaves were usually allowed to accumulate property out of their savings or from gifts, and the law by a fiction allowed them to use it in purchasing their own freedom. Such quasi-property was called their peculium (“petty stock"): it existed only so long as their master chose; he could withdraw it, but rarely did so, except for grave offences. But so long as it existed and his master gave him a free hand, a slave could trade with it and enter into all kinds of business transactions ostensibly for himself, but in the eye of the law for the master's account. He could not however give away anything, and he had no locus standi in court: he could sue and be sued only in the name of his master. If he was freed by his master when living, the peculium was deemed to accompany him, unless expressly withdrawn. But if he was freed by will or alienated, it did not pass with him unless expressly granted.

The law of persons was greatly simplified by Justinian's legislation. There were now only two classes of persons, slaves and freemen, though freemen were not all treated alike by the law. Besides some discrimination in favour of persons of high rank, freedmen and serfs were in a very inferior position.

FREEDMEN were manumitted slaves and retained traces of their former servile condition. In earlier times, besides the regular forms of manumission by a ceremony before the praetor or by last will, some legal effect used to be given to informal expressions of the master's will. The slave so informally emancipated became free in fact during his life, but his property on his death did not pass as a freeman's by will or to his relatives, but remained like a slave's peculium to his former master or master's representatives. Such half-freemen were called Latins as not being complete citizens. Justinian (531) allowed the informal acts

which had this imperfect effect to confer in future full freedom, so that a letter to the slave subscribed by five persons as witnesses, or a declaration similarly witnessed or recorded in court, or the delivery to the slave before five witnesses of his master's documents of title, or the slave's attendance on the bier of the deceased master by his or the heir's direction, or the giving a female slave in marriage to a freeman with a dowry settled in writing, or addressing a slave in court as his son, were acts sufficient without further formality to make the slave a freedman or freedwoman. So also, by an edict of Claudius, ejection of a sick slave from the master's house without making provision for him, or prostitution of a female slave in breach of a condition of her purchase, forfeited the master's rights, and full freedom now ensued; and other cases of freedom by operation of law are mentioned. Further Justinian repealed the laws which required a master to be twenty years old before he could emancipate slaves by will, and restricted the number. Constantine confirmed (316) a custom of giving freedom in church before the priests and congregation, a record of the matter being signed by the former; and he allowed clerics to confer freedom on their slaves by any form of words without witnesses, the freedom to take effect on publication of the document at the master's death.

A freedman did not, however, by the act of manumission lose all trace of his former condition. He remained under limited control of his former master or owner, now patron, and patron's children. A patron could claim respect (obsequium), services, and the succession to some or all of his property at death if he left no children as heirs. From services he could be exempted by a special grant by the Emperor of the right of wearing gold rings, and by a like grant (restitutio natalium, “restoration of birth") from the patron's claim to his estate. Such grants were rarely made without the patron's consent. Justinian dispensed with the formality of special grants and made the removal of the patron's claim to services and inheritance follow of itself on a manumission. But unless the master then, or by way of trust in his will, made a declaration to that effect, this automatic grant did not exempt a freedman from the duty of due respect to his patron. He was punishable for using abusive language to him: he could not sue him or his children except by consent of the proper authority and any suit which he brought had to shew formal respect by the complaints being couched in a mere statement of the facts without casting any imputation. Constantine allowed freedmen guilty of ingratitude or insolent conduct, even though not of a grave character, to be remitted into their patron's power. A patron in need could claim support (alimenta) from his freedman. Claims to the status of freeborn, when disputed, were reserved for the decision of the city praefect or governor: claims to the status of freedman were reserved likewise for the same high officials, or if the treasury was a party, then for the chief officer of that department.